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Re: Presidential amnesty, youths of the Niger Delta and the 1999 constitution

By Akpo Mudiaga-Odje

President Umaru Yar’Adua, has unveiled the much awaited amnesty proposals to youths of the Niger Delta and demanded for a change of strategy in our quest to liberate the region from the ceaseless onslaughts and devastating consequences of oil exploration and exploitation going on in the area for almost six decades now.

This appraisal examines the constitutionality or otherwise of Mr. President’s blanket amnesty vis-à-vis the provisions of the 1999 Constitution as well as in the light of the Federal Government’s second-point agenda, to wit: upholding the Rule of Law.

“ Right of Mr. President to grant pardon. As expected, Mr. President hinged his powers to grant amnesty and/or pardon on Section 175 of the 1999 Constitution.  That Section, for ease of reference, provides thus:  “175(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. (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.” A similar provision mutatis mutandi is set out in Section 212 of the Constitution relating to powers of a Governor to grant pardon.

As can be gleaned from the above Sections and subsections, the Constitution only empowers the President to grant pardon after conviction and not before conviction.  Accordingly, the words the draftsman used in crafting this Section declares: “to grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon …”

This presupposes a sentence and a conviction before pardon!  In point of fact, Subsection (b), (c) and (d) reinforces this argument by stating clearly thus: “(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.”

This is the effect of the provisions of Section 175 of the 1999 Constitution.  It is our respectful view, therefore, that Mr. President lacks the quo warranto to even grant the blanket amnesty he purported to exercise regarding the genuine aspirations of the freedom fighters and our youths.

If the reverse or the contrary is the case, then it would mean that Mr. President can even pardon before the sentence and conviction and thereafter substitute a lesser punishment for the person contrary to the higher one provided by law.  That will certainly lead to an infraction of the Executive into the exclusive territory of the Judiciary as created by Section 6 of the Constitution.

This was the view of the Court in Okongwu Vs. State [1986] 5 NWLR (pt.44) at 748 and 749 paras. F-D, wherein Ogundare, JCA (as he then was), of blessed memory, noted that: “….the constitution as it applied at all times material to this appeal, had enshrined in it the doctrine of separation of powers.

By Sections 4 and 5 (now suspended) the legislative and executive powers of a State were vested in the House of Assembly and Governor of the State respectively.  By section 6, the judicial powers were (and still are) vested in the Courts established for the State.  Any exercise of executive power by the Governor which interfered with the judicial powers would be unconstitutional…”

It is our humble accentuation that as the 1999 constitution stands today, Mr. President does not have the powers to expressly grant amnesty before the sentence and/or conviction.  Rather, his powers under Section 175 of the 1999 Constitution can only be exercised after sentence and conviction as was the case with the erstwhile President, Chief Olusegun Obasanjo.

In that case, Falae Vs. Obasanjo (No. 2) [1999] 4 NWLR (pt.599) at 476, the Court of Appeal had cause to interpret Section 161 of the 1979 Constitution (as amended) which was impari materia with Section 175 of the Constitution.  Here, the sagacious Musdapher, JCA (as he then was), declared at page 495 paras. C-F that:

“Now section 161(1) of the Constitution as amended reads:- “Section 161(1) -the Head of State 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.” In Exhibit 11, the Head of State granted General Olusegun 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.  The effect of a pardon is to make the offender a new man (novus homo), to acquit him of all corporal penalties and forfeitures annexed to the offence pardoned.  I am of the view, that by virtue of the pardon contained in Exhibit 11, the disqualification 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) of the Decree.”

Interestingly, the same Court in Okongwu Vs. State [1986] 5 NWLR (pt.44) 741 at 750 paras. G-H per Ogundare, JCA (as he then was) and of blessed memory, upheld our submission by holding that: “.. pardon is usually granted where a convict (a) has exhausted all his legal rights of appeal or (b) has no intention of exercising such right or (c) where he is wrongfully convicted and is afterwards pardoned upon the ground of his innocence …”

This case clearly and finally augments our contention that pardon exists after sentence and conviction, and NEVER before same.  Consequently, if amnesty and pardon are the same, then it would appear that Mr. President cannot suo motu grant a blanket amnesty under our Constitution without the National Assembly. “ 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: “36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:

Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”

Accordingly from the above, 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’s proclamation proceed to grant amnesty to people already presumed innocent by the Constitution?  This is an act of constitutional atrophy occasioned by executive ignorance in the implementation of the Constitution as provided under Section 5 of same.

The axiomatic view is that an innocent man can never be granted amnesty or pardon, unless the president has already found him guilty and convicted him even before his trial in a court of law. “Difference between amnesty and pardon.

The Black’s Law Dictionary (6th Edition) at pages 82-83, defines ‘amnesty’ to mean: “A sovereign act of forgiveness for past acts, granted by a government to all persons (or to certain classes of persons) who have been guilty of crime or delict, generally political offenses,  treason, sedition, rebellion, draft evasion,  and often conditioned upon their return to obedience and duty within a prescribed time.  The 1986 Immigration Reform and Control Act provided amnesty for many undocumented aliens already present in the country.

Included in the concept of pardon is “amnesty”, which is similar in all respects to a full pardon, insofar as when it is granted both the crime and punishment are abrogated; however, unlike pardons, an amnesty usually refers to a class of individuals irrespective of individual situations

Amnesty is the abolition of and forgetfulness of the offense; pardon is forgiveness.  Knote v. U.S., 95 U.S. 149, 152, 24 L.Ed. 442.  The first is usually addressed to crimes against the sovereignty of the nation, to political offenses; the second condones infractions of the peace of the nation.  Express amnesty is one granted in direct terms.  Implied amnesty is one which results when a treaty of peace is made between contending parties.”

At page 1113, it defines ‘pardon’ as: “One which frees the criminal without any condition whatever.  That which reaches both the punishment prescribed for the offense and the guilt of the offender.  It obliterates in legal contemplation the offense itself.  It goes no further than to restore the accused to his civil rights and remit the penalty imposed for the particular offense of which he was convicted in so far as it remains unpaid.”

And defines at the same page ‘general pardon’ to mean: “One granted to all the persons participating in a given criminal or treasonable offense (generally political), or to all offenders of a given class or against a certain statute or within certain limits of time.  But “amnesty” is the more appropriate term for this.  It may be express, as when a general declaration is made that all offenders of a certain class shall be pardoned, or implied, as in case of the repeal of a penal statute.”

In effect, it would seem from the above that ‘pardon’ and ‘amnesty’ as noted by the Black’s Law Dictionary, are the same in effect.  For emphasis, the Black’s Law Dictionary (6th Edition) at page 83, notes that: “Included in the concept of pardon is “amnesty” which is similar in all respects to full pardon.”

Accordingly, any form of amnesty to be granted by our dear President must conform with the provisions of Section 175 of the 1999 Constitution as interpreted in the cases of Okongwu Vs. State (supra) and Falae Vs. Obasanjo (No. 2) (supra). “ Amnesty and/or pardon must carry the insignia of the President’s office and its Sovereign Seal. Indeed to some of us who are far removed from the trappings of government power, we have not been opportuned and/or exceptionally privileged to see the certified true copy of the public document upon which Mr. President purporte     dly issued his blanket amnesty to our boys, even though we saw him signing same on the television.

This question becomes very germane in the light of an untidy amnesty granted by a former Head of State, General Abdulsalam Abubakar (Rtd.), 1998-1999.  His rather unwieldy amnesty to some prisoners was a subject of judicial literature in the case of Isibor Vs. State [2002] 4 NWLR (pt.758) 741 at 760 paras. B-F, wherein the proficient Uwaifo, JSC noted with sadness that:

“…We were shown a letter dated 16 January, 2001 reference No. PHAB.282/VIII/072 addressed by the Asst. Controller of Prisons Welfare for the Controller of Prisons, Ogun State Command to the Director of Public Prosecutions, Ministry of Justice, Ibadan, the body of which reads: “I am directed to refer to your letter reference number 4495/-275/18 dated 20th December, 2000 on the above subject matter and to inform you that ANTHONY ISIBOR was among the prisoners granted Amnesty/Release of 646 inmates from detention by the Head of State and A photostat copy of the said radio message that was attached to the letter cannot be better described than as hurriedly handwritten scraps of information unbefitting of any public office, let alone the office of the Head of State.

It does not seem to have any aura of authority or authenticity about it: no official stamp, no decipherable originating officer, no office of origin.

If however the message is authentic, then I have to say with every sense of concern that it is a denigration of our collective respect for whatever is presented as emanating from the Office of the Head of State.” I hope history will not repeat itself again on this issue.  As the Administrative Law Lord, Prof. S.A. de Smith, once noted that: “Legal history has a tendency of repeating itself.”

See Judicial Review of Administrative Actions (6th Edition), 1994. “Pardon too for those currently facing trial? From the President’s amnesty package as read out, he also said the amnesty and unconditional pardon will extend to those whose cases are presently pending in criminal trials in Court.  Again, the question is: can Mr. President exercise such a power?  Can he pardon a man who is facing trial?

Rather, I think he meant simply dropping the charges.  Notwithstanding, in this game of mutual suspicion, Mr. President must set out every word as it is understood both literally and legally, even if it becomes engrossed in superfluity; because superfluity is better than ambiguity. “ Way forward for Mr. President and the people of the Niger Delta.

By its nature, the word ‘amnesty’ is welcome, for all it is worth.  We however believe that if Mr. President is truly and genuinely serious in quelling the struggle for self-determination by these freedom fighters, the Nigerian State through Mr. President should enter into a treaty of peace with our freedom fighters in their individual and/or collective capacities, and thereafter have same approved by the national assembly by a law, pursuant to section 4(1) and (2) of the 1999 constitution.

That Section for ease of reference and completeness provides so far as material that: “4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.” This kind of Treaty and/or Agreement between the contending parties enacted into law for the peace, order and good government of the Federation and the Niger Delta in particular, will be a reference point for posterity and the nation as to its terms and conditions.


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