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How Constitutional Is Presidential Amnesty?

Posted by on Aug 28th, 2009 and filed under Issues. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

Steve Ikashikeze Elijah

In recent times, the Amnesty granted to the militants in the oil-and-gas rich Niger Delta region of Nigeria by President Umaru Musa Yar’dua has predictably elicited a welter of comments from every imaginable angle. Interestingly, questions on the legal implications of the presidential amnesty to the Niger Delta “freedom fighters” have been generously asked. Consequently, an x-ray on the legal implications of the presidential amnesty to the Niger Delta militants under the Nigeria’s jurisprudence is not un-indispensable. It must be noted abi initio that the present unrest in the Niger Delta is a consequence of the all-time neglect of the region by successive governments in Nigeria.

For all intents and purposes, amnesty is generally a type of “pardon” granted to political offenders which in effect obviates the necessity of prosecution and punishment. Under the Nigerian criminal jurisprudence, this category of “pardon” can only be granted by the Attorney-General through the process of nolle prosequi. By exercising this power, the State automatically discontinues the prosecution of a person standing trial. This was the constitutional mechanism the Federal Government employed in the case of Mr. Henry Okah, the MEND’s leader. The power of nolle prosequi, both for the Federal and the States’ Attorneys-General, is provided for in 175 (1) ( c) and 211 (1) ( Sections (c) of the Constitution of the Federal Republic of Nigeria 1999, respectively.

However, the Constitution of the Federal Republic of Nigeria 1999 proves a sharp contrast to the general concept of amnesty currently adopted by the Federal Government. For the avoidance of doubt, S.175 (1) of the Constitution states as follows:

The president may (a) grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions states as follows:

(b) grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;

(c) substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or

(d) remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the State on account of such an offence.

A similar power of prerogative of mercy is available to State Governors of the various States in Nigeria vis-a.-vis offences created by the State Houses of Assembly. See 212(1) of the Constitution of the Federal Republic of Nigeria 1999.

The intention of the framers of the 1999 Constitution, as it can be irrefragably gathered from the clear and unambiguous statements of  S .174 (l), is that the President may only exercise his prerogative of mercy in relation to a person who must have committed or been convicted of a Federal offence by a court of competent jurisdiction and not otherwise. It must be noted, stricto sensu, that a person cannot be said to have committed or been convicted of an offence if he has not been found guilty of that offence by a court of competent jurisdiction. This is because, every person charged with committing an offence is presumed to be innocent until his accusers establish his guilt. The express words of the doctrine of presumption of innocence, entrenched in S.36 (5) of the 1999 Constitution, are that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

The position in Law is that a convict once granted a pardon automatically bears the toga of novus homo (a new man) and cannot be tried for the same offence of which he has been convicted and pardoned. In Falae v. Obasanjo (2) (1999) 4 N.W.L.R. (Pt. 599) 476 particularly at 495, the Court of Appeal, Per Musdapher, J.C.A. (as he then was), opined as follows:

“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 the privileges forfeited on account of the offence… The effect of a pardon is to make the offender a new man (novus homo), to acquit him of all corporal penalties and forfeiture annexed to the offence pardoned”.

In the same vein, a pardoned criminal is immune from re-prosecution as regards the offence he has been pardoned of. This is a fundamental right provided and guaranteed under S.36 (10) of the 1999 Constitution. It provides as follows:-

“No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence”.

Having examined the import and effects of S.175 (1) of the 1999 Constitution, the inescapable question therefore is: “what are the legal implications of the current presidential amnesty to the Niger Delta militants?”

First and foremost (and as shown above) the word amnesty is alien to the Nigerian constitutional jurisprudence in particular and our corpus juris in general. Therefore the effect will be vividly explained by the all-time rule of interpretation that provides that the express mention of one thing means the exclusion of another. The exact Latin phrase is expressio unius est exclusio alterius. S .175 (1) ( supra) expressly mentions the word pardon without the slightest accommodation of a possible term as amnesty. In Udoh v. Orthorpaedic Hospital Management Board (1993) 7 N.W.L.R. 304, the court, in interpreting S.l (a) of the Trade Disputes Amendment Decree 47 of 1992 which provided for the abatement of pending orders, interim or interlocutory orders, judgment or a decision of any court apart from the National Industrial Court, held that the provision did not relate to final judgments and appeals there from, since not being mentioned in the said provision. It is therefore my humble but firm view that the term amnesty not being mentioned in S .175 (1) of the 1999 Constitution, whatsoever done in the name of a presidential amnesty will, in law, amount to a nullity.

The corollary of the above is that a person granted amnesty has no pardon in law because under our law amnesty is no approximation to a prerogative of mercy. Thus, Niger Delta militants who may eventually embrace the presidential amnesty should have it at the back of their mind that, in case of a “fail deal” with the Federal Government, they cannot be availed by S.36 (10) of the 1999 Constitution. Being conversant with the acrobatic nature of government policies and insincerity of purpose in this country, one’s apprehension is better imagined than experienced.

Finally, accepting an amnesty which its architects equate to a pardon will, in every intent and purpose, amount to a self-indictment on the part of the Niger Delta militants. Under our accusatorial criminal system, every person accused of committing a crime is presumed to be innocent until the contrary is established against him. As matter of fact, the law does not impose on the accused person the burden of proving his innocence.

Conclusion

It is the wish of every well-meaning Nigerian that the Niger Delta problem could be fIxed once and for all. Consequently, the idea of an amnesty seems most desirable and expedient at this time in our national life. However, no amnesty programme can be successful if pursued outside the confines of the law. Therefore, it is suggested that a Government White Paper (GWP) be published as to the possible legal action of the Federal Government in case of a “fail deal” between the government and the militants. This will greatly engender mutual trust and confidence.

Similarly, since the Niger Delta problem borders on under-development and long years of inequity to the people of the region a lack of well-articulated post­amnesty programme (which is the case in the present amnesty deal) will be the greatest undoing of the whole exercise. The history of the Niger Delta struggle, right from the days of Isaac Adaka Boro, to Ken Saro-Wiwa’s and recently the arm-struggle in the creeks of the Niger Delta, has shown incontestably that until the twin-problems of under-development and inequity foisted on the people of the Niger Delta by the Nigerian State are adequately addressed there can be no lasting peace in the region. This, in realistic terms, implies that the presidential amnesty will fail if these issues are not addressed. To this connection, it is imperative that the Federal Government and all stakeholders should expeditiously ensure a  wholesale practical implementation of the Ledum Mitee-led Technical Committee Report on the Niger Delta.

Elijah is a student of Law at the Rivers State Univeristy of Science and Technology, Port Harcourt.

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