‘Granting pardon to prison inmates by chief judges is unconstitutional’

Chief Sebastine Hon (SAN)

A Renowned constitutional lawyer and author, Chief Sebastine Hon (SAN) has declared the practice of granting pardon to offenders by chief judges as unconstitutional.

He said there is no pre-conviction authorisation for pardon or release from custody by any Chief Judge, acting in his administrative capacity.He said: “The practice of Chief Judges, particularly of the States, granting pardon or amnesty to offenders has been going on for quite some time now; but I make bold to say that such practice is clearly unconstitutional.

“Section 35(4) of the 1999 constitution as amended has stipulated that anybody accused of an offence shall be arraigned in court within a reasonable time and that it is only that court that could make an order remanding such person in prison or ordering his release from custody – either conditionally or unconditionally.”

According to him, the only authorities imbued with constitutional powers of pardon or amnesty are the President, after consultation with the Council of State under section 175, or the Governor of a State, acting in consultation with an advisory Council of the State on prerogative of mercy, established by a Law of such State.

“While the President pardons those accused or convicted of Federal offences, the Governor of a State pardons those accused of State offences.“In respect of State Chief Judges, section 270(2)(a) of the Constitution has merely established the office of a State Chief Judge with no specific functions assigned thereto. This then means such Chief Judges perform functions assigned to them by their respective State High Court Laws and High Court Rules.

Even if such State Laws grant powers of pardon to the State Chief Judges, such Laws become, by the fiat of the inconsistency rule, unconstitutional, by virtue of section 1(3) of the 1999 Constitution,” he declared.

Hon argued that such laws, being in conflict with sections 35(4), 175 and 212, respectively, of the 1999 Constitution, are null and void to the extent of their inconsistency by virtue of section 1(3) of the Constitution.

His words: “Such State laws are also unconstitutional under the doctrine of covering the field – since the 1999 Constitution has already covered the field on state pardon. See on this the Supreme Court decision of Attorney General of Abia State vs. Attorney-General of the Federation (2002) 6 NWLR (Pt. 763) 264 at 369.

“I wish to also observe that most States have not constituted the Advisory Council on Prerogative of Mercy, as enjoined by section 212 of the Constitution, thereby leaving a lacuna, which the State Chief Judges, out of good but unconstitutional intentions, from time to time seek to fill. 

“I, therefore, counsel State Chief Judges to halt their routine prison amnesties. Rather, the various State Houses of Assembly should enact legislation establishing the State Advisory Council on Prerogative of Mercy, to make the various State Governors perform their constitutional functions in this regard.

“While I note that the various State Chief Judges have good intentions – for instance of decongestion of the prisons, the Constitution of Nigeria is the supreme law; and having spoken on the issue, those relevant provisions thereof should not be breached, no matter how worthy the intentions of the Chief Judges might be.”

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Sebastine Hon
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