Guardian

WHY is it that worldwide  – in rich and poor countries; in democracies and the few surviving autocracies –the power of pardon remains an integral part of the criminal justice system? The simple answer is that, if there were all saints, and no transgressors, the power of pardon would be unnecessary. The enduring power to pardon offenders is a vestige of an earlier era when an omnipotent ruler sought to demonstrate his benevolence. The pardon power persists even in a constitutional democracy, which is underpinned by the delicate separation of powers that is intended to guarantee the independence of the judiciary.

The pardon power is vested in a non-judicial authority, who thereby appears to override the independence of the judiciary that duly tries, convicts, and sentences offenders. Quite aside this seeming constitutional anomaly, there have been innovations in penal systems that ought to be the basis for doing away with the pardon institution. For instance, one of the reasons for the utility of the pardon was to obviate miscarriage of justice, since judges themselves were not infallible. But that concern has been largely met by an elaborate system of appeals and re-trials. Also, with the abolition – or, rarity – of capital punishment in a number of jurisdictions, the power of the pardon to save a condemned person from the gallows has lost some importance. Similarly, the utilisation of pardon to remove the stigma of criminal conviction and thereby secure the rehabilitation of the convict has been superceded by laws in some jurisdictions that provide for expunging the criminal record of a convict upon satisfaction of laid-down criteria.

The subject matter of pardon, as a critical adjunct of criminal jurisprudence, has gained in added significance in Nigeria lately on account of the recent presidential pardon granted former Bayelsa State Governor, Chief Diepreye Alamieyeseigha and others. Clemency, or pardon more generally, is not our legal or constitutional invention. It is a borrowed concept that still thrives in Britain (from where we adopted our Common Law system) and in the United States (from where we adopted our presidential constitutional democracy).

In the U.S., recipients of presidential pardon include convicted economic and financial criminals, or fugitives from such charges. There, the examples are many, with the added twist that some pardon beneficiaries procured their benevolence by paying hefty bribes (termed fees) to key influencers of government, as was the case with the brother of former First Lady Hillary Clinton, who, during President Bill Clinton’s administration, received US$400,000 to swing pardon for two felons, one of whom had served three years for a mail fraud conviction, while the other had done six years out of a 15-year sentence for trafficking in cocaine in Los Angeles. Also, Angelo De Carlo, described by the FBI as a “methodical gangland executioner,” reportedly paid Frank Sinatra “fees” to secure a pardon from President Richard Nixon, after De Carlo had spent 19 months out of a 20-year prison sentence. Nixon himself became a pardon beneficiary after he was disgraced from office after the Watergate scandal.

In the withering attacks on the pardon granted Alamieyeseigha in particular, some commentators have stretched logic to breaking point by insisting that President Goodluck Jonathan has committed a breach of trust by allowing a conflict between his personal interest and public duty. That personal interest, according to the commentators, is the pardon granted Chief Alamieyeseigha (Alams), who the President only a few months ago acknowledged as his political benefactor, a factual admission that provoked the ire of the opposition who would rather the President distanced himself from Alams, who was impeached as Governor and later convicted of corrupt self-enrichment.

Let us deal, briefly, with this matter of President Jonathan acknowledging Alams as his political benefactor. It is a plain fact, because President Jonathan was not a politician. When he was tapped by Alams to become his running mate, Jonathan was a political neophyte –and very rightly, Alams was his political mentor. Should Jonathan disown Alams, when they were together from 1999 to 2005, running Bayelsa State? No commentator has been fanciful or reckless enough to impute that because Alams was convicted of corruption, Jonathan as his Deputy could not be exonerated. The redemption lies in the widespread knowledge of the supine position of deputy governors who have derisively been described as “Spare Tyre,” and are so treated by all and sundry.

I can bet my bottom Naira that if President Jonathan publicly distanced himself from Alams, the same flippant commentators would have attacked President Jonathan as an ingrate, asking why he would not acknowledge what Alams did for him by sourcing him from the bureaucracy to become Deputy Governor, and ultimately President. President Jonathan would have been berated as a fair weather friend; and it would have been used as a prognostic gauge of how he would use and dump his political associates, when not convenient for himself. Good enough, President Jonathan has stood by his words, and that is how it should be for a man of solid integrity, no matter the bashing he gets in the public arena. The world already knows what happened to Alams; President Jonathan cannot be the amplifier of that unpleasant fact for which Alams has duly served punishment and related sanctions.

Nevertheless, there has crept into the discourse of the presidential pardon for Alams and others a certain disingenuous logic that seeks to create a dichotomy between an acceptable justification of the pardon for some persons, while condemning similar presidential benevolence for Alams. That dichotomy is between those who were convicted of coup-plotting offences in 1995 and 1997, and others who were judicially sanctioned for economic and financial crimes. Thus, there has been a dismissive recourse to the phrase that Generals Oladipo Diya, Abdulkarim Adisa and others were involved in a “phantom coup (plot)”. While there were serious doubts about the allegations of coup plotting against Generals Olusegun Obasanjo, Musa Yar’Adua and others in 1995, which could justify the phrase “phantom coup plot,” there were no such doubts about the 1997 coup plot.

For anyone to deny that there was a coup plot in 1997 is to do violence to our collective recent memory that is so vivid about the events of only 15 years ago. Gen. Diya and others were involved in the coup plot. They had an accomplice/agent provocateur in Gen. Ishaya Bamaiyi, the then Chief of Army Staff. The confederates were secretly videotaped. It was in order to dispel any contrary claim of “phantom plot” that the Gen. Sani Abacha junta decided for the first time in the history of this country to play-back the secret video of the coup accomplices in their conspiratorial meetings. Senior media executives, diplomats and other stakeholders were invited at various times to watch the video in Abuja. In the video, Gen. Diya, after the plot was foiled, was seen begging Abacha to spare his life, because the death penalty was a certainty. As Diya wept, Abacha reached for Kleenex, for Diya to wipe away his tears. Gen. Adisa was also overheard in one scene in the video discussing how to blow up Abacha’s convoy, suggesting the use of rocket propelled grenades (RPG), while Abacha would be on his way to, or from, the airport.

What is the point of all this historical recall? It is not to reopen embarrassing wounds of the past; but rather, to place matters in their proper context. Diya and co. were convicted of capital offences – that is, treason. It is unthinkable whether in any jurisdiction there is any offence steeper in gravity than treason. Under current Nigerian law, treason remains a capital offence, but economic and financial crimes are not. This is notwithstanding the intensity of our emotions about and against corruption and its ill-effects.

So, why is it all right to pardon persons who were convicted of capital offences (Diya and Co.) but not all right to pardon Alams who was convicted of non-capital offences? The reason, to be deduced from the anti-Alams pardon group, is that Abacha’s regime was “evil” anyway, and anybody that could get rid of it, or tried to get rid of it, was welcome. That is the simplest form of the argument. Yet, no matter how elegantly, or intellectually, one may seek to justify the Diya coup plot of 1997, the fact is that Abacha’s regime was a de facto and de jure regime. As all lawyers know, after the Supreme Court decision in Lakanmi’s case in 1970, the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 was promulgated. The decree established the legal basis of military rule then, and subsequently.

If we researched into our country’s history, say, in the last 40 years, we would find that some of our venerated personages were beneficiaries of pardon. The most obvious examples are Chief Obafemi Awolowo (treasonable felony for which he was in jail in Calabar), and Chief Emeka Ojukwu (for treason after he led the Biafra rebellion and then fled into exile in Cote d’Ivoire when Biafra surrendered to the Federal forces after a 30-month civil war). But remember also that when Gen. Murtala Muhammed overthrew Gen. Yakubu Gowon’s regime in July 1975, aside the ensuing mass purge of the civil service, all the 12 Military Governors of the Gowon era, except Mobolaji Johnson (Lagos State) and Oluwole Rotimi (Western Nigeria), were dismissed from service and their assets seized for corrupt enrichment. In later years, they were pardoned and some of their assets returned to them.

Recall also that after Gen. Muhammadu Buhari and his military colleagues sacked the Second Republic in December 1983, many leading political figures, including governors, were handed lengthy prison sentences and their properties confiscated by the various military tribunals. Again, in later years, these Second Republic figures were freed from prison and got some restitution. In none of these instances was pardon bestowed on a saint.

• Katsina sent this contribution from Kaduna.