On Tuesday, 12th March, 2012, the President, Goodluck Jonathan, with the backing of the Council of State, granted pardon, under Section 175 of the Constitution-the prerogative of mercy provision- to Chief Dipreye Alamieyeisegha, Gen. Oladipupo Diya, Mr. Shettima Bulama, Gen. Musa Yar’Adua (late), and Major-General Abdulkareem Adisa (late). The Council of State is established by Section 153(1) (b) of the Constitution, to advise the President in the exercise of his powers with respect to prerogative of mercy (amongst other powers), and whenever requested to do so on the maintenance of public order within the Federation or any part thereof and on such other matters as the President may direct (Paragraph B Section 6(a) (ii) and (b) of Part I of the Third Schedule to the Constitution.
Section 175 of the Constitution on prerogative of mercy provides that: ” (1) the President may- (a) grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions; (b) grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence, (c) substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or (d) remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the State on account of such an offence; (2) The powers of the President under subsection (1) of this Section shall be exercised by him after consultation with the Council of State; and (3) The President, acting in accordance with the advice of the Council of State, may exercise his powers under subsection (1) of this Section in relation to persons concerned with offences against the army, naval or air force law or convicted or sentenced by a court martial.”
When the provision of Section 175 of the Constitution is construed, it is clear that the authority that exercises the power of pardon in relation to offences created by an Act of the National Assembly is the President, and not the Council of State, as has been suggested by the Presidency, whilst attempting to justify these pardons. The Council of State merely advises the President.
It is instructive that President Olusegun Obasanjo, and three former military heads of state, Muhammadu Buhari, Ibrahim Babangida, and Abdulsalami Abubakar were not at the Council of State meeting, where the President “consulted” on the issue of the pardon. We see this as a political disapproval of, or, at least, a disagreement with the pardon, regardless of the provision of Section 159 (1 & 2) of the Constitution which says that the quorum of the council of state meeting shall be not less than one-third of the total number of members of that body at that meeting, and that a member of the body shall be entitled to one vote.
As a matter of law and administrative procedure, the pardon granted the above listed persons, living and late, must be documented in a subsidiary instrument, properly executed by the President, gazetted and published in an Official Public Notice of the Federal Government. When this is done, and the critical section of the Nigerian public scrutinizes the subsidiary instrument, the validity and the constitutionality of this presidential pardon may be contested, on the ground of irregularity. While a creative legal mind may yet conceive of the range of legal challenges that may be mounted against this act of pardon, we can imagine that if the eventual subsidiary instrument contains the name of Gen. Shehu Musa Yar’Adua, who had once been pardoned by the Federal Military Government, it can plausibly be argued that the instrument is irregular, false and not made by a “sound executive mind”, in the same manner a will or testamentary document that is riddled with errors may be contested on the ground that the testamentary capacity of the testator was in doubt or that he lacked a sound disposing mind, while making the will.. This will result in the invalidation of the will. A government, which is continuity, must know whether it had granted pardon in the past. Unfortunately, the Nigerian Government does not know this. It also does not know whether it had granted National Honours to certain Nigerians, such that, very often, it grants lesser national honours to persons on whom it had earlier conferred national honours.
As it has been partially revealed by PREMIUM TIMES, when Gen. Sani Abacha died in 1998, and Gen. Abdusalami Abubakar came to power, he executed two statutory instruments on the same date: September 30, 1998. By the first, (S.I No.5- Treason and Other Offences (Special Military Tribunal) Confirmation of Sentences Order, 1998), the death sentences imposed on Gen. Oladipo Diya and five others for “plotting a coup de’tat” were commuted to 25 years imprisonment; the long terms of imprisonment imposed on others were also slashed. By the second instrument (S.I No. 6- Grant of Pardon), Gen Olusegun Obasanjo and Major-General Shehu Musa Yar’Adua (Red.) Post Humous were selectively granted pardon under Section 161 of the 1979 Constitution, as amended by the Constitution (Suspension & Modification) Decree 1993. Thus, the Major-General Shehu Musa Yar’Adua (Rtd) that President Jonathan purported to grant a presidential pardon in 2013, had earlier been pardoned in 1998.
Before leaving power, however, and after the conduct of the February 27th 1999 elections, which returned Obasanjo to power, Gen. Abdusalami Abubakar decided further to release, from prisons, Gen Oladipupo Diya and other ” coup plotters”, of the “1997 Cop Plot Set”, whose sentences he had earlier commuted and reduced. He granted them ” clemency” under an Order contained in Subsidiary Instrument No. 4 of 1999, made on March 4, 1999, pursuant to Section 161 of the 1979 Constitution, as amended by the Constitution ( Suspension & Modification) Decree 1993, and under all other powers enabling him in that behalf. According to the wording of the Order, the Head of State ordered ” the grant of clemency.. and the forfeiture of their assets to the Federal Government of Nigeria”. Noticeably, there is no mention of ” pardon” in the instrument. It was under that order of clemency that Gen. Diya, Maj. Gens. Olanrewaju, Abdulkareem Adisa, six other military officers and six civilians were granted clemency upon release from prison.
On the same 4th of March 1999, Gen Abdusalami Abubakar issued a second Statutory Instrument No. 5 of 1999 by which he ordered ” grant of pardon and immediate release of the convicts serving jail terms in prisons”. That pardon was for the 1995 “Coup Plot” Set, and those pardoned included Major Akinloye Akinyemi, Cols. Lawan Gwadabe, O. Oloruntoba, R.S.B Bello-Fadile, R.N. Emokpae, E.I Ndubueze, G.A Ajayi, Cdr I.M.O Fabiyi and Mrs. Chris Ayanwu. and others. Ten other military officers who had completed their terms under the 1995 Coup Plot Trials were also pardoned.
Apart from the duplication of the Yar’Adua pardon, three issues arise from this Order of Pardon by the President.
The first issue is whether or not the clemency granted Gen Diya and his group in 1999, as recounted above amounted to a ” pardon”, under Section161 of the 1979 Constitution, as amended, and now repealed , although the word ” clemency” was used in the “Order of Clemency”?. If the order of clemency granted Diya and his group in 1999 amounted to a pardon, albeit a conditional pardon in view of the order of forfeiture of their assets, then this latest pardon by President Jonathan would amount to another duplication of pardon. If the order of clemency did not amount to a pardon, then the President may grant Gen. Diya and his group this pardon, if the law and the Constitution are followed in the grant of such a pardon.
The second issue is whether the persons granted this pardon by the President are or are not entitled to have all their real and personal property, seized from them or forfeited by orders of Court, returned to them? Are Generals Diya, Adisa and others entitled to the recovery of their real property? And if the Federal Government does not return their property, can they or their estates, for those that are late, institute court actions to recover their property? More interesting, is Chief Dipreye Alamieyeisegha entitled to recover his seized real property, from the State, or is the State going to indemnify him, having contracted with third parties and passed onto them legal titles and interests in those property ? And is Alhaji Shettima Bulama similarly entitled to have his property restored? These questions become necessary because of the legal effects of pardon.
In the case of Falae v Obasanjo, (No. 2), 1999, 4 NWLR, Part 599, 476, the Court of Appeal, Abuja Division, acting as the Presidential Election Tribunal, following the 1999 elections, rejected the argument that Gen. Olusegun Obasanjo was not granted “full pardon” by Gen. Abdulsalami Abubakar, as aforesaid, after his conviction for involvement in the 1995 Coup Plot, and that he was, therefore, not qualified to contest the 1999 presidential election. It then held at page 495 ( per MuSSSsdapher,J.C.A, [ later CJN] who delivered the leading Judgment of the Court) as follows:
In Exhit 11, the Head of State granted Olusegun Obasanjo pardon. The word used under Section 161 (1) and Exhibit 11 is “pardon”, and in this context, pardon may be with or without any conditions. It is clear from Exhibit 11 that the pardon granted to the 1st Respondent was not made subject to any conditions. In my view, under the Nigerian law, a “pardon” and ” full pardon” have no distinction. A pardon is an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands for the offence, and restores the rights and the privileges forfeited on account of the offence. See Verneco Inc. v.Fidelity and Cas. C of New York, 253 LA 721, 219 SO 2 D, 508, 511. The effect of a pardon is to make the offender, a new man ( novus homo), to acquit him of all corporal penalties and forfeiture annexed to the offence pardoned. I am of the view, that by virtue of the pardon contained in Exhibit 11, the disqualification of the 1st Respondent was to suffer because of his conviction, has been wiped out. His full civil rights and liberties are fully restored and accordingly, he has not been caught by the provisions of Section 13(1) (h) of the Decree.
Are we, thus, waiting for the property seized from Alamieyeisegha and forfeited to the State, including moneys returned to the Bayelsa State Government, to be returned to him?
The third issue is whether this presidential pardon is not unwise, unjust, discriminatory against other ex-prisoners convicted of fraud and fraud related offences, promotive of corruption in Nigeria’s public life, and does not amount to a violation of the provisions of the Constitution, including Section 15(5) of the Constitution ( Fundamental Objectives and Directive Principles of State Policies-Political Objectives-),which provides that “the State shall abolish all corrupt practices and abuse of power”, and also a violation of the Oath of Office of the President, wherein the President swore that ” he would strive to preserve the Fundamental Objectives and Directive Principles of State Policies, that he would not allow his personal interest to influence his official conduct or official decisions, that he would to the best of his ability preserve, protect and defend the Constitution, abide by the Code of Conduct contained in the Fifth Schedule to the Constitution, and that he would do right to all manner of people, according to law, without fear or favour, affection or ill will” Frankly speaking, is this act of pardon by the President pardonable? Do we forgive the President? Is this prerogative of mercy or prerogative of corruption?