Maryam Sanda: Presidential Pardon vs Conclusive Justice

BUA Award Night

Before I go into the word for today, I cannot but congratulate Alhaji Abdulsamad Rabiu, CFR, Founder and Executive Chairman of BUA Group, on the 2025 BUA Night of Excellence which took place on Saturday, in which 510 BUA Staff were given Long Service Awards. We are used to attending these type of events, where people are given plaques as mementoes, in appreciation of their service. I have never attended one like BUA’s, where their staff were appreciated in a unique way, in a way that counts and empowers – a total of N30 billion was gifted to BUA Staff, the lowest awardee range being N100 million and the highest, N5 billion. They received their cheques, in our presence. This type of initiative should be emulated by all employers, as it promotes hardwork, commitment, dedication, honesty, accountability, and a sense of belonging. Kudos to you, Alhaji BUA. 

Background

Over the weekend, I had a heated debate with one of our Columnists, Mr Stephen Kola-Balogun (My Brief by SKB)(SKB), on the Supreme Court judgement delivered last week, in the appeal, Maryam Sanda v FRN (Sanda case). 

You will recall that sometime in October, President Bola Tinubu sought to pardon a number of convicts, including Maryam Sanda, who was convicted by the FCT High Court for murdering her husband, Bilyaminu Bello. Sanda’s conviction was affirmed by the Court of Appeal, and she lodged a further appeal to the Supreme Court. After a huge public outcry and a review by the authorities, Sanda’s pardon was reduced to a commutation of her sentence, from the death penalty to 12 years imprisonment by virtue of a proclamation in a Federal Gazette of October 23, 2025. However, the twist in the case is that, Sanda’s appeal had already been heard by the Supreme Court on October 2, 2025 and reserved for judgement, before the President commuted her sentence. In short, the judicial process was still ongoing.  

It isn’t peculiar to Nigeria alone, that in some instances, the prerogative of mercy may be misused by the conferring authority. In USA for instance, it isn’t unusual for the prerogative to be exercised after conviction but before sentencing, and that generally, the public disagrees with some of the choices of the recipients of the clemency. Examples are President Biden who pardoned his son, Hunter, just before he stepped down from office, and President Trump who, as soon as he assumed office, pardoned about 1,600 people who took part in the Capitol Hill disaster of 2020, which resulted in a few deaths.

Appeal of Death Sentence to the Supreme Court 

Section 233(2)(d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) endows the Supreme Court with jurisdiction to hear appeals from the Court of Appeal in criminal proceedings in which the Defendant has been sentenced to death by the Court of Appeal, or the death sentence is an affirmation of same, from any other court by the Court of Appeal, as in the Sanda case, which was an affirmation of the death sentence handed down by the FCT High Court. The Supreme Court was therefore, merely performing its judicial duty, when it heard the appeal and delivered judgement in Sanda’s case. It would be absurd to expect that the Apex Court wouldn’t perform its constitutional duty, because the President purported to commute Sanda’s sentence while her appeal was pending. With all due respect, it sounds bizarre that anyone would expect the Supreme Court’s decision to be guided by the President! The Nigerian system seems to be different from that of the USA, where it appears acceptable for a Presidential pardon to be able to essentially terminate court proceedings after a conviction, but before sentencing. See Monsuru Solola & Anor v State (2005) LPELR-3101(SC) per Dennis Onyejife Edozie, JSC; Anthony Isibor v The State 2002 N.W.L.R. Part 758 Page 741 at 767 per Akintola Olufemi Ejiwunmi, JSC.

The Argument 

SKB is of the view that, in reducing the Appellant’s punishment from the death sentence to 12 years imprisonment, the President simply exercised the power donated to him by Section 175 of the Constitution, and that the Supreme Court shouldn’t have disregarded the sentence reduction, upholding the judgement of the Court of Appeal affirming the judgement of the FCT High Court. This view would be adopting the American style.

It is trite law that, for a judgement to be good, it must be based on law and facts, and the law must be properly applied to arrive at the correct conclusion. Certainly, the law and facts will be contained in the record of proceedings before the Apex Court, and the commutation of Sanda’s sentence by the President isn’t/cannot be part of this bundle of records. So, why should the Supreme Court have considered it? The judgement must also, not occasion a miscarriage of justice. The Supreme Court will only depart from the judgement of the Court of Appeal, if some of the elements of a good judgement are missing from it. It is obvious that the Supreme Court didn’t find any fault in the lower courts’ decision in Sanda’s case, and therefore, upheld it. See Mbani v Bosi & Ors (2006) LPELR-1853(SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN); Ogidi & Ors v Okoli & Ors (2014) LPELR-22925 (CA) on the principle of stare decisis.

SKB is also of the opinion that Counsel should have been invited to address the Apex Court, on the issue of a pardon being granted during the pendency of the Supreme Court proceedings, and if this could/should affect the outcome of the case at the Supreme Court. I disagree with SKB on this, as I don’t deem it necessary to make any special invitation to address the Apex Court on an issue that is already settled in law. In Monsuru Solola & Anor v State (Supra) the Supreme Court held thus: “… a person convicted for murder and sentenced to death by a High Court and whose appeal is dismissed by the Court of Appeal, is deemed to have lodged a further appeal to this Court, and until that appeal is finally determined, the Head of State or the Governor of a State cannot, pursuant to Sections 175 or 212 of the 1999 Constitution, as the case may be, exercise his power of prerogative of mercy in favour of that person”. I believe that this decision makes it clear, that, unlike USA, President Tinubu should not have exercised his prerogative of mercy until the Supreme Court had delivered judgement in the Sanda case. SKB on the other hand, argued that the Constitution is supreme and binding (Section 1(1)), and it isn’t a constitutional requirement that judgement be delivered by the Supreme Court, before such prerogative is exercised. That the President’s power in Section 175 of the Constitution is absolute, and the  decision of the Supreme Court in Monsuru Solola & Anor v State (Supra), cannot override Section 175 of the Constitution. Also see Anthony Isibor v The State (Supra).

Additionally, SKB argued that since Sanda was the one who lodged the appeal, in light of the purported commutation of her sentence, which he believes the Apex Court should have taken judicial notice of, she could also have been given the option to withdraw her appeal. The response is that, by virtue of Order 13 Rule 12(1) of the Supreme Court Rules 2024, Sanda did have the option to withdraw, but before the hearing of the appeal on October 2, not after; an option which Sanda didn’t take. The truth is that, we are only debating this issue because Sanda’s death sentence was affirmed by the Supreme Court. Had she been freed, the President’s commutation of her sentence, would automatically have been ignored and become irrelevant. 

In Awolowo v Shagari & Ors (1979) LPELR-653(SC) per Atanda Fatayi-Williams, JSC (later CJN), the Supreme Court held inter alia that: “if the words of an Act admits two interpretations, and they are not clear; and if one interpretation leads to absurdity and the other does not, the Court will conclude that the Legislature did not intend to lead to an absurdity, and will adopt the other interpretation”. I submit that it would be absurd to interpret Sections 175 & 212, to mean that the makers of the Constitution meant that the prerogative of mercy could be exercised when the court process is inchoate. The President or Governor seeking to exercise the prerogative of mercy while an appeal is pending and/or before the court process is completed, is tantamount, not only to the Executive interfering in process of the Judiciary, a different arm of government, thereby breaching the principle of separation of powers (see Sections 4-6 of the Constitution), it preempts and disrupts the decision of the Judiciary, which actually has the constitutional mandate to handle the case.

I agree that it is trite that no provision in the Constitution is superior to the other, unless of course, one provision is subject to the other, in which case, the provision that the other provision is subject to, governs whatever is subject to it. See the case of AG Ogun State & Ors v AGF (2002) LPELR-621 (SC) per Sylvester Onu, JSC. SKB’s view is that the President was exercising a right conferred on him by Section 175 Constitution, which is not subject to Section 233 thereof, and that the right thing to do is to amend the Constitution to state unequivocally the decision in Monsuru Solola & Anor v State (Supra), that the prerogative of mercy mustn’t be exercised while the court process is still on/appeal is pending. SKB argued that what the Supreme Court seeks to do with an authority such as Monsuru Solola & Anor v State (Supra), is to amend the Constitution with what was contained in Section 120 of the 1963 Constitution, where it was provided that the exercise of the prerogative of mercy in Section 101 of the 1963 Constitution (pari passu with Section 175 of the 1999 Constitution) was somehow subjected to the decision of Supreme Court, because of the phrase “Without prejudice” inserted at the beginning of Section 120 of the 1963 Constitution. 

SKB believes that the said decision in Monsuru Solola & Anor v State (Supra), is a qualification which has been added to Sections 175 & 212 of the Constitution by the Supreme Court, and a constitutional amendment is required so to do. He also rests his argument on the case of Adegbenro v Akintola & Anor [1963] 3 All ER 544 in which the Privy Council reversed the decision of the Federal Supreme Court, and held that by virtue of Section 33(10) of the Western Region Constitution 1960 (WRC), the Governor had the power to remove the Premier without a no-confidence vote on the floor of the House, if it appeared that he no longer commanded the support of the majority of House of Assembly members. The Governor had removed Chief Akintola as Premier, based upon a letter signed by 66 out of 124 House of Assembly members who no longer supported him; it wasn’t done on the floor of the House. SKB argued that the rationale behind the Privy Council’s decision, was that Section 33(10) of the WRC didn’t provide that the removal must be done on the floor of the House, just as Sections 175 & 212 of the Constitution do not provide that the prerogative of mercy must be exercised only after the appeal process has been exhausted. 

My view on this is that SKB has failed to consider the later decision of the Supreme Court in Awolowo v Shagari & Ors (Supra) cited above, which cannot be brushed aside. Does this mean that every pronouncement of the Supreme Court that affects a law or constitutional provision can only take effect when the law or Constitution is amended accordingly? I think not. Jurisprudence tells us that the pronouncements of the Supreme Court, give life to constitutional provisions. 

Though Sections 175 & 212 aren’t subject to Section 233 of the Constitution, I must align myself with the aforementioned decisions in Monsuru Solola & Anor v State (Supra) and Awolowo v Shagari & Ors (Supra), because they make good sense. I cannot imagine that the makers of the Constitution would have inserted three provisions into the Constitution, namely, Sections 175, 212 & 233, that could lead to a constitutional crisis between the Executive and the Judiciary in an instance such as this. 

Conclusion 

Now that the Supreme Court has handed down its decision, albeit that it appears not to have been unanimous (I have not yet had the benefit of reading the judgement), the President should do a fresh commutation of Sanda’s sentence if he so desires, at least, for completeness. Separation of powers, observance of the rule of law, and respect for judicial process, particularly that of the Apex Court, is key in a democratic dispensation. It is obvious that the Judiciary, from the FCT High Court to the Supreme Court which involves nine Justices in total (with only one dissenting), even considering the factors that may have influenced the President to commute Sanda’s sentence, were of the view that Sanda deserved the maximum punishment for killing her husband.