I Beg Your Pardon?

Last week, the President of Nigeria announced the grant of pardon to 175 convicts, former convicts and deceased Nigerians. Some of the reasons stated were that the convicts had shown remorse and good conduct, or were of old age, or had acquired new vocational skills, or enrolment in the National Open University of Nigeria (NOUN).

Although the list of pardoned persons has been approved by the Council of State, the formal instrument of pardon has not yet been issued and the actual release of prisoners is pending.

Let’s break this down, shall we?

What is Pardon?

Pardon, also known as the Prerogative of Mercy, refers to an act by a competent authority officially forgiving or nullifying the legal consequences of a crime. Historically, the power to pardon comes from the royal prerogative in England, later adopted in common law jurisdictions. In Nigeria, it is provided for under section 175 and 212 of the 1999 Constitution. The rationale behind the grant of pardon is that it gives a repentant convict another chance to be a productive member of the society. Sometimes, it also helps to correct incidents of miscarriage of justice and to serve public interest, when applicable.

On the flip side however, this power could be abused. It could lead to undermining of accountability, public trust, unequal treatment under the law, if it is exercised without transparency or a clear criteria.

Just as the word “prerogative” suggests, the President or Governor can exercise this power at any time and in respect of any person, as they deem fit. The law does not even require a “good reason” for the grant of pardon, however, the spirit of the law expects that pardons should serve justice and enable rehabilitation, not political favouritism. Ideally, pardon should correct injustice or reward genuine reform and not undermine accountability.

Who can grant Pardon?

The Constitution empowers the President and the Governor to exercise the prerogative of mercy. The President is empowered to grant pardon for offences created by an Act of the National Assembly (i.e., federal offences). Although he can exercise this discretion whenever and however he leases, the Constitution requires the president to first consult with the Council of State before exercising the power to grant pardon.

The Governor also has the power to grant pardon, however, for offences created by the law of a State. He must however first consult with an advisory council of the State on the prerogative of mercy as may be established by a law of the State.

The prerogative of mercy can be exercised in four ways:

Full pardon: This wipes out the conviction (and its legal consequences) as if the offence had never been committed. Effectively, the convict’s criminal record would no longer contain the crime for which he was pardoned. It is provided for under Section 175 (1)(a) of the 1999 Constitution.;

Commutation: This reduces a sentence, for example from death penalty to life imprisonment, or substitutes it for a lesser punishment. Section 175 (1)(c) of the 1999 Constitution;

Remission: This involves forgiving a fine, forfeiture or other penalty associated with the offence. Section 175 (1)(d) of the 1999 Constitution; and

Respite: This involves delaying the execution of a punishment for a specified time. Section 175 (1)(b) of the 1999 Constitution.

What is the process for granting pardon in Nigeria?

This is the typical process adopted for the grant of pardon in Nigeria:

Step 1: Application/Registration

The convict or someone on his/her behalf submits a Step 1: petition or representation seeking mercy, either pardon, commutation, remission or respite. The representation may include factors such as: evidence of good conduct, remorse, old age, terminal illness, rehabilitation efforts (vocational training, education), or other special circumstances.

Step 2: Investigation/Recommendation

The Presidential Advisory Committee on the Prerogative of Mercy, chaired by the Attorney-General and Justice Minister, or the State Advisory Committee on the Prerogative of Mercy, reviews the application, investigates the facts (prison record, behaviour, risk, public interest) and makes recommendations to the President (or Governor).

For presidential pardons, the Committee’s report goes to the Council of State for consultation.

Step 3: Consultation with the Council of State (Federal)

The President, before exercising the prerogative of mercy, must consult the Council of State. The word “after consultation” used in the Constitution suggests that the decision is his, but consultation is mandatory. Whether the Council’s advice is binding or advisory, is subject to legal debate but the Constitution requires the consultation.

Step 4: Decision by the President/Governor

The President (or Governor) decides whether to grant the mercy petition. This decision is an exercise of executive discretion.

Step 5: Issuance of Instrument/Notification

Once granted, the pardon or mercy instrument is officially issued. The instrument of pardon is an official written document under the seal of the Federation or State, by which the President or Governor records and proclaims the grant of pardon to a specific person.

The person concerned is thereafter notified, released from custody, freed of his/her sentence, has his/her civil rights restored (such as the right to vote, contest elections, hold office), depending on the nature of the pardon.

Where applicable, publication in the official gazette or a statement from the Presidency may accompany the action.

Posthumous Pardon

It’s interesting that some of the persons that the President recently announced the grant of pardon for are deceased, such as, Ken Saro-Wiwa and eight members of the Ogoni Nine, executed in 1995 under General Sani Abacha’s dictatorship; Sir Herbert Macaulay who was pardoned for a 1913 conviction imposed by British colonial authorities; and Major General Mamman Vatsa who was executed in 1986 for alleged treason under the military regime of General Ibrahim Babangida. This is referred to as ‘posthumous pardon.’

A posthumous pardon is a pardon granted after the person convicted of an offence has died.
Unlike an ordinary pardon that releases a living person from the legal consequences of an offence, a posthumous pardon serves a symbolic or restorative function. It clears the name and public image of the deceased convict. It also restores honour or dignity to their memory, and sometimes offers closure or reconciliation to the deceased’s family members or the nation as a whole.

From publicly available information, this appears to be the first record of posthumous pardon in Nigeria. There is however precedent from other jurisdictions. For instance, in the United States, President Bill Clinton granted a posthumous pardon to Henry O. Flipper, the first Black West Point graduate who was wrongfully court-martialed in 1881.

Moreover, the wording of the Constitution does not restrict the power of pardon to living persons. Although it does not also expressly mention posthumous pardons, the broad and discretionary nature of the “prerogative of mercy” has been interpreted to include posthumous acts of pardon, especially where they serve the public interest or moral justice.

Thus, a President, after consultation with the Council of State, can validly pardon a deceased individual whose conviction is deemed unjust or historically tainted.

The recent presidential pardon in Nigeria shows us that the criminal justice system does not always end at conviction and sentencing. If you or someone you know is a convict or was involved in a criminal matter, it is possible to apply for mercy/pardon, through representation to the Advisory Committee of the Prerogative of Mercy.