Abati, Our Sophisticated Ignorance & A Dollop of History

Reuben Abati recently outperformed the 2-man (or 1-man/1-woman) interview panel at Channels TV for the second consecutive time. Either his mind was too nimble for theirs or, in the face of attacks of “unprofessionalism” over the oga at the top saga, they chose to be extremely professional with him. In either event, he got away with justifying the presidential pardon of a convicted looter of public funds, someone who, rather conveniently or coincidentally or both, the president has referred to as his political benefactor. Dr. Abati also accused us, who are disgusted by the pardon, of “sophisticated ignorance”. Thankfully, Simon Kolawole has since pointed out Abati’s “sophisticated amnesia” but that isn’t the focus of this piece. I am curious about this business of presidential pardons and eager to cure my ignorance, sophisticated or otherwise.

Anyone familiar with my writing will know by now that I have a penchant for querying the propriety of administrative acts from the perspective of the jurisprudence behind the law that empowered the acts (Abati even ventured into the jurisprudence of punishment in his interview, a topic I previously visited here and to which we shall return presently). So, pardons, where did they come from?

The origins of the presidential pardon lie in the Prerogative of Mercy of the English monarch, being recorded in law as early as 668 AD. Initially, the King’s power to pardon was unfettered but by the reign of King Charles II, parliament excluded impeachments from the previously unlimited scope of offences that could be pardoned by the Crown. At a time the King, upon the declaration of war, as a ploy to swell the number of his troops, would pardon everyone who had committed a homicide or a felony, on the condition that they served a year for free in the army. However, over the centuries, it was obvious that the power was open to abuse, particular in relation to the wealthy or connected members of society, and parliament tried many times to curtail it. They only succeeded in the time of Charles the II because he pardoned the Treasurer/Chief Minister (today’s ‘Chancellor/Prime Minister’?), the Earl of Danby, who was about to be impeached. Parliament declared the pardon illegal but Danby himself resigned shortly afterwards, to avert a constitutional crisis.  Forgive the history lesson; on to America, whose constitution we adapted.

In this commentary on the constitutional history of the prerogative of mercy, the writers note that when the power to pardon first evolved, the punishments for many crimes was death, making the power not only useful, but necessary. By the time the American constitution was being framed, things were not so dire. However, it was still thought that the power to pardon was necessary for those exceptional circumstances in which the legal system failed to yield a morally or politically acceptable result. This paper here says the following about the positive use of the power to pardon, by American presidents:

“Pardon proved its practicality right away, in helping the president deal with a series of rebellions and invasions in the early years of the Republic: “The pardon could bring rebels back into the fold, or it could repopulate the army by restoring deserters to service.”  President Lincoln issued pardons throughout the Civil War to deal with desertion and draft evasion on the Union side, and to undercut the rebellion in the Border States. Presidents Johnson and Grant used the power to clean up afterwards, as did Presidents Theodore Roosevelt, Coolidge, Harding and Truman in connection with later wars.  More recently, Presidents Ford and Carter both issued amnesties to draft law violators and military deserters from the Vietnam era. Like the Nixon pardon, these amnesties represent classic uses of the power to reconcile national differences.”

So, we see a picture emerging. Show grace where the outcome at the courts is clearly unconscionable, readmit a class of outlaws or outcasts in furtherance of national healing. Furthermore, since 1898, when President McKinley signed the Clemency Rules, applications for clemency (or pardon) have been made to the Justice Department’s pardon attorney and, with only very few exceptions, presidential pardons have been granted on the recommendation of pardon attorney (said recommendations being signed by the attorney-general).

Alright, enough of the history. Let us compare the sections of law that grant the president the power to pardon. Section 175(1)(a) of the Nigerian constitution says:

(1)    “The President may –

1. 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;”

Article II Section 2 of the US constitution says, with relevance to the prerogative of mercy: “[The President] shall have power to grant Reprieves and Pardons for offenses against the United States, except in the case of impeachment.”

Thus, while in the United States the president cannot pardon anyone who has been impeached by Congress, in Nigeria, contrary to the position in our judicial forbears, the president’s power to pardon is without limit. Impeachments are fairly rare, however, so perhaps not much should be read into this.

In his paymasters’ defence, Abati rightly points out that pardons are always controversial (see here for a list of controversial pardons) and cites President Clinton’s controversial last-day-in-office pardons in support of his argument. However, unlike Abati’s principal, who has chosen to hide behind media aides, President Clinton published an extensive explanation of those considered the most controversial of the pardons. Clinton points out that the recipients had to agree to be fined in a similar fashion to others similarly accused, in the event that prosecutors found similar circumstances to apply.

Abati says that the convicted looter pleaded guilty, served time, forfeited property and was therefore worthy of being pardoned. He omitted to say that the looter jumped bail in London in 2005 and is still wanted there to respond to money-laundering charges. Or that he was impeached from office, which would be red flag in the UK and the US. We may be sophisticatedly ignorant but we are very clearly not stupid.

The crux of it all is this: given the jurisprudence of the presidential power to pardon, the severity of the offences for which the convicted looter was punished, our country’s much vaunted war on corruption and language with which Abati himself described the looter in 2005, can a charge of sophisticated ignorance be substantiated? One can try, as Abati did, but only very disingenuously. Perhaps sophisticatedly so, even.

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