BY ISE-OLUWA IGE
In this report, Vanguard Law and Human Rights, reviews the process leading to the presidential pardon granted to certain convicts and inmates of prisons, including two former governors of Plateau and Taraba states—Joshua Dariye and Jolly Nyame, respectively; examines the perspectives of stakeholders on the exercise of the power by President Buhari and concludes that opinions remain divergent on whether or not the provisions of section 175 of the 1999 Constitution should be reviewed
On August 8, 2022, former governors of Plateau and Taraba states, Joshua Chibi Dariye and Jolly Nyame, were released from Kuje Prison where they were serving various jail terms for sundry corruption-related offences.
Three others were also released from Suleja Prison in Niger State.
The release was sequel to a receipt of the letter of clemency from the Presidential Prerogative of Mercy Committee by the Controller General of Nigerian Prisons, Haliru Nababa.
With the presidential pardon granted by President Muhammadu Buhari, the former convicts are therefore free to return to their normal public lives, seek elective positions and take up appointments. They are also no longer to be referred to as ex-convicts.
According to a renowned constitutional lawyer: “A pardon in the eye of the law, cleanses the offender and makes him as innocent as if had never committed the offence.” Such a convict is like Naaman the leper who dipped himself in the River Jordan seven times and became cleansed of his leprosy.
In FALAE V OBASANJO (1999) 3 LLER 1(CA), the Court of Appeal held that a pardon relieves the person of all sins. Musdapher, JCA (as he then was).
Vanguard Law and Human Rights reports that the Presidential Advisory Committee on Prerogative of Mercy, PACPM,was constituted by President Buhari on August 28, 2018, to enable him exercise his powers under section 175(1) of the 1999 Constitution (As amended).
The section provides that 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.
The PACPM was composed of the Attorney-General of the Federation, Abubakar Malami (Chairman); the Director of Special Duties in the Ministry of Special Duties and Intergovernmental Affairs, Jim-JajaIbiwari (Secretary); Permanent Secretary, Ministry of Special Duties and Intergovernmental Affairs, Anthonia A. Ekpa; Representative of the Ministry of Justice, Leticia Ayoola-Daniels and the representative of the Nigerian Prison, Raphael Ibinuhi.
Others on the Committee were a Commissioner of Police, representing the Nigeria Police Force, Sheu Gwarzo; Albert Uko, representing the Christian Association of Nigeria, CAN, Professor Auwalu Yadudu – representing Jamaat Nasri Islam JNI, Yetunde Haastrup of the National Human Rights Commission, NHRC, and four others who made the list as eminent Nigerians.
The four others were Lady Obodoukwu, Lucy Ajayi, Joshua Mbu and B.A. Ogunbambi.
The framework guiding grant of presidential pardon
According to the Attorney-General of the Federation and Chairman of the PACPM, Mr. Abubakar Malami, SAN, the committee adopted the use of interviews, observations, consultation and relevant documents called for and received from each of the prisons in Nigeria.
The Federal Government said the Committee filed its first report in March 2020 and reconvened on Thursday, 28 September 2021 to attend to the myriad pending applications for presidential pardon and clemency from Nigerians across the country. According to the Presidency: “These accrued cases followed the established process of applying for pardon or clemency first to the Correctional Service (formerly Nigerian Prison Service), which must certify claims made, be they of life-threatening ill-health, (as in the cases of Governors Dariye, Nyame; John Joshua Uloh, Engr. Umar Bamalli, Sa’adu Alanamu, Charles Ihenatu, Akinwumi Ajayi and tens of others making the approved list of 159; or such cases arising from remorse and good conduct or plainly on the basis of compassion among other stated criteria.
“The PACPM members, under the Attorney-General and Minister of Justice, followed up the recommendations with a visit to selected Correctional Centres in several states of the federation to “critically appraise and identify potential cases of convicts and ex-convicts before recommending them for presidential pardon/clemency and reduced sentences.
“In this round of the exercise, 412 inmates were interviewed and 162 were recommended to the Council of State by the President in the exercise of his powers, pursuant to Section 175 (2) which requires that he should carry out this function after being “advised by the Council,” it added.
Malami said the National Council of State, however, approved only 159.
The National Council of State is an organ of the Nigerian Government that advises the President of the Federal Republic of Nigeria in the exercise of his powers with respect to prerogative of mercy as enshrined in section 175 of the 1999 Constitution, issues relating to maintenance of public order in any part of the federation, award of national honours and appointment of members of the National Judicial Council, the Independent National Electoral Commission and the National Population Commission.
The Council is composed of the President of the Federal Republic of Nigeria (Chairman); Vice- President (Deputy Chairman), all former Presidents of the Federation and all former Heads of the Government of the Federation; all former Chief Justices of Nigeria, President of the Senate, Speaker of House of Representatives, all the state governors and the Attorney-General of the Federation.
According to Malami, while briefing journalists on April 14, 2022, on the outcome of the meeting of Council of State, he said the Council rejected a proposal to grant pardon to one of the prisoners sentenced to 120 years for theft of over N25bn, even though the pardon was sought on health grounds.
Outrage over inclusion of Dariye, Nyame on Presidential pardon list
He later released the list of those approved for the presidential pardon.
As soon as the list was made public, many Nigerians, individuals and corporate organisations, including the Economic and Financial Crimes Commission, EFCC, the Independent Corrupt Practices and Other Related Offences Commission, ICPC, SERAP, HURIWA, CISLAC, Femi Falana, SAN, Chief Mike Ozekhome, SAN, among others, queried the inclusion of two convicts on the list—Joshua Dariye and Jolly Nyame.
Both Dariye and Nyame were former governors of Plateau and Taraba states respectively between 1999 and 2007 and were both jailed by the Federal Capital Territory High Court in 2018 for stealing N1.16 billion and N1.6 billion, respectively.
They had contended that the presidential pardon granted by the President Buhari government to the two former governors amounted to a waste of huge funds expended on investigating and prosecuting the convicts and that the decision was capable of sabotaging the on-going efforts to curb corruption in Nigeria.
Vanguard Law and Human Rights reports that Dariye was arraigned on July 13, 2007 on a 23-count charge bordering on money laundering and diversion of public fund. Specifically, he was said to have diverted funds meant for the Plateau State Ecological funds during his tenure. He pleaded not guilty to the charge while the Economic and Financial Crimes Commission, EFCC, laboured for 3,987 days to secure his conviction.
Justice Adebukola Banjoko of the Federal Capital Territory High Court, Gudu, in Abuja, convicted Dariye of 15 out of the 23-count amended charge bordering on criminal breach of trust and misappropriation of public funds and was sentenced to 14 years in prison for criminal breach of trust and two years for misappropriation of public funds to run concurrently.
The Court of Appeal, in an appeal filed by the convict, upheld the conviction of the appellant but reduced his sentence to 10 years.
The Supreme Court also upheld the decision of the Court of Appeal.
Similarly, former Governor Jolly Nyame was arraigned same day with Dariye by the Economic and Financial Crimes Commission on July 13, 2007 on a 41-count charge of stealing, illegal diversion of public funds, inflation of contract sums, criminal breach of trust and bribery involving N1.6 billion. He also pleaded not guilty, hired a top lawyer, Charles Edonsanwan, SAN, to tackle the EFCC’ s Rotimi Jacob in court. The trial lasted 3,974 days before the trial judge, Justice Adebukola Banjoko convicted and sentenced him to 14 years for criminal breach of trust, two years for criminal misappropriation, seven years for gratification and five years for obtaining by dishonesty to run concurrently.
Nyame approached the Court of Appeal to quash the verdict but the intermediate appellate court though reduced the sentence to 12 years, upheld the conviction and fined the convict N495 million. Upon further appeal, the Supreme Court also affirmed the conviction, upheld the Appeal Court reduction of the 14 years imprisonment to 12 years and set aside the N495 million fine imposed on the convict by the Court of Appeal.
Apart from the fact that the case of Dariye dragged in court for 3,987 days, with the trial and appellate judges writing proceedings in long hand, it is on record that the detective who handled Dariye’s case, Ilyasu Kwarbai, was hit in the head with the butt of the gun by overzealous supporters of the ex-governor in Jos.
Besides, reliable sources though said that a renowned silk, Rotimi Jacobs, SAN, who handled Dariye’scase did not charge EFCC much because he purportedly had internal arrangements with the commission, so much was however spent on investigation of the case, particularly bearing in mind that the case started from London, requiring EFCC operatives to fly in there and lodge in hotels.
According to an EFCC operative who does not want his name in print, “Peter Clark, a UK officer, was the star witness. He was the one who first arrested Dariye in 2004. We had to fly him here on several occasions to testify in Nigeria. Sometimes, when he arrived in Nigeria, the case would be adjourned for one flimsy reason or the other and he would have to travel back and then return to Nigeria.
“Clark was the one who revealed how Dariye bought a pen for £7,000 and was found with over £40,000, while his aide had about £50,000 on her. We spent hundreds of millions on this case. Kwarbai was attacked. The scar is still on his head. How will the UK take us seriously?” he had added.
Dariye after his conviction and sentencing even went back to court to commence a legal battle for release of just a portion of loot seized from him during the trial.
Like Dariye, Nyame also suffered the prosecution without pleading guilty to the charge against him while his case also dragged for 3,974 days with millions of naira spent on his prosecution.
It was, therefore, not surprising when individuals and corporate persons began to attack the Federal Government over the decision.
Vanguard Law and Human Rights reports that human rights activist, Mr. Femi Falana (SAN), had faulted the decision of the National Council of State to approve the recommendation of PACPM to grant the two convicted ex-governors, Dariye and Nyame presidential pardon on the account that it was unfair to others in the prison who did not belong to the caucus of those in government.
He mockingly called on Buhari government to extend the presidential pardon granted to the two top Nigerians, to people serving terms for petty offences, arguing that it would reflect fairness and equality for all before the law.
He threatened to mobilise other lawyers against the Federal Government if other convicts, especially those jailed for petty offences, were not pardoned.
The Civil Society Legislative Advocacy Centre, CISLAC, said the pardon has rubbished the work of the EFCC and validated criticism of the Buhari government’s anti-corruption campaign as nothing but a means to settle political scores and pardon those in its camp.
It argued that the effect of the singular ill-advised act of abuse of power would embolden political thieves and unrepentant pilferers of the national commonwealth.
Also contributing, the Socio-Economic Rights and Accountability Project, SERAP, said that the presidential pardon for corruption was inconsistent with the rule of law, and the public interest, as it undermined the principle of equality before the law.
NAS also flays FG
The National Association of Seadogs (Pyrates Confraternity) described the pardon as a mockery of the anti-graft war and merely confirmed the Buhari administration’s apparent nepotism.
“We are saddened that the Council which courageously reportedly turned down a state pardon for former Bank PHB Managing Director, Francis Atuche also serving jail term for corruption, could not display the same courage and reject the request to pardon Nyame and Dariye.
“Whatever the rationale behind acquiescing to the recommendation of the committee to pardon the two corrupt former governors before serving out their prison terms, the nation has been let down by this eminent body,”
It said the pardon of the two politicians had unfortunately, granted justifiable credence to speculations that its intention was to shore up the battered image of the ruling party and give it a bounce ahead of the 2023 elections, adding that the presidential pardon was inconsistent with Sections 15(5), 17(a), and 42, miserably fell below standards, measures, and rules in the United Nations Convention against corruption.
Another human rights activist and constitutional lawyer, Chief Ozekhome, queried the basis for granting the pardon when the charge of corruption upon which they were convicted was not only a bane in the country but “struts around imperiously like a peacock.
“By granting pardon to these treasury looters, Buhari is reviving, nurturing and watering corruption with state powers.”
The senior lawyer maintained that 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 the 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 huge sums of money for the prosecution of such accused persons from the tax payers’ sweat; and if after the rigorous period of trial and subsequent conviction, the guilty are simply let off the hook in such a brazen manner, the little remaining lean hope the citizens have in the system is further diminished,” he added.
“This brazen abuse of power will definitely ricochet and 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 of abuse of power 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.
However, President Buhari was not the first Nigerian leader to have granted controversial pardon to either politicians or government officials convicted of corruption.
Vanguard recalls the military era when a self-styled military President, Gen. Ibrahim Babangida, pardoned corrupt officials convicted by his predecessors and returned their seized properties.
Also, under a civilian regime, President Goodluck Jonathan in 2013, pardoned his former boss and political benefactor, Diepreye Alamieyeseigha.
Mr. Alamieyeseigha had jumped bail after his arrest in London for money laundering in 2005. He was convicted of embezzling state funds in Nigeria in 2007.
The same way Nigerians kicked in 2022 against the decision of Buhari government over the presidential pardon granted Dariye and Nyame, civil society groups and activists were also incensed after erstwhile President Jonathan pardoned his former boss and political benefactor in 2013.
Presidency defends pardon
But the Presidency rose quickly in stout defence of its decision, saying it was a culmination of a process begun by the convicts and others concerned in line with the Constitution.
In a statement, the Presidency said: “Clearly, the presentation to the Council of State’s meeting, attended by former Presidents, a former Chief Justice and 36 state governors and the FCT, along the lines of its statutory membership, was a culmination of a rigorous process, regulated and guided by the law which was not, in any way designed to achieve a political purpose.
“While it is natural that the cases of the ex-governors – two among many – would excite political analysts, coming at a time when elections are in the air, the President would at the same time have come across as insensitive and cruel to most people were he to have ignored very compelling cases recommended for pardon made to him because someone is a former governor. Even governors have the right to be treated fairly under the law.
“President Buhari assures the nation that nothing done here was intended to achieve a political end or send a revisionist message on the relentless war against corruption which he has ably and evidently led by personal examples,” the statement added.
Sagay defends Buhari
Also, the Chairman, Presidential Advisory Committee Against Corruption, Prof. Itse Sagay, SAN, said the pardon for the two ex-governors was in order particularly when viewed against the background that the decision was not taken by Buhari alone but by the National Council of State, which comprised all the 36 governors, former Presidents and past and present Chief Justices of Nigeria.
“The President didn’t do it alone but with the Council of State. I am sure it must have been a consensus. It is not such a terrible thing as people are saying. Four years in prison is tough. Some of us may not survive a month in prison.
“They have faced humiliation and loss of status, falling from Government Houses to prison. So, I don’t think there is anything wrong if they are being pardoned.”
Sagay said he also disagreed with the insinuation that both Dariye and Nyame were freed because they were members of the ruling All Progressives Congress, APC.
Should section 175 and 221 of the 1999 Constitution be reviewed?
Lagos lawyer and human rights activist, Mr. Falana is of the view that sections 175 and 221 of the 1999 Constitution which empower both the President and the state governors to grant pardon to convicts and inmates in prisons, should be reviewed in such a way that conditions are stipulated to the exercise of the power.
He specifically argued that while both the state governors and the president should still exercise the pardon power, he said persons convicted of serious crimes like terrorism, murder, armed robbery and the rest should not be allowed to benefit from it,” he added.
“ I just got a complaint regarding how somebody was killed by a retired colonel through direct shooting. Instead of the state government to charge the soldier with murder, he was charged with manslaughter and was eventually sentenced to 25 years imprisonment. He spent barely a year in prison and was granted pardon.
“The man has gone back to the same village where he killed. The family members of the deceased are watching him. We just filed a case yesterday against the state government for the killing of the man and we joined the killer and we are asking for damages and that the man should be sent back to jail. He was supposed to be charged with murder but he was charged with manslaughter.
“If the constitution has said in section 15(5) that government shall abolish all corrupt practices, you cannot pardon somebody who had been jailed for corruption. For Dariye, his own case was worse. He didn’t refund the money they asked him to refund.
But a former Attorney-General of Abia State, Prof. Awa Kalu, SAN, disagreed with Falana over the review of section 175 of the Constitution to whittle down the powers of the President.
His words: ”For the benefit of the public, a presidential pardon is not a Thank You card; nobody thanks you for committing an offence, nor is the grant of pardon a licence to others to commit an offence. It is usually circumstantial in the sense that certain factors are taken into consideration when a recommendation is made to the President or to a Governor for a pardon to be granted. It wipes the slate clean for the beneficiary, but the public never forgets.
“Former Governors Dariye and Nyame served a portion of their sentence in Correctional Centres and were recently released pursuant to the exercise of the Constitutional Prerogative of Mercy by the president. Even God himself grants mercy and grace to millions of people everyday and even at that, many question God’s wisdom and omnipotence in their hearts. Should we then be surprised when the president is questioned in this kind of situation?
“By established practice, the president or governor does not act arbitrarily in the exercise of the power to grant clemency or remission of punishment. It can be questioned if it is not done by due process, but the power to commute sentence is undoubted.
“Having previously chaired a State Advisory Committee on the exercise of the prerogative of mercy, it is my view that once public power is exercised for the good of the public, then I think Section 175 does not require a review. There is no society that does not have a mechanism for reviewing sentence.
From all indications, while it appears the opinions of lawyers do not coalesce on whether or not to review relevant provisions of the Constitution that give executive office holders powers to grant pardon, it will not be totally out of place, however, if the provisions of the Constitution are reviewed in such a way that conditions are stipulated for exercise of the wide powers where serious crimes are involved to check abuse.