By Nneka Chima
INTRODUCTION
The Prerogative of Mercy, also commonly referred to as Executive Clemency, constitutes a fundamental aspect of executive authority. It allows designated public officials to extend governmental mercy through pardons, sentence commutations, or reprieves to individuals who have been convicted of crimes. Though discretionary, this power serves as an indispensable instrument of justice in appropriate criminal cases.
This article elucidates who is constitutionally authorised to grant the prerogative of mercy in Nigeria, the legal provisions governing its exercise, the conditions applicable to its exercise, including the yardsticks for the recipients of this pardon, and the checks in place to prevent abuse of this authority.
THE LEGAL DEFINITION OF PARDON
According to Black’s Law Dictionary,[1] the word ‘pardon’ is defined as “the act or an instance of officially nullifying punishment or other legal consequence of a crime.” It is a form of compassionate relief extended by the state to individuals in distress, often after a conviction. In Falae v Obasanjo (1999) 4 NWLR (Pt. 599) 476 at 484, the court defined pardon as:
“…an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands for the offence and restores the rights and privileges forfeited on account of the offence. The effect of a pardon is to make the offender a new man (novus homo), to acquit him of all or corporal penalties and forfeitures annexed to the offence pardoned.”
PARDON VS AMNESTY
Although both are forms of executive clemency, there is a significant difference between pardon and amnesty. Pardon applies after an individual has been convicted. It involves forgiving the punishment for an offence without necessarily erasing the offence.
Amnesty, on the other hand, is typically granted to a group of persons, often before or without prosecution. It extinguishes both the offence and the criminal liability as seen in cases involving insurgents or political unrest. Pardons are about individual justice while amnesty is about national reconciliation.
In Nigeria, both forms of clemency derive from executive authority, but amnesty often requires supporting legislation or policy directives.
WHO MAY GRANT THE PREROGATIVE OF MERCY IN NIGERIA?
By virtue of Sections 175 and 212 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the prerogative of mercy can be exercised by the following holders of public office, namely:
- The President
The power of the President to exercise the prerogative of mercy is governed by Section 175(1)(a) of the 1999 CFRN (as amended). This stipulates that the President may grant a pardon to any individual involved in or convicted of an offence created by an Act of the National Assembly, either unconditionally or subject to lawful conditions.
2. The State Governor
The Governor of a State is empowered to exercise this prerogative by Section 212(1)(a) of the 1999 CFRN (as amended) which provides that the Governor of a State may grant any person concerned with or convicted of any offence created by any law of a State a pardon, either free or subject to lawful conditions.
FORMS OF EXECUTIVE CLEMENCY
The President and State Governors may exercise this power in different forms as established in Section 175(1)(b)–(d) and 212(1)(b)–(d) of the 1999 Constitution (as amended) respectively. The prerogative of mercy may take several forms:
- Respite
This involves delaying the execution of a sentence, either for a specific period or indefinitely. It is often used to allow for further consideration or rehabilitation.
b. Remission
The President or the Governor of a State may substitute a less severe form of punishment in place of a harsher sentence imposed on a person convicted of a crime. For example, in Amanchukwu v Federal Republic of Nigeria (2007) 6 NWLR (Part 1029) 1 CA, the Appellant was sentenced to life imprisonment, but his sentence was remitted to 15 years’ imprisonment.
c. Pardon
This denotes the absolution of all punishment, penalty, or forfeiture imposed by the State concerning an offence. This absolution is unconditional and restores the offender to their original state as if he had never been convicted. See Dr Obi Okongwu v. State (1986) 5 NWLR 721 at 723, where the court held:
“A pardon is usually granted where a convict-
- has exhausted all his legal rights of appeal; or
- has no intention of exercising such right; or
- where he is wrongfully convicted and is afterwards pardoned upon the ground of his innocence.”
However, in some cases, pardons may be conditional whereby the sentence of the convicted individual is pardoned solely upon the occurrence of a specified event or the fulfilment of a designated act by the offender. For instance,[2] inmates were granted a pardon for participating in rehabilitation, acquiring skills and knowledge, and maintaining good behaviour during incarceration.
CONDITIONS FOR THE EXERCISE OF THE PREROGATIVE OF MERCY
The prerogative of mercy in Nigeria, though discretionary, is not exercised arbitrarily. Certain conditions must be fulfilled before the prerogative can be lawfully granted and recognised.
- Existence of a Conviction and No Pending Appeal
The person must have been convicted of an offence under Nigerian law, and such conviction must have been heard and determined by an appropriate trial court. The prerogative of mercy aims to offer relief after a lawful conviction, not to interfere with ongoing trials or investigations.
In Obidike v. The State (2001) 17 NWLR (Pt. 743) 601 at 648, para F, in invalidatinga pardon granted during a pending appeal, Akpabio JSC held:
“It is unheard of that any convicted prisoner has been granted Presidential Pardon while his case was pending on appeal. Presidential Pardon could come after appeal has been heard and determined; on the exercise of prerogative of mercy, on a recommendation by the Hon. Attorney-General of the Federation.”
See also the case of Solola v State (2005) 11 NWLR (Pt. 937) 460 at 489.
2. Mandatory Consultation with an Advisory Council
The President or Governor is mandated to act in consultation with the relevant Advisory Council concerning the Prerogative ofMercy. Therefore, any grant of pardon by the President without consultation with the Council of State is unconstitutional and void.[3]Section 175 (2) of the 1999 Constitution (as amended)provides that:
“The powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State.”
Similarly, for the State Governor, as provided in Section 212(2) of the 1999 Constitution (as amended), he must consult with such advisory council of the state on prerogative of mercy. Although consultation is mandatory, the President or Governor is not bound to accept the council’s advice.
3. Compliance with Formal Procedure
The execution of a prerogative of mercy should only be granted after due procedure, including proper documentation, is followed. Failure to do so may result in the court striking out or dismissing an application for clemency. In Obidike v State (supra) at 639, the pardon was invalidated due to procedural flaws.
LIMITATIONS ON THE PREROGATIVE OF MERCY
The power of prerogative of mercy, though significant, is limited by law.
- It has a limited scope of jurisdiction.
The President may only grant a pardon or other prerogatives on offences against laws created by an Act enacted by the National Assembly.[4] At the same time, State Governors can only exercise this power where the offenders commit crimes against the State.[5] Neither may grant clemency outside their constitutional jurisdiction.
2. Discretion Subject to Judicial Review.
The Courts may review how the prerogative of mercy was exercised, particularly where there is evidence of bad faith, lack of consultation or procedural violations. In Obidike v State (supra), the court declined to recognise the pardon granted to the Appellant while his appeal was pending. The appeal was dismissed, and the Appellant was ordered to be re-arrested and executed in accordance with the trial court’s judgment.
However, the Supreme Court in Isibor v State (2002) 4 NWLR (Pt. 758) 741, did not order the re-arrest and execution of the Appellant, who had been granted a pardon while his appeal was pending.
3. The Prerogative of Mercy Cannot Be Valid Without Consultation.
The exercise of the Prerogative of Mercy must be after consultation with the Advisory Council of State or the Committee on the Prerogative of Mercy established by State law. Executive clemency granted without proper consultation is thus unconstitutional and void. This safeguard ensures accountability and prevents arbitrary use of power.
CONCLUSION
The prerogative of mercy remains a vital constitutional tool that balances justice with compassion. When properly exercised, it allows for corrective justice in deserving cases, including those where rehabilitation, remorse, or miscarriage of justice are evident. However, this power is not without limitations.
The President and State Governors are empowered to grant pardons, respite, and remission, but only within their jurisdiction and in strict compliance with constitutional provisions. The existence of a valid conviction, mandatory consultation with advisory bodies, and adherence to procedural formalities are non-negotiable safeguards that preserve the integrity of this discretionary power.
Ultimately, the prerogative of mercy should never be wielded to undermine judicial authority or promote impunity. It must remain a carefully regulated act of compassion guided by law, exercised in good faith, and applied in the public interest. When used judiciously, it reinforces the ideals of justice, fairness, and rehabilitation within Nigeria’s legal system.
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DISCLAIMER
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[1] 10th Edition 2009
[2] ASC Hamza Abdullahi Dingyadi,”Sokoto Governor grants pardon to inmates” 9 May 2025 <https://www.corrections.gov.ng/news/*sokoto-governor-grants-pardon-to-inmates*?news_id=134#:~:text=ASC%20Hamza%20Abdullahi%20Dingyadi%20CPRO,Wednesday%2C%20May%2028%2C%202025> accessed 11 July 2025
[3] Nwabueze, B. O. (1982). The Presidential Constitution of Nigeria (pp. 144-145). London: C. Hurst & Company.
[4] Ibid note 2
[5] Ibid note 3