Bayelsa State Prerogative Of Mercy Law (2017) By Aluzu Ebikebuna Augustine

On the 24th day of January 2017, the Bayelsa state government signed into Law the Revenue Court Amendment Bill, Infrastructure Maintenance Levy Amendment Bill and the Prerogative of Mercy Bill. The passing into Law of these Bills has not surprisingly raised any eyebrow in the state. This is not unconnected to the apolitical dispositions of Bayelsans that has characterized the Restoration government of the state. Bayelsans have continuously been indifferent with the happenings in government since government business is run in a clandestine manner.

In passing the above mentioned Bills into Law, the Bayelsa State House of Assembly exercised its powers pursuant to the constitutional provisions of section 4(6) and (7) of the 1999 Constitution of the Federal Republic of Nigeria. However, it is the Prerogative of Mercy Law, (2017), hereinafter for the purpose of convenience referred to as ‘the Law’ that will form the fulcrum of this article.

Giving the disjunctive meaning of the word prerogative of mercy, the word ‘prerogative’ means exceptional powers or privileges of an authority. The Blacks Law Dictionary 9th edition at page 1301 defines the term as “an exclusive right, power, privilege, or immunity usually acquired by virtue of office”. It also defines mercy as “compassionate treatment, as of criminal offenders or of those in distress, esp. imprisonment, rather than death, imposed as punishment for capital murder.” See page 1077. Thus, prerogative of mercy is the right of a chief executive to commute death sentence or to pardon a convicted person, especially, one convicted of a capital crime(Ibid). The etymology of the word dates for back to England. In the English tradition, the Royal Prerogative of Mercy is one of the historic royal prerogatives reserved to the British monarch, in which she can grant pardon to persons convicted of criminal offences.

The most recent example of the Royal Prerogative of Mercy [RPM, commonly referred to as a Queen’s Pardon] is the now well-known case of Alan Turing who was convicted on 31 March 1952 of gross indecency with another man. Tragically, shortly after his conviction this war hero, who cracked the German Enigma code thereby shortening the war by two years and saving countless lives, died. A verdict of suicide was recorded. When the RPM was thankfully, and at long last granted, a Ministry of Justice spokesman said: “Uniquely on this occasion a pardon has been issued without either requirement having been met, reflecting the exceptional nature of Alan Turing’s achievements”. So what are the usual requirements and what does the RPM actually mean? In the English tradition, the RPM is one of the historic royal prerogatives reserved to the British monarch, in which she can grant pardons to persons convicted of criminal offences. The original use of the RPM arose as a result of the imposition of the death sentence; the RPM then being used to commute such a sentence to a less draconian form of punishment. Today, it can be used to change any sentence or penalty imposed upon a person. Today, the justice secretary has responsibility for recommending the use of the RPM to Her Majesty the Queen. Presidential pardon is limited to offences created by the National Assembly while state pardon is limited to offences created by the state House of Assembly. See section 175 of the CFRN. Section 212 of the CFRN provides to the effect that

212.- (1) The Governor may –

(a) grant any person concerned with or convicted of any offence created by any Law of a State 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 a 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 at 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 power of the Governor under subsection (1) of this section shall be exercised by him after consultation with such advisory council of the State on prerogative of mercy as may be established by the Law of the State.

Before I proceed further in analyzing the Law, permit me to express my unreserved gratitude to the member representing Southern Ijaw Local Government Area, Constituency 3, Hon. Baraladei Daniel Igali, who made the document readily available to me upon my asking. However, Upon taken a cursory and dispassionate perusal of the Law, some sections that has given rise to controversy, worth considering, and also for the benefit of those who will be reading this article and may not have the hard copy at their disposal shall be reproduced for easy perusal.

The title to the Bayelsa State Law is the ‘Prerogative of Mercy Law, 2017’. The Law has nine (9) sections. Section 1, 2 and 3 provides for the establishment, composition and functions respectively of the State Advisory Council (hereinafter referred to as ‘the council). According to section 2, the Governor is responsible for appointing members into the council which shall consist of; Attorney-General and Commissioner for Justice of the state who shall be the Chairman; and seven other members who shall be appointed by the Governor. These members shall include; the Permanent Secretary/Solicitor General who shall come from the Ministry of Justice; the Director of the State Legal Aid Council; a representative from the Nigerian Prison Service Bayelsa state Command; a representative of the Nigerian Bar Association; a representative of the Christian Association of Nigeria; a representative of Nigeria Medical Association; and a representative from the Social Welfare Department of the Ministry in charge of Women (Gender) and Social Development Matters who must be a woman.

It is surprising that a representative from the civil societies in the State is not recommended to make up the council giving their exposure with regards to matters that concerns Human Rights violations.

Section 3 which provides for the function of the council, states that the council shall “receive written application for Executive pardon made to the Governor by any person convicted for any offence created by any Law of the State, or by representative of such person.”(sic)

(2) Cause the Director of Public Prosecution to receive and forward a written report of the case from the Trial Judge, together with such information derived from the record of the case or elsewhere as the Attorney General may require to be submitted to the council, upon conviction of any offence created by any Law of the State.

Sub (3) requires the council to advise the Governor after consideration of the report in (2) of section 3 whether to exercise the power created by this Law PR not in relation to the applicant provided the Governor shall not be obliged to act in accordance with the advise of the council.

This particular provision made nonsense, the purpose of the establishment of the council. That is, upon application for pardon, the Governor is not bound to follow the advise and recommendation of the council. This requirement will be fulfilled if upon application, the council receives the letter, informs the Governor and the application is fully discussed. This provision is capable of causing disaffection amongst members of the public.

The reason is because the power of the Governor to grant pardon is too wide and unrestricted. The constitution in section 212 cited above has given the House of Assembly a wide discretion to couch the Law in such a way that the powers of the President to grant pardon can be checked when it provides “…as may be established by the Law of the State.” in subsection (2) of the above mentioned section. The failure of the House to take advantage of such opening by the constitution may be a precursor for Executive abuse of power.

In the recent exercise of the power to pardon, President Goodluck Jonathan granted pardon to various Nigerians who were accused of various offences, chief of which was the former Governor of Bayelsa state, convicted of corruption and like offences. Though the action by the President was widely condemned by legal scholars and others who saw it as a way of encouraging corruption in a country surviving on oxygen mask because of corruption; and abuse of Presidential power to pardon. Despite the public howl ad outcry, the pardon remained till the death of the former Governor.

Section 4, 5 and 6 provides for appointment, disqualification and procedure of the council respectively. By virtue of section 4, a member shall hold appointment for three (3) years upon reappointment for another term of three (3) years. With respect to section 5, a person convicted of a felony, adjudged to be a lunatic or unsound mind, disqualified or suspended other than his own request in the case of a person whose membership is based on his professional qualification from practicing his profession in any part of the world by an order of a competent authority made in that respect.

Unfortunately, the Law does not specify, neither does it state what or who is a ‘competent authority’. Neither does the Interpretation Act CAP 123, Vol. 8 LFN, 2004 gives an insight of what a competent authority is. Thus, we shall seek the meaning of this term from legal dictionaries, decided cases and other places.

The Law Dictionary defines competent authority as applied to courts and public officers, to mean jurisdiction and due legal authority to deal with the particular matter in question (see http://thelawdictionary.org/competent-authority/).

Also, in the USA case of Mitchell v. U. S., 9 Pet. 735. 9 L. Ed. 283, the court held that “The meaning of the words “lawful authorities” in the eighth article or “competent authorities” in the ratification must be taken to be “by those persons who exercised the granting power by the authority of the Crown.” The eighth article expressly recognizes the existence of these lawful authorities in the ceded territories, designating the governor or intendant, as the case might be, as invested with such authority, which is to be deemed competent till the contrary is made to appear.

According to Wikipedia “A competent authority is any person or organization that has the legally delegated or invested authority , capacity, or power to perform a designated function. Similarly, once an authority is delegated to perform a certain act, only the competent authority is entitled to take accounts therefrom and no one else.”

The Black’s Law does not define the word “competence authority” but it however defines it disjunctively. Page 322 defines the word ‘competence’ as “the capacity of an official body to do something” and also at page 152 defines ‘authority’ as ” the right or permission to act legally on another’s behalf. Giving its compound meaning, it is the capacity of an official body to legally act on behalf of another. Such body may be an administrative tribunal (professional bodies) such as the Medical and Dental Practitioner Disciplinary Tribunal, Legal Practitioners Disciplinary Committee etc.

The court gives recognition and effect to dictionary definition of words in the interpretation of statutes. Reference is made to the decision of the Court of Appeal in the case of Alechenu v. University of Jos (2015) 1 NWLR (Pt. 1440) 333 at 361, paras. C-D, where the appellate court, per BDLIYA, J.C.A., held inter alia: ‘’Where words used in a Statute are not defined therein, a resort to the dictionary meaning of such words is permissible…’’

A person shall also seize to be a member of the council if BH virtue of his office, his membership is based on the occupation of that office he seizes to occupy same; and if he resigns his appointment by a letter addressed to the Governor.

The Governor may however remove a member for gross misconduct in relation to his office.

Section 6, provides for the sitting and procedure of the council. The council shall sit not less than twice every quarter of a year. The council may regulate its own proceedings. Section 7 provides for the quorum and it shall comprise of the Chairman and five (5) other members. Section 8 is the interpretation of the Law and 9 the short title.

While I wish to recognize and applaud the House ingenuity for coming up with such Law, it will be apposite to state that the Law has fallen below reasonable standard following its shortcoming as I have highlighted above. The inability of the House to summon the intellectual stamina to curtail the powers of the Governor from abuse of this power will lead to grave consequence in forth coming election which may be marred by more violence, ballot box stuffing and malpractice when at the end of the day, the Governor will after real grant his politics thugs pardon. The section of the constitution on prerogative of mercy should not be used for political expediency, using one’s position to favour a felon who is not remorseful or sorry for the evil he or she has perpetrated against his neighbour, simply because the person is linked to you one way or the other. Bayelsa state will not be the first state to enact this Law as records show that Lagos, Ondo and Oyo state have similar Law. Neither will it be the first to abuse such Law in Nigeria as Governor Adekunle Ajasin of Ondo state sometime ago exercised his power to pardon in favour of persons alleged to be his party members who had been convicted of arson. Also, Bola Ige as Governor of Oyo state, without copious reasons pardoned Eniola Atanda his friend who was jailed for committing an offence. At the National level, General Yakunu Gowon, as Head of State, granted pardon to Chief Obafemi Awolowo and Chief Anthony Enahoro who had been convicted of offences of treason and treasonable felony and sentenced to lengthy jail term. Obasanjo was also pardon by Abdusalami Abubakar.

Again, one wonders what is the use of the council if its advise will not bind the Governor? The establishment of the council is another example of government’s profligacy in the state as members of the council will be paid from tax payers money and record have shown that the Chief Judge of a state by virtue of the provisions of Sections 1(1) of the Criminal Justice (Release from Custody) Act, 2007 also have power to grant pardon. This was evident on 27 of September 2016 when the Lagos state CJ granted 20 inmates pardon. Thus, there is no need for establishment of such council in the first place.

the Legal Effect of Pardon;

A pardon is an act of grace, it precedes from the power entrusted with the execution of laws. In Nigeria, there is a dearth in the position of the law on pardon as the Executives seldom exercise this executive right. Pardon can be full or conditional. According to the court in Ex-parte Garland, “…when pardon is full; it release the punishment and blots out the guilt, so that in the eye of the law, the offender is as innocent as if he has never committed the crime…”

However, in the Nigerian courts, there seem to be no distinction between conditional and full pardon. According to Mustapha JCA in the case of Falae v Obasanjo (No. 2), 1999, 4 NWLR, Part 599, 476, where it was strenuously argued on behalf of the petitioner that the pardon allegedly granted the respondent by Gen. Abdusalam Abubakar was an ordinary pardon in lieu of full pardon, the effect of which only wiped out the sentence, while the judgement of the tribunal which convicted him remained unreserved. The learned silk held thus:-

“”In my view, under Nigerian law, there is no distinction between “pardon” and “full pardon.” A pardon is an act of grace by the appropriate authority which mitigated or obliterate s the punishment the law demands for the offence and restores the rights and the privileges forfeited on account of the offence. The effect of pardon is to make the offender a new man or novus homo, to acquit him of all corpora penalties and forfeitures annexed to the offence pardoned.”

By implication, any title, money, property earlier forfeited on account of the offence are as general rule restored forthwith. The full rights and civil liberties are fully restored. Except to the fact that the pardon is not full or property can no longer be fully restored by way of vesting right in a third party. In such case, compensation is usually paid. Pardon also extends to contempt of court.

Can Pardon Stop an Impeachment or Recall?

A pardon can not stop an impeachment or a recall. There is nothing to prevent the Governor from pardoning after the impeached person has been convicted and sentenced or recalled.

For a modern application of the law see R v Foster (Barry) [1985] QB 115; [1984] 3 W.L.R. 401]. In Foster it was held that the effect of a free pardon was to remove from the subject of the pardon “all pains, penalties, and punishments whatsoever that from the said conviction may ensue” but not to eliminate the conviction itself.

Aluzu Ebikebuna Augustine is a Right Activist and can be reached on ebikebuna@gmail.com