State pardon for failed politicians is illegal, endorses corruption, lawyers charge
Last week Thursday, the National Council of State (NCS), granted state pardon to former Governors Joshua Dariye and Jolly Nyame of Plateau and Taraba States respectively, who are serving different jail terms for corruption.
The governors were among 159 prisoners pardoned by the Council at a meeting presided over by President Muhammadu Buhari at the presidential villa in Abuja. Among the beneficiaries are a former military general and minister under the Sani Abacha regime, Tajudeen Olanrewaju, an army lieutenant colonel, Akiyode, who was an aide of former deputy to General Abacha, Oladipo Diya; and all the junior officers jailed over the 1990 abortive Gideon Orkar coup.
According to a presidency source, the two former governors were pardoned on health and age grounds. Mr. Nyame, 66, who was governor of Taraba State between 1999 and 2007, was serving a 12-year jail term at the Kuje prison for misappropriation of funds, while in office. The Supreme Court upheld his conviction in February 2020.
Mr. Dariye, 64, who governed Plateau between 1999 and 2007, was jailed for stealing N2 billion of public funds during his time as governor.
A five-member panel of the apex court, in a unanimous decision led by Justice Mary Odili, had said it found no reason to set aside the concurrent judgments of both the trial court and the court of Appeal, which found Nyame guilty of misappropriation of funds.
Delivering the lead judgment, Justice Amina Augie, held that the appeal filed by the former governor to challenge his conviction and sentence, lacked merit.
The apex court, however, held that the appellate court was wrong to have imposed fine against Nyame.
Justice Augie, therefore, affirmed the imposed jail term but freed the convicted Nyame from paying fine for the crime he committed against the state.
Reacting to the state pardon granted the jailed politicians, Kano based lawyer, Abubakar Sani, described the action as unconstitutional and invalid.
According to him, both men were convicted under Sections 115, 119, 309 and 315 of the Penal Act, Cap. 532, Laws of the Federation of Nigeria, 1990. The offences, he said, were committed between November 2000 and May 2007 (i.e., after the 1999 Constitution came into effect) – when they were governors of their respective States and the funds involved belonged those states.
“At that time, the said Penal Code Act was ostensibly an existing law within the contemplation of Section 315 of the Constitution. This would, however, depend on the extent, if any, to which the subject matter of the Act was within the legislative competence of either the National or State Houses of Assembly as the case may be,” he argued.
Sani stated that the provenance of the Act, however, shows indisputably that it is a State – as opposed to a federal law. “Its subject matter (particularly the offences for which both men were convicted) puts this beyond peradventure. The National Assembly is incompetent to enact such provisions beyond the FCT – certainly not in Taraba or Plateau States were the offences allegedly occurred.
“This was enough to have invalidated the trials at the High Court of the FCT, which convicted them because it robbed the court of the requisite jurisdiction.
In other words, the so-called Penal Code Act, took effect as a State Law under Section 315(1)(b) of the Constitution. To that extent, only the Plateau and Taraba State High Courts were competent to try them.
“By the same token, only the respective States’ Committees on the Prerogative of Mercy could have competently recommended their pardon or clemency to their respective Governors within the contemplation of Section 212 of the Constitution.
“I believe that Section 175 of the Constitution was wrongly invoked by the President to pardon them because the offences in question were not federal, but state offences. The President can only pardon a person who is convicted of an offence against an Act of the National Assembly,” he maintained.
According to Sani, notwithstanding its name, the Penal Code Act is not an Act of the National Assembly, but an existing law which is deemed to have been passed by the Houses of Assembly of the 19 States of the old Northern Region – including Plateau and Taraba States, where both men allegedly committed the offences in respect of which the President “purported” to pardon them.Arguing in similar fashion, constitutional lawyer and Senior Advocate of Nigeria (SAN), Mike Ozekhome said the pardon presents worrisome legal conundrum, which is whether the President could have legally granted pardon to the former governors, regarding the fact that both men were convicted for offences allegedly committed between November 2000 and May 2007.
“The offences under which they were tried and convicted fall under State laws, which took place after the promulgation of the 1999 Constitution during which time they were governors. Specifically, they were tried and convicted under sections 115,119 and 309 of the Penal Code Act, Cap 532, LFN, 1990, obviously an existing state law within the meaning, import and true purport of sections 315(1)(b) and 318 of the 1999 Constitution.
“This Act, which became effective as a state law is applicable to the FCT and the Northern States. This Penal Code Act, not being a federal legislation of the NASS, became an existing state law deemed duly enacted by the 19 Northern States by virtue of section 315(1)(b) of the 1999 Constitution. It becomes clear therefore that only the Governors of Plateau and Taraba States could have legally and rightly granted pardon to Dariye and Nyame, invoking section 212 of the Constitution; and not Mr President under section 175 of the Constitution,” he argued.
He explained that the doctrine of separation of powers ably propounded in 1748 by Baron de Montesque and which is accorded constitutional imprimatur in sections 4, 5 and 6 of the 1999 Constitution operates here. He added that should anyone challenge their pardon, an interesting constitutional issue would be be thrown up.
According to him, pardon should be exercised sparingly after due consideration of the fuller implications and after complete contrition and penance on the part of the offender. Granting pardon to people, he said, should be viewed by the society as a recognition of a cause worth celebrating, not offensive and fouling the air.
He stated that the pardon implied that Buhari is reviving, nurturing and watering corruption with State powers.
Ozekhome said: “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?”
He said that the abuse of power will definitely ricochet and erode the confidence of international partners in the fight against corruption, dampen the morale of the agencies fighting corruption, like the EFCC, the Police and the ICPC, amongst others, embolden political thieves and unrepentant pilferers of Nigeria’s 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” he lamented.
Human rights lawyer, Festus Ogun decried the pardon, arguing that with it, the Buhari regime has shown its public support for corruption, abuse and impunity, which is condemnable and disgracefully awful.
He recalled that the regime came to power under the pretext of fighting corruption that was prevalent under the Peoples Democratic Party (PDP), yet “its hands are equally drench in corruption. In fact, corruption seems to have been institutionalised in recent times. This regime would go down as the biggest fraud in history.”
Ogun said that under the All Progressives Congress (APC), terrorists, jailed politicians and bandits, the very killers and enemies of the people, are pardoned and treated with kids gloves, whereas, activists, innocent citizens and freedom fighters are treated like common criminals, armed robbers and terrorist.
“Section 15(5) of the 1999 Constitution makes it a duty of the government to abolish corrupt practices and abuse of power. Yet, this government shows unalloyed support for corruption and gross abuse of office. Is pardoning the ex-governors itself not an abuse of constitutional powers?
“A recent report suggests that the Economic and Financial Crimes Commission (EFCC) spent 11 years prosecuting the ex-governors. Additionally, millions of naira (the collective resources of our people) was spent to prosecute them – all wasted. This could demoralise EFCC officials,” he suggested.
He stated that the president is not concerned about the implications of the insensitive pardon on the country’s institutions. By now, serving governors, he pointed out, are more encouraged to loot massively with the hope and assurances of a presidential pardon in future.
“As a trial lawyer for justice, I know by virtue of my job that millions of innocent people are serving jail terms in Nigeria. I know that some young Nigerians who participated in the #EndSARS protests are still languishing in jail. These are those deserving of pardon, not political thieves,” Ogun said.
He called on President Buhari to immediately rescind the presidential pardon, especially as it relates to convicted political criminals, adding that while the government has now lost all its moral rights to fight corruption, it can at least repair the gross damage.
FOR Bar Amaechi Ekwe, section 175 (1) (a) of Nigeria Constitution 1999, which empowers the President to grant pardon made it discretional by using the word ‘may’.
“It is on matters of discretion that we know who a leader is. The President must not pardon! This is where wisdom comes in because the law has allowed the President to use his discretion. The President should know the feelings of his subjects in matters of discretion like this, especially where it concerns corruption. Corruption has been holding Nigeria down since 1960. And because of Nigeria’s position in Africa and Nigeria’s corrupt nature, Africa has remained under-developed till date.
“I have been privileged to participate in a jail delivery and granting of pardon done by the Hon. Justice Maria S. Zukogi, former Chief Judge, Niger State on February 14, 2018 in Suleja Prison. It was done without vested interest. The Prison officials and every stakeholder were allowed to participate by pointing to his lordship the repented prisoners worthy of pardon.
“The society must be aware of the plans for pardon and a public hearing be given by members of the society to air their view because of the injury the offence(s) have caused the society. The society needs to heal of those injuries caused them before granting them pardon. It’s very important! The question is, has Nigeria been healed of corruption?” Ekwe asked.
He noted that the next thing to consider before granting pardon is the aspiration of the nation. Aspiration of the nation, he noted, has to determine who to pardon. “Where are we heading to? Where are we aspiring to be with all these? You don’t pardon an offence that will discourage the society and make a mockery of the fight against corruption when Nigeria is still at a breaking point because of corruption,” he added.
ALSO, human rights campaigner, Chief Malcolm Omirhobo said the presidential pardon amounts to abuse of power, breach of public trust, morality and endorsement of authority stealing.
He noted that the beneficiaries of the pardon are two corrupt public office holders, who looted their states’ coffers and by so doing impoverished millions of Nigerians in their domain, sending many of them out of work, business, school and to their early graves. According to him, their conduct also sent many into crimes, prostitution and other social vices.
“In all of this, I ask what message is our President passing to the Nigerian public? He is simply telling them that they can go to hell and that it doesn’t matter if their governors steal their wealth and that it is okay to loot.
“He is telling the judges that they are wasting their time adjudicating on corrupt cases because at the end of the day, convicts can be released. He is telling the law enforcement agencies like the police and EFCC that they are wasting their time arresting, investigating, interrogating and prosecuting looters. He is teaching our children that it is okay to be a thief and that there is no deterrent since the president would always pardon thieves. He is telling politicians that it is business as usual,” he stressed.
According to him, government’s action shows how insensitive, callous and lawless it is. “What manner of government will spend so much of taxpayers’ money in prosecuting corrupt persons and end up pardoning them after conviction? Small wonder Nigeria remains a laughing stock in the comity of nation,” Omirhobo declared.
PRINCIPAL, Head of Uhuegbu Chineme & Co. (Justice Chambers), Chineme Uhuegbu, said the President’s action was unfortunate, especially as Nigeria faces more urgent issues like insecurity.
He, however, said he was not surprised by the action, as the government does not have intention of fighting corruption.
“Fighting corruption was just a political mantra they used to take over power in 2015. When a government that portrays itself as fighting corruption does this kind of thing, you realise that the country has never really begin the fight against corruption,” he said.
Uhuegbu stressed that there are so many innocent Nigerians in prisons deserving of such pardon, like freedom fighters, who are still suffering, while the pardon is being granted to people who where guilty of their accusations.
PARTNER, Fountain Court Partners, Adebola Lema, said the state pardon was not a surprise as the Federal Government complied with the conditions for it. The two conditions to legally exercise those powers, he said, are that; a) the person granted pardon must have been convicted under an act of the National Assembly; and b) the president must have consulted the Council of State.
He explained that state pardon granted by the President or the State Governor on convicts and the powers of the Attorney General of the Federation and Attorneys General of the States, respectively to file nolle prosequi against persons standing trial in courts are two political weapons created by the Constitution for the executive to exercise.
“Except for cases where the Court needed to confirm the authenticity of the nolle prosequi; where there was no sitting Attorney General (meaning the Permanent Secretary and Solicitor General cannot exercise same in the absence of an Attorney General), the Court does not interfere in the exercise of such power as exercised by the Attorney General,” he said.
Noting the President’s three themes, which are fighting corruption, fixing the economy and security of lives and property, Lema suggested that the Federal Government should have distanced itself from such action, because it shows that they are not interested in fighting corruption.
“Much as the President has not breached any section of the Constitution in the pardon of the both Dariye and Nyame, the manner Donald Trump was condemned for the pardon of Mr. Joe Arpaio amounts to presidential endorsement of criminal contempt.
“In my view, it amounts to the APC and President Buhari endorsing corruption in Nigeria, to say the least. The Nigerians have the option to exercise their voting power against his government for misuse of its presidential power of pardon as was exercised against PDP and Goodluck Ebele Jonathan in 2015,” he said.
SIMILARLY, the Civil Society Legislative Advocacy Centre (CISLAC) and Transparency International (TI) Nigeria have condemned the pardon granted the two ex-governors.
CISLAC in statement signed by its Executive Director, Auwal Ibrahim Musa said the group is worried about the effect such ill-thought political pardon will have on the anti-corruption efforts, which constitutes the major agenda and commitment of the current administration.
According to the group, the pardon shows how bad Nigeria’s anti-corruption effort is, coming barely a week after the United States government released it’s ‘2021 Country Reports on Human Rights Practices in Nigeria’ where it accused Independent Corrupt Practices and other related Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) of focusing on low-and midlevel government officials.
The pardon, it said, further confirms the poor rating of Nigeria on different global indexes like the Corruption Perception Index and the Afro barometer corruption survey, which have reported an increase in corruption in Nigeria.
CISLAC stressed that the official pardon basically targeted at political settlement is indeed a major setback to “our nation’s progress and achievements in the fight against corruption, while validating public perception of the administration’s reported disproportionate and lop-sided fight against corruption in the country.”
This move, the body said, goes further to demoralise the anti-corruption agencies,who are already facing challenges prosecuting high profile cases of corruption.
“Some of these cases took over 10 years to conclude and with lots of resources committed. In one case for example, a witness had to be flown from the United Kingdom to Nigeria at different times with funds from taxpayers.
“Furthermore, operatives of anti-corruption agencies had to put their lives at risk even to the point of facing physical attacks, while these cases were on and suddenly, we read that these individuals have been pardoned.
“This pardon also fails the test of fairness and equity when we consider the poor citizens who have been convicted and are in prison for less crimes. Hence, we call for an extension of such pardon to common Nigerians awaiting trial, forgotten, or abandoned in jails for trivial offences across the country.
“It is important to state that when convicted individuals who looted billions of naira are released, there is no way that the international community will take Nigeria’s anti-corruption efforts seriously, especially when attempts are being made to recover stolen assets outside the country, CISLAC declared.