Kperogi’s Maryam Sanda and Tinubu’s crisis of clemency, by Olabisi Ayodele

My friend, Sanjo Balogun , called my attention to the view expressed by Prof. Farooq Kperogi in his article titled: “Maryam Sanda and the Tinubu’s Crisis of Clemency.

Let me start by saying that Kperogi’s article is one of the many reactions to the recent Presidential pardon. Without mincing words, Kperogi correctly recognised the President’s pardon as LAWFUL and CONSTITUTIONALLY guaranteed under section 175. However, Kperogi strongly objected to the Clemency on MORAL GROUNDS. To him, President Bola Ahmed Tinubu is constitutionally right but morally wrong. Kperogi’s position aligns with the moral sentiment shared by some Nigerians and at variance with the moral sentiment of some Nigerians. People’s opinions are usually varied whenever the moral lens is brought to the fore of evaluation.

Although Kperogi admitted the legality of the pardon, he merely wished that it must solely “redress miscarried justice.” I need to say that this wasn’t the position of the law – it’s Kperogi’s wish! The section 175(1) of the 1999 Constitution (as amended) that created Prerogative of Mercy evidently states that the President may “grant ANY person concerned with or CONVICTED of any offence created by an Act of the National Assembly a PARDON either FREE or SUBJECT to lawful conditions.” To prevent abuse or arbitrariness, Section 175(2) mandates the President to exercise the Pardon in consultation with the Council of State. For the avoidance of any doubt, recommendations for Pardon are made by lawfully constituted Prerogative Advisory Committee consisting of eminent Nigerians.

It’s instructive that Kperogi partly faulted the process of generating the beneficiaries of the Tinubu’s Clemency. Surprisingly, he doubted if Maryam Sanda was ever remorseful of her murderous act and of good conducts to have merited mercy. He questioned the inclusion of persons convicted of drug crimes. By his reckoning, these persons didn’t deserve the Clemency they got from the President. The pardon, to him, was blindly selective and immoral since it excluded all “poor petty thieves” and “awaiting trial inmates” in Nigeria. Curiously, Kperogi deliberately chose to forget that Awaiting Trial Inmates (ATIs) are not covered by the Section 175(1) of the Constitution he cited. He merely wanted the President to violate the Constitution he swore to uphold by pardoning all ATIs who in the eyes of the Constitution are still “innocent until the contrary is decisively proved” by court of COMPETENT jurisdiction. For the poor petty thieves not to “rot in jail,” the President must pardon them even if they were not recommended by the Prerogative Advisory Committee and ratified by the Council of State. The President of Nigeria does not have the latitude to bypass the Advisory Committee and the Council of State when it bothers on the exercise of Mercy granted by Section 175(1). Law is not Morality – freeing all poor petty thieves and ATIs as wished by Kperogi is morally right but it is legally wrong and any President who does that risks impeachment. Instead of asking for the proof of Sanda’s repentance, Kperogi should have taken those Correctional Officials who saw genuine remorse and recommended her to the President

Carpeting the President, Kperogi opined that his pardon of Sanda and others suggests that one could easily get away with crime. Again, Kperogi deliberately painted the wrong picture that Maryam Sanda was not tried, convicted and penalized. Did she get away with the crime of homicide against her husband? No, she did not! She was sentenced to death and was fearfully awaiting execution when the penalty was vacated after five years. The President could have exercised his constitutional power by reducing the death penalty to Life imprisonment but he chose to show Mercy. He cannot be lawfully faulted for acting within ambit of the law.

In conclusion, standing on his acclaimed higher moral pedestal, Kperogi counselled that the already approved and pronounced Prerogative of Mercy be revised. In the revised version, Kperogi suggested the President expunges all the “names that insult justice” from the long list of beneficiaries. Unfortunately, Kperogi did not utilize his moral lens to indicate the names of persons who merited the presidential pardon. Had he done this, he would have been shocked by the criticisms that would have trailed his moral moral judgment. On Law we agree but on morality we disagree! Is Kperogi morally correct to dismiss the Bilyaminu Bello’s biological father and accepted his adopted father? Such ‘moral’ decision leaves more than desired.

-AYODELE, PhD is a Professor of Sociology at the Obafemi Awolowo University, Ile-Ife