After three streams of news reports, it’s still not quite clear what happened in Sokoto last week. Initially, the news was that Governor Aminu Tambuwal of Sokoto State, a senior learned colleague and a Life Bencher, pardoned five ex-officials of the Sokoto State Government currently being tried by the Economic and Financial Crimes Commission along with 10 others for allegedly defrauding the state of N15bn. Not only that, since pardoning them, it was said, they had been appointed into various positions in the Sokoto State Government.
Obviously, there were a few jurisdictional and jurisprudential problems with this. Jurisdictional in the sense that even though the accused were being tried at the State High Court, they had been charged under Federal Laws and were being prosecuted by the EFCC, a federal agency. Basic constitutional law teaches that a governor can only grant pardons with regard to offences over which his State’s legislature has jurisdiction. The jurisprudential question lay in the notion of pardons being granted while the accused had yet to be convicted of anything. How do you pardon people who are still innocent in the eyes of the law, observers asked?
The State’s Attorney-General issued a clarification a few days later. Governor Tambuwal had not in fact pardoned them in advance of their convictions, he said. What had supposedly happened was that the Governor had reviewed the findings of the panel of inquiry that indicted the Pardoned 5. He found reasons to question the indictment and therefore pardoned them of the indictment. The Pardoned 5 had thereafter applied to the court to dismiss the charges the against them, as the now quashed indictment was the foundation of the EFCC’s case. Apparently, the court agreed and discharged the Pardoned 5.
This version of events still does not stack up. Section 212 of the Constitution is explicit on the limits of the Governor’s power to pardon. The power exists to grant pardons to convicted people, stay the execution of any punishment imposed on a convicted person, or substitute a less severe form of punishment than was imposed. It remained unclear how these extended to indictments by commissions or panels of inquiry.
However, there was a final attempt at explaining what transpired. There was apparently strong evidence to suggest that a previous governor of the state had set out to taint the Pardoned 5 at all costs. The indictment was a hatchet job, as uncovered by the panel Governor Tambuwal set up to review the indictment. It was based on their strong recommendations that he had quashed the indictment (note the change in nomenclature, from pardon to quashing). There is apparently nothing unusual about this and any hint of the sensational, the state’s officials say, is the work of Governor Tambuwal’s detractors.
It’s a slightly more palatable version but it still leaves a lot of questions unanswered. For one, what is the proper process for quashing indictments? What does it mean for public policy if a Governor can overturn the findings of a panel of enquiry? Secondly, indictments have not traditionally formed the basis for the preferment of charges in the Nigerian Criminal Justice System. While they may have well formed the basis for the investigation by the EFCC, charges are usually substantiated by the ‘Proof of Evidence’ that the prosecution attaches to the charge sheet. Under Nigerian Criminal Procedure, the prosecution must attach a summary of the evidence it intends to rely on during the trial to the charge sheet. This is rooted in ‘innocent until proven guilty’ jurisprudence, allowing the accused the privilege of seeing the evidence the state intends to confront him with and prepare.
If the Honourable Court was happy to discharge the Pardoned 5 on the basis that the Governor had quashed their indictment, one has to question the Proof of Evidence supplied by the EFCC. If they disclosed a strong enough case at arraignment (defence counsel can apply for charges to be thrown out if no case is shown against the accused), surely the existence of the indictment goes to no issue at all and is irrelevant to the substance of the trial. If, on the other hand, the Proof of Evidence was insufficient to maintain the charges at the point the Pardoned 5 were arraigned, why did His Lordship permit the trial to carry on for so long?
Perhaps a fourth version of the events will yet emerge and put all these issues to rest. I remain convinced that the Bar, my constituency, is where Nigeria’s fixers will come from.