Inequity In Politics Of Presidential Pardon (1)

The National Council of States (NCS) has, during its last meet­ing held on Thursday, April 14, 2022, approved President Mu­hammadu Buhari’s pardon of 159 pris­oners, two of whom are Joshua Dariye and Jolly Nyame, ex-governors of Pla­teau and Taraba states, respectively.

While Dariye was found guilty and jailed for stealing N1.16 billion, Nyame has a tag of N1.6 billion as being stolen by him and therefore sent to prison.

Although both have been in the pen­itentiary, as they should, their proposed pardon may be owed to the general be­lief that their imprisonment, to a large extent might have political, ethnic and religious undertones.

We will return to that aspect later in the course of this intervention. But first, it is important to state that a pres­idential pardon is in order and univer­sal, as it has almost taken the form of a ritual since president sall over the world make it a sort of fetish by granting state pardons to convicts as part of activities marking their exit from power.

The experience in the United States of America (USA) where the last presi­dential pardon was very controversial attests to the contentious nature of exercise of prerogative of mercy. Since there are no set parameters for who qualifies, it always represents different strokes for different folks.

Perhaps, referencing a few instanc­es by past presidents in the USA from where Nigeria took the franchise for presidential system of governance would serve as a veritable compass to the type of emotions that pardon of convicts has elicited in another clime.

From President Donald Trump, who, apart from pardoning friends and family, included plans to give himself pardon in anticipation of indictment and conviction on his alleged ignoble role in the 2021 presidential election and January 6 invasion of the Capitol by his supporters, to Richard Nixon who pardoned his predecessor in office, President Gerald Ford for his crimes re­lated to Watergate scandal without even undergoing trial.

According to reporting by Time Magazine correspondent, Jack Brew­ster, Marc Reich with 65 criminal charges including tax invasion, racke­teering, and illegal oil deals with Iran, was also pardoned by President Bill Clinton before he exited office as pres­ident.

Even Presidents George W. Bush and George H. Bush, during their respective presidencies, granted their acolytes and associates presidential pardons that generated controversies.

While George W. Bush had the 30 months prison term of Scooter Libby, chief of staff to the former Vice Presi­dent commuted for obstruction of jus­tice and providing false statements to the F.B.I, George H. Bush did not allow the opportunity to exercise the power of presidential pardon to go unutilized, as he had also pardoned former Secre­tary of State, Casper Weinberger for the crime of lying under oath.

The list is inexhaustible and it even extends to the UK and Europe as a whole. But the point has been suffi­ciently made that although presidential pardon is a settled doctrine worldwide, it has remained a highly combustible matter, and Nigeria can not be an ex­ception.

As readers would have noticed, most, if no tall the presidential pardons granted by US presidents highlighted, were to individuals who breached the consti­tution in terms of flouting policies and principles which is more or less per jury.

In contrast with the situation in the US, the most prominent people recently considered for presidential pardon in Nigeria-Dariye and Nyame were con­victed for corruption which entails em­bezzlement of public funds or violation of government treasury.

That is one of the factors that have gaslighted the latest presidential par­don in Nigeria. The second reason is that there is inequity in not extending the pardon to convicts of petty crimes from the tribe of the hoi poloi.

And that is the tribe of Nigerians that form the majority of those in jail. Human rights activist and lawyer, Femi Falana made that contention in a speech during the commemoration of one year of the passage of Yinka Odumakin, a formidable human rights activist.

“All petty thieves in our prisons should be released. Under Section 17 of the 1999 Constitution, there shall be equality and equal rights for all citizens.

“Section 42 of the Constitution says there shall be no discrimination on the basis of class and gender, so you cannot take out a few people on the basis that they belong to a category or section of the society.

“I can assure you that if the govern­ment did not release others, I am going to call on lawyers whose clients are left in custody to come to court and chal­lenge the discriminatory treatment of their clients.

He reminded Nigerians that: “Just two weeks ago, a Nigerian was jailed for stealing N1,000 in Abuja; the accused pleaded with the judge that he had no food but the judge jailed him for six months.

“When we are talking of justice and fair play, if you want to pardon some set of people, then you must also extend presidential pardon to petty thieves in the prisons.

“This is because if the big thieves are being asked to go, then they must also extend the facility to other Nigerians.”

In the light of the argument above, equity is the main bone of contention for the human rights advocate. The cherry side of the current pardon is that it covers all the junior officers that were involved in the infamous Gideon Okhar-led military coup d’etat of April 22, 1990. So after about three decades and two years, reprieve has come the way of the low cadre officers who were not in the real sense of it, coupists, but were probably only obeying the com­mand of their bosses that staged the putsch .

By and large, the state pardon of the pair of Dariye and Nyame is not just a matter of not passing the test when the action is passed through the crucible of equity, but it is also morally repugnant if what is good for the geese is not good for the gander as it is not being extend­ed to Nigerians who committed petty crimes.

On top of that, a legal angle has also been identified and added to the contro­versy by Dr Abubakar Alkali, who is the convener of the Movement for New Nigeria (MNN).

In a recent media statement, he is making the case that the pardon outsourced by the outgoing president Buhari to the NCS is in breach of the constitution of the federal republic of Nigeria.

“The pardon granted to convicted corrupt former governors, Jolly Nyame and Joshua Dariye, by the National Council of states is UNCONSTITU­TIONAL as the prerogative of mercy in the third schedule, part 1 section 6(ii) of the constitution 1999 (as altered) can only be exercised in respect of federal offences. Dariye’s and Nyame’s are state offences.”

Citing legal precedents, he argued that “The Supreme Court ruling on Dr. Joseph Nwobika SAN vs Federal Re­public of Nigeria has clearly spelled out that corruption cases involving states governors are state offences. In this vein, the NCS cannot pardon Dariye and Nyame because the prerogative of mercy bestowed on the national council of states (NCS) can only be applied on federal offences.”

Dr Alkali further made the case that: “Since Dariye’s and Nyame’s corrup­tion convictions are state offences, the NCS has no powers to exercise the pre­rogative of mercy on their cases. The prerogative of mercy is usually exer­cised in cases where the convict or sus­pect has spent many years in detention without trial which exceeds the likely jail term he could face upon conviction.”

He concluded his reprimand of the presidency with the following declara­tion: “Clearly the action by the NCS is unconstitutional because the preroga­tive of mercy as enshrined in section 6(ii) third schedule of the 1999 consti­tution cannot be applied in these cases of extreme advance corruption. This relevant section which empowers the national council of states(NCS) to exer­cise the prerogative of mercy can not be a blank cheque to upturn the judgement of the apex (Supreme Court) which took more than a year to run and convict Jol­ly Nyame and Joshua Dariye accord­ingly. Indeed, the corruption cases of Jolly and Joshua are STATE offences and cannot be pardoned by federal fiat.”

Now, it would be clear to all that I have leaned heavily on Dr Alkali’s narrative because it is based on legal precedents which he cited elaborately. More so with the unconstitutionality of pardoning state offenders by the NCS, whose authorities covers only federal crimes and which by all indications is currently the case with Dariye and Nyame convictions.

Invariably, the validity of the pro­posed pardon would have to be tested in the law courts before it can be said to have earned the imprimatur of con­stitutionality, considered equitable, and accepted as justifiable.

In the event that the authorities go ahead with the pardon, both Femi Falana and Abubakar Alkali, on differ­ent grounds and for dissimilar reasons, have vowed to litigate the decision.

For Falana, it is because the pardon excludes the convicts in the lower rung of society, and for Alkali, the reason he is venting his spleen is owed to the contravention of Nigeria’s constitution and in justice to the citizens of the states against whom both Dariye and Nyame committed the crimes.

For the rest of Nigerians who are aghast , it is about the fact that the con­viction and jailing of the duo involves their engagement in financial fraud, of which the incumbent government claims it has zero tolerance. But which it appears to have acquiesced with, if and when it goes ahead with the par­don.

But taking into consideration, the circumstances under which the ex-gov­ernors got convicted and jailed, which some Nigerians believe are influenced by their political, and religious lean­ings, and underscored by the general belief that politicians who cross carpet from the PDP to the APC automatical­ly ‘change’ their cloak from sinners to saints,(as reportedly decreed by former chairman of the ruling party, Adams Oshiomhole) it is not unexpected that politics would play a significant role in unshackling the duo through state par­don. It is also being speculated that not being from the tribe of the ruling class or of the same faith as them, inhibited their chances of evading the law like their northern contemporaries ‘ gover­nors of the class of 1999’ who also have corruption cases pending in courts, but are not in jail. That is even though the sums of N1.6b and N1.16b embezzled by the jailed governors, Dariye and Nyame pale in comparison to the mul­tiple billions of naira allegedly stolen by ex governors and other politicians still strutting around and angling to be handed the leadership of our country when Buhari exits Aso Rock villa in 2023.

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