BY: JIMOH MUJIB AKANNI, UNIVERSITY OF IBADAN
Franklin Delanor Roosevelt once said;
‘in politics, nothing happens by accident… if it happens, you can bet it happens because it was planned’.
Roosevelt was the 32nd President of The United and would probably have made this statement due to the circumstances pervading in the political arena.
Prerogative of mercy is one of the royal prerogatives in which a convicted person is pardoned by the president or governor as the case may be on behalf of the state. It was received by Nigeria due to colonial link with Britain. But by the virtue of section 1 of 1999 CFRN that provides for a sovereign Nigeria, it follows that English ideas are not binding on our governance which makes it possible for us to do away with some of them if we don’t want them. Recapping this, Lewis JSC in Okokor v. The State warned that
‘the courts must be cautious in the application of principles of English Laws in the face of specific provisions in our local statute’.
In Prince Adigun v. A. G. Oyo state, Adolphus Karibi-Whyte also noted that
‘…it’s true and helpful to consider the practice of commonwealth jurisdiction in doubtful cases, in the end and especially where the provision is clear, it is our own constitution and practice that we must resort to…’.
If this was the case, then it would probably have been feasible for us in Nigeria to discard the prerogative clause. To many people’s surprise, this clause was incorporated in the 1999 CFRN. Going by this, one could reach the conclusion that incorporating this clause was not a mistake, but a strategy that has been painstakingly planned.
Prerogative of mercy as noted by Dahiru Musdapher JCA in Falae v. Obasanjo makes a person ‘novus homo’, as such, the person becomes a new man, making a person who is a crystal-clear kleptocrat capable of being voted for.
It is horrendous that people have forgotten section 14 of 1999 CFRN. Or it is horrific that Nigeria does not practice a true democracy, which was defined in Yates v. USA as ‘a system of government that is FREE, one that leaves wide open for favour DISCUSS, or advocate or incite causes and doctrines however obnoxious and antagonistic such views may be too the rest of us’, that could have induced people to clamour for the change of the clause.
Lord Denning in a frank assessment of the tradition of England in doing justice at all time said ‘If justice had a voice, she would speak English’, meaning that each and every clause that was incorporated into the Nigerian laws are used in England to do justice. In Cuddington v. Williams, the defendant called the plaintiff a THIEF. The plaintiff had been earlier granted pardon for the offence. The plaintiff sued for defamation and the court held in his favour saying that ‘…when the king had discharged it and pardoned him of it, he hath cleared the person of the crime and infamy’. And when I say THIEF in the United Kingdom, you know what it means. It does not mean those who embezzle public funds as they are not called THIEF in the United Kingdom. The tempo there does not even allow embezzlement. Someone who has lived very well in United Kingdom said to me that;
‘If someone embezzles public funds, four generations of such person would suffer because whenever any of them mentions the name of the person who embezzles the public funds as a member of his family, he is treated with contempt’.
Hawkins J’s contribution in Hay v. Justice of Tower division of London also shows that the plaintiff had been pardoned for committing a FELONY and not for looting public funds, contra how it is used in Nigeria. Ipso facto, it is also menacing to say that prerogative of mercy is not used constitutionally in Nigeria. Interestingly, the Supreme Court in Okongwu v. State per Ogundare, JCA (as he then was) upheld our submission by holding that ‘prerogative of mercy is usually granted where a convict has exhausted all his legal rights of appeal or has no intention of exercising such right or where he is wrongfully convicted and is afterwards pardoned upon the ground of his innocence.
This case clearly and finally augments the contention that pardon exists AFTER sentence and conviction, and NEVER before conviction. This brings the question that can the President grant amnesty to a person not yet found guilty by our Courts in view of Section 36 of the 1999 Constitution?
This is the paradox of the Presidential proclamation. Under our Constitution, every man is presumed innocent until found guilty. Thus, Section 36(5) provides that ‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty…’. Accordingly from this, all the youths and freedom fighters are presumed innocent until charged and found guilty. If this is correct, which it is, upon what basis did Mr. President proclaim to proceed and grant amnesty to people already presumed innocent by the Constitution?
Only in Nigeria could this happen. An ex-convict who went to prison for corruption would be brought back to power by a lame duck president who also proudly declares another ex-convict (Alamasiegha) his benefactor. The council of state sat to grant prerogative of mercy to Alamasiegha and was on March 12, 2013 pardoned by Goodluck Jonathan.
A man detained in London on charges of money laundering. At the time of his arrest, it was found out that he had £1m in cash in his London home. Later they found a total of £1.8m ($3.2m) in cash and bank accounts. He has been found to own real estate in London worth an alleged £10 million. He escaped in December 2005 from the United Kingdom by allegedly disguising himself as a woman! This same man has been pardoned and would still contest for Elections. Nigeria is doomed. Any wonder why Otedola-Lawan case has been swept under the carpet? Bankole roaming freely and enjoying his loot? No wonder why prerogative of mercy should not be termed so, but as prerogative of mercy-less.
SOURCE: JIMOH MUJIB’S BLOG