By Femi Falana, SAN

In his article entitled “MARYAM SANDA: THE SUPREME COURT DID NOT, AND CANNOT, “OVERRIDE” PRESIDENT TINUBU: A CONSTITUTIONAL CLARIFICATION ON THE PREROGATIVE OF MERCY”,Sylvester Udemezue Esq. criticised the judgment of the Supreme Court in the case of Mariam Sanda v The State. In his highly erroneous view, Mr. Udemezue stated that “The Prerogative of Mercy is not limited by the judicial calendar. It is not suspended by the pendency of an appeal. It is not held in abeyance until the courts have finished their work. The President’s power exists independently, co-equally, and at all times, subject only to the Constitution.”

Not a few lawyers have pitched their tent with Mr. Udemezue, without taking cognisance of the settled position of the law on the illegality of pardon granted in favour of a convict whose appeal is pending before an appellate court. The attention of such lawyers ought to be drawn to the case of Monsuru Solola & Anor. v The State(2005) LPELR-310 (SC) the pardon granted to one of the convicted individuals (Monsuru Solola) while an appeal was still pending before the Supreme Court was deemed premature and legally ineffective.

Speaking for the apex court, Edozie JSC) held that “A person convicted for 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 this Court and until that Appeal is finally determined the Head of State or the Governor of a State cannot putsuant to Sections 185 or 212 of the 1999 Constitution, as the case may be, exercise his power of perogative of mercy on favour of that person.”

The abuse of the power of prerogative of mercy may be challenged even before a trial court. In FRN v. DINGYADI  (2018) LPELR-46061(CA) the Governor of Sokoto State, Mr. Aminu Tambuwal granted  pardon to Mr.  Muhammad Maigari Dingyadi (former Secretary to the Government of Sokoto State)  and a former governor of Sokoto State, Attahiru Dalhatu Bafarawa who were standing trial for alleged N15bn fraud proffered against them. The prosecution agency, the Economic and Financial Crimes Commission, objected to the pardon but was overruled by the trial court.

But the Court of Appeal voided the  pardon granted in favour of the defendants and ordered their fresh trial in the alleged N15bn fraud proffered against them. Delivering the lead judgments in the two appeals filed by the EFCC against , both Justices Hannatu Sankey and Ndukwe-Anyawu, held that the governor’s pardon was invalid since the accused persons were still standing trial before a competent court.

Indeed, a pardonee may reject the prerogative of mercy exercised in his favour and insists that the law be allowed to take its course. In THE REPUBLIC v. TSATSU TSIKATA (2016) JELR 91912 (CA), the appellant, a leading lawyer and politician, was on June 18, 2008, convicted and sentenced to 5-year imprisonment by the Fast-Track High Court in Accra, Ghana on three counts of willfully causing financial loss to the State and one count of intentionally misapplying public property. Former President John Kufuor  gave the respondent  a presidential pardon.

However, the respondentl rejected the pardon with a handwritten letter saying, “I have never sought, and I do not need your pretence of mercy. Justice is my quest, and I will pursue that quest in accordance with the Constitution and the laws of Ghana”. Thereafter,  the appellant pursued the quest for justice. In  bringing an end to the 15-year legal orderal of the respondent, the Court of Appeal quashed the conviction on the ground that he was not given fair hearing by the trial court.

It is indisputable that it is the constitutionally right of a convict whose appeal is pending before the Court of Appeal or Supreme Court to have the appeal determined. The appeal cannot be truncated or frustrated by any executive act in any manner whatsoever. Therefore, until the pending appeal is finally determined, the President or Governor of a state cannot, pursuant to sections 175 and 212 of the Constitution, as the case may be, exercise his or her power of prerogative of mercy in favour of the appellant person. See the case of Obidike v. State (2001) 17 NWLR (Part 743) 601.

In the same vein, a convict sentenced to death cannot be executed before his appeal is disposed of. In Aliu Bello & Ors v. Attorney-General Of Oyo State (1986) 5 NWLR (Part 45)  820, the Supreme Court berated the Oyo State Government for executing the father of the appellants while his appeal was pending at the Court of Appeal. In his admirable forensic jurisprudence,

Anthony Aniagolu JSC said recalled that :”This is the first case in this country, of which I am aware, in which a legitimate Government of this country past or present; colonial or indigenous hastily and illegally snuffed off the life of an Appellant whose appeal had vested and was in being, with no order of Court upon the appeal, and with a reckless disregard for the life and liberty of the subject and the principles of the Rule of Law. The brutal incident has bespattered the face of the Oyo State Government with the paintbrush of shame.”

It is not in dispute that a presidential pardon cannot be questioned once it is properly granted by the President.  But it does not  automatically terminate ongoing trials or appeals as it cannot override judicial process. All the judicial authorities have confirmed that pardons are to be granted to generally for persons already convicted persons and not for those whose trials or appeals have not been determined. In view of the foregoing,   Adumein JSC was on a good legal wicket when he said that “It was wrong for the executive to seek to exercise its power of pardon over a case of culpable homicide, in respect of which an appeal was pending.”

Henceforth, in order not to run foul of the law, the Prerogative of Mercy Committees  headed by the Attorneys-General of the Federation and States should always ensure that the appeals of convicted persons recommended for pardon have been finally determined. In other words, convicts whose trials or appeals are pending in courts are not entitled to be granted pardon by either the President or State Governors.