From Godwin Tsa, Abuja

Two senior lawyers, Chief Sabastine Hon (SAN) and Femi Falana (SAN) have sharply disagreed over the constitutional powers of state Chief Judges to grant pardon or amnesty to offenders.

While Hon, a constitutional lawyer and author, who started the debate had argued that chief judges in states lacked such constitutional powers, Falana faulted his position when he insisted that the judges have powers to do so.

In support of his argument, Hon said such practise, by the state chief judges offends the clear provisions of Section 35 (4) of the 1999 Constitution (as amended).

The said section has stipulated that anybody accused of an offence shall be arraigned in court within a reasonable time and that it is only that court that could make an order remanding such person in prison ordering his release from custody – either conditionally or unconditionally.

He contended that the only authorities imbued with constitutional powers of pardon or amnesty are the president, after consultation with the Council of State (under section 175), or the governor of a state, acting in consultation with an advisory council of the state on prerogative of mercy, as established by a law of such state.

But, in a swift reaction, Falana disagreed with him and reiterated that judges have powers to order release from prison detention.

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The rights lawyer submitted that since the Prisons Act, 2004 and the Criminal Justice (Release from Custody) (Special Provisions) Act fall under Item 8 of the Exclusive Legislative List of the Constitution, they are constitutional.

“Since prison is item 48 in the Exclusive Legislative List, in the First Schedule to the Constitution of the Federal Republic of Nigeria, 1999, as amended, it is undoubtedly clear that the Prisons Act and the Criminal Justice (Release from Custody) Act cannot be said to be inconsistent, be (sic) impugned on ground of inconsistency with the constitution.”

Responding to Falana’s position, Hon restated that the respective chief judges, including the Chief Justice of Nigeria, have no constitutional powers to embark on prison amnesty.

Such amnesties, he said, including the power of the Attorneys-General to enter nolle prosequi, are deliberately left by the framers of the constitution, in the hands of politicians, to avoid the sacredness of the Judiciary being muddied or messed up with, by permitting Judicial officers, through administrative actions, to order the release of politically-exposed persons from criminal prosecution.

“For the avoidance of any doubt, section 35(4) of the 1999 Constitution has covered the field on what should be done to any person accused of an offence; and there is no room for any administrative action by the Judiciary.

Only judicial actions can lead to the release of detained persons, hence any administrative action, apart from the one in sections 175n and 212 will be directly in conflict with the said section 35(4).

Also, sections 175 and 212 of the Constitution have advisedly used the phrase ‘a person concerned with or convicted of an offence.”