A Senior Advocate of Nigeria S T Hon  has said that the practice of Chief Judges particularly of the States, granting pardon or amnesty to offenders which has been going on for quite some time now is clearly unconstitutional.

In a press statement signed by him yesterday, Hon said that Section 35(4) of the 1999 Constitution as amended has stipulated that anybody accused of an offence shall be arraigned in court within a reasonable time and that it is only that court could make an order remanding such person in prison ordering his release from custody – either conditionally or unconditionally.

“Clearly, therefore, there is no pre-conviction authorisation for pardon or release from custody by any Chief Judge, acting in his administrative capacity.

“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, established by a Law of such the State.
“While the President pardons those accused or convicted of Federal offences, the Governor of a State pardons those accused of State offences.

According to Hon, “in respect of State Chief Judges, section 270(2)(a) of the Constitution has merely established the office of a State Chief Judge with no specific functions assigned thereto.

“This then means such Chief Judges perform functions assigned to them by their respective State High Court Laws and High Court Rules.

“Even if such State Laws grant powers of pardon to the State Chief Judges, such Laws become, by the fiat of the inconsistency rule, unconstitutional, by virtue of section 1(3) of the 1999 Constitution. In other words, such Laws, being in conflict with sections 35(4), 175 and 212, respectively, of the 1999 Constitution, are null and void to the extent of their inconsistency, under and by virtue of section 1(3) of the Constitution.”

“Such State Laws are also unconstitutional under the doctrine of covering the field – since the 1999 Constitution has already covered the field on state pardon.

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