Power Of Pardon Under The Nigerian Constitution: Who Can Be A Beneficiary? By O. G. Chukkol


Before delving into the subject matter, it is paramount to state at the outset that prerogative of mercy is too wide. Generally it includes amnesty, condonation (a term in military and family law), pardon and even nolle proseque each with its attendant effect.
Therefore this article does not intend to discuss prerogative of mercy in general, it shall discuss pardon only being one of the species of prerogative of mercy.
What is pardon? In simple terms, a pardon is an act of grace by the appropriate authority exempting a person from punishment for the crime he has committed. Put it in another way, pardon is an official decision not to punish somebody for a crime. See Falae v. Obasanjo (No. 2) (1999) 4 NWLR (Pt. 599)476. It is generally an act of grace. Therefore it needs not be legally and or morally justified; it is purely a political contrivance. See FRN v. ALKALI & ANOR (2018) LPELR-45237(CA)
In Nigeria such power is exercisable only by the president and governors. The power to pardon is clearly spelt out in section 175(1)(a) and 212(1)(a) of the constitution of the Federal Republic of Nigeria, 1999 (as amended)
This article shall further narrow itself to attempting just two fundamental posers. viz:

Can someone who is standing trial or has not been convicted be pardoned?
Can a convict whose appeal is pending be before an appellate court be pardoned?

Let’s attempt them one after the other.
Section 175(1)(a) of the constitution which is in pari materia with section 212(1)(a) thereof with respect to the powers of governors provides thus:
“The President may –

grant any person concerned with or convicted of any offence created by an Act of National Assembly a pardon, either free or subject to lawful conditions;”

Reading the above section  carefully, the section obviously contemplates two category of persons that can be pardoned. They are:

“any person concerned with” or
“convicted of any offence.”

In my view the first limb (in bold) which says “any person concerned with” can be interpreted to include persons that have not been convicted but still undergoing trial.
There are dearth of judicial authorities on this point in Nigeria. But in the recent case of FRN v. ALKALI & ANOR (2018) LPELR-45237(CA), the court supports my view above. In that case the accused persons were pardoned by Aminu Waziri Tambuwal, the governor of Sokoto State while their trial was going on in court and upon application based on the pardon granted, the accused persons were discharged. When the federal government appealed, the Court of Appeal on the majority of 2:1 (because one dissented) affirmed the discharge of the accused persons on the ground that even a person who is standing trial can be pardoned, conviction is not a prerequisite.
The court relied on the United States Supreme Court decision in EXPARTE A. H. GARLAND (1865) U. S. SUPREME COURT REPORTS, 18 LAWYERS Edition, Wallace 3 – 6 at Page 300
However, MUHAMMED LAWAL SHUAIBU, J.C.A. in his dissenting judgement disagreed with the Leading judgment. He said though in US a person standing trial can be pardoned, but in Nigeria the position is not the same. He held:
“prerogative of mercy as a legal concept cannot in my respectful view be set in motion unless and until there is a sentence of Court on a convicted person(s) which the mercy will act as a vehicle of mitigating or waiving the punishment. Where as in the instant case, the respondents’ trial was on going, there cannot be a pardon granted to the respondents by the Governor of Sokoto State pursuant to Section 212 of the 1999 Constitution.”
But the majority judgement represents the law today in Nigeria. Until set aside by the Supreme Court, a person standing trial can be pardoned.
While there is no debate as to the fact that a person convicted can be pardoned, there are still diverse views as to whether a person whose appeal is pending can be pardoned.
In Obidike v. State (2001) 17 NWLR (743) 601, the accused/appellant was granted pardon while his case was pending before the Court of Appeal. The Court of Appeal disregarded the pardon and ordered that the appellant be re-arrested and executed. The court was of the view that the pardon was invalid since it was granted while appeal was pending.
In Isibor v. State (2002) 4 NWLR (Pt.758)741, the Court was not as harsh as it was in the Obidike’s case above. Here the accused/appellant was granted pardon while his appeal was pending before the Supreme Court. The Supreme Court was displeased with the turn of events and held that deliberate effort should be made in the future to avoid pardon while appeal is pending.
In Solola v. State (2005) 2 NWLR (Pt.937)460, one of the accused person was pardoned while the appeal was pending. Per, Edozie, J.S.C said:
“It needs to be stressed for future guidance that 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 Section 175 or Section 212 of the Constitution, as the case may be, exercise his powers of prerogative of mercy in favour of that person. In the same vein, such person cannot be executed before his appeal is disposed of. It is hoped that the prison authorities will be guided by this advise.”
However, in the recent decision of the Court of Appeal in ADEOLA v. STATE (2017) LPELR-42327(CA) it was held that “‘pardon’… wipes out the conviction and sentence and in the event of a pending appeal the pardon renders the appeal academic and liable to be struck out;”
From the totality of the authorities on this point, the position appears to be that a person who has a pending appeal cannot benefit from executive pardon.
I support the current position of the law which recognizes the pardoning of persons standing trial.
But on the pardon pending appeal, I pitch my tent (agree) with the minority view particularly the one in ADEOLA v. STATE (2017) LPELR-42327(CA) decided on the 24th day of February, 2017 which is to the effect that a person can be pardoned even when an appeal is pending and that such appeal becomes useless.  In my opinion, the clear words of section 175(1)(a) and 212(1)(a) of the constitution cannot admit the interpretation given by the majority decisions of the courts.
O. G. Chukkol is a Student, Faculty of Law, ABU, Zaria. [email protected]