Two cardinal principles of the Nigerian criminal justice system are that under Section 35 of the 1999 Constitution, human liberty is paramount and under section 36(5) of the same constitution, an accused person is presumed innocent until proven guilty.
The common saying in this regard is that it is better for ten guilty persons to be set free, than for one innocent person to be condemned.
To this end, the 1999 Constitution in Section 1(3) [review this section] has made ample provisions which safeguard the rights of individuals from violation, as well as compensation when such rights are violated.
By the doctrine of separation of powers embedded in sections 4, 5 and 6 of the 1999 Constitution, each arm of government has distinct powers assigned to it.
However, in line with the principle of checks and balances, there can be interaction between the arms of government to the extent that in some instances, one arm of government may perform functions that are similar to that of another arm.
It was S.T. Hon (SAN) who first stirred the hornet’s nest when he submitted that the Chief Justice of Nigeria and his counterparts in the states do not have the power to grant pardon to offenders.
The learned silk placed reliance on sections 175 and 212 of the 1999 Constitution which empowers the President and the Governors of the various states to grant pardon for federal offences and state offences respectively.
He also contended that under Section 35(4) of the Constitution, only a court can make an order of remand against an offender or order his release from prison either conditionally or unconditionally.
Furthermore, he submitted that the 1999 Constitution in sections 230(2)(a) and 270(2)(a) merely established the offices of the Chief Justice of Nigeria and Chief Judges of states, with no function assigned to the offices. Hence, he contended that the occupants of the said offices can only perform those functions assigned to them by their respective court laws and rules.
He concluded that if any law grants the power of pardon to the Chief Justice of Nigeria and the Chief Judges of States, such law is unconstitutional, by virtue of Section 1(3) of the 1999 Constitution.
However, in a swift reaction, human rights activist, Femi Falana (SAN), faulted the submission of his colleague silk and counter-argued that the Chief Justice of Nigeria and the Chief Judges of States, are empowered by the Criminal Justice (Release From Custody) (Special Provisions) Act, 1977 to order the release of any person, if satisfied that the detention of that person is manifestly unlawful.
The learned silk further submitted that by Section 11 of the Prisons Act (Cap 29) LFN 2004, the Chief Justice of Nigeria and the Chief Judges of the States are among prison visitors ex officio.
He went ahead to cite the cases of Edwin Illoegbunam & Ors v Richard Illoegbunam & Ors (2001) 47 WRN 72 as well as the case of Falae v Obasanjo (1999) 4 NWLR (PT 599) 476, where the Court of Appeal held that a pardon operates to make the convict a novus homo (a new man), having been acquitted of all corporal penalties and forfeitures annexed to the offence.
Falana (SAN) also submitted that such prisoners released by the Chief Justice or Chief Judges had not been pardoned but merely released from illegal prison custody, noting that such prisoners could be re-arrested and prosecuted by the government.
It is curious to note that while Falana (SAN) admits that prisoners who are released can be re-arrested and prosecuted, he at the same time submits that the Chief Justice of Nigeria and the Chief Judges of the states can grant pardon.
The pertinent question to ask here is: Can the Chief Justice of Nigeria and the Chief Judges of the states release persons held under illegal detention?
The answer is in the affirmative, especially having regard to Section 1(1) Criminal Justice (Release from Custody) (Special Provisions) Act 1977.
However, such power does not extend over persons who are detained in execution of a sentence of a court or tribunal duly constituted by law.
It is only exercisable over persons whose detention is manifestly unlawful or persons detained in custody, on remand or otherwise, for a period longer than the maximum period of imprisonment.
In essence, persons released from custody are not pardoned but merely released to preserve their liberty, as they can be re-arrested and prosecuted.
The same cannot be said of persons granted a pardon under Section 175 & 212 of the 1999 Constitution since a pardon wipes out whatever forfeiture, disabilities or disqualifications attached to the conviction.
Pardon is an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands for the offence and restores the rights and privileges forfeited on account of the offence.
As such, a pardoned person cannot be re-arrested upon the same offence for which he was granted the pardon.
Having looked at the two sides of the debate and the position of the law, it is submitted that while the law empowers the Chief Justice of Nigeria and Chief Judges of the states to release persons from custody or illegal detention, no law empowers them to grant pardon.
As such, any exercise of granting pardon is illegal, null and void and any law which seeks to grant them the power of pardon will be inconsistent with the provisions of the 1999 Constitution.
M. J Jabbe, ESQ
Legal practitioner; civil, social and political analyst.
08134069256
[email protected]

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Manang Jabbe ESQ, on the Power of The Chief Justice of Nigeria and the Chief Judge of the States to Grant Pardon