ACT OF GRACE OR POLITICAL WEAPON?: UNPACKING THE PREROGATIVE OF MERCY IN NIGERIA. BY T.K.GONTUL ESQ.

The power of pardon, often termed the prerogative of mercy, is a venerable principle of law inherited by Nigeria from its colonial past. It represents the Executive arm of government’s final act of clemency, designed to temper justice with mercy. In Nigeria, this power is vested in the President at the Federal level and the Governor at the State level, but its exercise remains a subject of perpetual debate, especially regarding issues of transparency, political influence, and the fight against corruption. Recently, President Ahmed Bola Tinubu exercised the power of prerogative of mercy, which has brought a lot of questions as to some of the persons who were pardoned by the president due to the offences they have committed. Questions have been buckled up in the mind of Nigerians as to why such pardons were awarded to some of the convicts. This article will help to answer some basic questions as to the powers the President and Governors or each state have in regard to the prerogative of mercy as enshrined in the 1999 constitution of Nigeria.

CONSTITUTIONAL AUTHORITIES AND RELEVANT LAWS

The power of clemency is explicitly enshrined in the 1999 Constitution of the Federal Republic of Nigeria:

Presidential Pardon: Section 175 of the Constitution empowers the President to:

1. 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.
2. Grant a respite, substitute a less severe punishment, or remit the whole or any part of any punishment.

The President exercises this power after consultation with the Council of State.

Gubernatorial Pardon: Section 212 of the Constitution grants similar powers to the Governor of a State in respect of any offence created by a Law of that State.

The Governor exercises this power after consultation with the State Advisory Council on Prerogative of Mercy, as may be established by a law of the State.

THE KEY INSTRUMENTS OF THE PREROGATIVE OF MERCY INCLUDE:

1. Pardon: Completely absolves the person of guilt/sentence and restores their rights and privileges.
2. Reprieve/Respite: Postpones the execution of a sentence, often the death penalty of a convict.
3. Commutation: Changes a punishment to a less severe one, like death sentence to life imprisonment.
4. Remission: Reduces the quantum of the punishment, like a 20-year term reduced to 10 years.

JUDICIAL INTERPRETATION AND KEY CASES

The courts have played a vital role in defining the scope and limitations of this executive power:

In the case of Olu Falae v. Olusegun Obasanjo (1999) LPELR-6585 (CA): The Court of Appeal defined a pardon as “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 privileges forfeited on account of the offence.” This affirmed the inherent nature of the power as an act of Executive clemency.

In the case of Federal Republic of Nigeria v. Achida & Anor. (2018) LPELR-46065 (CA): This case is vital because the Court of Appeal determined that the constitutional power of pardon can solely be used for individuals who have been tried and found guilty by an authorized court. This choice seems to restrict the Executive’s authority to issue “pre-conviction” pardons, reinforcing the principle of constitutional innocence until proven guilty. The court primarily restricted the employment of the term “concerned with” in the Constitutional clauses to instances that have progressed beyond the pre-conviction phase.

In Solola & Anor. v. The State (2005) NWLR (Pt. 921) 270: The Supreme Court emphasized that, even though it is not solely on pardon, a person condemned of a capital offense is considered to have filed a second appeal with the Supreme Court if his appeal to the Court of Appeal is denied. The Governor or Head of State cannot use the pardoning power until that last appeal is decided. This highlights the fact that mercy in such serious cases typically requires the use of all available legal procedures.

1. President Bola Ahmed Tinubu’s Clemency (2025): The President recently granted clemency and pardon to numerous inmates and former convicts based on recommendations from the Presidential Advisory Committee on Prerogative of Mercy. Notable recipients included:
2. Posthumous Pardons: Granted to figures like Herbert Macaulay and Major General Mamman Vatsa (sentenced to death in 1986 over an alleged coup plot).
3. Pardon for Convicts: Notable pardons were granted to former political figures, including former House of Representatives member, Farouk Lawan, for corruption charges.
4. Maryam Sanda’s Pardon and Kelvin Prosper Oniarah (Kelvin Ibruvwe): President Bola Tinubu has granted clemency to Maryam Sanda (2025), who was sentenced to death in 2020 for killing her husband, Bilyaminu Bello, during a domestic dispute. Currently sparking a lot of controversies online
5. Ogoni Nine: Posthumous pardons were also granted to the Ogoni Nine, including Ken Saro Wiwa.
6. The exercise also saw the commutation of death sentences to life imprisonment and the reduction of prison terms for scores of other inmates, often citing good conduct, vocational skills acquisition, and ill-health.
7. State Governors’ Pardons (Ongoing): Governors across various states periodically grant pardons, often to decongest correctional facilities. These are typically for inmates with minor offences, terminal illnesses, or those who have shown remarkable rehabilitation.

CHALLENGES IN THE EXERCISE OF PARDON

Lack of Transparency and Uniformity: While the Constitution requires consultation, the process often lacks transparency. There are no consistent, nationwide statutory guidelines for the selection of beneficiaries, leading to fears of arbitrary application.

Abuse for Political Patronage: This is the most significant challenge. The power is often perceived as a tool to reward political allies or absolve politically exposed persons (PEPs) convicted of graft, thereby undermining the efforts of anti-corruption agencies and the judiciary.

Undermining the Fight Against Corruption: Granting pardon to high-profile corruption convicts shortly after their conviction can send a message that the Executive is not fully committed to the rule of law and the anti-corruption fight, potentially eroding public trust.

Absence of Judicial Review: Given that pardon is an Executive “act of grace,” Nigerian law has historically excluded it from judicial review, raising concerns about a check on potential abuse of power.

Marginalisation of Petty Offenders: Critics argue that the process often focuses heavily on high-profile cases, neglecting the plight of indigent and low-level offenders who constitute the majority of the inmate population.

THE WAY FORWARD

Constitutional Amendment: Sections 175 and 212 should be amended to establish clearer standards or a non-exhaustive list of justifiable grounds for granting clemency (e.g., exceptional rehabilitation, terminal illness, demonstrable miscarriage of justice). This would provide a check on unfettered discretion.

Statutory Guidelines and Transparency: The National Assembly and State Houses of Assembly should enact legislation providing mandatory, uniform, and public guidelines for the Advisory Councils on Prerogative of Mercy, ensuring a merit-based, rigorous application process.

Strengthening the Advisory Councils: The Councils should be fully independent, multi-disciplinary, and insulated from political pressure, comprising experts in penology, psychology, law, and social work. Their recommendations and the rationale for the final decision should be publicly documented.

Exclusion for Certain Offences: There is a strong argument for a constitutional amendment to specifically exclude or require a super-majority vote of the Council of State for pardons granted to persons convicted of egregious offences like terrorism, genocide, and certain high-level corruption cases.

Focus on Decongesting Prisons: The power should be used more deliberately to address prison congestion by prioritising the commutation and remission of sentences for low-risk, rehabilitated inmates, thereby serving the goal of penal reform and restorative justice.

In conclusion, the prerogative of mercy is a necessary safeguard against the rigidity of the law and a vital instrument for social reintegration. However, its continued relevance and legitimacy in a democratic Nigeria hinge on its judicious, transparent, and non-discriminatory exercise, ensuring it remains an act of mercy and not a tool of political expediency.