NAME: ABIODUN IYANUOLUWA JESULOLUWA

COURSE TITLE: CONSTITUTIONAL LAW

COURSE CODE: PUL211

MATRIC NO: 20/023111/LAW

LEVEL: 200

QUESTION:

THE LEGAL IMPLICATION OF THE GRANT OF PRESIDENTIAL PARDON TO

GOVERNOR NYAME AND GOVERNOR DARIYE.

TO BE SUBMITTED TO;
Dr. Rita
Presidential pardon is an expression of the president's forgiveness and ordinarily is granted in
recognition of the applicant's acceptance of the responsibility for the crime and established good
conduct for a significant period of time after conviction or completion of sentence. It does not
signify innocence1. With this power, a president can remove a conviction, commute a sentence, or
grant amnesty from future conviction for a given crime. 2 The origin of the pardon power is the
United states constitution can be traced to English history known previously as the “prerogative of
mercy”. It first appeared during the reign of King Ine of Wessex in the seventh century. Although
abuses of power increased over time, leading to limitations on it, the pardon power persisted
through the American colonial period. Alexander Hamilton introduced the concept of a pardon
power at constitutional convention.

There was debate about whether Congress should have a role in the pardon power, with the
Senate approving presidential pardons. Delegates also debated whether treason should be excluded
from pardonable offenses. However, the final result was an expansive power for the president in
Article II, the strongest example of constitutional executive unilateralism.

Article II, Section 2 of the United State Constitution states that the president has the authority.

“grant Reprieves and Pardons for Offences against the United States, except in Cases of
Impeachment.”

The United States Supreme Court has interpreted this power as “plenary,” meaning that is
considerably broad and not generally subject to congressional modification. 3 In both Ex parte
Garland (1866) and United States v. Klvin (1871), the court ruled that legislation could not restrict
the president's pardon power.4

It is unclear whether accepting a pardon is a legal admission of guilt. President Gerald Ford argued
as such; he carried with him a quote from the Burdick v. United States(1915) decision that
concluded a pardon “carries an imputation of guilt; acceptance a confession of it.”

However, such statement was included in dicta, or legal commentary found within a judicial
opinion that does not establish precedent. Other presidents have not shared Ford's belief that a
pardon's acceptance signified guilt4
1 The United States Department of Justice,”Frequently Asked Questions
<https://www.justice.gov/pardon/frequently/asked questions>Accessed 28 may 2022
2 Study.com,”Presidential Pardon:Definition and Process”<https://study.com/academy/lesson/presidential-pardon-
definition-process-html>Accessed 28 may 2022
3 Micheal A. Foster,”Presidential Pardons: Overview and Selected Legal Issues”CRS
Reports<https://crsreports.congress.gov>Accessed 28 may 2022
4
 For example, President George H.W Bush pardoned former Secretary of
Defense Caspar Weinberger and others involved in the Iran-Contra scandal because he felt they
were innocent of wrongdoing; he claimed such individuals had fallen victim to “the criminalization
of policy differences” and used the pardon power to correct legal judgments and prevent other
errors from occuring.5
The framers of the constitution deliberately separated the judicial function of
government from the pardon power, therefore obviating concern from English jurist William
Blackstone that the power of judging and pardoning should not be delegated to the same person or
entity.6 They also reasoned that pardoning subordinates for treason would subject the president to
threats of impeachment and removal from office. There are many different types of democracy that
fall under the president's power. They include: pardon, amnesty, commutation, and reprieve. A
pardon releases a person from punishment and restores all civil liberties. Amnesty is the same
imposition of a sentence or punishment.7
While the pardon power is robust, there are three important limitations on it. First, a crime
must have been committed for a pardon to be issued. Secondly, the presidential power is limited to
federal crimes. Lastly, the president may not issue pardons in cases of impeachment. 8 Presidents
throughout American history have exercised their constitutional authority granted by the pardon
power. George Washington first exercised the pardon power in 1795 after he issued amnesty to
those engaged in Pennsylvania's Whiskey Rebellion. Thomas Jefferson granted amnesty to any
citizen convicted of a crime under the Alien and Sedition Acts. Abraham Lincoln used clemency to
encourage desertions from the confederate Army. In 1868, Andrew Johnson's pardon of Jefferson
Davis, the former president of the confederacy, was perhaps the most controversial pardon to date. 9
The way we apply presidential pardon is Nigeria is not in line with
other countries of the world. Most cases of presidential pardon in many countries are often extended
to individuals whose sins border on breaches in policies and principles, many of which fall under
the crime of perjury. Presidential pardon is not meant for criminals who loot the treasury and
embezzle public funds. Also, citing legal precedents,some have argued that corruption cases
involving state governors are state offenses,which are outside the jurisdiction of the National
Council of State(NCS).10 5

4 Gary David Adler,”The President's Power”In Inventing the American Presidency. Thomas E,ed. University Press of
Kansas: Lawrence ,ks. p.219
5 Bell,”Clair George's 1992 Pardon by George H.W. Bush.”The Washington
Post.<https://www.washingtonpost.com.>Accessed 28 may 2022
6 Jeffrey Crouch 2009.”The Presidential Pardon Power”,University Press of Kansasi: Lawrence, ks. p.13
7 Foster,pp.3-4
8 Crouch, p.2.
9 P.S. Ruckman,Jr.1997. “Executive Clemency in the United States: Origins,Development, and Analysis (1900-
Melissa1993).”Presidential Studies Quarterly. Vol 27,no.2, pp.253-254
 Presidential pardon or Prerogative of
Mercy in Nigeria,could be traced to the Nigeria constitution of which was established by section
175 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
The pardon could be free or subjected
to lawful conditions of which the president can grant any person concerned with or convicted of any
offence created by an Act of the National Assembly.11 Section 175(1)b of the
1999 Constitution provides that the President may grant to any person respite, either for an
indefinite or for a specified period, of the execution of any punishment imposed on that person for
such an offence. He may also substitute a less severe form of punishment for any punishment
imposed on that person for such an offence; or remit the whole or any part of any punishment
imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the state
on account of such an offence.12
Making reference to the cases provided, the High Court of the Federal Capital Territory
ordered the refund of monies diverted by former Taraba State governor, Jolly Nyame, after
sentencing him to 14 years in prison. The former governor was charged by the Economic and
Financial Crimes Commission for allegedly diverting N1.64 billion in May 2007. In a 41-count
charge of fraud, the commission accused Mr Nyame of spearheading the fraudulent transfer of
funds from the Taraba state’s treasury to a company, Saman Global for the purchase of office
equipment and stationeries that were never delivered. He was also accused of fraudulently enriching
himself and abusing public trust. In a lengthy judgment which lasted over five hours, the judge
Adebukola Banjoko gave a holistic overview of the testimonies given in court which resulted in the
judgement. In her address, the judge identified
various confessions of fraudulent transactions and said the evidences against the defendant were
overwhelming. According to the judge, even the defence witnesses alluded to the crimes contained
in the charge against the defendant. Citing a memo which formed the basis of the fraudulent
transactions, Mrs. Banjoko questioned the motive behind Mr Nyame’s ‘ratification’ of the said
memo, despite the former governor’s claim that he knew nothing about the fraudulent transaction.
”From the evidence alluded in court, transactions by the treasury of the Taraba State government
begin with a memo. Now a memo has a root course that is traceable to a decision,” said the judge
who added that where the said memo becomes a proven source of questionable transactions, it
would only be natural to trace the said memo to its source. 11 The judge also
questioned the failure of Mr Nyame to investigate the illicit flow of funds under his watch adding

10 Osmund Agbo,”Who Is Deserving of a Presidential Pardon” Premium

Times<https://www.premiumtimesng.com/opinion/525338-who-is-deserving-of-a-presidential-pardon-by -osmund-
agbo-2.html>Accessed 23 may 2022
11 Section 175(1)a of the 1999 Constitution as amended
12 Section 175(1)c,d of the 1999 Constitution as amended
that Mr Nyame confirmed in court that he never conducted any such investigation. “It is only under
cross examination that the defendant said he did not carry out the investigation, because the EFCC
was already carrying out a similar investigation.” The judge further noted confessions by witnesses,
including the managing director of Saman Global that the company was not involved in the delivery
of stationaries. “If Saman Global has no history of supplying stationaries into Taraba State, then
their injection into the flow must have been questionable.
Mrs. Banjoko narrated the testimonies of Mr Nyame’s commissioner of finance, Abubakar
Tutari who spearheaded the many cases of administrative breaches in the transfer of the funds to
Saman global. The judge said although the defendant denies knowledge of the transactions, it is
either that he; (Nyame) or Mr Tutari has lied to the court. “It is a question of Alhaji Tutari’s words
against that of the defendant. So the golden question is who is lying among the two of them.
Because somebody is lying.” said the judge. “It is imperative to bring to the fore, the background of
Ababakar Tutari. According the defendant, he was serving a senator of the federal republic of
Nigeria. Alhaji Tutari said he had known the defendant since 1992 when he was speaker of the
Taraba state house of assembly. Heir relationship sprang from that time till when he was governor,
in 1999. During this period, he served as commissioner in four
ministries, namely; finance rural development water resources sport and youth development. So
they were close,” Mrs. Bankole said. The judge further noted that Mr Tutari who had told the court
that the defendant was his benefactor had also indicated his willingness to not bite the finger that
fed him. Yet following the testimonies of witnesses in court, the judge noted that Mr Tutari
bypassed the permanent secretary and instructed the accountant to pay N250 million. “By this act,
Alhaji Abubakar Tutari certainly had cloud to have pulled the rug from under the feet of the
ministry of finance. One thing alone is certain, he was not appointed by the people of Taraba state,
but by the defendant who was elected by the people,” said the judge. “The audacity of the defendant
to direct the payment of N180 million out of N250 million shows he had more than a casual
interest,” said the judge who added that the defendant likely knew that Saman Global was not meant
to deliver the said good. “In granting the approval, it means he ratified the administrative
recklessness,” The judge
said, adding that the clear purpose of the money was diverted. Citing another testimony, the court
said there was no reason for a separate approval of N165 million to the account of Saman Global for
a delivery that was also never made.1313 “Without delivery
any stationaries, Saman Global received N345 million in five weeks, between January, 7 to
February, 14 2005. The progenitor of this impunity is no one else but the defendant. “Virtually all

13 Bayo Wahab,”Presidential Pardon and how it applies to Dariye and

Nyame”<https://www.pulse.ng/news/local/presidential-pardon-and-how-it-applied-to-dariye-and-nyame-pulse-
explainer>accessed on 27 May 2022
the witnesses, including the defendant confirmed that he is the approver of the memo. If so, he who
approves should be responsible for what he has approved. There is no way the defendant having a
sense of responsibility could not have queried the fact that such approvals were made within a space
of five weeks. Did he question why the stationaries were never delivered? Did he institute a court
action? He did nothing, thereby betraying trust bestowed on him,” the court ruled.
Mrs Banjoko therefore found the defendant guilty of 27 of the counts, bothering on
allegations of criminal breach of trust, receiving of gratification, obtaining without due
consideration and misappropriation of public funds. Before reading the verdict, the defence counsel
prayed the court to consider the fact that the convict had never being convicted of such offences and
that he was a family man who had served his state four at least eight years. The prosecution counsel,
Oluwaleke Atolagbe however urged the court to consider the effects of the charges on the people of
Taraba and the need to set a precedence that would prevent future occurrences.
Mrs. Banjoko while stating her ruling expressed
disappointment at the conduct of the accused. “But I must say that I am morally outraged by the
facts of this case. The people of Taraba State had elected the defendant, a clergy man, on three
different occasions. “There expectations must have been very high. How would he begin to explain
to the people of Taraba State his actions? How would he explain such a colossal loss to the people?”
she queried. The judge said Mr Nyama continued the commission of the allegations, even after
finding out that the commission was investigating his offences. She therefore sentenced the
defendants to various terms based on the four category of offences, to a maximum of 14 years in
jail, without an option of fine. The judge ordered the immediate return of forfeited funds from the
treasury of the EFCC to that of Taraba State.14 It is however
heartbreaking that our current president could grant pardon to Mr Nyame despite all this atrocities
against the state and the people, what message is the president passing across to the people?. The
power to pardon, vested in the President under the United States, Britain and Nigerian systems seem
to be similar in nature and extent. the power of pardon is a discretionary power given to the
sovereign that must not be exercised arbitrarily, the exercise of the power of pardon is not based on
any rules or standards,15 the president is not accountable to any one as to how to exercise the
presidential pardon or “who to” and “not to” benefit from it the best we can do is to criticise him.
14

According to Lord Denning ”the purpose of punishment is not to destroy the

offender but rather to reform him and deter others.” In this case of Ex parte Garland(1866), the
court not only held that the pardon power is unlimited and unfettered by legislative control, but also,
14 Bayo Wahab,”Presidential Pardon and how it applies to Dariye
andNyame”<https://www.pulse.ng/news/local/presidential-pardon-and-how-it-applied-to-dariye-and-nyame-pulse-
explainer>accessed 28 may 2022
15 Section 175 and 212 of the 1999 Constitution As Amended
that the power can be exercised to exonerate for any offence known to law either before legal
proceedings are taken or after conviction and judgment..16
The case of Governor Nyame as similar fact with the case of
Governor Dariye, in the case of Governor Dariye Nigeria's anti-corruption agency, the Economic
and Financial Crime Commission (EFCC), in 2007, preferred 23 counts of money laundering
involving alleged diversion of about N1.126billion Plateau State Government's ecological funds
against Dariye. The charges were filed before a Federal Capital Territory High Court in Abuja
against Dariye. He pleaded not guilty to the charges following which the trial judge, Justice
Adebukola Banjoko fixed November 13, 2007 for the commencement of trial.But before that date,
Dariye filed an application, challenging the competence of the charges and the jurisdiction of the
court. He argued that he ought to be tried before a Plateau State High Court and not the FCT High
Court. On December 13, 2007, the trial
judge heard and dismissed Dariye's application for lacking in merit. Dariye appealed against the
ruling of the court. But the Abuja Division of the Court of Appeal affirmed the decision of Justice
Banjoko. Dariye subsequently appealed to the Supreme Court,but the apex court, on February 27,
2015 dismissed Dariye's appeal and ordered him to submit himself for trial. Before that date, Dariye
filed an application, challenging the competence of the charges and the jurisdiction of the court. He
argued that he ought to be tried before a Plateau State High Court and not the FCT High Court. The
charges were filed before a Federal Capital Territory High Court in Abuja against Dariye. He
pleaded not guilty to the charges following which the trial judge, Justice Adebukola Banjoko , fixed
November 13, 2007 for the commencement of trial. On
December 13, 2007, the trial judge heard and dismissed Dariye's application for lacking in merit.
Dariye appealed against the ruling of the court. But the Abuja Division of the Court of Appeal
affirmed the decision of Justice Banjoko. Dariye subsequently appealed to the Supreme Court,but
the apex court, on February 27, 2015 dismissed Dariye's appeal and ordered him to submit himself
for trial. The Supreme Court's judgment delivered on 27 February 2015, the former Plateau State
Governor's trial resumed after about nine years of delay on 26 January 2016. 16

The EFCC called its first prosecution witness, Musa

Sunday, who is a detective with the anti-graft agency and who was involved in the investigation of
Dariye for the alleged crime. Sunday, during his testimony before Justice Banjoko gave a
breakdown of his team's report of investigation revealing how the ecological funds obtained by

16 Ngwoke.R and Abayomi .S.(2002)”An Appraisal of the Power of Pardon under Nigerian Law:Lessons from other
jurisdiction“Beijing Law Review<https://www.scirp.org/journal/paperinformation>accessed on 26 may 2022
Dariye, as then governor of Plateau State, was allegedly diverted.he High Court of the Federal
Capital Territory, Gudu, Abuja, on Tuesday 12th June, 2018 sentenced Dariye to 14 years’
imprisonment on the charges of criminal breach of trust and misappropriation of funds (1.6 billion
naira) while he was the Governor of Plateau state. The sentence was then appealed and eventually
the Supreme Court gave a final verdict of a 10 years sentence for the offence committed.
The Court of
Appeal sitting in Abuja on Friday 16th November, 2018 reduced the 14-year sentence against
Dariye to 10 years’. The presiding judge of the court, Justice Stephen Adah, reduced the charges in
the counts to 10 years, while the terms with two years are reduced to one year each. The sentences
are to run concurrently and on April 14, the federal government of Nigeria granted Joshua Dariye
and Jolly Nyame a presidential pardon. The action was criticised by civil society organisations and
the general public.
The legal implication of the grant of presidential pardon to Governor Nyame and Governor
Dariye is that the offender will not serve as deter to other citizens, as they may feel they could
escape criminal activities either by luck or connection with high rank politicians.
The main legal implication of presidential pardon is that there will be
instances whereby the judgments of the court will be in futility despite all due processes. As in the
case of Governor Nyame who was sentenced to fourteen years imprisonment in which he was
granted presidential pardon and was free. It means that it leads to the nullification of punishment or
consequences of action and conviction.
In Nigeria, according to section 175 of the 1999
constitution the power to grant pardon is vested in the President with regards to federal offences and
state Governors in respect to state offences (section 212 of the 1999 constitution),yet President
Buhari granted pardon to Governor Nyame and Governor Dariye which is outside its power or
jurisdiction. This shows that the due process of the law is not strictly adhered to.
Another legal implication of the
Presidential pardon given to Governor Nyame and Dariye is that power corrupts and absolute power
corrupts absolutely. Section 175 and 212 of the 1999 constitution gives the president and governor
respectively,absolute power to grant any individuals concerned or convicted with any offence
pardon without any organ of government to checkmate the power given.

In conclusion, a presidential pardon granted unto an individual is of total acquittal,this is

why Justice John Marshall in US v. Wilson(1833) described a state pardon “as an act of grace.” The
offence is removed from the criminals track record he is now seen as an innocent person. It restores
various rights lost and relieves the offender of all punishments, penalties and disabilities that flows
directly from the conviction or as a result of the pardoned offense. In the case of Falae v.
Obasanjo(1999) 3 LLER 1 (CA), the court of appeal held that a pardon relieves the person of all
sins.