Image of Nigerian President Bola Tinubu. Photo Source: State House.
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In January 2020, a Nigerian court in the capital Abuja convicted and sentenced one Maryam Sanda to death for killing her husband. The murder was allegedly carried out in 2017 during a domestic tussle.
Disagreeing with the judgement, Mrs Sanda approached the Court of Appeal, which eventually affirmed the decision of the lower court.
Recently, President Bola Tinubu commuted Ms Sanda’s death penalty to 12 years’ imprisonment, of which she already served almost six years. This was after public outrage had trailed the state pardon Mr Tinubu had earlier announced for her in October.
As part of its Media and Information Literacy (MIL) efforts, DUBAWA examined the issue to determine whether the constitutional powers of state pardon can be applied when a case is still before the court.
What does the law say?
To begin with, a state pardon, also known as the prerogative of mercy, is the legal power of the executive branch of government to grant clemency to convicted individuals.
The power can be exercised discretely by a governor of a state or by the president of Nigeria. It manifests in different forms such as sentence commutations; forgiveness, remission, and reprieve.
DUBAWA’s findings show that power is stipulated under Sections 175 and 212 of the 1999 Nigerian Constitution and is vested in state governors and the country’s president.
We also checked if the state pardon can be exercised while a criminal trial is pending or an appeal remains pending before a court in Nigeria. We found two notable cases, Solola v. State (2005) and Obidike v. State (2014), where the Supreme Court, the country’s apex court, ruled that the power of prerogative of mercy cannot be exercised when a convict’s appeal is pending in court.
Additionally, we scoured through credible news sources and found that even in Maryam Sanda’s case, the same court condemned Mr Tinubu’s decision and overrode it.
Moore Adumein, the lead judge in the case, held that it was wrong for the executive to seek to exercise its power of pardon over a case of culpable homicide, in respect of which an appeal was pending.
Words from legal experts
DUBAWA shared our findings with AbdulHaqq Mutairu, a Nigerian legal practitioner. The Lagos-based expert agreed with the court, saying: “A pardon granted to a convict during pendency of his case doesn’t hold legal effects relying on the earlier cited cases.”
“The only circumstance in which courts can quash the power of pardon is if it is granted during the pendency of a trial,” he added.
He also stated that the court has the power to quash the prerogative of mercy if it is found unconstitutional, citing Federal Republic of Nigeria v. Dingiyadi.
Corroborating his statements, Moboloji Adam, another lawyer, noted that it would be a different case entirely if the individual who was granted a state pardon had accepted his fate that he really committed the offence and not challenged the judgement passed down to him.
“But in Maryam Sanda’s case, she was still exercising her right of appeal when Mr Tinubu announced the clemency. She was standing before the court to see whether a change of the sentence could be obtained. In this regard, the state pardon is not the right thing to do,” Mr Adam explained.
He stressed the need for the prerogative of mercy to flow from the executive “after a matter has reached its zenith in court, meaning after the Supreme Court, as the final clearinghouse of justice, has passed its final judgment on the case, or else conflicts like this will continue to arise.”
Both lawyers reiterated that the Constitution has taken an explicit position on how the prerogative of mercy should be exercised, stating that Nigerian law requires the president, exercising such power, to consult the Council of State before pronouncing his decision.
“If this sacrosanct provision of the law is followed strictly, there will be no conflict. Two heads are better, so the provision is trying to ensure that due diligence and fairness have been done before the power of clemency is granted to anyone,” Mr Mutairu added.
Conclusion
DUBAWA’s research established that although the executive has a constitutional power of clemency, it cannot be exercised when the case in question is still before the court. Our findings also indicate that the court in Nigeria has the power to quash a state pardon if it is found to be unconstitutional.
