The Prerogative of Mercy Stalemate on Maryam Sanda

The Prerogative of Mercy Stalemate on Maryam Sanda could have been avoided by inviting the Attorney General of the Federation as an Amicus Curiae.

Background

After we had engaged in a robust argument on the issue, I read with profound interest last week, the position of the Editor of ThisDay Lawyer, Onikepo Braithwaite, on the most recent controversy of the Prerogative of Mercy provisions as exercised by President Bola Tinubu  under Section 175 of the 1999 Constitution (as amended) in her weekly Column on Tuesday, 16th December, 2025 and titled “Maryam Sanda: Presidential Pardon vs Conclusive Justice”. The Editor robustly defended her position, on whether it was right for the President to commute the death sentence which had already been handed down to Maryam Sanda, but subject to a pending appeal to the Supreme Court. She  went on to conclude that the Presidency ought to  have waited until the appeal was determined, before commuting her death sentence.

In my respectful opinion, we need to distinguish between what ordinarily can be considered to be the ideal situation, as against the true and proper position of the law as laid out under the Constitution. In doing so, we need to consider the historical nature of the Prerogative of Mercy provisions in previous Constitutions.

Previous Constitutions

Under the 1963 Republican Constitution, Section 101 was the equivalent of Section 175 of the 1999 Constitution (as amended ) on the Prerogative of Mercy, while Section 120 was the equivalent of Section 233 of the 1999 Constitution (as amended)  on appellate jurisdiction.  Section 120 which also dealt with appeals to the Supreme Court, stated that this was without prejudice to the Prerogative of Mercy provisions under Section 101 of the 1963 Constitution.  Section 120 in using the phrase “Without prejudice” to

Section 101 (relating to the prerogative of mercy), created legal debate about whether a Supreme Court decision could override the President’s power of pardon, as discussed in legal analyses of that era,

Meaning of ‘Without Prejudice’ in an Enactment

Now, when  a clause or statement says ‘without prejudice’ to a provision found elsewhere in a document,” it typically means:

*Non-impairment*: The provision being discussed does not limit, negate, or impair the validity, enforceability, or effect of another provision elsewhere in the document.

*Preservation of rights*: The clause aims to preserve the rights, obligations, or protections afforded by the other provision, ensuring they remain intact and unaffected.

In essence, it is a legal safeguard that ensures one provision doesn’t inadvertently undermine or contradict another provision, and in the same document.

Because of this lingering controversy on the effect and meaning of  without prejudice , when the 1979 Constitution later came into effect after several years of military rule, the words ‘without prejudice’ to the Prerogative of Mercy provisions which were in the 1963 Republican Constitution were removed, and the same was repeated in the 1999 Constitution (as amended). This removal allowed the Supreme Court to assert its authority over the Prerogative of Mercy provisions, as was  done in the case of Monsuru Solola & Anor v The State 2005 LPELR-3101(SC), by not taking judicial notice of a pardon or a commutation of a sentence given by a  President during the pendency of an appeal, but the question remains, is this constitutional? I think not, and base my argument on the fact that as a consequence of the Supreme Court’s decision in Monsuru Solola & Anor v The State (Supra), the word “notwithstanding” now becomes a necessary constitutional amendment that remains omitted from Section 233 of the 1999 Constitution (as amended). The words “notwitwstanding the provisions of Section 175 ………” ought to have been included as a consequential constitutional amendment under Section 233 of the 1999 Constitution (as amended) for clarity and certainty, so as to have the desired effect the Supreme Court was seeking to achieve, in trying to jealousy safeguard and assert its jurisdiction as the final authority on appeals under the 1999 Constitution (as amended). This is also significant because, as the Editor pointed out last week, no particular section of the Constitution should be interpreted as being superior to the other, unless the Constitution specifically states so. The Constitution should have been effectively amended along the following lines, to state that notwithstanding the provisions of Section 175 of this Constitution, the President shall not exercise his powers to grant a Prerogative of Mercy under this Constitution to anyone, while an appeal is pending to the Supreme Court.

Meaning of ‘Notwithstanding’ in an Enactment

‘Notwithstanding’ is a legal term used to indicate an exception or override to a previous statement, provision, or section in a document. When used in a section, it typically means:

Exception or override: The provision or section that follows “notwithstanding” takes precedence over any conflicting or potentially conflicting provisions, mentioned earlier in the document.

Precedence: The clause or section containing ‘notwithstanding’ will govern or prevail, despite any inconsistent or contradictory language elsewhere in the document

In essence, notwithstanding is used to clarify that a particular provision or section supersedes others, ensuring its primary in interpretation.

Since the words notwithstanding do not appear under Section 233 of the 1999 Constitution as amended, the Supreme Court, with the utmost respect, were effectively amending the Constitution through the back door in Monsuru Solola & Anor v The State (Supra) in its attempt to protect and guard its jurisdiction, but, unfortunately the lingering controversy remains unresolved.

The Way Forward

In the future, if again faced with such complex and conflicting issues of this nature, the Supreme Court should endeavour to invite an Amicus Curiae (in this instance the Attorney-General of the Federation), to address it on the issue, rather than be unduly critical and scathing of the Presidency. The Supreme Court was also being a judge of its own cause in trying to protect its jurisdiction, with regard to its powers under the Constitution. This is never ideal. More the reason why calling an Amicus Curiae to address the Court on this issue was not only compelling, but  necessary.

Furthermore, the Supreme Court can’t enforce the hanging of Maryam Sanda anyway! That power lies with the Executive, so what was all the fuss and fury about? As it turns out, both parties, the Supreme Court and the Presidency, seem to have acted inappropriately by not cooperating with one another. This was an unnecessary and avoidable conflict that could easily have been averted by calling the Attorney-General as an Amicus Curiae, to address and advise the Apex Court and Presidency accordingly. Indeed, this was the practice in the days of old, and it is sincerely hoped that the Supreme Court will make better use of this most useful practice in the future.