LEGAL AND MORAL IMPLICATIONS OF GRANTING PARDON TO EX-CONVICTS AND SERVING PRISONERS
SATURDAY 16TH APRIL, 2022.
BY: CHIEF MIKE OZEKHOME, SAN, OFR, FCIArb, LL.M, Ph. D, LL.D
Crimes are vices that should not be tolerated in any society. They are offences against the state and are punishable under the law. The essence of punishing people convicted of crimes is to serve the criminal just desert, make restitution to the victims and deter other people from engaging in criminal activities.
Sometimes, the President and Governor of a state may decide to show kindness to people found guilty of crimes. This practice is, respectively, sanctioned by sections 175 and 212 of the Constitution of the Federal Republic of Nigeria, 1999, as altered. This practice is even Biblical. For example, Pontius Pilate wanted to grant pardon to Jesus Christ. When the mob protested, he released Barnabas instead of Jesus (Mark 15:6). Pardon is an unusual show of kindness to people who the State has condemned for certain ignoble acts they committed.
Pardon is a loud statement. The meaning of the statement is determined by the context of the publication. For example, in a state where there is a high record of kidnapping and cyber fraud, showing mercy to people convicted of kidnapping and cyber fraud could be construed as State connivance, or an impetus for offenders to commit more of such crimes. Nigeria, for example, is rated the 149th out of 180 most corrupt countries in the world and the second most corrupt country in West Africa,by Transparency International (TI), under its anti-Corruption Perception Index. Granting pardon to many people convicted of corrupt practices, whether still serving or having served, may be construed as a tacit approval of such corrupt practices. This becomes more worrisome under a government which made fighting corruption one of its tripodal programmes.
The 1999 Constitution in sections 175 and 212 have made provisions for the grant of pardon, respite or clemency to any person, either free or subject to lawful conditions as may be determined by the President or the Governor, respectively. It could be for an indefinite or specified period. They could substitute a lesser form of punishment or remit the whole or any part of such punishment, or substitute a less severe form of punishment. While under section 175 (2), the President shall carry out such an exercise after consultation with the Council of State, the state Governor shall carry his out “after consultation with such advisory council of the State on prerogative of mercy as may be established by the law of the State”.
The moral implication of granting pardon to people may send different messages to different people. The messages could either be seen as genuine forgiveness, connivance, condonation, conspiracy, impetus, etc.
There is this aphorism often credited to Benjamin Franklin to the effect that “to err is human, to forgive is divine and to persist is devilish.” This saying is true. It is Biblical that all have sinned and come short of the glory of God. Jesus also admonished that if ‘we’ say that ‘we’ have no sin, ‘we’ make Him (Christ) a liar and the truth is not in us. In the case of a woman caught in the act of adultery brought to Jesus Christ for just determination, Christ demonstrated forgiveness by challenging the mob to first cast a stone at the woman if they had no sin. Shortly after the mob departed, Jesus forgave the woman and commanded her not to go back to her sinful lifestyle. Christ gave this woman who was about to be stoned to death a second chance to mend her ways.
Pardon is however an exercise that should be carried out after due consideration of the implications of the exercise, and after full contrition and penance on the part of the offender. For example, during the military junta, some human rights activists were prosecuted unfairly and executed, some under retroactive laws. Such was the unforgettable grieving fate of the trio of Bartholomew Owoh (26), Lawal Akanni Ojulope (30) and Benard Ogedegbe (29), whose execution was sanctioned by Major General Muhammadu Buhari as military ruler. This, notwithstanding the intervention the heart-rending pleas by Playwrites Wole Soyinka, Chinua Achebe and J.P Clarke. Granting pardon to people should be viewed by the society as a recognition of a cause worth celebrating, not offensive and fouling the air.
This brings us to the case of Senators Joshua Dariye and Jolly Nyame, both former Governors, who had been convicted and imprisoned for stealing billions of naira from the coffers of their state treasuries and thus impoverishing the very people they were elected to govern. These individuals were the Chief Executives of their states. They had sworn oaths of office and allegiance to the Federal Republic of Nigeria and vowed that they would govern their states with utmost good faith. However, they betrayed their people by stealing from them. They breached the trust reposed in them. None of them admitted their wrongdoings until the courts found them guilty, up to the Supreme Court. As a matter of fact, Joshua Dariye was a Senator when the Supreme Court affirmed the 10 year jail term passed on him. What then is the basis for granting pardon to these individuals in a country where corruption is the bane and struts around imperiously like a peacock? I had noted severally since 2013 (after my release from a 3 week horrific ordeal in the hands of kidnappers, that we must kill corruption which had become the 37th richest and most potent state in Nigeria, before it kills us. By granting pardon to these treasury looters, Buhari is reviving, nurturing and watering corruption.
When former Bayelsa State Governor, Diepreiye Alamieyeigha (DSP) was given pardon by former president Goodluck Ebele Jonathan, I wrote and justified it. I did so for the following reasons: DSP had fully served his term of imprisonment after his conviction. He had earlier been pardoned by late president Yar’Adua who later died before consumating the pardon, until Jonathan succeeded him under the “doctrine of necessity”. As noted by former Attorney General, Mohammed Bello Adoke, at page 62 in his 270 page book, titled ” The Burden of Service”, DSP had also showed contrition, pardoned by Yar’Adua, though not gazetted before his death; and helped greatly in brokering the peace process that led to amnesty in the restive Niger Delta region This in turn led to stability in the area and reduce pipeline vandalizing, thus improving oil production which had plummeted, leading to national impoverishment. DSP had thus earned the pardon after the Council of State recommended it. The same cannot be said of these two Governors who were still serving their jail terms.
The act of granting amnesty or pardon though discretionary, this discretion must be exercised judiciously and in the best interest of the country so as not to create doubts and dampen the confidence of the citizenry in the moral fabric and in the fight against corruption.
So, when the Council of State recently authorized the pardon of 159 convicts, including Senator Joshua Dariye of Plateau State and ex-Governor Jolly Nyame of Taraba State, who were both imprisoned for stealing N1.16 billion and N1.6 billion respectively, many Nigerians showed anger because these two political leaders had been duly tried and convicted for stealing money belonging to their respective states. The courts in Nigeria were unanimous in their verdicts that they were corrupt and had corruptly enriched themselves while serving as governors of their respective states.
These men had betrayed the trust their people reposed in them by stealing money meant for the development of their respective states while serving as chief executives of their said states.
Many Nigerians thus viewed the action of Mr president in granting them pardon as recommended by the Council of States, which is a body peopled mostly by friends and political benefactors or allies of the convicts as an action taken in bad faith. This is more so that President Buhari had assumed office on the goodwill of the Nigerian people, largely fuelled by his avowed commitment to fight corruption in all its ramifications.
The purpose of criminal prosecution is to secure justice, not only for the accused, but also for the victims of crimes and the State; and to some extent get reparation and restitution for the victims, while deterring others from going same route.
Where lies the justice for the impoverished people of Plateau and Taraba States who will now watch their tormentors stroll out with red carpet treatment?
The government budgets hugely for the prosecution of such accused persons from the tax players’ sweat, and if after the rigorous period of trial and subsequent conviction the guilty is simply let off the hook in such a brazen manner, the little remaining lean hope the citizens have in the system is further diminished.
I dare say that in these two instances, both the President and the Council of State have abused the their undoubted constitutional powers and privilege.
A constitutional issue as volatile as this could have been better managed if the minders of the president had told him the embarrassment this could cause the government in the estimation the comity of nations.
This brazen abuse of power will definitely erode the confidence of our international partners in the fight against corruption. It will also dampen the morale of the agencies fighting corruption, such as EFCC, the Nigeria Police Force and the ICPC, amongst others.
This singular ill-advised act will also definitely embolden political thieves and unrepentant pilferers of our national commonwealth. It shows that once you are a friend of the President or a member of his political party, or his acolyte and supporter, you can get away with any crime. In other words, in Nigeria, corruption surely pays!
With this action, the fight against corruption appears forlorn and a mirage. What is the essence of spending scarce resources in the name of fighting corruption if at the end of the day the convict will be pardoned in this ugly manner?
Granted that the constitution gives the President and the Governors the prerogative to pardon criminals in deserving circumstances, must it be done in the vulgar way and manner the instant case was handled?
In fairness to the president, not all the 159 convicts and ex-convicts granted presidential pardon are politicians, But the most prominent of them are the two former Governors. It could therefore be argued that the essence of the last meeting of the Council of State was to grant pardon to the two political heavy weights, while making up the number with some insignificant ones.
The president by so doing has violated the provisions of the Constitution and his oaths of office and allegiance to defend the Constitution. This recent pardon, in my humble thinking, is the worst way to fight corruption. It will nurture it and elevate it to a fundamental objective and directive principle of State policy. It is so sad.