A constitutional lawyer and author, Chief Sebastine Hon (SAN) has challenged Mr. Femi Falana (SAN) for saying chief judges are empowered to free prison inmates, insisting that chief judges, including the Chief Justice of Nigeria, have no constitutional powers to embark on prison amnesty.
Hon said such amnesties, including the power of the Attorneys-General to enter nolle prosequi, are deliberately left by the framers of the Constitution in the hands of politicians, to avoid the sacredness of the Judiciary being muddied or messed up with, by permitting Judicial officers, through administrative actions, to order the release of politically-exposed persons from criminal prosecution.
The Senior Advocate was responding to a statement credited to Falana, where he (Falana) had argued in a rejoinder to his (Hon) earlier position that Chief Judges have powers to order release from prison detention.
Mr. Falana also made reference to the situation in Pakistan, which unfortunately for him operates a Parliamentary as opposed to a Presidential system, Hon said.
He stated: “May I remind Mr. Falana that Nigeria operates a Presidential system, just like the US, hence presidential powers of pardon cannot be abridged by any enactment other than the Constitution itself. ‘Abridgement’ here includes enacting an Act like the Criminal Justice (Release from Custody) (Special Provisions) Act, in a manner that will make it compete with sections 175 and 212 of the 1999 Constitution.
“That was why the US Chief Justice Burger held Schick vs. Reed, 419 US 256 (1974) at 266 that “the unbroken practice since 1790 compels the conclusion” that the power of the US President to grant pardon “flows from the Constitution alone, not from any legislative enactments,” concluding that such presidential powers “cannot be modified, abridged, or diminished by the Congress.”
According him, section 1(1) of the Criminal Justice (Release from custody) (Special Provisions) Act, being in contradiction or at least competition with sections 35(4), 175 and 212 of the 1999 Constitution as amended, is null and void.
“The Honourable Chief Justice of Nigeria and the various State Chief Judges have no constitutionally-recognised or cognisable power to conduct prison amnesties,” he insisted.