Pardon: A Coat of Many Colours

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

“Justice is a three-way traffic – for the Appellant accused of a heinous crime of murder….for the victim, the murdered man…..and finally, for the society at large” – Godwin Josiah v The State 1985 1 NWLR Part 1 Page 125 per Chukwudifu Akunne Oputa, JSC

Season of Presidential Pardons

The season of Presidential Pardons has come again, as last week, President Bola Tinubu, GCFR exercised the prerogative of mercy in favour of 175 people. I remember addressing this topic when late President Muhammadu Buhari, GCFR, granted pardons to former Governors, Joshua Dariye and Jolly Nyame in 2022, barely three years into serving their prison sentences related to corruption. Dariye had been serving a 10 year sentence for money laundering related offences, while Nyame was serving a 12 year sentence for fraud/misappropriation of funds. At the time, I had observed that granting pardons to these two ex-Governors raised issues about Government’s commitment to its fight against corruption and accountability, as it appeared as if Government was showing the world that corruption is regarded as nothing more than a misdemeanour in Nigeria.

However, again, issues of accountability and qualification have been raised about the pardon of some of President Tinubu’s Pardonees, such as Maryam Sanda who was convicted and sentenced to death in 2020 for killing her husband, Bilyaminu Bello; Nweke Francis Chibueze serving a life sentence for cocaine related offences and one Kelvin Oniarah Ezigbe, who is said to be a kidnap kingpin sentenced to 20 years imprisonment in 2013 and had his sentence reduced, because he apparently showed remorse and attended Open University. I will address this further below. 

Constitution and Pardon

Sections 175 and 212 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) give the President and the Governors respectively, the power to grant pardons. A pardon is simply an official act of forgiveness or leniency, granted to a person connected with or convicted of an offence. In Falae v Obasanjo & Ors (No. 2) (1999) LPELR-6585(CA), the Court of Appeal held that Section 161 of the 1979 Constitution appeared to recognise two types of pardon, namely a free pardon and a pardon with conditions. Indeed, there are at least three types of pardon – 1) a full pardon that comes without conditions; 2) a pardon that comes with conditions; and 3) a commutation of sentence – see Sections 175(1)(a) -(d) and 212(1)(a) – (d) of the Constitution. Several factors are taken into consideration in exercising this prerogative of mercy such as, type of offence; convict’s remorsefulness, conduct in prison and rehabilitation; time served in prison; humanitarian grounds and public interest. 

In this exercise undertaken by President Tinubu, it hasn’t been revealed whether the pardon that he granted to those who, for example, had served sentences for corruption related offences, for instance, whether any properties or money they may have forfeited upon their convictions remained forfeited, or were returned to them. If they were given a full pardon, all the penalties attached to being convicted wouldn’t be applicable – see Falae v Obasanjo & Ors (No. 2) (Supra). 

So, for instance, if Pardonee, Honourable Farouk Lawan was pardoned pursuant to Section 175(1)(d) of the Constitution, Section 66(1)(d) thereof which would prevent someone such as himself from running for any elective office for a period of at least 10 years, having been convicted for an offence involving dishonesty (and also contravening the Code of Conduct) would be inapplicable to him, and he would be free to run for office immediately. While Lawan has paid his debt to society, having completed serving his prison sentence, some argue that to pay it in full, accountability demands that in the public’s interest, the 10 year ban on running for elective office must run its course, and that lifting this ban by means of a pardon shows a lack of commitment on Government’s part to reinforce the fight against corruption, and ensure that only upstanding citizens occupy elective positions.

In any event, Section 175(2) of the Constitution gives the President almost absolute powers on the grant of pardons, as he only has to consult with the Council of State on it, that is, to seek their advice which he is under no compulsion to accept (also see Section 212(2) of the Constitution). To complete the process of this Presidential exercise and make it official, it must be published in the Federal Gazette.

Be that as it may, Nigeria must begin to take the issue of accountability seriously. We also need to imbibe the concept of equality, equity and fairness as laid out in the preamble of the Constitution and provisions such as Section 42 thereof more seriously too, particularly vis-à-vis the administration of criminal justice, in order to have a just and better society that is evident to all.

One Size Doesn’t Fit All

II cannot deny that one size doesn’t always fit all, as the facts of each case may be different, and must be well considered before making a decision; but, there must be some kind of consistency in the administration of criminal justice. Many believe that, different yardsticks are used for the privileged and the less privileged. If this assertion is proven to be true, then it is not only wrong, but it is unconstitutional, as we are all equal, whether under the law or otherwise. However, it is because of the inconsistency in the Nigerian system of administration of criminal justice, that the narrative of inequality and inequity is thriving.

Sanda

Since Sanda’s Pardon, I have seen comments where her being pardoned has been criticised as being unfair to late Bilyaminu Bello whom she killed; his family, and others who may not come from privileged families like Sanda, that have voices loud enough to be heard; or those who have committed lesser offences, languishing in prison awaiting trial, and have more difficult family circumstances than Sanda does. Some even complained that Sanda was pardoned, because she’s a woman from the North. Apart from the fact that Sanda hadn’t served much time at all (less than 7 years), from the comments so far, her pardon appears to serve only her personal interest, and not that of the public who appear to oppose it.

The family of the victim, must also be taken into consideration. In USA for example, for parole hearings, the families of victims are allowed to make their own submissions as to whether the convict should be released. Pardon and Parole are two different processes, but, in either process, the feelings of the victims’ loved ones are important. One wonders if the family of late Bilyaminu Bello, support Sanda’s pardon. As for the kidnap kingpin, considering the fact that Nigeria has been facing a scourge of kidnapping, many believe that remorseful or not, he should have been made complete his 20 year sentence. See Godwin Josiah v The State (Supra). What about all the man power and resources that were wasted, from law enforcement to the judicial process?

Three Occurrences, Accountability and Repentance 

Apart from the Presidential Pardons, three occurrences last week, also brought this issue of accountability to the fore. 

1) As a result of the robbery incident involving late Somtochukwu Maduagwu, she and Barnabas Danlami, the security guard, died. The robbers who are said to be responsible for this ugly incident, were allegedly apprehended by the Police last week. By virtue of Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1984 (RFA), the punishment prescribed for anyone found guilty of armed robbery is death by hanging or firing squad (see Section 1(3) of the RFA). For terrorists and insurgents, the Terrorism (Prevention and Prohibition) Act 2022 (TPPA) prescribes various punishments ranging from the death penalty to up to life imprisonment, depending on the circumstances of the case. In short, murder/culpable homicide punishable with death, terrorism/insurgency, and kidnapping where the victim dies, are all grave offences. Also see for example, Section 2(2) & (3) of the Lagos State Kidnapping Prohibition Law 2017. 

2) Aside from the submissions of Governor Alex Otti during the Presidential visit to Abia State on freeing Nnamdi Kanu, I watched an interview of Senator Orji Kalu on Channels TV making a similar submission for the release of Nnamdi Kanu. Most Nigerians are not in support of granting amnesty/pardon to people who are guilty of heinous crimes, particularly those that involve the murder of innocent people for whatever cause, be it so-called repentant terrorists and bandits or whatever. That would be akin to saying that the killers of Somtochukwu and Mr Barnabas should be set free and go unpunished, because they are sorry for what they did. No!  We want them all punished, to the fullest extent of the law. 

3) The third occurrence, is the issue of the former Minister whose University Degree and NYSC Certificate were said to be a forgery, thereby resulting in his resignation. This issue of presenting fake academic credentials, has been a recurring decimal in Nigeria’s political space. Again, as I watched the interview of the Editor of Premium Times on Channels TV’s Politics Today, the Editor stated that the person that purportedly signed Mr Nnaji’s NYSC certificate, became the DG of NYSC a year or so after the date his alleged signature was appended on the fake document; yet, DSS accepted the document as true? See Chapter XX of the Penal Code Act 1960 (PCA) on Forgery, particularly Section 368 which upon conviction provides for up to 14 years imprisonment and a fine. It was therefore, bizarre to see someone on the same Politics Today programme, attempt to prove that the allegations of presenting forged certificates levelled against Nnaji were false, a campaign of calumny against him by the political opposition. It is because no high profile Government official who has been involved in this kind of criminal behaviour has ever been properly held accountable and made to go to prison, that the interviewee who came out to support Nnaji could do so with such gusto and aplomb,  defending the indefensible.

If Nnaji is prosecuted, let alone convicted and sentenced to any term of imprisonment, the outcry will be that it’s because he’s Igbo that he’s being persecuted, since other politicians have been able to get away with this kind of offence. I heard some people say that Nnaji has already suffered enough, because he had to resign from his Ministerial position! To date, starting from Buharigate in 1999, when Honourable Salisu Buhari resigned from the office of the Speaker of the House of Representatives having been found to have presented a forged certificate from University of Toronto, Politicians have got away with fake certificate issue, so, some are asking why it should be different for Nnaji?

What Message is Government Sending to Nigerians and the World? 

What message is Government sending, with the way many criminal issues are handled? If corruption is treated as a misdemeanour, and all decisions are perceived to based on things like political considerations, status and position in society, ethnicity and everything else except the gravity of the crimes that are committed, meting out justice and ensuring the prevention of their reoccurrence, how do we build a better society? 

What message is Government sending to the communities and people, who have been victims of the violent, brutal, and murderous crimes committed by Boko Haram, Bandits, Insurgents, Herders, IPOB, ESN etc? Simon Ekpa, in Finland, a country that is totally unrelated to Nigeria, was brought to justice ‘sharply’, found guilty and sentenced to six years imprisonment for incitement to terrorism, participation in the activities of a terrorist group and other related offences that took place in Nigeria. So, many are asking, why then would Nigeria, wherein all their dastardly terrorist activities took place, way beyond the agitation for any reasonable cause or self determination, fail and neglect to do justice? Where numerous people were killed and maimed; where people suffered great losses of revenue due to the unlawful Monday sit-at-home order that went on for years; where the Governments and the people of the South East were intimidated; where Government installations were destroyed? Do those who have suffered or died, not deserve justice? If Finland can take the step it did, it shows that this is the proper step to take, and as we say in Nigerian parlance, it would be “one kind” if Nigeria, the main actor, treats the matter with kid gloves.  

What is the difference between convicted murderers in prison, the armed robbers who killed Somtochukwu and Mr Barnabas on the one hand, and the murderers in the guise of Boko Haram insurgents, IPOB etc? Because the latter commit heinous offences, under the guise of some sort of cause or agitation? Why should some killers be treated differently from others? Why should there be different standards of justice, for different sets of people? Do the victims not matter? 

Conclusion 

While Pardons are largely granted at the discretion of the President or Governor, this discretion must be exercised properly and judiciously, not recklessly, taking all the necessary considerations and parties related thereto, not just the convict, into reckoning.  

I read a news story the other day that discussed some alleged reconciliation talks with one Bello Turji, a notorious Bandit group leader in the North, citing Islam which preaches reconciliation, as the basis of the negotiation. This is why some of us are of the firm view that, Section 10 of the Constitution must be upheld; religion and State are separate, and must remain so. Islam certainly doesn’t support stealing, banditry, murder, rape and other violent crimes, let alone using it to escape from criminal liability. All those advocating for the release or pardon of such violent criminals, may want to have a rethink. 

Amnesty may work when there are identifiable, reasonable causes which can be addressed, as in the case of President Yar’Adua’s 2009 Amnesty Programme in the Niger Delta, in which thousands of Niger Delta militants were granted amnesty by his administration leading to their disarmament, reintegration into society and a significant reduction in their activities to almost nothing, But, when the cause is unreasonable like that of Boko Haram, laced with unfounded religious extremist views that Western education is prohibited, or IPOB, a cause which may have started as an agitation for self-determination, but both are now steeped in outright criminality and terrorism, should the thought of pardon or amnesty arise? What qualifies them, as deserving? Whose interest would be served?

What message is Government sending….issues of accountability and qualification have been raised about the pardon of some of President Tinubu’s Pardonees, such as Maryam Sanda….Nweke Francis Chibueze…and one Kelvin Oniarah Ezigbe,….when the cause is unreasonable like that of Boko Haram, laced with unfounded religious extremist views….or IPOB, a cause which may have started as an agitation for self-determination, but both are now steeped in outright criminality and terrorism, should the thought of pardon or amnesty arise? What qualifies them, as deserving? Whose interest would be served?