Sebastine Hon disagrees with Falana, insists Chief Judges can’t grant pardon

The debate over whether or not Chief Judges possess the power to
grant pardon to awaiting trial detainees continued yesterday with a
Senior Advocate of Nigeria (SAN), Sebastine Hon insisting the Chief
Judges cannot legally grant pardon.

Hon spoke in reaction to argument credited to human rights
lawyer, Femi Falana (SAN) to the effect that Chief Judges can grant
pardon under the Prisons Act and the Criminal Justice (Release from
Custody) (Special Provisions) Act.

Falana had, in a counter-argument, faulted Hon’s position, which
was widely reported in the Media on Monday.

But, in a detailed analysis Tuesday, Hon insisted on his
position, arguing among others, that the laws cited by Falana were
unconstitutional.

Hon said: “For the avoidance of any doubt, section 35(4) of the
1999 Constitution has covered the field on what should be done to
any person accused of an offence; and there is no room for any
administrative action by the Judiciary.

“Only judicial actions can lead to the release of detained
persons, hence any administrative action, apart from the one in
sections 175n and 212 will be directly in conflict with the said
section 35(4).

“Also, sections 175 and 212 of the Constitution have advisedly
used the phrase ‘a person concerned with or convicted of an
offence.’

“The phrase ‘concerned with an offence’ is so wide that it has
entirely and completely covered the situations contemplated by both
the Prisons Act and the Criminal Justice (Release from Custody)
(Special Provisions) Act.

“The Constitution having covered the field, these two Acts are
null and void, for attempting to provide for the same release from
custody, yet by the administrative action of the Judiciary.

“Similar arguments were advanced in the US case of Schick vs.
Reed, 419 US 256 (1974) at 266.

In rejecting them, Chief Justice Burger held in emphatic terms
that ‘the unbroken practice since 1790 compels the conclusion’ that
the power of the US President to grant pardon ‘flows from the
Constitution alone, not from any legislative enactments,’
concluding that such presidential powers ‘cannot be modified,
abridged, or diminished by the Congress.’

“How then can the Nigerian National Assembly decimate or abridge
this power, just because of Item 48 on the Exclusive Legislative
List?

“If Chief Judges are permitted to release persons from custody,
what is the legal implication of that action? Do the detainees get
the reprieve of pardon that only the President or the Governor can
grant?

“No! They are merely released, while the charges against them
are pending! What then happens to those charges, judging from our
Constitution or even the Acts cited by Mr. Falana, SAN?
Nothing!

“But if the President or a Governor grants pardon, section
36(10) of the Constitution comes in handy to erase the conviction
or even accusation (in view of the phrase ‘concerned with an
offence in sections 175 and 212).

“This position was also reached by the Court of Appeal in Falae
vs. Obasanjo (No. 2) (1999) 4 NWLR (Pt. 599) 476 at 495.

“I conclude by restating that the respective Chief Judges,
including even the Chief Justice of Nigeria, have no constitutional
powers to embark on prison amnesty.

“Such amnesties, including the power of the Attorneys-General to
enter nolle prosequi, are deliberately left by the framers of the
Constitution in the hands of politicians, to avoid the sacredness
of the Judiciary being muddied or messed up with, by permitting
judicial officers, through administrative actions, to order the
release of politically-exposed persons from criminal prosecution,”
Hon said.

The debate over whether or not Chief Judges possess the power to
grant pardon to awaiting trial detainees continued yesterday with a
Senior Advocate of Nigeria (SAN), Sebastine Hon insisting the Chief
Judges cannot legally grant pardon.

Hon spoke in reaction to argument credited to human rights
lawyer, Femi Falana (SAN) to the effect that Chief Judges can grant
pardon under the Prisons Act and the Criminal Justice (Release from
Custody) (Special Provisions) Act.

Falana had, in a counter-argument, faulted Hon’s position, which
was widely reported in the Media on Monday.

But, in a detailed analysis Tuesday, Hon insisted on his
position, arguing among others, that the laws cited by Falana were
unconstitutional.

Hon said: “For the avoidance of any doubt, section 35(4) of the
1999 Constitution has covered the field on what should be done to
any person accused of an offence; and there is no room for any
administrative action by the Judiciary.

“Only judicial actions can lead to the release of detained
persons, hence any administrative action, apart from the one in
sections 175n and 212 will be directly in conflict with the said
section 35(4).

“Also, sections 175 and 212 of the Constitution have advisedly
used the phrase ‘a person concerned with or convicted of an
offence.’

“The phrase ‘concerned with an offence’ is so wide that it has
entirely and completely covered the situations contemplated by both
the Prisons Act and the Criminal Justice (Release from Custody)
(Special Provisions) Act.

“The Constitution having covered the field, these two Acts are
null and void, for attempting to provide for the same release from
custody, yet by the administrative action of the Judiciary.

“Similar arguments were advanced in the US case of Schick vs.
Reed, 419 US 256 (1974) at 266.

In rejecting them, Chief Justice Burger held in emphatic terms
that ‘the unbroken practice since 1790 compels the conclusion’ that
the power of the US President to grant pardon ‘flows from the
Constitution alone, not from any legislative enactments,’
concluding that such presidential powers ‘cannot be modified,
abridged, or diminished by the Congress.’

“How then can the Nigerian National Assembly decimate or abridge
this power, just because of Item 48 on the Exclusive Legislative
List?

“If Chief Judges are permitted to release persons from custody,
what is the legal implication of that action? Do the detainees get
the reprieve of pardon that only the President or the Governor can
grant?

“No! They are merely released, while the charges against them
are pending! What then happens to those charges, judging from our
Constitution or even the Acts cited by Mr. Falana, SAN?
Nothing!

“But if the President or a Governor grants pardon, section
36(10) of the Constitution comes in handy to erase the conviction
or even accusation (in view of the phrase ‘concerned with an
offence in sections 175 and 212).

“This position was also reached by the Court of Appeal in Falae
vs. Obasanjo (No. 2) (1999) 4 NWLR (Pt. 599) 476 at 495.

“I conclude by restating that the respective Chief Judges,
including even the Chief Justice of Nigeria, have no constitutional
powers to embark on prison amnesty.

“Such amnesties, including the power of the Attorneys-General to
enter nolle prosequi, are deliberately left by the framers of the
Constitution in the hands of politicians, to avoid the sacredness
of the Judiciary being muddied or messed up with, by permitting
judicial officers, through administrative actions, to order the
release of politically-exposed persons from criminal prosecution,”
Hon said.