Falana: Presidential Prerogative of Mercy Cannot Override Judicial Process

FEMI FALANA

Wale Igbintade

Human rights lawyer and Senior Advocate of Nigeria (SAN), Mr. Femi Falana, has asserted that the constitutional power of the president and state governors to grant pardon does not override ongoing judicial proceedings, insisting that executive clemency cannot lawfully be exercised while a criminal trial or appeal is still pending before the courts.

Falana stated this in a detailed legal commentary titled: ‘Judicial Power to Quash Presidential Pardon’, in which he examined the constitutional limits of the prerogative of mercy and the authority of courts to invalidate pardons granted in breach of due process.According to Falana, it is a settled position of Nigerian law that the right of a convict to have an appeal determined by the Court of Appeal or the Supreme Court cannot be truncated or frustrated by any executive action, including the grant of pardon.

He stressed that until all appeals are finally determined, neither the president nor a governor can validly exercise the power of prerogative of mercy under Sections 175 and 212 of the 1999 Constitution.The human rights lawyer referenced the recent Supreme Court decision in the Maryam Sanda case, where the apex court affirmed her conviction and death sentence for culpable homicide, notwithstanding an earlier presidential pardon.Delivering the judgment in the case, Justice Adumein held that it was wrong for the executive to exercise the power of pardon in respect of a case in which an appeal was still pending.

Falana said the ruling reinforces the supremacy of the judicial process over executive discretion, contrary to claims by some lawyers that the prerogative of mercy exists independently and can be exercised at any time, regardless of court proceedings.

He specifically faulted arguments suggesting that a presidential pardon is not constrained by pending appeals, describing such views as erroneous and inconsistent with established judicial authorities.

Falana cited the Supreme Court’s decision in Monsuru Solola & Anor v. The State (2005), where a pardon granted to a convicted person while an appeal was pending was declared premature and legally ineffective.

In that case, the Supreme Court held that once a further appeal has been lodged or is deemed to be in existence, the executive cannot lawfully exercise the power of mercy until the appeal is finally determined.

Falana also drew attention to the Court of Appeal decision in FRN v. Dingyadi (2018), which voided the pardon granted by the then Governor of Sokoto State, Mr. Aminu Tambuwal, to a former Secretary to the State Government, Mr. Muhammad Maigari Dingyadi and a former Governor Attahiru Dalhatu Bafarawa, who were standing trial for alleged N15billion fraud preferred against them by the Economic and Financial Crimes Commission (EFCC).

The appellate court ordered that the defendants be subjected to fresh trial, ruling that the pardon was invalid because the criminal proceedings were still ongoing.

He further noted that even a beneficiary of executive clemency retains the right to reject a pardon and insist on judicial determination of his case, citing a landmark Ghanaian case where a convicted politician declined a presidential pardon and later had his conviction quashed on appeal for denial of fair hearing.

According to Falana, the consistent position of the courts is that pardons are meant for persons whose convictions and appeals have been fully concluded, and not for defendants whose trials or appeals are still pending.

While acknowledging that a properly granted presidential pardon cannot be questioned, Falana emphasised that such pardon does not automatically terminate trials or appeals, nor can it override the authority of the courts.

He warned that the abuse of the prerogative of mercy undermines the rule of law and public confidence in the justice system, particularly in a society where executive clemency is often perceived as favouring the powerful at the expense of ordinary citizens.

Falana therefore urged the Prerogative of Mercy Committees at the federal and state levels, usually chaired by Attorneys-General, to exercise greater caution by ensuring that all appeals involving convicted persons recommended for pardon have been fully determined.