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LEGAL OPINION ON PREROGATIVE OF MERCY AND ITS APPROACH BY AHMOD BABATUNDE ARIYIBI

INTRODUCTION

A person sentenced to death may appeal to the President or Governor for what is known as Prerogative of Mercy. Same may be granted by the President or Governor where it is a Federal offence or a State offence as the case may be. The Court may also suo motu make recommendations to the President or Governor through the Attorney General for Prerogative of Mercy. See Amanchukwu v. Federal Republic of Nigeria.

What then is Prerogative of Mercy?

According to the Black’s Law Dictionary, 7th Edition, Prerogative of Mercy is defined as the power of the president or a governor to pardon a criminal or commute a criminal sentence. It means a compassionate treatment, as of criminal offenders or of those in distress; especially imprisonment, rather than death, imposed as punishment for capital offences.

In simple term, Prerogative of Mercy is the power of a governor or the president to grant either conditional or total pardon to those who have been convicted of crimes whether they are still serving their punishments or they are ex-convicts. Once a person is granted pardon, especially if total, such person’s criminal record is totally erased and the previous conviction cannot count against him anymore.

From the above analysis, what is the approach to Prerogative of Mercy?

Note that Section 175 of the 1999 Constitution (as amended) whose provision is in tandem with the provisions of Section 212 of the same Constitution provides for Prerogative of Mercy. The former deals with the President’s power while the latter deals with the Governor’s power. Either of them may exercise such power, but same can only be properly made to the Committee on Prerogative of Mercy or the Attorney-General of the Federation or that of the State, and not to the Supreme Court or the Court that convicted the person. However, the Court can still make recommendation for the power to be exercised See Okeke v. State and Amanchukwu v. Federal Republic of Nigeria.

In the latter case, the sentence to life imprisonment was reduced to 15 years imprisonment on appeal and as at that time the accused had already served over 15 years, my Lordships at the Court of Appeal recommend very strongly that the case be referred to the Attorney-General of the Federation who will bring it to the notice of the President of the Federal Republic of Nigeria for reprieve under the prerogative of mercy pursuant to Section 175 (1) of the Constitution.

The above position is also crystal clear by the provisions of Section 175 (2) and 212(2) of the Constitution that the President or Governor shall exercise that power after consultation with the Council of State. No provision in the constitution or any relevant law which stipulates that the President or Governor must be bound by the resolution or decision of the Council of State.

The President or Governor after consultation with Council of State or Advisory Council on Prerogative of Mercy of the State respectively may:

1) grant the offender pardon;

2) grant the offender a respite. That is to cancel or postpone the punishment; or

3) commute the death sentence to life imprisonment or lesser punishment. See section 175(2) and 212(2) of the Constitution.

To this end, it is of paramount importance to note that the power to exercise prerogative of mercy by the President or Governor of the state is purely discretionary and the president or Governor of a state as the case may be can only be advised not ordered or compelled to exercise this quasi-judicial discretion.

As per the question whether such power can now be exercised when appeal is pending?

Generally, Prerogative of Mercy as a legal concept cannot be set in motion unless there is a sentence of court on a convicted person(s) which the mercy will act as a panacea by mitigating or waiving the punishment. Where there have not been any prosecution and completion which is the sentence of court, the principle of Prerogative of Mercy cannot be invoke and whatsoever the President or the Governor of the state does before the prosecution and sentence of the convict will not fall within the ambit of Prerogative of Mercy. See FRN v. Alkali & Anor.

On the other hand, where the person(s) sentenced have exhausted his/their right of appeal or fail to use same, the only thing to do to twist the sentence of the court as pronounced is to make an application for Prerogative of Mercy.

It is worthy to note however that although the powers of the President and the Governor of the state under section 175 and 212 of the Constitution respectively to exercise their Prerogative o Mercy are enormous, such must be exercised judiciously and in accordance with the due process of the law.

Therefore, where a convict decided to seek for prerogative of mercy he must have initiated such without any pending appeal or until he has exhausted same appeal which was not swayed in his favour.

The Supreme Court in the case of Solola v. State held that a person convicted of murder and sentenced to death by a High Court and whose appeal is dismissed by the Court of Appeal is deemed to have lodged a further appeal to the Supreme Court and until that appeal is finally determined, the Head of state or Governor of a state cannot, pursuant to sections 175 and 212 of the Constitution, as the case may be, exercise his power of Prerogative of Mercy in favour of that person. In the same vein, such person cannot be executed before his appeal is disposed of.

Again, in the case of Obidike v. State, the court on deciding on the propriety of granting pardon to a convict of capital offence while appeal against conviction is pending held that it is not proper that a convicted prisoner should be granted presidential pardon while his case is pending on appeal. Presidential pardon could come after appeal has been heard and determined; on the exercise of Prerogative of Mercy on a recommendation by the Attorney-General of the federation. Suffice to say that where the Prerogative of Mercy is exercised while the convict’s case is pending at whatsoever stage, such mercy cannot hold water as may be challenged.

As per how many years a convict sentenced to death must have spent before applying for prerogative of mercy on his behalf or that his sentence may be commuted to life imprisonment?

Looking at the above explanation so far, exercising prerogative of mercy does not have a time bound as same may even be recommended by the court that sentenced him and pursue immediately by his legal representative. However, each case depends on its peculiarity or circumstance attached as each case is decided on its own merit.

Additionally, where a convict has spent a longer year in the correctional centre and justify to be remorseful enough for such consideration, no law prevent the board from making the recommendation once aware of same except as the President or Governor may determine as it is based on their discretionary power.
Note however that Section 12 (2) (c) of the Nigerian Correctional Service Act, 2019 is also apposit envisaging 10 years upward on capital sentence case.

CONCLUSION

It is important to know that where appeal on such sentence is pending, same application or recommendation cannot be made during that period albeit the years the appeal may be taken to be heard, otherwise it may not be treated by the board. However, where the convict or representative for the prerogative of mercy are more inclined to that approach than the appeal already pending at the Court of Appeal or the Supreme Court, the best option is to make an application to the Presiding Justice or Chief Justice of Nigeria at the Court of Appeal or Supreme Court respectively for the accelerated hearing of the appeal. On this, the Court may assign a shorter date for the expeditious hearing of the appeal which may either be in his favour or otherwise. Where the latter is the case, then he may now approach the board for the prerogative of mercy.

In synopsis, even though the issue of prerogative of mercy is recognized Constitutionally and under our law, same may be considered and granted to a convict, it is still subject to the discretion of the President or the Governor. However, such power too, just as our law court, must be exercised judiciously. Same cannot also be invoked where there is a pending appeal in the case of the convict as the law consider that justice in a case is not only to a Defendant, Appellant or a Convict alone, but to the State and even the Victim. See Josiah V. State.

I thereby conclude with the case of Ezenwafor v. Commissioner of Police where Per Omoleye J.C.A, at Page 40, Paragraph A-C thus:

“The phrase “in the interest of justice” is not a magic wand that can be hinged upon by any single party. It is not a shield for or tool to be wielded by anyone party. Indeed, all parties in an action are entitled to that: “interest of justice”. It must be applied and made available to all and sundry in accordance to applicable laws in a matter.”

Ahmod Babatunde Ariyibi is an Associate at Graystone Solicitors, based in Lagos.

To reach him, email: ariyibiahmod00036@yahoo.com or contact/whatsapp: 08099186668.

REFERENCE NOTE

1) Section 175, 212 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

2) Amanchukwu V. Federal Republic of Nigeria (2007) 6 NWLR (Part 1029) 1 CA.

3) Okeke v. State (2012) LPELR-CA/E/78/2011

4) FRN v. Alkali & Anor
(2018) LPELR-CA/S/179C/2017.

5) Solola v. State (2005) 11 NWLR (Part 937) 460

6) Obidike v. State (2001) 17 NWLR (743) 601

7) Josiah V. State (1985) 1 NWLR (Part 1) Of. 125, Paras, G-H.

8) Ezenwafor v. Commissioner of Police
(2009) LPELR-CA/A/34C/08

9) Garner B. A, Black’s Law Dictionary, 7th Edition.

10) 3 in 1 Update: 2017/2018 Class Note on Criminal Litigation, Nigerian Law School, Lagos Campus- prepared by Ariyibi, Ahmod Babatunde.

11) The Prerogative of Mercy under the Nigerian Criminal Justice System and the Quasi-Judicial Power of the Executive by Kereseakara Usendu, Esq.See https://legalresearchersnigeria.wordpress.com/2016/08/13/the-prerogative-of-mercy-under-the-nigerian-criminal-justice-system-and-the-quasi-judicial-power-of-the-executive-by-kereseakara-usendu-esq/amp/

12) Press release by the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN) that the Nigerian govt may commute death sentence to life imprisonment for some inmates. See https://www.ripplesnigeria.com/nigerian-govt-may-commute-death-sentence-to-life-imprisonment-for-some-inmates/

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