By Prof. Epiphany Azinge, (SAN)

Application, lends support to the argument that an unlimited prosecution of international crimes may result to a threat to peace and security and in such instances, the domestic amnesties may be recognised.  Article 16 vests power in the Security Council to request that proceedings before the International Court be deferred for a period of twelve months, with the option of a renewal, where it is believed that such prosecution would threaten peace and security.

Although it has been argued that the time limit is an indication that it is the deferral is a delay mechanism, for the sake of peace and not a recognition of amnesties granted by States, practical implication and application of this Article based on the complementarity principle,  compels the International community, through the International Criminal Court to recognise domestic amnesties and refrain from prosecution.

It has been argued that certain types of amnesties, especially blanket amnesties as those granted by the Lome accord  or even in the Pinochet case, should not be recognised as they are not conditional on a remedy to victims. The South African Truth and Reconciliation Commission in its final report  appealed to the International community for the recognition of its process which included the grant of amnesties as a trade-in for obtaining the truth, made it abundantly clear that the Promotion of National Unity and Reconciliation Act and the Commission itself, had sought to deal appropriately with the matter of responsibilities by the adoption of conditional amnesty policy, which was clearly based on considered applications from applicants  In APAZO v. President of the Republic of South Africa , the Court held that amnesty was permitted because without it there would be no incentive for offenders to disclose the truth about past atrocities. It suffices to say that the South African experience appears to be the only example of permissible amnesties that have been welcomed by the international Community. The most logical explanation for such acceptance can be gleaned from the rather eloquent judgment of Justice Ismail Mohamed in the case of Azapo where in the South African’s amnesty legislation was challenged. He stated that;

“That truth which the victims of repression seek so desperately to know is, in the circumstances, much more likely to be forthcoming if those responsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve if they do. Without that incentive, there is nothing to encourage such persons to make the disclosure and to reveal the truth which a person in the position of the applicant so desperately desires…”

The amnesty granted in South Africa was thus permissible because it publicly recognised that the perpetrators of the crimes deserved to be punished and provided some form of justice to the victims of the crimes through a revelation of what actually happened to them, a feat that other amnesties granted did not achieve.

On the question of the recognition of the grant of amnesties by States in the International community, the position has become perhaps a tad much clearer: while amnesty is prohibited in offences regarded as being of concern to the International community such as crime of genocide, crimes against humanity, war crimes and crime of aggression, this is not the case for other offences that do not fall within this category. Again, blanket amnesties for atrocious crimes is generally not accepted by the international community but there copious room to suggest that conditional amnesties are permissible where it is clear that justice is not entirely sacrificed for the cause of ensuring political peace.

LEGAL PROVISIONS FOR AMNESTY IN NIGERIA

Whether or not amnesty is constitutional in Nigeria is still a matter of controversy. A view sees amnesty as the same as pardon while a divergent view is to the effect that they amnesty differs from pardon. Section 175 of the 1999 Constitution which amnesty is hinged upon provides for pardon to convicts. The section does not seem to cover pardons granted to persons not already convicted of offences created by laws enacted by the legislature. It must be said that the word “Amnesty” is alien to the Nigerian Constitution.

As earlier defined, amnesty is a pardon extended by the government to a group or class of persons usually for political offence, the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet being convicted. This is not provided for under the Constitution, what the constitution provides for is pardon by way of prerogative of Mercy granted to convicts which is contained in sections 175 and 212 of the 1999 Constitution. Section175 provides thus:

“(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.