I am again forced, against my wish, to reply to my learned friend, Mr. Femi Falana, SAN, by insisting that he is still wrong on his continued positing that the Chief Justice of Nigeria and the respective Chief Judges have the constitutional power to embark on prison amnesties. Before he forgets, I have always maintained one position: that any law, including the Criminal Justice (Release from Custody) (Special Provisions) Act, that permits this extra-judicial exercise, is null and void, by virtue of Sections 1(3), 35(4), 175 and 212, conjunctively and respectively, of the 1999 Constitution as amended.
Section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act, which he so much relies on, requires either the Chief Justice or a Chief Judge issuing an “order” for the release and not such authority embarking upon a prison visit to physically undertake that exercise. An “order,” in law, follows the judicial as opposed to the administrative process.
Even at that, the said Section 1(1) of that Act is unconstitutional for more additional reasons, apart from the ones I have consistently canvassed in this pulsating discourse. The first is that the Chief Justice of Nigeria cannot, sitting alone, constitute the judicial quorum of the Supreme Court of Nigeria and dish out such “orders.” Section 234 of the 1999 Constitution as amended provides that in ordinary matters, the Supreme Court “shall” be constituted by “not less than five Justices of the Supreme Court,” while in constitutional matters, it must be constituted by at least seven (7) Justices of that Court.
Secondly, supposing the order detaining the prisoner was made by a High Court Judge in exercise of his constitutional jurisdiction, would the CJN or even the Supreme Court have any jurisdiction to make an administrative order of release without the matter first passing through the Court of Appeal? This cannot be, under our constitutional jurisprudence!
Thirdly, and this is in respect of State Chief Judges: can they, using administrative fiat, sit on appeal on orders made by their fellow Judges while in the exercise of the latter’s constitutional jurisdiction? The answer is clearly no. Even if such State CJs assume judicial jurisdiction, will that not create anarchy in the judicial process? Surely, it will; and this has been consistently abhorred by the Supreme Court. Thus, while nullifying the orders made by a Judge which ran contrary to the earlier order made by another Judge of the same High Court, the Supreme Court held in the recent case of Cole vs. Jibunoh (2016) All FWLR (Pt. 860) 1123 at 1148E-1149B, emphatically as follows:
A court of coordinate jurisdiction has no constitutional power to sit as an appellate court on a decision or order in another case and review/adjudicate on a decision or order made by another court of the same hierarchy.
With much fanfare, glitz, blitz, and bazaar, Mr. Falana also placed reliance on the authority of Iloegbunam vs. Iloegbunam (2001) and even made allusion to his arguments therein. In quoting the finding of Oguntade, JCA, however, Mr. Falana twisted the meaning of the dictum, which was meant to address the constitutional question raised by Chief Anah, SAN. Let me quote exactly the portion quoted by Mr. Falana:
“There is power in the Chief Justice of the Federation or any of the Chief Judges of the States to order the release of persons detained in prison custody in the exercise of their power under section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act Cap 79 Laws of the Federation of Nigeria 1990 is not in doubt. The exercise of that power by the Anambra Chief Judge would definitely constitute a different cause of action for the present respondents if they feel aggrieved by it. And an action founded on the exercise of that power which action is challenging the authority of the Chief Judge is one that should be brought before the High Court of Anambra State by virtue of Section 272 of the 1999 Constitution.”
A correct dissection of the above dictum is as follows: (a) a Chief Judge has power under section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act, 1990 (not under the Constitution- as I have consistently argued) to release detained persons; (b) Chief Anah, SAN, wrongly challenged the constitutionality of that Act in that present Appeal – he ought to have brought a fresh action in the High Court under Section 272 of the Constitution!
How then would Mr. Falana claim in his rejoinder that “the Court of Appeal had upheld the constitutional validity of the Criminal Justice (Release from Custody) (Special Provisions) Act,” when that Court starkly held that only a fresh action pursuant to the original jurisdiction of the High Court under section 272 of the Constitution would enable such judicial pronouncement?
Again, Mr. Falana relied on some foreign common law happenings to support his arguments, the first of which is the Writ of Petition (Civil) No. 406/2013, delivered by the Indian Supreme Court, sitting in a judicial (as opposed to an administrative) capacity! Mr. Falana inadvertently shot himself in the hip, by relying on this judicial decision, which supports my arguments right from the very beginning against administrative as opposed to the judicial release of prisoners! Indeed, that Court, constitutionally empaneled, sat under its original civil jurisdiction and entertained arguments from parties and even amicus curiae before making those orders!
Mr. Falana also made reference to the situation in Pakistan, which unfortunately for him operates a Parliamentary as opposed to a Presidential system. 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.”
In conclusion, and I hope this will satisfy Mr. Falana this time around, 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.
