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Recently, the Osun State government directed the state’s Attorney General to investigate the case of a 17-year-old reportedly sentenced to death by hanging for stealing a fowl.
The governor, Ademola Adeleke, ordered that the man be considered for the prerogative of mercy before the end of the year.
Mr Adeleke’s order follows a social media outburst criticising the state authorities for allowing such sentences when capital offences are rarely prosecuted.
“Consequently, I have directed the Attorney-General and Commissioner for Justice, Osun State, to commence a full investigation into the matter and initiate processes to grant the prerogative of mercy to the young man.
“Osun is a land of justice and equity and must ensure fairness and protection of the sanctity of lives,” parts of the governor’s statement on his verified X handle stated.
Bearing in mind the legal provision that allows state pardon, DUBAWA looked at this pitch to determine if the state governor can “direct” the judiciary for such matters.
Definition
The prerogative of mercy, called pardon, refers to the power to grant clemency to convicted individuals in certain circumstances. In Nigeria, it’s a constitutional power held by the President for federal offences and by the state’s governor for state offences.
This power tempers the rigidity of the law and is only exercised in rare and exceptional circumstances. It’s not a general avenue of appeal, and it doesn’t acquit the individual. Instead, it relieves the effects of a conviction without removing them.
According to a legal precedent on pardon, Olusegun vs Falae, the court described the prerogative of mercy as: “A pardon is an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands for the offence and restores the rights and privileges forfeited on account of the offence…”
The court explained that the effect of a pardon is to make the offender, a new man (novus homo), to acquit him of all corporal penalties and forfeitures annexed to the offence pardoned.”
What does the Constitution say about the prerogative of mercy?
Section 212 of the Nigerian Constitution is quoted as saying,
“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 of the execution of any punishment imposed on that person for such an offence.”
In subsequent paragraphs, the provision explained that the governor may substitute a less severe punishment or remit punishment for any punishment imposed on that person for such an offence.
It added a caveat, saying that the governor can exercise this power after a thorough consultation with such an advisory council of the state.
What are the views of lawyers?
Veteran Nigerian lawyer Emmanuel Okorie said that since the Attorney General (AG) is the chief legal officer of a state, the governor would need to write to the AG to exercise such power under the law.
“The prerogative of mercy is a constitutional right of the governor and not the attorney general. The attorney general can only advise the governor after looking at the nature of the case. It’s a power granted to the executive, not the judiciary,” he said.
Mr Okorie, who leads the Hope Behind Africa team in Edo State, told DUBAWA that the judiciary is independent and the power does not fall under its jurisdiction.
Abdul Lateef Ololade, another lawyer, corroborating his statements, said that since the governor ordered the attorney general of a state to be part of the executive branch of the government because it is the governor who appoints him, the governor has done no wrong.
“No matter the gravity of the offence, the governor can grant such pardon because it’s his power under the constitution, and the only person he can approach is actually the attorney general. They can’t be questioned once they decide to pardon someone in as much as it is acted under the laws,” he said.
Speaking with another lawyer, Ishaka Ahmad, also agreed that Governor Adeleke needs to direct the state attorney general to execute his pronouncement.
“In the scenario you mentioned, Governor Adeleke is not directly the judiciary, but rather directing the Commissioner for Justice and Attorney General to execute his function on his behalf. The AG is not part of the Judiciary but part of the executive arm of Government,” he told DUBAWA.
He cited Section 5 (2) (a) of the Nigerian constitution to support his claim, adding that a governor can exercise his function alone or through his deputy, commissioner, or any officer in the state’s public service.
Akindele Akintola, a legal practitioner, noted that the governor cannot direct the judiciary to exercise power for the executive. “The governor can reduce the punishment or cancel it. Meanwhile, the governor cannot control the judiciary to exercise such,” he added.
Conclusion
While the Osun State governor acted right by directing the state’s attorney general, a member of his executive arm of government, the governor does not have the power to direct any member of the judiciary when exercising any of his powers.
If he does, lawyers said it would violate the principle of separation of powers under the law.
