Section 175 of the 1999 Constitution and Judicial Powers

This article is particular to Nigeria!

The bedrock of the governance of every society ready to live a long throw from the arms of a dictator is the doctrine of separation of powers. Simply put, separation of powers is a constitutional division of the powers of the government of a state among ‘three’ distinct arms of government. Since power corrupts, this splitting of power help to diffuse the powers of a state over separate institutions. Recognisably, the term ‘Separation of Powers’ was coined by Baron de Montesquieu, an 18th century political philosopher. And the heartbeat of this doctrine is the principle of Checks and Balances.

Checks and balances works at its best in a strictly monitored milieu of separation of powers. Thus, clearly spelt out obligations of each arm of government is needed for an efficient dispensation of their constitutional duties. An iota drop in the independence of one arm of government as regards the exercise of its constitutional powers would be simply repugnant to the principle of checks and balances and kill the rationale for separation of powers. Aside from the arguably overstretched doctrine of immunity, interference of the executive in the appointment of Judges, and others, one noticeable downtrend in the administration of separation of powers is the doctrine of ‘Prerogative of mercy’.

Prerogative of Mercy

Prerogative of mercy refers to the power of a president (or governor) to grant pardons, whether conditional or total, to persons who have been convicted of crimes. In other words, the executive is inferably granted the power to upset the judgment of the judiciary – or the execution of it, irrespective of how well the judgment was reached or the gravity of the crime committed. From jail terms to the capital punishment, none is left an exception to the pardoning powers of the president or the governor.

Historically, the royal prerogative of mercy was one of the prerogatives of the British monarch, which meant the Crown had the power to grant royal pardons to convicted persons. As old as the 17th century, the monarch could withdraw a capital punishment and give alternatives. In 1717, King George I proclaimed, promising to generally pardon pirates who surrendered to the authorities, in a bid suppress piracy.

Flowing from historical perspective and contemporary realities, the practice of the granting of pardon to convicted persons is not out of place in the development of an honourable and considerate legal system. The reconsideration and possible justification of certain offenders, whom might have immensely contributed to the development of the state, and whose pardon would not put the society at unrest is quite understandable and should be encouraged. However, the administration of the prerogative of mercy must be channeled through the right routes of justice in consonance with the spirit of the law and fundamental principles of the republican democratic society.

Separation of Powers in Nigeria

The Constitution of the Federal Republic of Nigeria, 1999 as amended, clearly enshrines the doctrine of separation of powers in the Nigerian legal system, by sharing the governmental powers that exist in the state among the three arms of government, i.e. the executive, the legislature, and the judiciary. Section 4, 5, and 6 of the Constitution provides for the powers of the legislature, executive and judiciary, respectively.

Specifically, section 5 (1) (b) and (2) (b) vests the power for the execution and maintenance of the Constitution, as well as other laws made by the legislature, in the president and governor respectively, as holders of the executive power of the federation and the state. While section 6 (6) (a) vests all powers of a court of law in the judiciary, notwithstanding anything to the contrary in the constitution. It explicitly provides thus:

“The judicial powers vested in accordance with the foregoing provisions of this section-

(a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law.”

Without casting any shadow of doubt, the constitution is clear in its separation of powers among the three arms of government. The legislature to make the laws, to be executed and maintained by the executive, and interpreted and administered by the judiciary. Any break in this transition would amount to an arm leaving its duty post to spy or take into its hands the affairs of another. Moreover, the confidence of the citizenry is always firm in the commitment to an independent and conclusive judicial system facilitated by law courts, administering free and fair trails. Whether in criminal or civil proceedings, the court has the exclusive constitutional right to determine conviction and give appropriate sentences.

Nevertheless, Section 175 of the Constitution provides for the presidents’ power to pardon offenders convicted of laws prohibited by federal laws, alleviating or withdrawing in part or in whole their sentences. Notably, this is similar to the provision of Section 212, which confers on a governor the same right to be exercised within the spheres of a state. The granting of presidential pardon shall be exercised upon consultation with the Council of State.

Significantly, Section 36 (10) of the Constitution provides that no person who shows that he has been pardoned for a criminal offence shall again be tried for that offence. In other words, a pardoned person is totally free from the grips of any court sentence and cannot be retried for the same offence.

Without much ado, it is evidently clear that the prerogative of mercy is an obstruction in the wheel of holistic judicial processes and SHOULD be administered with a nonadjustable involvement of the judiciary itself. But this power is currently vested in the head of the executive arm in consultation with the Council of State.

The composition of the Council of State is provided under Part I (5) of the Third Schedule to the constitution. It states that the Council of State shall comprise of the President, Vice-President, all former Presidents and Heads of the Government of the Federation, former Chief Justices of Nigeria, the President of the Senate, Speaker of the House of Representative, all Governors and the Attorney-general of the federation.

Critically, Section 175 leaves the power to pardon convicted offenders in the hands of the President without any procedural approval or process by the judiciary. This ipso facto has created an antagonism to the ‘exclusive’ judicial powers of interpreting the law and punishing offenders.

Presidential Pardon in Nigeria

Statistically, about 301 convicted offenders in Nigeria have been pardoned by the federal government since the begin of the forth republic, with the highest number of 208 pardoned in the incumbent (President Buhari’s) administration. These statistics were gathered and published by Dataphte on May 6, 2022.

Flowing from the foregoing, it is legally nauseating to account that an ‘independent’ arm of government is exclusively granted power to administer a function, and another is granted an eraser to abolish its ruling. Prima facie, Section 175 of the 1999 Constitution is antagonistic to powers conferred on the judiciary by Section 6 of the same constitution.

Recommendation

In furtherance of the granting of prerogative of mercy, as it may be deemed necessary in certain instances, this author recommends that jurisdiction be granted to the Federal High Court to receive the recommendation of the President for the granting of presidential pardon and decide, although not adversarially, the fate of convicted offenders. This way, the power to pardon convicted persons is initiated by the President, but decided by the Judiciary. Similarly, a Magistrate Court should exercise such jurisdiction in a state.