Issues
How Constitutional Is Presidential Amnesty?
Steve Ikashikeze Elijah
In recent times, the Amnesty granted to the militants in the oil-and-gas rich Niger Delta region of Nigeria by President Umaru Musa Yar’dua has predictably elicited a welter of comments from every imaginable angle. Interestingly, questions on the legal implications of the presidential amnesty to the Niger Delta “freedom fighters” have been generously asked. Consequently, an x-ray on the legal implications of the presidential amnesty to the Niger Delta militants under the Nigeria’s jurisprudence is not un-indispensable. It must be noted abi initio that the present unrest in the Niger Delta is a consequence of the all-time neglect of the region by successive governments in Nigeria.
For all intents and purposes, amnesty is generally a type of “pardon” granted to political offenders which in effect obviates the necessity of prosecution and punishment. Under the Nigerian criminal jurisprudence, this category of “pardon” can only be granted by the Attorney-General through the process of nolle prosequi. By exercising this power, the State automatically discontinues the prosecution of a person standing trial. This was the constitutional mechanism the Federal Government employed in the case of Mr. Henry Okah, the MEND’s leader. The power of nolle prosequi, both for the Federal and the States’ Attorneys-General, is provided for in 175 (1) ( c) and 211 (1) ( Sections (c) of the Constitution of the Federal Republic of Nigeria 1999, respectively.
However, the Constitution of the Federal Republic of Nigeria 1999 proves a sharp contrast to the general concept of amnesty currently adopted by the Federal Government. For the avoidance of doubt, S.175 (1) of the Constitution states as follows:
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 states as follows:
(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.
A similar power of prerogative of mercy is available to State Governors of the various States in Nigeria vis-a.-vis offences created by the State Houses of Assembly. See 212(1) of the Constitution of the Federal Republic of Nigeria 1999.
The intention of the framers of the 1999 Constitution, as it can be irrefragably gathered from the clear and unambiguous statements of S .174 (l), is that the President may only exercise his prerogative of mercy in relation to a person who must have committed or been convicted of a Federal offence by a court of competent jurisdiction and not otherwise. It must be noted, stricto sensu, that a person cannot be said to have committed or been convicted of an offence if he has not been found guilty of that offence by a court of competent jurisdiction. This is because, every person charged with committing an offence is presumed to be innocent until his accusers establish his guilt. The express words of the doctrine of presumption of innocence, entrenched in S.36 (5) of the 1999 Constitution, are that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
The position in Law is that a convict once granted a pardon automatically bears the toga of novus homo (a new man) and cannot be tried for the same offence of which he has been convicted and pardoned. In Falae v. Obasanjo (2) (1999) 4 N.W.L.R. (Pt. 599) 476 particularly at 495, the Court of Appeal, Per Musdapher, J.C.A. (as he then was), opined as follows:
“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… The effect of a pardon is to make the offender a new man (novus homo), to acquit him of all corporal penalties and forfeiture annexed to the offence pardoned”.
In the same vein, a pardoned criminal is immune from re-prosecution as regards the offence he has been pardoned of. This is a fundamental right provided and guaranteed under S.36 (10) of the 1999 Constitution. It provides as follows:-
“No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence”.
Having examined the import and effects of S.175 (1) of the 1999 Constitution, the inescapable question therefore is: “what are the legal implications of the current presidential amnesty to the Niger Delta militants?”
First and foremost (and as shown above) the word amnesty is alien to the Nigerian constitutional jurisprudence in particular and our corpus juris in general. Therefore the effect will be vividly explained by the all-time rule of interpretation that provides that the express mention of one thing means the exclusion of another. The exact Latin phrase is expressio unius est exclusio alterius. S .175 (1) ( supra) expressly mentions the word pardon without the slightest accommodation of a possible term as amnesty. In Udoh v. Orthorpaedic Hospital Management Board (1993) 7 N.W.L.R. 304, the court, in interpreting S.l (a) of the Trade Disputes Amendment Decree 47 of 1992 which provided for the abatement of pending orders, interim or interlocutory orders, judgment or a decision of any court apart from the National Industrial Court, held that the provision did not relate to final judgments and appeals there from, since not being mentioned in the said provision. It is therefore my humble but firm view that the term amnesty not being mentioned in S .175 (1) of the 1999 Constitution, whatsoever done in the name of a presidential amnesty will, in law, amount to a nullity.
The corollary of the above is that a person granted amnesty has no pardon in law because under our law amnesty is no approximation to a prerogative of mercy. Thus, Niger Delta militants who may eventually embrace the presidential amnesty should have it at the back of their mind that, in case of a “fail deal” with the Federal Government, they cannot be availed by S.36 (10) of the 1999 Constitution. Being conversant with the acrobatic nature of government policies and insincerity of purpose in this country, one’s apprehension is better imagined than experienced.
Finally, accepting an amnesty which its architects equate to a pardon will, in every intent and purpose, amount to a self-indictment on the part of the Niger Delta militants. Under our accusatorial criminal system, every person accused of committing a crime is presumed to be innocent until the contrary is established against him. As matter of fact, the law does not impose on the accused person the burden of proving his innocence.
Conclusion
It is the wish of every well-meaning Nigerian that the Niger Delta problem could be fIxed once and for all. Consequently, the idea of an amnesty seems most desirable and expedient at this time in our national life. However, no amnesty programme can be successful if pursued outside the confines of the law. Therefore, it is suggested that a Government White Paper (GWP) be published as to the possible legal action of the Federal Government in case of a “fail deal” between the government and the militants. This will greatly engender mutual trust and confidence.
Similarly, since the Niger Delta problem borders on under-development and long years of inequity to the people of the region a lack of well-articulated postamnesty programme (which is the case in the present amnesty deal) will be the greatest undoing of the whole exercise. The history of the Niger Delta struggle, right from the days of Isaac Adaka Boro, to Ken Saro-Wiwa’s and recently the arm-struggle in the creeks of the Niger Delta, has shown incontestably that until the twin-problems of under-development and inequity foisted on the people of the Niger Delta by the Nigerian State are adequately addressed there can be no lasting peace in the region. This, in realistic terms, implies that the presidential amnesty will fail if these issues are not addressed. To this connection, it is imperative that the Federal Government and all stakeholders should expeditiously ensure a wholesale practical implementation of the Ledum Mitee-led Technical Committee Report on the Niger Delta.
Elijah is a student of Law at the Rivers State Univeristy of Science and Technology, Port Harcourt.
This is an open letter to the Minister of the Federal Capital Territory, Chief Nyesom Wike.
Your Excellency,
Sir, ordinarily, I would not be writing an open letter to you, but like a wise man once said, “Silence would be Treason.” So I prefer to stay alive than face the consequences of silence in the face of crime. With each passing day, and as the socio-political tides continue to turn, it has become more pertinent that more people speak up in a concerted MANNER to prevent the death of our party, the Peoples Democratic Party (PDP), as we appear to be, in the words of W. B. Yeats, “turning and turning in the widening gyre” heading for an end where the falcon will no longer hear the falconer
It is unfortunate that since losing control of the Federal Government, with the loss of President Goodluck Jonathan at the poll in 2015, our party, the Peoples Democratic Party (PDP), has continued on a downward spiral. It is much more painful, that where it is expected that leaders within the party should rise to the challenge and put an end to this decline of our great party, some have instead taken up roles as its undertaker.
It will be hypocritical to claim aloofness to what I believe is your grouse with the PDP and I am not a hypocrite. It will be uncharitable on my part to discountenance the role you have played in strengthening the PDP from 2015 up until the last Presidential primaries of the party. It is my belief that your grouse against certain members of the party who you perceived worked against the party and abandoned it in 2015 and then came around much later to take control of the party, is justified. Also know that your decision to remain in the Party and stifle its progress on the other hand, as a sort of payback, stands condemned. For a man of your pedigree and stature, it is a dishonorable act, highly dishonorable and stands as testimony against all you claim to stand for.
At least, it can be argued that those who you hold this grudge against, abandoned the party completely and did not sit back while actively working to destroy it from within. But what then can be the argument on your own part, seeing that those you are currently working with against your party are the same people who set in motion, and executed surgically, the plans that not only ended our Party’s leadership at the centre, but ended up dislodging the first Niger Deltan to occupy Aso Rock as Commander in Chief of the Armed Forces. Is this not akin to “cutting off one’s nose to spite one’s face?” That will be worse than folly. Let us not throw away the baby with the bath water because we do not like the soap used in bathing the baby. It will be a grave mistake.
Honourable Minister, sir, it is rather unfortunate that of all people, you have also decided to play the role of an undertaker not only for our party, but for our dear Rivers State.
I will like to take you down memory lane a little. Let me remind you of your emergence as Guber candidate of the PDP in Rivers State, against all fairness and justice in 2014. You will remember that despite the reality being that you as an Ikwerre man was poised to replace a fellow Ikwerre man in Governor Chibuike Rotimi Amaechi in our multiethnic state, Rivers people overwhelmingly stood by you and pushed for your emergence as Executive Governor of Rivers State in 2015. I dare say that your popularity in the entire Niger Delta region was at an all-time high at this point.
I want you to understand why you were loved across board leading to your eventual emergence as Governor of Rivers State in 2015; it was because when it looked like all were against the second term ambitions of the first Niger Delta man to emerge as President of Nigeria, you became not just a pillar but a beacon of resistance by standing for Goodluck Jonathan. Rivers people, as grateful and rewarding as they can be, paid you back by ensuring your electoral victory against the incumbent All Progressives Congress (APC) led by your predecessor. On your emergence, where there were second term Governors in the region, you, a first term Governor, was seen by the people as not just the leader of the PDP, but the leader of the entire Niger Delta region. You earned it, and no one could dispute it.
In 2019, when your re-election bid was being challenged ferociously, Rivers people once again stood solidly behind you. Many were killed in the process of defending your votes. Do you remember Dr. Ferry Gberegbe that was shot and killed while trying to protect your votes in Khana Local Government Area? There are many more unnamed and unrecognised sons and daughters of Rivers State who sacrificed their lives so that you could emerge as a second term Governor of Rivers State.
In 2022/23, Honourable Minister, you oversaw a party primary across board that saw some candidates imprisoned and internal party democracy jettisoned for your wishes, leading to the emergence of flag bearers of our party all singlehandedly picked by you. You have on more than one occasion publicly stated that you paid for all their forms. Even those shortchanged in this process licked their wounds and continued to play their roles as party members to ensure the success of the party at all levels. In what will go down as one of the most keenly contested elections in recent Rivers history, with formidable candidates like Senator Magnus Abe of the Social Democratic Party (SDP), Mr Tonye Cole of the All Progressives Congress (APC), and the vibrant youth driven Labour Party (LP), PDP emerged victorious across board except for Phalga Constituency 1 that was lost to the Labour Party. (Not that you did not loose in some other LGA’s but let’s stick to the official figures declared by INEC).
It begs the question, why then do you want to burn down Rivers State, when everyone who now holds political office emerged through a process designed and endorsed by you? Is it that you do not care about Rivers people and you are all about yourself? If so, I am forced to believe that those around you are not telling you the truth. The truth being that in a state where your words were law; where houses and businesses could be demolished or closed down without any recourse to legalities, where Executive Orders could be deployed to stifle the opposition, that your popularity is now at an all-time low. Probably because they are afraid of you, or of losing the benefits they gain from you, they fail to tell you that what you might perceive as a battle against your successor, has slowly but gradually degenerating into a battle against Rivers State and Rivers people. You know, there is a popular saying that, a man can cook for the community and the community will finish the food, but when a community decides to cook for one man, the reverse is the case.
LEAVE FUBARA ALONE
You have gone on and on about being betrayed by Governor Siminalayi Fubara. You point fingers forgetting that some of those same fingers quick to spot betrayals point straight back at you. It is not Governor Fubara that has betrayed the PDP by working against it in the just concluded General Election, and working with the opposition at the State and Federal level to destabilise the party. It is you, Honourable Minister. It is not Governor Fubara that betrayed Rivers people by instigating a political crisis with propensity to escalate ethnic tensions in Rivers State. It is you Honourable Minister. It is not Governor Fubara that has declared himself God over all in Rivers State and has no qualms with burning the state to the ground to prove a point. It is you Honourable Minister. It is you Honourable Minister who told the world that the APC was a cancer and you can never support a cancerous party. It is you Honourable Minister who ended up facilitating the emergence of the same “cancerous” APC that has accelerated the economic decline of this country and further impoverished our people with no remorse. All so you can be a Minister of the Federal Capital Territory? The lack of self awareness is gobsmacking.
Some days back I came across a video where you talked about death and how you do not cry when you hear about the death of some people because you have no idea what might have caused it considering many a politician swear “over dead bodies” and still go back on their words. Those words made me think, and I could see the reason behind them. You see, in chosing to be God in the affairs of Rivers people, you have closed your eyes and ears to reason; you see nothing and hear nothing that can cause you to rethink on the path you have chosen. In your quest to “show Fubara” you have unwittingly united a vast majority of Rivers people behind him, so much that even those who despised him because of you, now like or love him, because of you too. In your scheming, I will advise you not to forget that “the voice of the people is the voice of God”.
Note that the war which you have or are waging against Governor Fubara, has gone beyond being merely political as you might see in your minds eye. It is now one that, fortunately for some and unfortunately for others, has evolved into a war against Rivers people. It is good to point out that no one has taken a stand against Rivers people and won. No one has gone against God and won. In your defiant characteristic manner, it will be unfortunate if you believe your own hubris and that of those around you on the possibility of you being the first to successfully go against Rivers people. It will be a needless gamble; one where if you win you create more enemies for yourself than you can withstand on your political journey, and if you lose, your legacy becomes an inglorious and irredeemable one in Rivers State, the Niger Delta, and Nigeria at large. For your sake as regards posterity, it is my greatest wish that you have a moment of sobriety and a deep reflection and introspection on this path you have chosen.
Honourable Minister, sir, what is left of your legacy is on the brink of being completely desecrated and relegated to the dustbin of our political history, and it will be a sad end to what I will say has been a wonderful political career that many can only dream of. The ball is in your court, and may God Almighty have mercy on us all and forgive us for our shortcomings.
Gabriel Baritulem Pidomson
Dr Pidomson is former Chief of Staff, Government House, Port Harcourt and former member, Rivers State House of Assembly.
In 2015, I made a conscious decision to invest my financial resources, my time, and energy into supporting Nyesom Wike’s gubernatorial campaign. I poured my heart and soul into ensuring Nyesom Wike emerged victorious even at the risk of my personal safety.
Again in 2019, I doubled down on my commitment. I invested a significant amount of money to procure campaign outfits for all twenty-three Local Governments Areas of Rivers State. I spared no expense in supplementing Wike’s election efforts in my own local government, and once again putting myself at great risk to safeguard the fairness and transparency of the electoral process.
However, despite my unwavering loyalty and sacrifices, I found myself abandoned and forgotten by Wike. Throughout his eight-year tenure, he failed to acknowledge my contributions or fulfill his promises and agreements. Even as a former Deputy Governor, Wike denied me my severance benefit.
My investment in Wike’s governorship was not just financial – it was a commitment of passion, dedication, and belief in a better future for Rivers State. Yet, his leadership style of dishonesty, greed, drunkenness and rash abuse of senior citizens brought me nothing but disappointment, misery and losses.
By the grace of God, today I speak not as a victim, but as a hero. I have accepted my losses, and I have moved on. And as I reflect on my experience, I cannot help but urge Wike to do the same and allow peace and development to reign in Rivers State.
Nyesom Wike, when you speak of investing in Governor Sim Fubara’s election, remember those like me who also invested in you. Remember the sacrifices I made, the risks I took, and the promises and agreements you left unfulfilled.
It is time for you, Wike, to let go of the past and allow Governor Sim Fubara the breathing space he needs to lead Rivers State forward. Allow him to focus on the challenges of good governance and the aspirations of the people. Spare him these unwarranted and ill-conceived political manoeuvrings founded on personal agenda and not for general good of Rivers State and her people.
I may have lost my investment on Wike, but I have not lost hope in the future of Rivers State. And together, we will continue to strive for a brighter tomorrow.
Long Live the Governor to Rivers State, Sir Siminialayi Fubara!
Long Live the Good People of Rivers State!!
Long Live the Federal Republic of Nigeria!!!
Engr Ikuru is former Deputy Governor of Rivers State.
Tele Ikuru
