This piece is a sequel to General Muhammadu Buhari’s recent public proclamations that, if perchance he is elected president, he will grant pardon or amnesty to all that committed sundry criminal acts of corruption before May 29, 2015. Buhari did not distinguish between the convicted, those whose cases are still pending, and those yet to be charged under federal or state law. Plus, the context within which he spoke suggested he was talking specifically of those yet to be charged, including the many against whom are presently arrayed with credible allegations and live petitions. Evidence that Buhari made such a pronouncement, and made no distinctions, is so legion that no one is supposed to be left in any doubt as to its clarity and reach. On this note, therefore, let me proceed, in the following paragraphs, to examine the several legal ramifications of said pronouncement.
To begin with, Buhari needs to tell Nigerians whether he believes that corruption has an expiry date. While he is rueing that, let me hasten to say that, in point of law and fact, corruption has no expiry date. Even if, as Buhari mistakenly believes that it does, it is not within his powers as a ‘President’ to make it happen by the sheer dint of his unilateral proclamation. Instead, the legal power ‘to institute and undertake; to take over and continue; or to discontinue’ any criminal proceeding or prosecution, including for corruption, does not lie with the President but with the Attorneys-General of the Federation and the States. Below is a mix of the legal and factual authorities.
First, the Constitution provides at Section 174: “(1) The Attorney-General of the Federation shall have power – (a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly; (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. (2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department. (3) In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”. So, there you have it, General Buhari, that you have no such powers because, if elected, you will neither simultaneously be the Attorney-General nor an officer of his department. It may do you well to verify this much with your running mate, who is a learned SAN.
Second, Section 211 of the same Constitution, in words and substance, reserved similar powers, mutatis mutandis, to the Attorneys-General of the States, but with the sole exception that their powers are limited to offences “created by or under any law of the House of Assembly”. To be sure, the executive powers of the President as enumerated under Section 5 of the Constitution does not contain any provisions which can, even by a stretch, be over-broadly interpreted to confer on the President the powers ‘to institute and undertake; to take over and continue; or to discontinue’ any criminal proceedings, including those bordering on corruption. Instead, wherever the Constitution provided for state judicial or quasi-judicial powers, it appeared to constitute a narrowing of similar powers granted to the federal tier. The sole exception lies in the many subject matters over which the two tiers have concurrent power. Corruption and all of its genres, including all manners of criminal abuse of public office, are matters of concurrent jurisdiction of the Federation and the states. For instance, a State can legally proceed with prosecution if there is probable cause that Buhari’s friends, such as an Amaechi or a Tinubu, corruptly enriched himself from his state coffers. In such a circumstance, a pre-indictment grant of presidential pardon will, by the courts, be deemed an impermissible federal interference with state prosecutorial powers, and thus will fail as an affirmative defense.
Third, if General Buhrai is misguided by the amnesty granted by Yar’Adua, he needs to be mindful that even that one, though politically expedient and popular, was not backed by any legislation. It will be recalled that at that time, Tony Uranta, a ranking member of the Ledum Mitee-Technical Committee on the amnesty had cautioned that: “This is not the first offer of amnesty in the region. Remember that former President Olusegun Obasanjo offered Asari Dokubo amnesty but six months after, he was arrested for trial. Nobody can tell what will happen in the next few months. We expect government to back amnesty with law to remove the fear that after Yar’Adua, there will not be a reversal of policy,” About the same time too, a Port Harcourt High Court had declared that Yar’Adua’s amnesty, having not been backed by law, did not apply to cases already before the High Court, regardless of their evident pertinency. The court also ruled that the amnesty, if at all tenable in some phantom law, was of federal reach only and thus did not apply to state crimes. So, wherever that amnesty was respected, it was due to a conscious political consideration to give full faith and credit to such a universally-popular policy. It is not plausible that a Buhari corruption amnesty, so latently unconstitutional, egregious and offensive to community standards, will muster similar popularity to thrive.
Fourth, the only possible exception where the President can act with the clear authority of the law is found at Section 175 of the Constitution on the prerogative of mercy. But even then, the President cannot act alone as he must consult the Council of State; and the reach of his powers is, as judicially interpreted, narrowed to cases that have ended in conviction or other coercive sanction. Even in such unique circumstances, it will be significantly damaging to a nation’s good order and happiness for a President to, willy-nilly, grant mass pardon to an entire population of corruption-related convicts. Such will provoke both domestic and international angst and task the moral credentials of the grantor. It will be worse for a populist Buhari who built the ramparts of his campaign on the quaint notion of poised to fight corruption better than the previous and the extant administrations. Further, the pesky matter of post-conviction grant of pardons, even though constitutionally permissible, continues to be a sticking point for entire generation of Nigerians that believe corruption to be the nation’s greatest burden before terrorism came lately and became preeminent.
Fifth, it will be recalled that even as Yar’Adua had, by a stretch, relied on Section 175 (pardon) to proclaim his amnesty, the grantees knew better than to be suckered with its dubious legalities. At the time, the Ijaw Youth Council had said that ‘the best way of assuring amnesty for the militants in the Niger Delta is for the House of Representatives and Senate to validate it with legislative backing’. Thus, the only reason that very amnesty gained traction lies in its vast appeal and a near-consensus by all Nigerians that it served a unique social justice in a difficult era of our history. Compare it with the similar popularity of the mostly not legally-backed affirmative action policy undertaken by America to atone for centuries of discrimination against blacks. So, as regards Buhari’s proposed corruption pardons, wherein lies the social justice or like societal ideal in pardoning some folks that brazenly made a quantum heist of the commonwealth? Does the self-serving fact that such folks supported or funded Buhari’s election equate to social justice?
Sixth, and conversely, if Buhari were to dare travel this infamous path of mass amnesty, his reach will arguably be limited only to those that can come under the purview of exclusive federal jurisdiction because, again, under Section 211 of the Constitution, the power of nolle prosequi (discontinuance or amnesty, per Buhari) is expressly reserved to State Attorneys-General for offenses implicating state jurisdiction. So, if for instance, a ‘Governor’ Agbaje of Lagos State directs the Attorney-General of Lagos State to prosecute a Tinubu for any corruption committed against the people of Lagos State, a ‘President’ Buhari or his Attorney-General will be legally incapable of stopping Lagos State. Ditto for an Amaechi and any of the other APC apparatchiks, all of whom Buhari might have had in mind when he made that sweeping proclamation.
Finally, Section 286 expanded the judicial powers of states by giving state courts the long-arm jurisdiction to adjudicate a broad spectrum of federal offenses. By its plain letters and tenor, that Section did not exclude corruption or any of it’s garden-varieties. Thus, no corrupt public officer, not even those that gave quantum aid and comfort to Buhari, should be emboldened that they will walk free from being held to account, eventually. The only difference lies in how a Buhari or a Jonathan will go about it.
Aloy Ejimakor, a lawyer, writes from [email protected] 08032651660 (texts only).