Presidential Pardon: Abuse of Discretion is Impunity, By Udo Jude Ilo

Udo Jude Ilo

“Every time an elected official exercises discretion, he is sending a message on behalf of the state.”

“The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution;” …..Alexander Hamilton, The Federalist #74, March 25, 1788

In one of the most embarrassing acts of ill advised ‘self immolation’, President Jonathan on Tuesday, March 12 granted presidential pardon to Chief DSP Alamieyeseigha. The President purported to be acting within his powers under section 175 of the 1999 Constitution as amended which grants the president power to grant pardon to individuals convicted by any law made by the National Assembly. On legal grounds and going by the conventions around the world, the Presidential power of pardon is discretionary. The Constitution under section 175 did not even require him to provide a reason. However, the exercise of discretion speaks more to the moral authority of the President than his legal authority. In granting discretionary powers to elected officers, the Constitution is not only imposing a grave obligation on them but also calling on their sense of responsibility to help give meaning to the intendment of the constitution as a document designed to ensure rule of law, democracy and the moral integrity of the state. By the reckless exercise of this power by President Jonathan, he has destroyed the moral foundations of this presidency and undermined the sanctity of his office. It is not enough to follow the law to the letters. If the constitution intended a zombie-like fidelity to the constitution without the human interpretation of the spirit the Constitution, then the constitution can as well be a computer program that brooks no allowance for human ‘creativity’. Exercise of power under the Constitution answers to three gods. The god of public good, the god of the letters of the constitution and the god of morality from whence power derives legitimacy and credibility.

The defects of this pardon lies not just in its abysmal moral contradictions but also in its inadequacies on legal and conventional grounds. On conventional grounds, after examining the practices around the world democracies and dictatorships, pardons are granted to – cure the defect of judicial process; promote public good; promote repentance by acknowledging extra-ordinary act of penitence by a convict; ensure national security and promote reconciliation. These lists are not exhaustive but are rather indicative of the altruistic nature of the exercise of presidential pardon powers. Under the current presidential rascality, none of the above is captured by this act extended to Alamieyeseigha . On the legal front, it becomes more problematic. Alamieyeseigha is an international fugitive with an international arrest warrant hanging over him having jumped bail in the United Kingdom. He also has charges of money laundering against his person in the United Kingdom and the United States. These realities are peculiar circumstances and carries with it serious legal implications. How then can the President justify extending pardon to an international fugitive? How can you claim that Alams has repented if he cowardly hides in Nigeria and takes no steps to clear his name in the U.K.? Never has a presidential pardon in history anywhere in the world to the knowledge of this writer been extended to an international fugitive who is properly so called. Essentially the message Nigeria is sending is its manifest disdain and disregard for the U.K. justice system or to international conventions on law and order. Hamilton above captures the dangers of presidential pardon and the moral obligation needed in exercising this authority. President Jonathan appears blind to these moral obligations or blindsided to the dangers of executive impunity.

It is important at this point to clear certain misconceptions and share some open secrets about this abuse of power. The decision of granting pardon to Alamieyeseigha was not that of the National Council of State. The Presidency is attempting to couch this insanity with the cloak of ‘legitimacy’ that a suggestion of a collegial decision may give. Sadly it is not so. Under the section 175 of the Constitution, what the president is required to do under the law is to consult the National Council of State. He is not BOUND by their decision and neither do they have any constitutional powers to stop him. He simply informs them. So the responsibility for this action rests with President Jonathan alone. The second point is that this presidential pardon is primarily for Alamieyeseigha. The other people in the list are just a feeble attempt to legitimize the indefensible. To drive this point home, Diya and Shehu Yar’Adua were both convicted by a military tribunal that falls short of basic requirements under international convention and our constitution of what fair trial should be. It will be a historical injustice of an unquantifiable proportion to group these men in the class of Alamieyeseigha.

It is necessary also to state at this point that the crimes for which Alamieyeseigha was convicted are in a special class. Nigeria has been defaced by corruption. Since the return to civilian rule, corruption has been the bane of our development as a people. Now it defines us. From the fuel subsidy fraud to the pension fraud, from the decay of infrastructure to growing poverty, we as a people are under a strangulating hold of corruption with the danger of suffocation if it is not combated. And so for Nigeria, corruption is not just a social ill, it is an existential problem that is more dangerous than violence since violence is just a manifestation of the problems of corruption. State response to corruption has been grossly inadequate. Our international image has been battered by this virus. Given all these dynamics and existential dangers of corruption, our government cannot be granting pardon to corrupt officials. It is unconscionable to do that at this time, and in this form. This is shamefaced endorsement of corruption. It destroys the faith of the people in government, tarnishes our image at home and abroad and undermines our anti-corruption fight if at all there is any.

The Presidency embodies not just legal authority and power but also symbolic of everything that is Nigeria. It is an institution bigger than any individual and must be preserved not so much for itself but for its fundamental significance. What is being destroyed here is not just the spirit of our constitution or the integrity of our already damaged presidency but the legitimacy of the Nigeria state. It is such a steep price to pay to clean the up after an international felon. Hamilton captures the essence and substance of presidential pardon above here and rightly so. Every time an elected official exercises discretion, he is sending a message on behalf of the state. Mr. President, what message are you sending here?

Udo writes from Abuja. Twitter handle: @udoilo


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