Presidential Pardon Granted to Rev. Jolly Nyame, Joshua Dariye and 157 others: Delimiting the Confluence between Morality and Legality

by Associate Professor Ibrahim Abdullahi, SAN

1.1    Introduction

Rev. Jolly Nyame, the erstwhile governor of Taraba State was convicted by Adebukola Banjoko, Judge of a Federal Capital Territory High Court Gudu on the 30th of May 2018 and sentenced to 14 years imprisonment. His appeal to the Court of Appeal of Nigeria had his jail term reduced to 12 years. Further miffed by the said decision, he appealed to the Supreme Court of Nigeria challenging the jurisdiction of the Federal Capital Territory High Court Gudu to have entertained the case, craved for the further reduction of the 12 years sentence as well as the 100 Million fine imposed on him by the Court of Appeal of Nigeria. At the Supreme Court, the appeal against the imposition of fine succeeded but the Supreme Court affirmed the 12 years jail term. Hon. Justice Amina Augie JSC held that the Court of Appeal of Nigeria was gracious enough to have reduced it to 12 years as a first time offender.

On his part, Joshua Dariye, an erstwhile governor of Plateau State was convicted by Adebukola Banjoko, Judge of a Federal Capital Territory High Court Gudu on the 12th of June 2018 and sentenced to 14 years imprisonment for the offence of in relation to the diversion of Billion of naira from the Plateau State Ecological Fund while he was the governor and two years imprisonment for the offence of Criminal Misappropriation. On appeal to the Court of Appeal of Nigeria, the Court reduced the 14-years sentence for the offence of Criminal Breach of Trust to 10 years and reduced the two years sentence for Criminal Misappropriation to one year. On further appeal to the Supreme Court of Nigeria, the apex court however, upheld Dariye’s concurrent conviction and sentence by the trial court and the Court of Appeal for the offence of Criminal Breach of Trust but proceeded to quash his conviction and sentence in relation to the offence of Criminal Misappropriation.

The President of the Federal Republic of Nigeria while acting within his constitutional powers as enshrined under section 175 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and with the approval of the Council of State, pardoned the erstwhile governors of Taraba and Plateau States; Rev. Jolly Nyame, Joshua Dariye and 157 others with respect to the various offences for which they were convicted and serving various terms of imprisonment. In all, 159 convicts were granted presidential pardon by the President for diverse offences.

There exists genre of mixed reactions arising from the grant of the Presidential pardon. Some (majority) questioned the morality in the grant while others argued that the exercise of the powers by the President was ill advised, an abuse of power that has embolden political thieves and unrepentant pilferers of the country’s national wealth. Yet others see it as a disservice to the Judiciary and the like of Dr Emeka Obegolu, SAN (my learned brother silk) vehemently argued that it is unfair to demonize the Nigerian authorities for pardoning people who have spent considerable period of time detention (prison custody) and have shown remorse.  

This abridged write up attempts to analyze whether moral argument against the exercise of the Presidential powers to grant a pardon can affect the legality of such exercise?  An attempt would similarly be made to delimit the confluence between morality and legality in the exercise of Presidential pardon. 

1.2    Clarification

This write up should not be seen as a support for those who engage in the perpetration of corruption or corrupt practices. The writer recognizes the fact and endorses the need to implement and apply public policy against corruption and financial crimes which have turned out to be ‘deadly snakes’ and financial hooliganism daily killing Nigeria and Nigerians. But at the same time, it becomes imperative to put the records straight and clarify issues in matters relating to law to ensure that justice is not only done, but manifestly seen to have been done. 

1.3    Morality and Law   

Morals are standards of life adopted in any given society. It equally denotes the character or conduct considered as good or descent, ethical, virtuous and therefore considered as a persuasive system. Law is quite distinct from and its validity is no way dependent on morals or morality. The validity of a legal rule depends solely on legal criteria. There is therefore not only the legal duty to obey law but also a moral duty to obey the same law. It is the view of Prof. H.L.A. Hart that; “Law as it is, should be kept distinct from law as it should be”. Law therefore can be a public expression of morality which codifies in a public way the basic principles of conduct which a society accepts. The public expression of the Constitution which is in fact the “tons juris” is reflected in the preamble to the Constitution which posits thus;

        WE THE PEOPLE of the Federal Republic of Nigeria:

        HAVING firmly and solemnly resolved:

TO LIVE in unity and harmony as one indivisible and indissoluble Sovereign nation under God dedicated to the promotion of inter – African solidarity, world peace, international co-operation and understanding:

AND TO PROVIDE for a Constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice and for the purpose of consolidating the Unity of our people:

DO HEREBY MAKE, ENACT AND GIVE TO OURSELVES THE FOLLOWING Constitution:  

The above preamble is in agreement with the view of Prof. R. N. Gilchrist who opined thus; “the State is founded on the minds of its citizens who are moral agents”. Morality when taken too far can conflict with the law but can never override the law itself. For instant in ancient China, some people rob properties from the rich and give to the poor and it was considered morally right but illegal in the eyes of the law. Likewise an action can be legal but morally wrong. An epitome of this is where some people spend thousands of Dollars on pets while others are on the street hungry without food. 

In jurisprudence, law and morality are not synonymous. The case of ATTORNEY GENERAL, FEDERATION VS ABUBAKAR (2007) 10 NWLR (PT.1041) 1 establishes the fact that an act that is morally reprehensible may not be legally punishable. Arguments founded on moral obligations are only valid and binding in conscience and according to natural justice, but it is not recognized by the law as adequate to set in motion the machinery of justice. HABEEB ADEWALE OLUMUYIWA ABIRU, JCA at Pp 41 – 41 Paras C – E in the case of KABO AIR LTD v. MOHAMMED (2014) LPELR-23614(CA) posited thus; 

“Moral obligation on the other hand is “a duty which is valid and binding in conscience and according to natural justice, but it is not recognized by the law as adequate to set in motion the machinery of justice; that is one which rests upon ethical considerations alone, and is not imposed or enforced by positive law.” 

1.4    Meaning and Consequences of Pardon   

A pardon is an act of grace by an 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 of corporal penalties and forfeitures annexed to the offence pardoned. In the case of FALAE v. OBASANJO & ORS NO. 2 (1999) LPELR-6585(CA), MUSDAPHER, J.C.A. at P.21, Paras.C-F held thus;

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. See Verneco Inc. v. Fidelity & Cas C. at New York 253 LA 721,219 SO 2D 508,511. The effect of a pardon is to make the offender a new man (novus homo), to acquit him of all of corporal penalties and forfeitures annexed to the offence pardoned. I am of the view, that by virtue of the pardon contained in Exhibit 11, the disqualification of the 1st respondent was to suffer because of his conviction, has been wiped out. His full civil rights and liberties are fully restored and accordingly he has not been caught by the provisions of Section 13(1) (h) of the Decree.

1.5    Settled Law: the Scope of Presidential Pardon in Nigeria and the United States of America

The exercise of Presidential pardon on the 159 convicts by the President of the Federal Republic of Nigeria attracted unprecedented attention as it relates not to all the convicts granted the pardon but the duo of erstwhile governors of Taraba and Plateau States; Rev. Jolly Nyame and Joshua Dariye. The exact dimension of Presidential pardon is decoded in the Constitution and these aspects are so well established that it is unlikely that any court, conservative or liberal will renounce them. For emphasis, the power of the President to exercise a Presidential pardon is extremely broad. It is vested in the President acting in consultation with the Council of State. It is a discretionary powers vested on the President. A discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. Mohammed, J.S.C. at P. 18, paras. D-F in the case of THE OWNERS OF THE M. V.LUPEX V. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD. (2003) LPELR-3195(SC) stated thus; 

An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law…” 

The powers of a President to grant a pardon are provided for under Section 175 of the Constitution of the Federal Republic of Nigeria 1999, as follows: 

1. 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; 

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. 

By Sections 175 of the Constitution supra, it is clear that the President can exercise the right of pardon of persons before (‘concerned with’) or after conviction of an offence. Under section 175(2) of the Constitution, the powers of the President under sub section (1) of section 175 shall be exercised by him after consultation with the Council of State. The Council of State is established by section 153(1) of the Constitution and under paragraph 5, Part 1 of the Third Schedule of the Constitution, it comprises of high profile personalities who have excelled in their respective fields of human endeavour to wit:

  1. The President, who is the Chairman;
  2. The Vice – President, who shall be the Deputy Chairman;
  3. All former Presidents of the Federation and all former Heads of the Government of the Federation;
  4. All former Chief Justices of Nigeria;
  5. The President of the Senate;
  6. The Speaker of the House of Representatives;
  7. All the Governors of the States of the Federation; and 
  8. The Attorney-General of the Federation. 

The responsibility of the Council of State under paragraph 6 (a) (ii), Part 1 of the Third Schedule of the Constitution, is to advise the President in the exercise of his powers with respect to prerogative of mercy. From the foregoing, a presidential pardon is one form of the clemency powers of the President under the Constitution. The powers extend to all federal offences.

In the United States of America, the plenary power to grant a pardon or a reprieve is granted to the President by Article 11, section 2, clause 1 of the Constitution. The only limitation provided in the Constitution is that pardon is limited to Federal offences and they cannot affect impeachment process. It reads;

“The President shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment” 

The grant of Presidential pardon is not novel to other parts of the world. In the United States of America, approximately 20,000 pardons and commutations were issued by the United States Presidents in the 20th Century alone. On the 8th of September 1974, President Gerald Ford announced his decision to pardon former President Richard Nixon in relation to the Watergate Scandal. Barrack Obama pardoned, commuted or rescinded the conviction of 1, 927 people amongst which include James Cartwright, Dwright J. Loving, Chelsea Manning, Willie McCcovey, Ian Schrager and Oscar Lopez Rivera etc.

1.6    Settled Law: Limitations of Presidential Pardon 

Although the power of Presidential pardon is broad, the power is not without its limitations. The President can only pardon or grant a respite for federal offences and the pardoning power only extends to criminal offences created by an act of the National Assembly and does not extend to civil actions and the power is exercisable only after consultation with the Council of State.

1.7    Validity of the Grant of Presidential Pardon to 159 Convicts

It is very vivid from section 175(1), (2) & (3) of the Constitution that there is no criterion fixed to determine the factors that must be taken into consideration before the discretion is exercised by the President in consultation with the Council of State. One cannot therefore breath into the Constitution what is not there. It is therefore expected that whatever decision influenced the grant of the Presidential pardon and taking into consideration the caliber of personalities that constitutes the Council of State, it was done in good faith and which saw 159 convicts as beneficiaries. Good faith in implied in the decision taken. To insist otherwise is an argument taken too far. Section 168 (1) of the Evidence Act 2011 raises a presumption of regularity and the processes leading to the grant of pardon. In the case of FRN v. ACHIDA & ANOR (2018) LPELR-46065(CA), HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 98 – 100 Paras E – E posits thus;

… However, I believe it will be stretching it a bit too far to say that an Instrument of Pardon is incompetent for failing to say so on its face. Section 168 (1) of the Evidence Act raises a presumption of regularity in favor of such an Instrument of Pardon, as in the instant case; that the power was exercised by the Governor in due consultation with the Advisory Council on Prerogative of Mercy. It was for the Appellant to rebut the presumption… 

No such valid rebuttal had been advanced. In a Council of State comprising of the President, who is the Chairman; the Vice – President, who shall be the Deputy Chairman; all former Presidents of the Federation and all former Heads of the Government of the Federation; all former Chief Justices of Nigeria; the President of the Senate; the Speaker of the House of Representatives; all the Governors of the States of the Federation; and the Attorney-General of the Federation, it is uncharitable and casting unreasonable aspersions to argue that the President was ill advised in the circumstances. Moral arguments will not suffice and will fly into oblivion in the face of legality. The Supreme Court of Nigeria in the cases of EZEUGO VS OHANYERE (1978) 6-7 SC 171, ONIAH VS ONYIA (1989) 1 NWLR (PT.99) 514, MBACHU VS ANAMBRA-IMO RIVER BASIN DEVELOPMENT AUTHORITY, OWERRI (2006) 14 NWLR (PT.1000) 691. AND UDOSEN VS STATE (2007) 4 NWLR (PT.1023) 125  has stated over and over that the Court is for espousing the law and not a place for sentiments and that sentiments command no place in judicial adjudication. In other words sentiments command no place in exposition of the frontiers of the law.  Thus, it is settled law that if there is a right to do an act (in this case, the right to grant a Presidential pardon), the fact that the motive for doing the act is bad or self-serving will not affect its validity or legality of such a grant. Likewise, where there is no right or the thing done is illegal, the purity of the motive or magnanimity of the act done will not alter the legal consequence. See the cases of ANOSIKE BUILDING & COMMERCIAL CO VS FEDERAL CAPITAL DEVELOPMENT AUTHORITY (1994) 8 NWLR (363) 421 AND NWAJAGU VS BRITISH AMERICAN INSURANCE CO. (NIG) LTD (2000) 14 NWLR (PT.687) 356. 

In the case PEUGEOT AUTOMOBILE NIGERIA LTD VS OJE & 3 ORS (1997) 11 NWLR (PT.530) 625, Mahmud Mohammed, JCA (as he then was) stated at page 636  Paras D-E thus: “… I think the age-long principle of the law, that law and morality are almost always poles apart is still very much alive” 

On other thorny area of the law that a view was expressed has to do with the fact that the duo of Rev. Jolly Nyame and Joshua Dariye where tried under the Penal Code Act and it was the view of Chief Mike Ozekhome SAN, that the Penal Code Act is a reflection of a State Legislation and therefore the President cannot grant a pardon under section 175(1) of the Constitution as the power rests on the State governors to do so. I do not subscribe to this view. 

It must be stressed here that ordinarily, criminal offences in Northern Nigeria are tried within the Penal Code while criminal matters in the Southern part of Nigeria are tried under the Criminal Code. See the case of ESTHON VS FRN & ANOR (2020) LPELR-49994 (CA). There is however the Penal Code Act, a federal legislation applicable to the FCT, Abuja as the National Assembly has powers to make laws for the whole of Nigeria. See the case of EZE VS UDEH & ORS (2017) LPELR-42716 (CA). I am not aware of any conflict that has been pointed out between the Penal Code Act and the Penal Code Law of the respective States under consideration. It was in the light of the above that a similar argument was advanced up to the Supreme Court level by the duo and both the trial Federal High Court of Nigeria sitting at Gudu, the Court of Appeal of Nigeria and the Supreme Court of Nigeria all held that that the trial court had the requite jurisdiction to try the offences against the duo thus paved the way for the application of the Penal Code Act and there subsequent conviction and sentence under the Act. In the case of NYAME v. FRN (2008) LPELR-8872(CA), OYEBISI FOLAYEMI OMOLEYE, JCA at Pp 42 – 46 Paras E – E posited thus; 

… In the instant case, the learned trial Judge held “inter alia” that: “In the light of above, I find that there is (sic) both subject matter as well as territorial jurisdiction. The proof of evidence has already shown that some of the acts were alleged (sic) committed within the Federal Capital Territory, thus conferring jurisdiction on this Court in terms of Section4(2) (b) of Penal Code Act and Section 6(m) and Section 7(2) (f) of the Economic and Financial Crimes Commission.” The proof of evidence shows explicitly that part of the “elements” of the offences with which the Appellant has been charged took place within the Federal Capital Territory, Abuja. From the combined effect of the provisions of Section 257(1) & (2) of the 1999 Constitution and Section 4(2)(b) of the Penal Code Act, the High Court of the Federal capital Territory, Abuja could assume jurisdiction to try the Appellant for the offences with which he has been charged. I have no ought against but agree with the sound ruling of the lower Court being appealed in assuming jurisdiction to try the Appellant, for it possesses jurisdiction… 

Having being convicted under an Act of the National Assembly, the President and indeed the Council of State never goofed in the grant of the Presidential pardon to the beneficiaries. The grant was validly made irrespective of the motive allegedly involved.

1.8    Conclusion and Recommendations

It may be argued that the essence of imprisonment of offenders of whatever colour is to meet the legitimate expectations of the society for retribution, where the society strikes back at the offender as to deter potential offenders and make the commission of crime, especially financial crimes, unattractive, protect the public and society by ensuring that dare devil criminals and recalcitrant offenders are taken out of circulation. See the cases of AGBITI v. THE NIGERIAN NAVY (2007) LPELR – 4893 (CA). In ALI v. FRN (2016) LPELR – 40472 (CA). But the overall essence of sentencing and or punishment should be reformative in nature and not punitive. This view was upheld by IKYEGH, JCA in the case of OLATIDOYE v. THE STATE (2010) LPELR – 9079 (CA). But the overall essence of sentencing and or punishment should be reformative in nature and not punitive. This view was upheld by IKYEGH, JCA in It will therefore serve no good to an accused/defendant to spend a life incarcerated when he can still be useful to himself and the society. But where the law provides for mandatory punishment as in capital offences, then it is quite unfortunate that an accused person will have to pay the ultimate penalty for his reckless actions but that is the law and it is not open to any Court of law to go contrary to the law. 

To my mind, a pardon simply erases the penalties and at least some disabilities attendant to a conviction. Despite being pardoned, a person would still have to answer ‘yes’ when asked if he had ever been convicted of a crime. 

The State Governors have their own powers of prerogative of mercies which they discretionary exercise in consultation with the Advisory Council of the State on Prerogative of Mercy as may be established by the Law of the State. See generally section 212(1) & (2) of the Constitution. Therefore the call for the Attorney General of the Federation as well as the President to grant pardon to all “thieves” has no support under the law. To prevent suspicion, mutual distrust and possible abuse arising from the exercise of Presidential pardon, the wide discretionary powers of the President as well as those of the governors need to be checked by constitutional amendments by providing and or listing the factors/criteria that the President in consultation with the Council of State, would have to take into consideration before the exercise of the said pardon. In this way, it would meet the legitimate expectations of the citizens to know when the said power is abused and challenge same if need be before a court of competent jurisdiction.  

Associate Professor Ibrahim Abdullahi, SAN is of the Faculty of Law, Usmanu Danfodiyo University, Sokoto.  He can be reached at extrapage2014@gmail.com


Share:

Leave a Reply

Your email address will not be published.