Many members of my group, The Due Process Advocates (DPA) have beseeched me with requests that I explain the meaning and implications of the recent grant of state pardons, which President Jonathan extended to a number of people who were convicted of various crimes (and non-crimes) in Nigeria, and who have all served their terms. I have also noted the disputations that have trailed that act. In one occasion, the President himself came out to say that he had no apologies, which was a rather premature reaction from him in view of the fact that the Americans are not taking it lightly. In another occasion, the President’s media chief described Nigerians as people akin to sophisticated illiterates over the matter. Many have striven to distinguish between Clemency and State Pardon, from a conceptual standpoint.
Clemency is the reduction of terms of punishment, but it does not take away the status of an ex-convict. A person who is serving a jail term could receive clemency from several persons - the President, the Governor, the Chief Judge of a State or the Chief Justice of the Federation. In a federal structure of government, there are at least two systems of government – central and the state governments. An executive heads each level of government. There are also state offenses and federal offences, as well as state courts and federal courts. The offense a person is convicted of will determine who could grant him clemency. State offences would be eligible for state grant as compared to federal grant. (I am just making this simple enough for an average person.)
Clemency only reduces the jail term or the punishment. Example: A ten-year jail term could be reduced to two years or for time served, causing the prisoner to be released. A death sentence could be reduced to life or a number of years or for time already served. For instance, a person on death row for murder could be reduced to time already spent on death row, causing him to go home immediately.
Unlike clemency, State Pardon is greater than clemency and can only be granted by the President (and probably also the Governor). In Nigeria, it would seem that state pardon takes away not only the sentence but also the finding of guilt and the beneficiary is no longer an ex-convict. It may also eliminate the criminal record altogether and cure the person's status, restoring him to where he was prior to conviction. State Pardon can be granted even after the person has finished serving his term of imprisonment, and even posthumously. But Clemency can only be done before the person has finished serving his sentence. It is important to remember that Pardon is a broader form of clemency, but clemency is not necessarily pardon.
It is also important to note that these things are governed by the laws of each country, though there are some general patterns to expect among countries. Examining the American practice on the matter, the following comment or remark from http://www.clearupmyrecord.com/pardon-vs-celemency.php, is of value:
“A pardon is meant to indicate forgiveness of a particular crime, either because a person was wrongfully convicted or the punishment was not appropriate for the crime committed. A commutation is a merciful act offered when it is determined that the penalty given was too harsh. A common use of commutation is to reduce a death penalty verdict to life in prison. A reprieve may be given when more information is needed before it can be determined that it is appropriate for a person to serve a particular sentence. This is also often used in death penalty situations.”
The same source goes on to state as follows:
“It's important to note that in all cases of clemency, pardon or otherwise, the person's conviction is not overturned or removed from the public record. In fact, some people feel that accepting a pardon is tantamount to an admission of guilt. Those seeking to remove a criminal record will need to pursue expungement or having their record sealed. When a conviction is expunged, it is as if it never happened. There is no need for any kind of clemency because the crime is deleted from the record. This is obviously the ideal situation, and it happens more commonly than one might think. For many first offenses, even felonies, expungement is a real option.”
The British practice, which is expected to be closer to Nigeria’s, is not much different. In the British understanding of pardon, “to pardon means to forgive a person of his offence. The term 'pardon' has been defined as an act of grace, proceeding from the power entrusted with the execution of the law, which exempts the individual on whom it is bestowed upon, from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender.” (Read more: POWER TO PARDON: AN ANALYSIS | Law Teacher http://www.lawteacher.net/administrative-law/essays/power-to-pardon-an-analysis-law-essays.php#ixzz2NpMKSsB6.
The big question however is: what are the considerations and processes that should govern the grant of state pardons? The underlying principle or philosophy for pardon is that “every civilized country recognizes and has, therefore provided for the pardoning power to be exercised as an act of grace and humanity in proper cases, without such a power of clemency to be exercised by some department or functionary of government, a country would be most imperfect and deficient in its political morality and in that attribute of deity whose judgments are always tampered with mercy.” [Ditto]
Can the President just grant state pardons as he pleased? The answer is no. “The pardoning power is founded on consideration of public good and is to be exercised on the ground of public welfare, which is the legitimate object of all punishments, and must demonstrate that public welfare will be as well promoted by a suspension as by an execution of the sentences.” (See the same sources as above). The question being asked indirectly by the people is what public good informed the pardons recently granted by President Jonathan? Indeed, it appears that what happened could be likened to “granting of pardon by trick”. It appears that the President wanted to grant pardon to one particular friend of his. But to hide that fact, he added the names of some other people on the list of the pardoned. But that was not smart enough, really. The handwriting is clear on the wall. Expectantly the world took note of this trick.
To avoid the appearance of arbitrariness and favoritism, and to ensure that the public good remains the guiding principle for pardon grants, many countries have processes in place for selecting what cases deserve pardon. In many countries, there is a special board set up to entertain cases of clemency and state pardons. It goes by various clemency board, etc. That body actually examines the merits of each case and ensures that public interest is reflected. In the Nigerian scenario, the situation is not only different, but also there seems to be no plan and no structured process in place. What they have is the approval of the members of council of state. But this is just a political body that has no real role or opportunity in scrutinizing the cases that are involved. It is a rubber stamp comprised mostly of ex-leaders and top politicians whose approval does not in itself constitute public good.
State Pardon, as has been seen in the recent cases, is one area where Nigeria truly needs to get its acts together. The criminal justice system in this country is appalling. There will be need indeed for state pardons. But that should be directed at curing defects in the system for the benefit of the common man, and not for the President’s friends. I personally believe that the conviction of Diepreye Solomon Peter Alamieyeseigha was obtained by a wrong and dangerous procedure. He should have been allowed to return to court to fight it out. For Jonathan to throw caution to the winds and place his much dwindled international goodwill at risk over this matter baffles me.
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