Covid-19: When prerogative of mercy became necessary


As part of measures to curb the spread of coronavirus the federal government accelerated the decongestion of prisons and in exercising his prerogative of mercy, President Muhammadu Buhari ordered the release of some inmates. In this report, KEHINDE OSASONA examines the processes.

The Coronavirus (Covid-19) pandemic continues to take its toll on most countries of the world, including Nigeria, with some aspects of society being affected more than others. With the closure of schools and places of worship in a bid to curb the spread of the Covid-19 the decongestion of Nigeria’s correction institutions, which has always been overcrowded despite previous efforts at decongestion, making it a matter of urgency to adopt contingency measures at facilities which are rated as high risk.

Prerogative of mercy

The President’s Prerogative of Mercy, as provided for in Section 175 (3) of the Constitution of the Federal Republic, extends to persons concerned with offences against the army, naval, or air force law or convicted or sentenced by a court martial.

This right provided for under sections 212(1) and 175(1) & (2) of the Constitution for the Governor and the President, respectively.

Prerogative of mercy is legally assessable and available to all classes of convicts in Nigeria and is obtainable by a convict applying either personally, through a solicitor, or through the prison authority.

Under the forgoing provisions of the constitution, the president and governors are constitutional empowered to grant conditional or unconditional pardon to a convict, reduce, commute or remit the length of sentence and/or the severity or quantum of punishment and penalty or forfeiture, imposed on that person by a court of law.

President Muhammadu Buhari in a letter to the Chief Justice of Nigeria (CJN), Tanko Muhammad, in April tis year directed him to reduce the overcrowding in correctional facilities in the country by releasing inmates that had been on the awaiting trial list for six years or more.

According to the President, apart from helping to reduce the spread of Coronavirus spreads, the gesture would also help reduce number of inmates, citing that against the backdrop of Civid-19, physical distancing and self-isolation in prison walls conditions has been somewhat impossible.

Buhari observed that about 42 per cent of 74,127 inmates were awaiting trial.

The letter read in part: “Inmates with no confirmed criminal cases against them; elderly prisoners and those who were terminally ill could be discharged. Most of these custodial centres are presently housing inmates beyond their capacities and the overcrowded facilities pose a potent threat to the health of the inmates and the public in general in view of the present circumstances.”

AGF’s response

Speaking on the issue, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), reiterated the need for the governors of the 36 states to speedily decongest correctional facilities in the country.

Malami in a press statement dated April 9, 2020, by his media aide Umar Jibrillu Gwandu said he was drawing the attention of the governors to President Buhari’s approval and authorisation for urgent measures to be taken regarding decongestion of the correctional facilities to curtail the spread of Covid-19.

“The President has approved that state governors to take measures to facilitate the setting of their respective State Prerogative of Mercy Committees in order to recommend deserving cases for release on grounds of pardon or clemency in line with Constitutional provisions,” Malami stated.

The AGF, who noted that the custodial centres were currently housing inmates beyond their capacities, said: “In the light of the above, Mr President requests all executive governors to request their State Chief Judges to embark on visits to all correctional/custodial centres within their respective States to identify and release deserving inmates where that has not been done already.

“The chief judges are enjoined to consider a conditional or unconditional release of ATPs who have spent six years or more in custody, as well as those that have no confirmed criminal cases against them.”

According to the minister, other considerable inmates would include the aged, those with terminal illnesses, low-risk offenders, those with no sufficient legal basis to remain in custody, convicts of minor offences with or without an option of fines.

Others are those who have less than three-year-term left to serve, having served a substantial term of their jail term for offences that attract five years and above.

Payment of fines, the AGF added, may be made in favour of inmates convicted of lesser offences with an option of fine, who are in custody because of their inability to pay such fines.

No room for new inmates

Meanwhile, following the federal government’s directive, Controller General (CG) of Nigeria Correctional Service (NCS), Ja’faru Ahmed, recently said the service was no longer accepting new inmates into the prison.

Ahmed, who said the action was aimed at ensuring the preventing the spread of Covid-19 in the country, noted that the service has ensured social distancing in its facilities, especially as it concerns the elderly in its custody.

LEDAP backs move

The National Coordinator of Legal Defence Assistance Project (LEDAP), Chino Obiagwu (SAN), has backed the advocacy for the release of the inmates in the light of the ravaging Covid-19 pandemic.

Obiagwu insisted that the campaign was for the release of low-risk inmates.

“We are asking that the state governments release low-risk prisoners. These are prisoners who are convicted or persons on awaiting trial for minor offences or offences that do not involve the use of violence or sex crimes. These categories of prisoners pose no threat to society and they are the ones that fill up the prisons,” Obiagwu explained further.

NBA, LEDAP kicks

However, some lawyers have urged caution to ensure the implementation does not lead to increased crime rate in the country.

Leading the advocacy the Chairman of the Nigeria Bar Association (NBA), Ikorodu branch, Adebayo Akinlade, described the timing for the release of the inmates as not appropriate, stating it should be reconsidered.

Akinlade, said the inmates should be subjected to Covid-19 test before they are released, just as that those to be released must contact their families, while Non-Governmental Agencies (NGO) involved in correctional services should provide them with reintegration orientation.

Lagos, others comply

At the signing ceremony for the release of 209 inmates from Correctional Centres the Governor of Lagos state, Babajide Sanwo-Olu, described the action as a further measure to limit the spread of Covid-19.

“By the power conferred on me by Section 212 of the Constitution I have just signed the release of 209 inmates from Correctional Centres in Lagos.

“They include those above 60 years, having six months to serve out their jail terms, minor offences as well as physically and mentally challenged inmates,” Sanwo-Olu said.

Similarly, the Gombe state government acceded to the presidential directive with the state government facilitating the release of 96 inmates from the various custodial centres in the state.

According to the Commissioner for Justice and Attorney General of Gombe state, Zubair Umar, the number released was part of the list of 300 names submitted by the Nigerian Correctional Service (NCS), Gombe State Command.

However, Umar added that: “Suspected rapists and armed robbers were screened out and the 96 inmates approved were released on bail.”

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