Davidson Iriekpen wonders who between the two Senior Advocates of Nigeria – Sebastine Hon and Femi Falana – is right on the controversial powers of chief judges to release prisoners

Constitutional lawyer, Chief Sebastine Hon (SAN), recently stirred the hornet’s nest when he declared that state chief judges do not have the power to grant pardon to offenders. In a statement, Hon said the only authorities imbued with constitutional powers of pardon or amnesty are the president, after consultation with the Council of State (under section 175), or the governor of a state, acting in consultation with an advisory council of the state on prerogative of mercy, established by a law of such state. He said that while the president could pardon those accused or convicted of federal offences, the governor of a state could only pardon those accused of state offences.

“The practice of chief judges, particularly of the states, granting pardon or amnesty to offenders has been going on for quite some time now; but I make bold to say that such practice is clearly unconstitutional. Section 35(4) of the 1999 Constitution as amended has stipulated that anybody accused of an offence shall be arraigned in court within a reasonable time and that it is only that court that could make an order remanding such person in prison ordering his release from custody – either conditionally or unconditionally.

“Clearly, therefore, there is no pre-conviction authorisation for pardon or release from custody by any chief judge, acting in his administrative capacity. In respect of state chief judges, section 270(2)(a) of the constitution has merely established the office of a state chief judge with no specific functions assigned thereto. This then means such chief judges perform functions assigned to them by their respective state high court laws and high court rules.”

Explaining further, he said even if such state laws granted powers of pardon to the state chief judges, “such laws become, by the fiat of the inconsistency rule, unconstitutional, by virtue of section 1(3) of the 1999 Constitution.”

Hon stated that since such laws, being in conflict with sections 35(4), 175 and 212, respectively, of the 1999 Constitution, were null and void to the extent of their inconsistency, under and by virtue of section 1(3) of the constitution.

He said: “I wish to also observe that most states have not constituted the advisory council on prerogative of mercy, as enjoined by section 212 of the constitution, thereby leaving a lacuna which the state chief judges, out of good but unconstitutional intentions, from time to time seek to fill. I therefore, counsel state chief judges to halt their routine prison amnesties. Rather, the various state houses of assembly should enact legislation establishing the state advisory council on prerogative of mercy, to make the various state governors perform their constitutional functions in this regard. While I note that the various state chief judges have good intentions – for instance of decongestion of the prisons, the constitution of Nigeria is the supreme law; and having spoken on the issue, those relevant provisions thereof should not be breached, no matter how worthy the intentions of the chief judges might be.”

In the past seven months, some state chief judges, in attempting to decongest prisons, have freed over 700 inmates from the nation’s prisons. For instance, in Ebonyi State, Justice Alloy Nwankwo, freed 38 inmates serving in Abakaliki and Afikpo prisons during a jail delivery exercise. He hinged his action on the constitutional right conferred on the Chief Justice of the Federation (CJN) and the chief judges of states by the 1999 Constitution. He said the exercise was to decongest the prisons by releasing awaiting trial inmates who have been in custody without trial over a period of time.

In Kano State, the Acting Chief Judge, Justice Nuradeen Sagir, freed 12 inmates who had overstayed in captivity. A statement signed by the Public Relations Officer of Kano State Judiciary, Alhaji Baba Jibo, said the inmates were released when the chief judge visited Goron Dutse prison and reviewed their case files. Jibo added that action of the chief judge was pursuant to the power conferred on him by Section 1 of the Criminal Justice (Released from custody) Special Provisions Act 1977.

In Lagos State, Justice Oluwafunmilayo Atilade, has so far freed over 200 inmates from the Kirikiri Maximum, Ikoyi and Badagry prisons. While ordering the release of the inmates she said: “I pronounce you free, pursuant to the provisions of Sections 1(1) of the Criminal Justice (Release from Custody) Special Provision Act 2007 as well as Section 35 of the 1999 Constitution.”

But Hon said the only authority that has the constitutional powers to pardon or give amnesty is the president, after consultation with the Council of State (under section 175), or the governor of a state, acting in consultation with an advisory council of the state on prerogative of mercy, established by a law of such the state.

No sooner had he raised the objection than he was challenged by another senior lawyer and activist, Mr. Femi Falana (SAN), who faulted his submission, saying that the Chief Justice of Nigeria and the chief judges of states were empowered by the Criminal Justice (Release From Custody) (Special Provisions) Act to order the release of any person, if satisfied that the detention of that person was unlawful. Falana said it was curious to note that in the statement credited to Hon, no reference was made to the relevant laws on the subject matter.

“However, by virtue of section 11 of the Prisons Act (Cap P29) Laws of the Federation of Nigeria, 2004, the Chief Justice of Nigeria and the Chief Judges are among prison visitors ex officio. But while the Chief Justice is empowered to visit all prisons in Nigeria, chief judges are restricted to conduct prison visit in their areas of jurisdiction. Such visitors shall exercise such functions as may be prescribed in respect of the prisons to which their appointments or authorisations relate,” he said.

Not satisfied, Hon swiftly issued a counter-statement wherein he said: “I ordinarily would have kept quiet; but I think the good people of Nigeria need to know better. In other words, Falana’s reasons for taking that position are, with respect, not known to law. The position itself is completely wrong.”

He said it was shocking for Falana, after admitting that he (Hon) had relied on sections 35(4), 175 and 212 of the constitution, to say ‘It is curious to note that in the press statement credited to Hon no reference was made to the relevant laws on the subject matter.’ He said: “Rather, he (Falana) is the person who is running away from the constitution and taking refuge under laws that are lower to the constitution!” Hon also declared as shocking Falana’s submission that since the Prisons Act, 2004 and the Criminal Justice (Release from Custody) (Special Provisions) Act fall under Item 8 of the Exclusive Legislative List of the Constitution, they were constitutional!

He said: “This is my first time of hearing this constitutional theory! Listing of legislative items under the legislative lists is only intended to draw the line, in a federal setup like ours, between what the federal government on the one hand and the federating states on the other hand have competence to legislate on and is not a licence to enact unconstitutional legislation. The constitution cannot under section 1(3) be providing that an act or a law will be unconstitutional if it conflicts with the constitution and at the same time, under the legislative lists, be saying the opposite of this.

“And before we forget, it was the same Falana, who a couple of weeks ago stated that the provisions of the EFCC Act which required confirmation by the Senate of the appointment of the EFCC Chairman, were unconstitutional. Was the EFCC Act not made pursuant to the powers granted by the Constitution in the legislative list? For the avoidance of any doubt, section 35(4) of the 1999 Constitution has covered the field on what should be done to any person accused of an offence; and there is no room for any administrative action by the Judiciary. Only judicial actions can lead to the release of detained persons, hence any administrative action, apart from the one in sections 175 and 212 will be directly in conflict with the said section 35(4).”

Responding again, Falana said he maintained his earlier position that the Chief Justice of Nigeria and chief judges were empowered by law to conduct prison visits and order the release of any prison inmate if satisfied that the detention of that person is manifestly unlawful. He said even though he drew Hon’s attention to the relevant provisions in law, his “learned colleague” did not change his position.

“In fact, in his curious rejoinder to my intervention in the needless debate, Mr. Hon, SAN, did not pay any attention to both laws as he insisted that his shaky submission on the matter was unassailable,” he added.

Falana stressed that the prisoners had not been pardoned but merely released from illegal prison custody, noting that such prisoners could be rearrested and prosecuted by the government. He said this was different from a convict being pardoned by the President or a governor. He cited Falae v. Obasanjo (No 2) (1999) 4 NWLR (Pt 599) 476. He added that in the case of Edwin Iloegbunam & Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72, the Court of Appeal had upheld the constitutional validity of the Criminal Justice (Release from Custody) (Special Provisions) Act.

To solidify his argument, Falana went to other jurisdictions where similar powers are conferred on judge. For instance, he explained that the Supreme Court of India on September 16, 2014, directed magistrates and session judges to visit prisons in their districts for two months to identify and release under trial prisoners who had already been held in custody for half of the maximum period prescribed by law for the offences for which they were charged, excluding under trial prisoners whose offences attract death penalty. Falana said a similar development happened in Pakistan, when through the country’s chief justice’s intervention, the prison management announced a remission of 60 days to the entitled jail inmates apart from those convicted of espionage, subversion, terrorism, and murder.

The statement partly read: “Just last month, the Principal Judge of the High Courts of Uganda, Justice Yorokamu Bamwine, directed all high court judges and magistrates to release all prisoners who have overstayed on remand without trial. From the foregoing, our Chief Judges are on terra firma in exercising their powers under the Criminal Justice (Release from custody)(Special Provisions) Act in ordering the release of under trial prisoners during prison visits. Apart from the decision of the Court of Appeal in the case of Iloegbunam v Iloegbunam supra which has upheld the validity of the Act, section 8 of the Administration of Criminal Justice Act, 2015 has imposed a duty on chief judges to appoint high court judges and magistrates to visit detention centres once a month with a view to ensuring that the indigent under trial prisoners are not detained without legal justification in line with paragraph 55 of the United Nations Rules for the Treatment of Prisoners which have been adopted by Nigeria.”

Like every argument among lawyers, it will take a judicial pronouncement to lay the controversy to rest.

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Like every argument among lawyers, it will take a judicial pronouncement to lay the controversy to rest.