Malami’s Rhetorics Shows President is Unwilling to Release Nnamdi Kanu – HURIWA

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*HURIWA says pardoning Nnamdi Kanu now is not premature

Prominent Civil Rights Advocacy Group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has expressed doubt about the willingness of President Muhammadu Buhari’s administration to grant unconditional release and terminate the persecution of the detained leader of the now prescribed Indigenous Peoples of Biafra (IPOB) despite the President’s assurances to the contrary expressed to respected Religious, Cultural and Societal leaders of South East origin during a visit to the Aso-Villa Presidential mansion recently.

HURIWA said the cacophony of clearly orchestrated and sponsored opinions of some northern groups and the confusing statement made on Wednesday December 1st 2021 by the Kebbi State born Federal Attorney General and Minister of Justice Alhaji Abubakar Malami together with the tainted and unverified accusations made by the loquacious Minister of Information Lai Mohammed about the killing of some policemen by IPOB which IPOB denied are clear indicators that ab initio President Muhammadu Buhari won’t accede to the pleading of Igbo leaders to release Mazi Nnamdi Kanu to stave off the rising insecurity in the South East of Nigeria following his detention since June.

HURIWA recalled that Abubakar Malami, the Attorney-General of the Federation (AGF) and Minister of Justice, had described as premature the possibility of pardoning Nnamdi Kanu, the leader of the proscribed Indigenous People of Biafra ( IPOB). Malami stated this on Wednesday, December 1, while appearing as a guest on Channels Television’s Politics Today.

HURIWA quoted Attorney-General Abubakar Malami as saying that though pardoning Nnamdi Kanu is not ruled out, it is premature as the IPOB leader has not been convicted. Photo credit: Abubakar Malami SAN Source: Facebook The AGF said: “Pardon is a function of conviction in the Nigerian context and as far as I know, Nnamdi Kanu has not been convicted yet so the idea of pardoning him is premature.”
The minister reiterated that the trials associated with Kanu have not been concluded and as such the pardon option cannot get on the table just yet.

HURIWA recalled that the president made the promise on Friday, November 19 while receiving a group under the aegis of Highly Respected Igbo Greats, led by First Republic parliamentarian and Minister of Aviation, Chief Mbazulike Amaechi, at State House, Abuja.

HURIWA said the calculated media interviews by all kinds of groups representing the North including the vexatious accusations without evidence against the Indigenous Peoples of Biafra (IPOB) by Lai Mohammed on the alleged slaughter in the most graphic manner of some police operatives in Anambra State which has gone viral, are all the coordinated attempts by reactionary elements opposed to the peaceful settlement of the rising state of insecurity in the South East of Nigeria and infact it is very likely that they are happy with the activities of the so-called Unknown gunmen in Igboland which they often linked to IPOB without any iota of believable evidence. The statement of Abubakar Malami is only the icing in the cake of the sinister plotters who are working towards denying a negotiated settlement of the South East’s imbroglio.

Besides, HURIWA reminded AGF Abubakar Malami that he has the constitutional powers to terminate the prosecution of the contrived matter against the detained leader of the now prescribed Indigenous Peoples of Biafra (IPOB) Mazi Nnamdi Kanu in line with the unambiguous provisions of the GrundNorm.

HURIWA in a media statement by the National Coordinator Comrade Emmanuel Onwubiko and the National director of media Miss Zainab Yusuf stated that Under the 1999 Nigerian Constitution, presidential pardoning power is exclusively vested in the President. Under this constitution, presidential pardoning power is unfettered, just as it obtains under the American Constitution. Section 175 of the constitution provides that the President may –
(a) 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;
(b) grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or
(d) 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.

HURIWA maintained also that, the powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State. The President, acting in accordance with the advice of the Council of State, may exercise his powers under subsection (1) of this section in relation to persons concerned with offences against the army, naval, or air-force law or convicted or sentenced by a court-martial. It is clear from the provision, that the principal power of pardon under the Nigerian constitution with all the discretion thereto, is vested in the President, as the nation’s Chief Executive.

HURIWA said that in furtherance of this power, Section 153(1)(b) of the Constitution provides for a body known as the “Council of State”, who is to advise the President in the exercise of his powers with respect to prerogative of mercy (amongst other powers). The council, as an organ of the government, is made up of eminent Nigerians considered as the full complement of the nation’s leaders. Whereas, the powers of the President in this regard are not subject to the approval of the Council of State, the President cannot proceed to act unilaterally. This is evident in the use of the word ‘shall’ in the provision, “The powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State”. It however remains a source of debate, the exact force in law that the advice of the Council of State carries i.e. whether it should be interpreted as limiting the pardoning powers of the President, or whether it is simply a matter of procedure meant to be followed. The pardoning process is concluded with the mandatory documentation by the President in the Official Public Notice of the Government of the Federation.

The Rights group affirmed thus: “There are no restrictions on the President as to who he can grant pardon under the Constitution. However, where a person is convicted of certain offences such as the offence of murder, such a person must have exhausted his/her right of appeal in court before he/she can be considered for pardon. This was judicially affirmed by the Supreme Court in Monsura Solola & Anor v The State where the court dismissed the appeal of two convicted murderers. In this case, four people (a father, his two sons and a nephew) had been charged for the 1994 murder of a teenage hunchback, the friend of the younger son. The charges against the younger son were withdrawn and he was used as a state witness. The other three went to trial and were convicted on the evidence presented. All three appealed unsuccessfully to the Court of Appeal and by the time they further appealed to the Supreme Court, the father had been granted pardon. Edozie, J.S.C while delivering the lead judgment made the following remarks concerning the exercise of prerogative of mercy; It needs to be stressed for future guidance that a person convicted for murder and sentenced to death by a high court and whose appeal is dismissed by the court of appeal is deemed to have lodged a further appeal to this court and until that appeal is finally determined, the Nigerian Court of Appeal per Musdapher, J.C.A. (as he then was) in Falae v Obasanjo (No. 2), had the following to say about pardon;
In Exhibit 11, the Head of State granted Olusegun Obasanjo pardon. The word used under Section 161 (1) and Exhibit 11 is “pardon”, and in this context, pardon may be with or without any conditions. It is clear from Exhibit 11 that the pardon granted to the 1st Respondent was not made subject to any conditions. In my view, under the Nigerian law, a “pardon” and ‘full pardon’ have no distinction.


The Court then defined the term as follows;
A pardon is 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 corporal penalties and forfeitures annexed to the offence pardoned. I am of the view, that by virtue of the pardon contained in Exhibit 11, the disqualification the 1st respondent was to suffer because of his conviction, has been wiped out. His full civil rights and liberties are fully restored and accordingly he has not been caught by the provisions of section 13(1) (h) of the Decree.”

HURIWA faulted the position of the Federal Attorney General on whether the case against Nnamdi Kanu can be ended and states that the Minister of Justice can end Nnamdi Kanu’s court case now relying on the Constitutional powers granted his office under THE POWER OF THE ATTORNEY GENERAL TO DISCONTINUE ANY MATTER (NOLLE PROSEQUI).

The Rights group said Nolle prosequi a Latin phrase when translated into English means unwilling or unable to proceed or prosecute. At Common Law the power to prosecute all criminal cases other than Court Martial is vested in the Attorney-General. This is because only an Attorney-General has the power to issue criminal information. Thus, private prosecution requires the consent of an Attorney-General. Police prosecutions under S.33 of the Police Act in courts of any grade are done on behalf of the Attorney-General and the Attorney General (A.G.) can enter nolle prosequi at any stage of the prosecution.

HURIWA reminded the Justice minister that an Attorney- General is therefore domino litis as regards prosecution of all criminal matters before any court other than a Court Martial. An AG can delegate his powers to prosecute criminal matters to law officers in his ministry or to any private legal practitioner of his choice. An AG can also take over any criminal case before any court other than Court Martial and continue or discontinue the prosecution. An A.G. can enter nolle prosequi and offer no reason.

HURIWA said based on legal authorities, the power to initiate a case should carry a power to terminate it London County Council vs A.G. 1902 A.C. 165. The power to enter nolle prosequi by an Attorney-General exists at Common Law and the constitution. Under the 1999 Constitution S.174 reads: 174(1) The Attorney-General of the Federation shall have power –
a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than court-martial, in respect of any offence created by or under any Act of the National Assembly; (b) the powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.
2) In exercising his powers under this section, the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

HURIWA asserted further: “The power to enter nolle prosequi by a State Attorney-General is in S.211 of the Constitution. An A. G. exercises the powers of entering a nolle prosequi in person or through law officers of his department. These officers range from a Solicitor-General to any state counsel in the Ministry of Justice Saka Ibrahim vs The State 1986 2 S.C. 91 at 120 as follows:
Under section 191 (2) of the 1979 Constitution, the Attorney- General can exercise all or any of the powers vested in him by section 191 (1) personally or “through officers of his department.” These officers range from a Solicitor-General, Director of Public Prosecutions and all grades of State Counsel in the ministry of justice – a ministry under the Attorney-General as Minister of Justice.
The power to enter nolle prosequi is conferred upon an Attorney-General alone to the exclusion of any other officer is old dating back centuries The State vs Ilori 1983 1 SCNLR 94 at 107 as follows: And so since from about the mid sixteenth century, the power to enter nolle prosequi in a criminal case has been recognized as an undoubted power vested only in the Attorney-General.

Canvassing the termination of the trial of Nnamdi Kanu, HURIWA said it is a prerogative power which is entrusted to an A. G. as a responsibility The State vs Ilori supra held as follows: It is a power which is recognised as a … at the prerogative entrusted to the Attorney-General’s responsibility. An AG can delegate all or limited powers vested in him and no authority can question it Director of Public Prosecutions vs Idowu 1981 2 NCR 355 at 360. Any person other than an AG in exercising the power to enter nolle prosequi must be acting on a general or specific powers of an AG The State vs Chukwurah 1964 NMLR 64 at 65.

“Before there could be delegation of power by an AG there must be an incumbent AG., that is a person occupying the seat of an AG where this is not, there cannot be a person exercising the power to enter nolle prosequi AG. Kaduna vs Hassan 1985 2 NWLR (Pt 8) 483 at 486 as follows:
Under Section 191 of the 1999 Constitution, the exercise of the power of the Attorney-General is personal to him and cannot be exercised by any other functionary when the powers have not been delegated by him the Attorney-General. Before such delegation can take place, there must be an incumbent Attorney- General in office who can be donor of the power.”

“An AG can enter a nolle prosequi in respect of a criminal case whether the State is a party or not- The State vs Ilori supra as follows: These powers of the Attorney-General are not confined to case where the state is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi he can extend this to cases instituted by any other person or authority.”

“The power to enter nolle prosequi grew out of Common Law and is not subject to review by any court of law. The State vs Ilori supra held as follows: This is a power vested in the Attorney-General by Common Law and is not subject of review by any court of law.
There is a presumption in law that a state counsel has an authority to act under S. 185 Criminal Procedure Code Alfa vs The State 1981 2 NCR 202. A court has no duty to know whether or not an A.G. has delegated his powers upon a D.P.P- The State vs Ogunjobi 1981 2 NCL 348. A prosecution undertaken by DPP ranks equal to a prosecution done by an A.G. and requires no further consent AG; West vs African Press Ltd 1965 NMLR 158 at 161.”

HURIWA argues that the exercise of the power to enter nolle prosequi by an A.G. is subjective and not objective; The State vs Ilori supra as follows: “The test to be adopted under sub-section (3) of section 191 of the 1979 Constitution is the same test that was adopted in examining the exercise of his discretion prior to 1979. It is subjective. It is the exercise of his discretion according to his own judgment.”

ON WHY PEACEFUL AGITATION IS LAWFUL UNDER INTERNATIONAL LAW AND MUNCIPAL LAWS, the Rights group says thus: “Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

“Constitutional Provisions
Under Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), every person is entitled to assemble freely and associate with other persons.

Section 40: Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

HURIWA says although the 1979 Public Order Act is the primary legislation regulating assemblies in Nigeria but states that however, in 2007, the Court of Appeal quashed several sections of the Public Order Act; the Court’s decision, however, has not yet been reflected in legislative changes. Notification is no longer required, unless the organisers wish to receive police protection. In its 2007 judgment in All Nigeria Peoples Party v. Inspector-General of Police, Justice Adekeye held that:

“The Public Order Act should be promulgated to complement sections 39 and 40 of the Constitution in context and not to stifle or cripple it. A rally or placard carrying demonstration has become a form of expression of views on current issues affecting government and the governed in a sovereign state. It is a trend recognized and deeply entrenched in the system of governance in civilized countries – it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.

International Legal Rules.”

Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials: “in the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.”

HURIWA said Article one of the International Covenant on Civil and Political Rights, provided a universal basis for peaceful agitations for self determination and therefore wonders why in Nigeria persons who engage in peaceful assembly and agitations for self rule are branded as terrorists and subjected to torture and extra legal execution by members of the Armed Forces of the Federation.

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