The recent Supreme Court decision to nullify the presidential commutation granted to Maryam Sanda, reinstating her death sentence for the murder of her husband while dismissing her appeal, has reignited debates on constitutionalism, the prerogative of mercy, and the doctrine of separation of powers in Nigeria.
The 1999 Constitution of the Federal Republic of Nigeria (as amended) clearly delineates the functions of the three arms of government: the Legislature makes laws, the Executive implements them, and the Judiciary interprets and applies them. Yet, as the renowned statesman Chief Obafemi Awolowo aptly observed in his writings on constitutionalism:
“The doctrine of separation of powers does not mean that the three organs of government must be isolated into watertight compartments. Rather, while each has its primary functions, there must be a necessary interdependence and cooperation among them if government is to function effectively.”
Under the Nigerian Constitution, the independence of these organs is fortified by the system of checks and balances built into its framework. This prevents any one arm from overreaching. To wit: has the Court not overstepped its constitutional boundary by encroaching upon the Executive’s power of clemency in the Maryam Sanda matter?
Beyond the Judiciary’s natural function of interpreting the law, the Supreme Court, in particular, acts as a policymaking body. In its wisdom, it may bypass the firewall of passed laws and jurisdictional impediments to intervene in Executive policies, as it did in nullifying the 2023 CBN currency redesign policy on grounds of public hardship. The Court may dither on a judicial proclamation regarding the illegality of sacking the Rivers State governor if it feels its opinion might be politically impudent; it might even close its volumes of law and precedent to ask States to conciliate outside the court on matters of boundaries, taxation, and oil wells. The inherent jurisdiction of court to make binding declarative orders on socioeconomic policy for the Federation is a safety valve to check the Executive.
Likewise, the Executive is clothed with powers outlined in Section 315 to perform quasi-legislative functions, such as issuing Executive Orders, and in Section 305, wherein the President or a Governor – in borrowed judicial robes – may exercise the prerogative of mercy to pardon convicted persons.
The quasi-judicial power of the Executive to free an accused person, exercisable before and during criminal trials, is channeled through the office of the Director of Public Prosecutions (DPP) under the directive of the Attorney General via a nolle prosequi. A nolle prosequi refers to a formal decision by a prosecutor to voluntarily discontinue or abandon criminal charges against a defendant, either entirely or for specific counts. This is entered into the court record and effectively dismisses the case at that stage. The court has no say about the proprietary of State to discountinue a trial against a Nnamdi Kanu, Evans the Kidnapper, or any other accused person.
It should be noted that even though the DPP and the Attorney General are lawyers, they are not part of the Judiciary. In fact, contrary to public perception, the Ministry of Justice and its legal officers (save for the Magistracy) are members of the Executive arm. Through their expertise and powers, a Governor or the President, as the case may be, may choose to discontinue the trial of any individual by issuing a nolle prosequi moments before the gavel of judgment falls. This is a precursor to the constitutional donated power to pardon a convicted person. While such an act may attract public opprobrium, it remains perfectly lawful and constitutional.
We submit that although the power of adjudication belongs to the Judiciary, the court is NOT the prosecutor, even though its temple is the arena for every criminal trial. It is the State, the Executive, represented by its policing apparatuses (the Nigeria Police Force, DSS, EFCC, etc.) and the prosecutorial unit of the Attorney General’s office, that prosecutes. Thus, the Executive’s power and discretion to start, continue, or discontinue a criminal matter is not subject to the directive of the Judiciary. To allow such judicial interference is an abuse of the principle of separation of powers and is akin to the usurpation of the Executive’s power to moderate judicial outcomes in matters of sentencing and the condemnation of convicted persons.
The morality of pardoning convicted or condemned felons may be a heated topic in the court of public opinion. The politics of the prerogative of mercy may even be abhorrent to the sensibilities of judges who for instance as members of the society may feel terrible about the facts of the Maryam Sanda murder case.
Nevertheless, it is improper for the Court to interfere with the Executive’s performance of this quasi-judicial function based on perceived recklessness. The Court should not be seen as arm-twisting the Executive to retrieve a power of check given to it by the Constitution.
The debate regarding Maryam Sanda centers on whether a pardon should only be granted after the completion of all trials and appeals. The insistence of My Lords on this point based on Section 233 of the Constitution negates the spirit of law behind the doctrines of nolle prosequi and the prerogative of mercy. It elevates the Judiciary to the role of a prosecutor or a determinant of who may be arraigned and when. This constitutes an erosion of the powers of the Legislature, whose function is to create and define offences, and the Executive, which maintains the discretion to prosecute.
A presidential pardon automatically leads to the cessation of all legal hostility. It immediately terminates the res and all further proceedings. The pardoned felon, at the instance of the proclamation, is a new man. His previous records of charges, offences, witnesses, evidence, and court examinations have no future legal effect. Immediately upon the gazetting of a presidential pardon, a hitherto convicted or condemned person is restored to legal innocence. To continue with the subject matter of their trial or appeal is tantamount to trying a corpse before the court. Any further judicial proceeding, ruling, or order issued after a presidential pardon is res judicata, an affront to the Constitution.
