THE CONCEPT OF AMNESTY AND ITS PLACE
IN HUMAN RIGHTS DISCOURSE
BY
PROFESSOR EPIPHANY AZINGE, SAN
DIRECTOR GENERAL, NIGERIAN INSTITUTE OF
ADVANCED LEGAL STUDIES
A PAPER PRESENTED AT THE NIGERIAN BAR
ASSOCIATION 53RD ANNUAL GENERAL CONFERENCE
27TH AUGUST 2013
TINAPA CALABAR, NIGERIA
1
1.0 CONCEPT OF AMNESTY
Amnesty is a pardon extended by the government to a group or class of persons usually for
political offence, the act of a sovereign power officially forgiving certain classes of persons who
are subject to trial but have not yet being convicted1. It is the action of a government by which all
persons or certain groups of persons who have committed a criminal offence usually of a
political nature that threatens the sovereignty of the government are granted Immunity from
prosecution.2 Examples of such offences are treason and sedition.
Amnesty allows the government of a nation or state to "forget" criminal acts, usually before
prosecution has occurred. Amnesty has traditionally been used as a political tool of compromise
and reunion following a war. An act of amnesty is generally granted to a group of people who
have committed crimes against the state, such as treason, rebellion, or desertion from the
military.3
The history of amnesty dates back to 403 B.C. according to Greek and Roman law. One of the
documented ones was the long-term civil war in Athens which was ended after a group dedicated
to reuniting the city took over the government and arranged a general political amnesty. The
amnesty which was effected by loyalty oaths taken by all Athenians, and only later made into
law, the amnesty proclaimed the acts of both warring factions officially forgotten4. The amnesty
which was also known as the Act of Oblivion was specifically to heal the wounds resulting for
the civil war between democrats and oligarchs. The amnesty prevented the prosecution of those
1
2
3
4
Blacks law Dictionary
West's Encyclopedia of American Law, edition 2. 2008
Ibid.
Ibid.
2
whowere considered political enemies having supported the reign of the thirty. Athenians jurors
were required to swear “We will remember past offences no more.”5 The amnesty of 403 BC
was passed by majority vote and affected almost everyone that participated in the war.6
The Effect of amnesty are as follows7

Immediate release of all political prisoners

Right of political exiles to return

Relinquishment of civil and political rights

Reinstatement in their jobs of persons dismissed for political reasons

Right of victims of inhuman treatment or their families to compensation
Reasons for amnesty Laws

Subsidiarily the authorities sometimes see in amnesty laws a means of dealing with the
overcrowding of prisons, a situation which may prejudice the human rights of prisoners.8

In some cases, the purpose of an amnesty is strictly humanitarian. For instance, in Zaire, the
Act of 17 November 1981 covers disabled persons. In Syria, Act No. 26 of 12 March 1978
covers incurable or chronically ill prisoners. In the Eastern European countries, each
humanitarian measure appear to be traditional, particularly in respect of children, women, the
aged and the sick. In the USSR (Decrees of 19 October 1979 and 14 October 1981), in
Bulgaria (1979) and in Hungary (Acts of 29 March 1975), measures of this kind have been
5
James A. Colaiaco, Socrates Against Athens; Philosphy of trial (Routledge NY 2001) p. 108
Ruti G. Teitel, Transitional Justice (Oxford 2000) p. 58
7
Study on amnesty laws and their role in the safeguard and promotion of human rights Preliminary report by Mr.
Louis Joinet, (UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL E/CN.4/Sub.2/1985/16
21 June 1985)
8
Study on amnesty laws and their role in the safeguard and promotion of human rights Preliminary report by Mr.
Louis Joinet, (UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL E/CN.4/Sub.2/1985/16
21 June 1985)
6
3
adopted -in particular, to mark the International Year of the Child - for the benefit of minors,
pregnant women and mothers of very young children9.

Amnesty can also be granted for political reasons during transitions of government. During
the transition from an authoritarian regime to democracy, authoritarian regimes usually grant
themselves amnesty in order to avoid prosecution during the approaching democratic
dispensation. In Argentina, by promulgating an amnesty law known as the "pacification law"
on 25 September 1983, the Argentine military junta attempted to obviate any possibility of
criminal or civil proceedings being constituted against those responsible for serious
violations of human rights committed during operations designed to restore public order10.

Amnesty can also serve to neutralize opposition groups. The purpose of amnesty is to seek
social tranquility less by consensus than by a reduction of tensions, and thus of the
opposition's scope for action by forcing it to adopt a passive role. The aim is normalization
rather than reconciliation through both persuasion and dissuasion. Such was the aim of the
Polish amnesty law of 20 September 1984, enacted after the lifting of martial law, whose
effects it was designed to alleviate. The goal of reducing tensions was achieved given the
large number of individuals benefiting from the amnesty11.
9
Study on amnesty laws and their role in the safeguard and promotion of human rights Preliminary report by Mr.
Louis Joinet, (UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL E/CN.4/Sub.2/1985/16
21 June 1985)
10
Study on amnesty laws and their role in the safeguard and promotion of human rights Preliminary report by Mr.
Louis Joinet, (UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL E/CN.4/Sub.2/1985/16
21 June 1985)
11
Ibid.
4
2.0 RECOGNITION OF AMNESTIES IN INTERNATIONAL LAW
It would be noticed that the application of amnesty by a State in some situations, transcends
domestic crimes into the sphere of International law. This happens where the offence for which
immunity against prosecution is provided are so atrocious that they deeply shock the conscience
of humanity and are regarded as being of concern to the International community as a whole.12
The Rome Statute establishing the International Criminal Court in Article 5 lists the offences
regarded as being of concern to the International community as crime of genocide, crimes
against humanity, war crimes and crime of aggression.13 The Principles of conventional
international law and treatise14 impose significant obligations on States to requiring the
prosecution of atrocious crimes. This is because violations against humanity endanger the value
of the global community.
The offer of amnesty for some of the most heinous of crimes thus undeniably appears
contradictory on the very face of it, to these principles of international law. On the other hand,
International law does not expressly exclude amnesties. This raises the question of the legality of
granting amnesties under international law and whether amnesties can be given de facto or de
jure recognition internationally; a question we shall come back to.
Over the past few decades, there appears to be the development of a general presumption of the
illegality of amnesties and the opinion that States have no option but to prosecute rather than
offer immunity from prosecution for serious crimes has gained acceptance in most quarters. The
support for this opinion of the illegality of amnesties are legion.
12
For example,Uruguay under its Ley de Caducidad de la Pretension Punitiva Estado (Expiry Law)gave the President
the final say over which cases of human rights violation could be investigated, thus shielding the police and military
personnel from prosecution for torture, killing and forced disappearance committed during the 11 year period of
authoritarian rule up to 1985; South –African government through the Truth and Reconciliation Committee in the
pursuit of truth, granted amnesty to high-ranking perpetuators in exchange for information of particular human
rights violation.
13
Articles 6,7 and 8 of the Rome Statute elaborates on the meaning of genocide, crime against humanity and war
crimes.
14
the Geneva Conventions of 1949, the Genocide Convention, the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes against Humanity, the Apartheid Convention, the Torture
Convention, and the Rome Statute
5
Article 4 of Convention on the Prevention and Punishment for the crime of Genocide 15 provides
that perpetrators of the offence of genocide must be punished by state parties. The State parties
are obligated to put in place necessary legislation to give effect to the provisions of the
Convention and, in particular, to provide effective penalties for persons guilty of genocide or any
of the other acts enumerated in the Convention.16
Based on the mandatory system of universal jurisdiction over grave breaches17 of the Geneva
Conventions, there remains an obligation to extradite and prosecute in situations where there
have been grave breaches of human rights violations and State Parties are unable to absolve
themselves or any other state from liability that is incurred in this respect. This prima facie
means that State parties cannot through their own national legislations or actions, condone grant
amnesties for offences that fall within the definition of grave breaches as provided under the
Geneva Conventions and there is a positive obligation on other parties not to recognise such
amnesties granted.
A similar obligation to prosecute persons who have violated the rights of others, especially
through torture and other forms of cruel treatment is contained in the Final Declaration and
Programme of Action of the 1993 World Conference on Human Rights( Vienna Declaration) 18
where it states that
“States should abrogate legislation leading to impunity for those responsible for
grave violations of human rights such as torture and prosecute such violations,
thereby providing a firm basis for the rule of law”
The Convention on Non-Applicability of Statutory Limitation on War Crimes and Crimes Against
Humanity19 based on the conviction that the effective punishment of international crimes is an
important element in the prevention of such heinous crimes and the furtherance of protection of
15
Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948.
Art. 5
17
Offences amounting to grave breaches of the Geneva Conventions and its Protocol has been identified as
including willful killing, torture or inhuman treatment, willful causing of great suffering or serious injury to body or
health, willful serious violations of the laws and customs of war. See Article 50/51/130/147 ICRC Commentary on
the Geneva Conventions and Article 85, Protocol Additional to the Geneva Conventions of 12 August 1949 and
Relating to the Protection of Victims of International Conflict
18
Part II, Para. 60, UN Doc. A/Conf.157/23 www.unhcr.ch/huridoca.nsf/(symbol)/a.conf.157.23.en last accessed
08/08/2013
19
8 ILM 68 (1969)
16
6
rights and fundamental freedom, provides in Article 3 and 4 an obligation on state parties to
adopt all necessary domestic measures, be they legislative or otherwise to ensure that no form of
statutory limitation applies to the prosecution and punishment of these crimes. The granting of
amnesties amounts to a bar to prosecution and punishment of heinous crimes and thus is not in
conformity with the provisions of this particular Convention.
The emergence of an International prosecution system consisting of the International Criminal
Court as well as various international tribunals20 has also been a strong point in support of the
argument that immunities from prosecution for international crimes are not recognised. The nonrecognition of amnesties in relation to international crimes has been explicitly stated in various
decisions of International tribunals, helping to consolidate a network of case law that can be said
to aid the development of international customary law jurisprudence on the concept of amnesty.
In the case of Gomes Lund v. Brazil, the Inter-American Court of Human Rights (IACHR)
considered the case of a small group of students and workers whom were “disappeared” by
elements of the Brazilian army and state police in the mid 70’s.The Brazilian 1979 Amnesty law
prevented both the release and information on the fate of the victims and the investigation and
prosecution of those responsible for their disappearance. The Court held that the investigation
and punishment of those responsible for the perpetuation of the gross human rights violations
was imperative for justice for the victims and that the amnesty law was contrary to the provisions
of international conventions to which Brazil was a party.
In 2009, the Appeals Chambers of the Special Court for Sierra Leone in the appeal case of The
Prosecutor v. Issa Hassan Sesay, Morris Kallon, and Augustine Gbao21 ruled that amnesties
granted to persons of the warring factions in the Sierra Leone in spite of the 1999 Lome Peace
Accord brokered between the Sierra Leone government and the Revolutionary United Front
which contained an amnesty provision pardoning all rebel forces and their collaborators for acts
committed during the war was not a bar to prosecutions as amnesty did not apply to war crimes,
20
Inter-American Court of Human Rights (IACHR), the International Criminal Tribunal for Rwanda (ICTR),
International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL) are all
examples of international tribunals.
21
Special Court for Sierra Leone, SCSL-2004-15- AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to
Jurisdiction: Lomé Accord Amnesty (Appeals Chamber, 13 March 2004) (hereinafter Lomé Decision).
7
crimes against humanity and other serious violations of international humanitarian law 22. It was
argued23 that the prosecution of certain international crimes are recognised as jus cogens;
meaning that due to the importance of the value it protects, the principle of punishment for
heinous crimes, enjoys a higher rank in the international hierarchy than treaty law and even
ordinary customary rules. The implication of this is that the principle cannot be derogated from
by States through international treaties or local or special custom, not endowed with the same
normative force. The decision of the Special Court of Sierra Leone is regarded as a very
important decision in relation to the position of amnesty in International law because, it appears
to be the first decision in which it was categorically stated that amnesty was not a bar to all
international crimes before international tribunals or foreign courts.
The International Criminal Tribunal for Yuogoslavia took a similar approach in Prosecutor v.
Anto Furundzija24 in relation to the crime of torture. The Court concluded that any national
measure to undermine the principle of jus cogens in international law such as amnesty would not
be accorded international legal recognition.
The provisions of Article 6(5) of the Additional Protocol25 has been cited severally especially by
national courts26 as a justification for the recognition of amnesty for crimes against humanity in
international law. In the Salvadoran case of Guevara Portillo for example, which involved the
deaths of American soldiers travelling in a helicopter which was shot down by the Salvadoran
guerrilla forces, the Frente Farabundo marti para la Liberaction Nacional (FMLN), the
Criminal Chamber of the Supreme Court justified its ruling that the Salvadoran amnesty granted
to the FMLN was valid under international law on its interpretation of the aforementioned
Article, emphasizing that amnesty was necessary for reconstruction as it was part of the
negotiated peace accords. The said Article 6(5) provides that
22
Article 10 of the Statute expressly provides that amnesty shall not serve as bars to prosecutions conducted by
the Court
23
Prosecutor v. Morris Kallon, Further Written Submission on Behalf of the redress Trust, the Lawyers Committee
for Human Rights and the International Commission of Jurists
24
Judgment of the Trial Chamber ICTY, 10 December 1998, paras 151-157
25
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of NonInternational Armed Conflicts (Protocol II), 8 June 1977
26
See The Azanian Peoples’ Organization (AZAPO) v. The President of the Republic of South Africa and ors., Case
CCT 17/96, (South Africa), 1996, Romo Mena Case, Corte Suprema de Chile (26 October 1995), p. 12
8
“[a]t the end of hostilities, the authorities in power shall endeavour to grant the
broadest possible amnesty to persons who have participated in the armed
conflict”.
There are many reasons why the application of the provisions of Art. 6(5) in the manner
suggested by courts such as the Salvadorian court to war crimes remains inappropriate and
faulty. The rules of interpretation in the Vienna Convention27 on the Law of Treaties, directs
States Parties to interpret provisions accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose. One of the objectives
of the Additional Protocol as stated in its preamble is to “ensure better protection for victims of
non-international armed conflicts”. If Article 6 (5) were to allow amnesties which prevent the
prosecution of grievous atrocities against humanity, during armed conflict, it would no doubt be
inconsistent with the main objectives of the Protocol. The drafting history of Article 6(5),
indicates that “the provision aims at encouraging amnesty for those detained or punished for the
mere fact of having participated in hostilities. It does not aim at an amnesty for those having
violated international humanitarian law. This position has been affirmed severally by
International Human rights bodies such as the UN Human Rights Committee28 and the InterAmerican Commission of Human Rights.29
Based on the foregoing analysis of International law jurisprudence and the cases in support, one
might be tempted to concluded that the position of international law viz a viz the concept of
amnesty is has been laid to rest. But this definitely is not the case as the issue of the recognition
of amnesties in international crimes is anything but settled. There still remains support for the
argument that International law at least to an extent, can recognise amnesties granted for
international crimes.
It must be stated categorically that although international treaties and conventions as mentioned
above places an obligation on State parties to prosecute offenders who commit heinous crimes,
27
1969 Vienna Convention on the Law of Treaties, Art. 31(1).
28
UN Doc. CCPR/C/79/Add.78, para. 12 (concerning the amnesty for human rights violations committed against civilians during the civil war
in Lebanon).
29
Inter-American Commission on Human Rights, Report No. 199
9
none of these treaties, (with the exception of the 1977 Protocol II to the Geneva Conventions30
explicitly), discourages the offering of any form of amnesty. Perhaps the absence of this is tied
closely to the issue of the need of States to protect their sovereignty and will be thus reluctant to
bind themselves to a treaty that explicitly removes a highly symbolic and visible dimension of
their sovereignty. This serves as the premise for an argument that amnesties which for violations,
including human rights violations which do not fall within the realm of international crimes are
definitely not prohibited by International law jurisprudence: these form of amnesties may be
regarded as being squarely within the sphere of the national law.
The grant of amnesties by States are usually applied to accommodate peculiar circumstances
which threaten the peace or stability of a nation and an attempt to handle the situation otherwise
might prove disastrous to the economic or political survival of the State31 or lead to the
perpetuation of more crimes against humanity.32 To this end, some states have enacted laws that
make the grant of amnesties in particular situations provided for, legal. 33 Naqvi34 makes a valid
point when he argues that if all amnesties are to be considered as invalid and not accorded
recognition in international law, an important tool used for preventing and even ending civil wars
or aiding the process of reconciliation in particular States might be severely hampered, 35 thereby
risking the provocation or elongation of a threat to peace and security. The provisions of Article
16 of the Rome Statute and its application, lends support to the argument that an unlimited
prosecution of international crimes may result to a threat to peace and security and in such
instances, the domestic amnesties may be recognised. Article 16 vests power in the Security
Council to request that proceedings before the International Court be deferred for a period of
twelve months, with the option of a renewal, where it is believed that such prosecution would
30
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of NonInternational Armed Conflcits (Protocol II), 8 June 1977
31
In South Africa, amnesty was granted for politically motivated crimes during the Apartheid regime under the
“amnesty for truth” programme by the Promotion of National Unity and Reconciliation Act of 1995
32
The Sudan peace Agreement of April 1997, The Democratic Republic of Congo Lusaka Cease fire Agreement of
1999 and Sierra Leone’s Lome Peace Agreement of 1999 were negotiated as measures to stop bloodshed in the
warring State.
33
For example, South Africa’s Promotion of National Unity and Reconciliation Act 1995, South African Constitution
Act 200 of 1993 and South African Constitution, Act 108 of 1996
34
Naqvi, Y., “Amnesty for war crimes: Defining the limits of international recognition IRRC (2003)Vol. 85 Pgs 583@588
35
For example, amnesties granted in South Africa after the Apartheid regime was welcomed by the United
Nations.
10
threaten peace and security. Although it has been argued that the time limit is an indication that it
is the deferral is a delay mechanism, for the sake of peace and not a recognition of amnesties
granted by States, practical implication and application of this Article based on the
complementarity principle,36 compels the International community, through the International
Criminal Court to recognise domestic amnesties and refrain from prosecution.
It has been argued that certain types of amnesties, especially blanket amnesties as those granted
by the Lome accord37 or even in the Pinochet case, should not be recognised as they are not
conditional on a remedy to victims. The South African Truth and Reconciliation Commission in
its final report38 appealed to the International community for the recognition of its process which
included the grant of amnesties as a trade-in for obtaining the truth, made it abundantly clear that
the Promotion of National Unity and Reconciliation Act and the Commission itself, had sought
to deal appropriately with the matter of responsibilities by the adoption of conditional amnesty
policy, which was clearly based on considered applications from applicants39 In APAZO v.
President of the Republic of South Africa40, the Court held that amnesty was permitted because
without it there would be no incentive for offenders to disclose the truth about past atrocities. It
suffices to say that the South African experience appears to be the only example of permissible
amnesties that have been welcomed by the international Community. The most logical
explanation for such acceptance can be gleaned from the rather eloquent judgment of Justice
Ismail Mohamed in the case of Azapo where in the South African’s amnesty legislation was
challenged. He stated that;
“That truth which the victims of repression seek so desperately to know is,
in the circumstances, much more likely to be forthcoming if those
responsible for such monstrous misdeeds are encouraged to disclose the
36
The Complementarity principle provides that the International Criminal Court can only assume jurisdiction when
States are unable or are unwilling to prosecute perpetrators of international crimes. The unwillingness to
prosecute may arise as a result of the grant of amnesties by the State.
37
Supra fn. 23, pg. 2609
38
Truth and Reconciliation Commission Report , Vol. 5 (1998) at 349
39
By virtue of section 20 of the Promotion of National Unity and Reconciliation Act, the Amnessty Committee set
up under the said Act considered amnesty application and had the power to grant them where it was satisfied that
the applicant committed an act constituting gross human rights violation, has made ful disclosure of all relevant
facts and the act in question was associated with a political objective committed in the course of conflict of the
past.
40
1996(4) SA 671
11
whole truth with the incentive that they will not receive the punishment
which they undoubtedly deserve if they do. Without that incentive, there is
nothing to encourage such persons to make the disclosure and to reveal
the truth which a person in the position of the applicant so desperately
desires…”41
The amnesty granted in South Africa was thus permissible because it publicly recognised that the
perpetrators of the crimes deserved to be punished and provided some form of justice to the
victims of the crimes through a revelation of what actually happened to them, a feat that other
amnesties granted did not achieve.
On the question of the recognition of the grant of amnesties by States in the International
community, the position has become perhaps a tad much clearer: while amnesty is prohibited in
offences regarded as being of concern to the International community such as crime of genocide,
crimes against humanity, war crimes and crime of aggression, this is not the case for other
offences that do not fall within this category. Again, blanket amnesties for atrocious crimes is
generally not accepted by the international community but there copious room to suggest that
conditional amnesties are permissible where it is clear that justice is not entirely sacrificed for
the cause of ensuring political peace.
3.0 LEGAL PROVISIONS FOR AMNESTY IN NIGERIA
Whether or not amnesty is constitutional in Nigeria is still a matter of controversy. A view sees
amnesty as the same as pardon while a divergent view is to the effect that they amnesty differs
from pardon. Section 175 of the 1999 Constitution which amnesty is hinged upon provides for
pardon to convicts. The section does not seem to cover pardons granted to persons not already
41
Ibid 685
12
convicted of offences created by laws enacted by the legislature. It must be said that the word
“Amnesty” is alien to the Nigerian Constitution.
As earlier defined, amnesty is a pardon extended by the government to a group or class of
persons usually for political offence, the act of a sovereign power officially forgiving certain
classes of persons who are subject to trial but have not yet being convicted. This is not provided
for under the Constitution, what the constitution provides for is pardon by way of prerogative of
Mercy granted to convicts which is contained in sections 175 and 212 of the 1999 Constitution.
Section175 provides thus:
“(1) The President may (a) 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;
(b) grant to any person a respite, either for an indefinite or for a specified period,
of the execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for any punishment imposed on
that person for such an offence; or
(d) remit the whole or any part of any punishment imposed on that person for
such an offence or of any penalty or forfeiture otherwise due to the State on
account of such an offence.
(2) The powers of the President under subsection (1) of this section shall be
exercised by him after consultation with the Council of State.
(3) The President, acting in accordance with the advice of the Council of State,
may exercise his powers under subsection (1) of this section in relation to persons
concerned with offences against the army, naval or air-force law or convicted or
sentenced by a court-martial.”
Section 212 also contains an equivalent provision for state Governors.
To further distinguish amnesty from prerogative of mercy, we have to consider some aspects of
prerogative of mercy as distinct from the grant of amnesty.
13
a. Who has the power to grant a pardon?
The power to grant state pardon by way of prerogative of mercy is one of the colonial legacies
imbibed by Nigeria. According to Nwabueze42, the only administrative duties of the Queen were
by way of entering a nolle prosequi to stop criminal proceedings and by way of the prerogative
of mercy by which she might pardon convicted offenders or remit or commute sentences
imposed upon them. This power was retained by the various Constitutions that obtained after
independence43. The President has the power to grant state pardon by way of prerogative of
mercy to persons convicted of offences under Acts of the National Assembly while state
Governors have the same power to persons convicted of offences under Laws of the State
Houses of Assembly.
The power to grant state pardon by way of prerogative of mercy as clearly spelt out in section
175 is given to the President and he is to exercise this power after consultation with the council
of state.44 The Appeal Court in Falae v Obasanjo45 interpreted S. 161 of the 1979 CFRN (now
S. 175 1999 CFRN) to mean that the Head of State may 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. The President in exercising this discretionary power does not need
express approval of the Council of State. In the same vein, the advice of members of the Council
is not binding on the President and the President must be the convener of the meeting hence, the
Council of State cannot sit in meeting in the absence of the President.
42
B.O. Nwabueze, A Constitutional History of Nigeria (Hurst & Co London 1982) p. 75
Section 101 of 1963 Republican Constitution, Section 161 of the 1979 Constitution and Section 175 1999
Constitution.
44
The Council of State is established by Section 153(1) (b) of the Constitution, to advise the President in the
exercise of his powers with respect to prerogative of mercy (amongst other powers), (Paragraph B Section 6(a) (ii)
and (b) of Part I of the Third Schedule to the Constitution.)
45
(1999) 4 NWLR (PT 559) 476 particularly on page 495
43
14
In Obidike v. State46 the court of Appeal in recognizing prerogative of mercy as provided for
under Sections 161 and 192 of the 1979 Constitution, which is now section 175 and 212 of the
1999 Constitution said per Olagunju J.C.A :
“This court is not unmindful of the power of the president of his country under
section 161 of the constitution of the Federal Republic of Nigeria, 1979 to grant
pardon to a convicted person or grant a respite or remission of punishment
among other this similar powers were vested in a state governor by section 192 of
the self same constitution in respect of conviction of any offence created by any
law of a state on terms identical with section 161 thereof. The parallelism of the
powers described in the marginal note of each section as prerogative of mercy.”
b. To whom is prerogative of mercy granted?
According to Section 175(1)( a), prerogative of mercy can be granted to “any person concerned
with or convicted of any offence created by an Act of the National Assembly…”. From this
provision, two classes of persons may be granted prerogative of mercy. These are explained
below:
1. Persons concerned with an offence
The phrase “concerned with an offence” could mean an issue or an interest but going by the rule
of interpretation of statute in the maxim of Ejusdem Generis Rule which is to the effect wide
words associated in the text with more limited words are taken to be restricted by implication to
matters of the same limited character. That is, where a particular class goes with a general word,
the particular class is taken to be comprehensive and the general word as referring to matter
46
(2001) 7 NWLR (pt. 743) 601 at 639 paras G – H; 640 PARA E – F
15
ejusdem gave is with such class. Therefore, using the ejusdem generis rule, the general phrase
“any person concerned with” will mean a particular class of people convicted of any offence.47
2. Any person convicted of any offence.
Conviction of an offence is mandatorily preceded by an accused being charged to court and
having stood trial. Mere accusation of an offence does not amount to conviction as an accused
person is presumed innocent until proven guilty according to section 36(5) of the 1999
Constitution. Once there is allegation of the commission of an offence the courts insist that it
must first be investigated by the Police and tried by a criminal court as was decided in Olarewaju
v Afribank Nigeria Plc48.
Prerogative of mercy can also be extended to persons concerned with offences against the army,
naval or air-force law or convicted or sentenced by a court-martial.
c. When is prerogative of mercy granted?
Under this heading, we will discuss the time when prerogative of mercy is granted and the
situations where it can be granted.

Time when it is granted:
It can be deduced from section 175 and 212 and as established above, that it is granted to persons
who are concerned with an offence or to convicts. By this, it means that before prerogative of
mercy can come to be an offence must have first of all taken place for a person to be concerned
47
J.O.Olatoke, “An Examination of the Constitutionality of the Amnesty Programme in the Niger Delta Region of
the Federal Republic of Nigeria” Journal of Law, Policy and Globalization Vol 5 ( 2012 ) p. 26
48
(2001) 7 NSCQR, 22
16
with an offence or to have been convicted of it. It should be noted as examined above that for a
person to be concerned with an offence there must have been a conviction. Hence, conviction is a
precondition for prerogative of mercy to be granted.
The prerogative of mercy cannot be granted to a person under trial not yet convicted or
convicted, appealed to the court of appeal and his conviction confirmed but the appeal is still
before the Supreme Court. This was stated by the Supreme Court in the case of Monsura Solola
& Anor v. The State49 the honourable justices of the Supreme Court considered and dismissed the
appeal of two convicted murderers. In this case, four people (a father, his two sons and a
nephew) had been charged for the 1994 murder of a teenage hunchback, the friend of the
younger son. The charges against the younger son were withdrawn and he was used as a state
witness. The other three went to trial and were convicted on the evidence presented. All three
appealed unsuccessfully to the Court of Appeal and by the time they further appealed to the
Supreme Court, the father had been granted the President’s Prerogative of Mercy in
1999. Edozie JSC, giving the lead judgment, said this concerning prerogative of mercy:
“It needs to be stressed for future guidance that a person convicted for murder and
sentenced to death by a high court and whose appeal is dismissed by the court of
appeal is deemed to have lodged a further appeal to this court and until that appeal
is finally determined, the head of state or the governor of a state cannot, pursuant
to sections 175 (sic) or 212 of the 1999 Constitution, as the case may be, exercise
his powers of prerogative of mercy in favour of that person. In the same vein, such
person cannot be executed before his appeal is disposed of. It is hoped that the
prison authorities will be guided by this advice.”
49
(2005) NSCR (Vol. 1) , (2007)6 NWLR (Pt.1029)1 at 24)
17
To further buttress the fact that conviction must precede a pardon, it was reported that on the
grant of pardon by way of prerogative of mercy to the former Biafran warlord, Ojukwu by the
then President Shehu Shagari in 1983, he strenuously objected to the word ‘pardon’ because he
had not been tried or convicted by a court of law. The federal government reportedly “noted” the
technicality that there cannot be a pardon without conviction. General Gowon was reportedly
equally opposed to the word pardon as he had neither been tried in court nor convicted.50

Situations where it is granted
In acknowledging the situations where prerogative of mercy is granted, the Supreme Court held
per Ogundare in Okongwu v State51 that:
"pardon is usually granted where a convict has exhausted all his legal rights of
appeal; Has no intention of exercising such right; Where he is wrongfully
convicted and is afterwards pardoned upon the ground of his innocence.”
d. Effect of Prerogative of mercy
In the case of Falae v Obasanjo52, the Court of Appeal, Abuja Division, acting as the
Presidential Election Tribunal, following the 1999 elections, rejected the argument that Gen.
Olusegun Obasanjo was not granted “full pardon” by Gen. Abdulsalami Abubakar, as aforesaid,
after his conviction for involvement in the 1995 Coup Plot, and that he was, therefore, not
50
“A Pardon and a final Homecall” (Insider Magazine) http://www.insiderweeklymagazine.com/ed399.php
accessed on the 3rd of August, 2013
51
(1986) 5 NWLR (Pt 44) 741 particularly at 750 pars G-H
52
( 1999), 4 NWLR, Part 599, 476
18
qualified to contest the 1999 presidential election. It then held per Musdapher,J.C.A53, who
delivered the leading Judgment of the Court as follows:
“In Exhibit 11, the Head of State granted Olusegun Obasanjo pardon. The word
used under Section 161 (1) and Exhibit 11 is “pardon”, and in this context,
pardon may be with or without any conditions. It is clear from Exhibit 11 that the
pardon granted to the 1st Respondent was not made subject to any conditions. In
my view, under the Nigerian law, a “pardon” and ” full pardon” have no
distinction. A pardon is an act of grace by the appropriate authority which
mitigates or obliterates the punishment the law demands for the offence, and
restores the rights and the privileges forfeited on account of the offence. See
Verneco Inc. v.Fidelity and Cas. C of New York, 253 LA 721, 219 SO 2 D, 508,
511. The effect of a pardon is to make the offender, a new man ( novus homo), to
acquit him of all corporal penalties and forfeiture annexed to the offence
pardoned. I am of the view, that by virtue of the pardon contained in Exhibit 11,
the disqualification of the 1st Respondent was to suffer because of his conviction,
has been wiped out. His full civil rights and liberties are fully restored and
accordingly, he has not been caught by the provisions of Section 13(1) (h) of the
Decree”.
A person granted pardon by way of prerogative of mercy is immune from re-prosecution as this
will amount to double jeopardy. In Ibori v F.R.N54 the court
53
54
P. 495
(2009) 3 NWLR) (pt 1127) 94
19
Differences between Amnesty and Pardon
In contrast, amnesty is an act of oblivion of past offences which is granted by the government to
those who have been guilty of any neglect or crime usually upon the condition that they return to
their duty within a certain period. The aim of amnesty is to forget a crime which has been
committed while the aim of pardon is to exempt the person on which it is granted from the
punishment prescribed by law.55 However, in both cases, the grantee cannot be re-prosecuted for
that same offence.
Another difference between amnesty and pardon is the time when both are granted. Amnesty
may be granted either before judgment or afterwards, and it is in general given to whole classes
of criminals or supposed criminals, for the purpose of restoring tranquility in the state56.
Amnesty is usually granted before any trial takes place, hence before conviction while pardon is
given to a person who is guilty and has been convicted of an offence.
Amnesty as defined by El Salvador’s amnesty law, has to do with acts which include political
crimes or any crime with political ramifications or common crimes committed by no less than
twenty people. According to Olatoke57,
“From the provisions of Sections 175 and 212 of the Constitution the following
conditions/situation must exist before there could be prerogative of mercy;
(a) The person to be granted prerogative of mercy must have been convicted of an
offence.
(b) The president or the governor must have consulted the council of state or the
advisory council of state as the case may be;
55
John Bouvier, A Law Dictionary, Adapted to the Constitution and Laws of the United States. (USA 1856)
Ibid.
57
.O.Olatoke, “An Examination of the Constitutionality of the Amnesty Programme in the Niger Delta Region of the
Federal Republic of Nigeria” op. cit. 27
56
20
(c) The prerogative of mercy cannot be granted to a person under trial not yet
convicted or convicted, appealed to the court of appeal and his conviction
confirmed but the appeal is still before the Supreme Court,
(d) Such person granted pardon here is immune from re-prosecution as same was
held by the court in Ibori v F.R.N (2009) 3 NWLR) (pt 1127) 94 to amounted to
double jeopardy.
The conditions prudent for amnesty are:
(i) People concerned must be a group or community not individual;
(ii) They must have committed a political offence and subject to trial but have not
yet being convicted;
(iii) Such group once granted pardon cannot be re- prosecuted”
The grant of amnesty in a country is of critical importance as it has impacts on the political,
economic, and social state of the country. Amnesty laws do exist in a number of countries. Many
countries have given amnesty a legal basis and constitutional backing. Clearly, there is no
legislative backing for the grant of amnesty under Nigerian law.
Amnesty laws in Latin America (notably in Argentina and in Chile) in the 1970s, applied to
crimes that by many descriptions would qualify as crimes against humanity. The law passed in
December 1986 in Uruguay, known as the Law Declaring an Expiration of the State’s Punitive
Authority, granted amnesty to acts of repression committed by military and police officers in the
period of the dictatorship from 1973 to 1975. There was an attempt to call this law into question
through a public referendum, but the ballot that took place on 16 April 1989 was notable for the
decision of a majority of voters (60%) to let the past go rather than imperil the permanence of
democratic institutions that were still very fragile. In Argentina, in 1983, President Alfonsin
forced those responsible for the military dictatorship of 1976-1983 to face trial and sentencing.
Nonetheless, in 1986 he introduced a law known as the Full Stop Law, preventing new
proceedings from being undertaken against the military beyond a certain date, and in June 1987 a
Law of Due Obedience, allowing junior officers to escape legal retribution. Approximately
21
50,000 people died or disappeared under the dictatorship. In Brazil, an amnesty law proclaimed
on 28 August 1979 allowed the military leadership to throw a veil over those crimes committed
during the worst period of the dictatorship. In Chile in April 1978, General Pinochet introduced a
tailor-made amnesty law covering crimes and misdemeanors committed since the coup of 1973.
The Interim Constitution of South Africa provided for amnesty to ensure peaceful transfer of
power between apartheid and democracy. A wholly original mechanism was put in place, under
which in return for the acknowledgement of the acts they had committed, no matter how grave,
people were guaranteed freedom from legal pursuit.58.
APPLICATION OF AMNESTY IN NIGERIA
One must mention here that in Nigeria, amnesty is made to operate like pardon by way of
prerogative of mercy. Amnesty has been offered in recent times in two cases. The first was in
June 2009 when the Federal government approved an offer of unconditional amnesty for
members of the Niger Delta militants; the offer of amnesty was effective from 6 August 2009 to
4 October. The amnesty program for the Niger Delta militants had three objectives and
deliverables which were as follows: disarmament phase to take place between 6 August 2009 and
4 October 2009 and to include the collection of biometric data, a demobilization and
rehabilitation phase to last 6 to 12 months and to include the provision of, among other things,
counseling and career guidance for the participants. Furthermore a reintegration phase to last up
58
William Bourdon “Amnesty” : http://www.crimesofwar.org/a-z-guide/amnesty/#sthash.mLvnhTSp.dpuf
th
accessed on the 4 of August 2013
22
to five years and to include the provision of, among other things, training and microcredits for
the participants.59
The second instance was the amnesty offer made to the Boko Haram60 sect. In order to find a
solution to this menace, the federal government on 17th April 2013 set up a 26-man panel to
consider the matter and make appropriate recommendations. The President urged Boko Haram
members to surrender their arms and embrace the amnesty option, as the committee worked on
the option of dialogue for a peaceful resolution. This has been criticized by scholars61 and also
by various opinions on the matter62.
It must be noted that no particular legislation was cited in both instances as the legal basis for the
grant of amnesties. It is recommended that if amnesty laws are to be applied in Nigeria, the
legislature should enact a law which will fill this vacuum.
Presidential pardon on the other hand has been granted to persons by the federal government of
Nigeria in a number of cases. After 13 years in exile, the Federal Government of Nigeria under
59
Nigeria: Government amnesty program for Niger Delta militants, particularly with respect to the Movement for
the Emancipation of the Niger Delta (MEND) (2009-August 2011) available at
http://www.refworld.org/cgibin/texis/vtx/rwmain?page=country&category=&publisher=IRBC&type=&coi=NGA&rid=&docid=50740a192&skip=
0 ).
60
Boko Haram sect is a controversial Nigerian militant Islamist group that seeks for the imposition of Sharia law
in the entire northern states of Nigeria. The sect opposes not only western education, but western culture and
modern science. Its activity is charactereised by violence and massive killings.
61
See S. A. EKANEM, J. A. DADA, B. J. EJUE, “Boko Haram And Amnesty: A Philo-Legal Appraisal” International
Journal of Humanities and Social Science Vol. 2 No. 4 [Special Issue – February 2012] 231 – 244.
Also see Omoba Oladele Osinuga Esq. “Nigeria, Boko Haram - Cutting Corners and the Illusion of Speedy Conflict
Resolution”
Electronic copy available at: http://ssrn.com/abstract=2260446
62
The Christian Association of Nigeria (CAN) has called on the federal government to disband immediately, the
presidential committee on dialogue and peaceful resolution of security challenges in the north, 19 northern states
and the Federal Capital Territory (FCT) for incompetence and lack of sincerity.
23
President Shehu Aliyu Usman Shagari granted an official pardon to Odumegwu-Ojukwu who led
the civil war which ended January 9, 1970. President Shagari also granted a pardon to General
Yakubu Gowon for his alleged role in the coup plot against the late General Murtala
Mohammed. Chief Awolowo who was convicted of treasonable felony was granted pardon in
1966.
Similarly, General Abdulsalami Abubakar granted a pardon to General Olusegun Obasanjo for
his convictions for treason by the administration of the late General Sani Abacha. President
Olusegun Obasanjo granted a Presidential pardon to former Speaker of the House of
Representatives, Alhaji Ibrahim Salisu Buhari, for his alleged forgery and perjury. President
Obasanjo also granted pardons to 13 individuals who were convicted alongside himself during
the 1995 coup trial63.
Of recent, the Council of States ratified the proposal by President Jonathan to grant the pardon to
some eight Nigerians., late Major General Shehu Musa Yar’Adua; Gen Oladipo Diya, late
Brigadier General Abdukareem Adisa, Brigadier Gen. Segun Fadipe who were pardoned for their
alleged role in the phantom coup of 1995 and 1997. Also pardoned were the former governor of
Bayelsa state, DSP Alamieyeseigha, Ex- major Bello Magaji NA/6604, Mohamed Lima Biu, a
former Managing Director of Bank of the North, Shettima Bulamma, who got pardoned for
economic crimes.64
63
64
“Still on Presidential Pardon” (Vanguard Newspaper April 9 2013)
“Inside details of a Presidential pardon” (Nigerian tribune newspaper Friday, 22 March 2013)
24
DEVELOPMENT OF HUMAN RIGHTS IN THE 21ST CENTURY
The concept of Human rights depicts the existence of certain claims and rights belonging to an
individual that cannot be taken away. Eze defines human rights as;
“… the demands which the individuals or groups make on society, some of which
are protected by law, some of which are part of exlata, while others remain
aspirations to be attained in the future.”
65
Human rights are recognized both under international and municipal laws.
International Human Rights
The Universal Declaration of Human Rights (UDHR) which was adopted by the United Nations
General Assembly on 10 December 1948 further strengthened international human rights
movement. The UDHR was drafted as ‘a common standard of achievement for all peoples and
nations'. It provided the basis for human rights as it, for the first time in human history spelt out
basic civil, political, economic, social and cultural rights that all human beings should enjoy. It
has over time been widely accepted as the fundamental norms of human rights that everyone
should respect and protect. The UDHR, together with the International Covenant on Civil and
Political Rights and its two Optional Protocols, and the International Covenant on Economic,
Social and Cultural Rights, form the so - called International Bill of Human Rights.
International treaties also form a basis for the protection of human rights as ratification by states
indicates an undertaking by governments of such states to put into place domestic measures and
legislation compatible with their treaty obligations and duties. By becoming parties to
65
Eze O.C, Human Rights in African: Some Selected Problems( Lagos Nigerian Institute of International Affairs/
Macmillan Nigeria Publishers, 1984) 5
25
international treaties, States assume obligations and duties under international law to respect, to
protect and to fulfill human rights. The obligation to respect means that States must refrain from
interfering with or curtailing the enjoyment of human rights. The obligation to protect requires
States to protect individuals and groups against human rights abuses. The obligation to fulfill
means that States must take positive action to facilitate the enjoyment of basic human rights 66.
Regional efforts have also been made towards the development of human rights where legal
framework is made to reflect particular human rights concerns of the region. There is the
European Convention on Human Rights adopted in 1950, the American Convention on Human
Rights adopted in 1967, and the African Charter on Human and Peoples’ Rights, adopted in 198.
Although these are the three main regional human rights treaties, various treaties from other
regions have been put in place to secure the protection of human rights.
These instruments provide a framework for international human rights and they recgonise civil
and political, social, cultural and also economic rights of individuals.
Human Rights In Nigeria
Due to the importance ascribed generally to human rights and human rights related issues,
municipal laws of various countries, especially their constitutions provide for the recognition of
rights.67 Prior to the attainment of nationhood in 1960, Nigeria past through a series of
constitutional development and significantly, the constitutional conferences dating back to 1953
66
UNHR. “ International Human Rights Law”
http://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx accessed on 4th August 2013
67
The ranges of these rights covered differ according to jurisdictions. For example, Article 37 of the Constitution of
the Korean Republic(Constitution of the Republic of Korea
1987http://www.ilo.org/wcmsp5/groups/public/@ed_protect/@protrav/@ilo_aids/documents/legaldocument/w
cms_117333.pdf last accessed 30/07/13) specifically states that the liberties and rights of the people not
otherwise specified in the Constitution are not to be ignored and the Argentine Constitution contains similar
provisions to the effect that rights specifically mentioned in the Constitution should not be regarded as excluding
other not specifically mentioned (Section 33, NATIONAL CONSTITUTION OF THE ARGENTINE REPUBLIC, 1994
<http://pdba.georgetown.edu/Constitutions/Argentina/argen94_e.html> last accessed 30/07/13)
26
recognised the need and advocated for the inclusion of fundamental rights. According to
Ajomo68, “the heterogeneous nature of the country was the factor that led to the inclusion of the
tenets of human rights in our constitutions”. Subsequent constitutions have since then have
always given attention to the issue of human rights; Chapter II of the 1960 Constitution, Chapter
II of the 1963 Constitution and Chapter IV of the 1979 Constitution all contained provisions for
human rights protection. In the 1999 Constitution, two Chapters, spanning twenty-six sections in
total provides for human rights protections.
The two chapters of rights deal with two generation of rights: these are regarded as the first
generation and second generation rights. Civil and political rights, as contained in chapter iv of
the Constitution and styled “Fundamental Human rights”, form the bedrock of First generation
rights , protect the sanctity of the individual and his rights within the socio-political environment
in which he is located.69 They are also referred to as negative rights because they impose some
form of restraints on the State without a corresponding positive action from the individuals for
the enjoyment of same. These second generation rights are recognized and classified under the
Nigerian Constitution as Fundamental Objectives and Directive principles of State Policy in
Chapter II of the said Constitution. These rights impose a positive obligation on the government
to provide a certain level of standard of living based on the rationale that the attainment of
certain level of socio-economic standard is necessary for the enjoyment of the first generation
68
M.A Ajomo, “Human Rights under the Nigerian Constitutions” in Democracy and the Law, Y.Osibanjo & A. Kalu,
ed. Federal Ministry of Justice Law Review Series, 1991,Pg. 109
69
The Fundamental rights consists of the right to life, right to personal liberty, fair hearing, private and family life,
conscience, thought and religion, freedom of expression and the press, freedom of participation in peaceful
assembly and association, freedom of movement freedom of discrimination and the right to acquire and own
immovable property
27
rights.70 Nigeria like most African Countries, ascribes a non-enforceability status71 to the second
generation rights as Section 6(6) (c ) of the Constitution provides that the judicial powers vested
in the courts,
“shall not except as otherwise provided by this Constitution
extend to any issue or question as to whether any act or omission
by any authority or person…is in conformity with the
Fundamental Objectives and Directive Principles of State Policy
set out in Chapter II of this Constitution”.
Dada72 notes rightly that when contained in the ground norm, human rights and the principles
governing them ordinarily enjoy the greatest authority and security in their definition.73 This of
course does not mean that they have always been observed as will be revealed subsequently in
our discussions.
Nigeria’s history of governmental instability74 no doubt has contributed largely to the
professional incapacities and weakness of public institutions that has led to gross human rights
violations. Twenty-nine years of military rule created a tradition of unaccountable governments
and cemented the culture of brutality. Constitutionally protected Human rights have suffered
severely at various times in Nigeria in line with her checkered political history of Military
70
Alubo, A. O, “ Government Attitudes Towards the Protection and Enforcement of Human Rights in Nigeria”
91http://dspace.unijos.edu.ng/bitstream/10485/1336/1/Governmental%20Attitudes%20towards%20the%20%20P
rotection%20and%20Enfor0001.pdf last assessed 05/08/12
71
The unenforceability of the second generation rights in Nigeria has been a recurrent theme in political and legal
discourse in Nigeria, with various persons advocating the need to amend that aspect of the Constitution
72
Dada, J., Human Rights under the Nigerian Constitution: Issues and Problems International Journal of Humanities
and Social Sciences Vol. 2, 2012
73
This however may not always be the case as would be shown in Nigeria’s situations, later on in the course of this
paper.
74
Since Nigeria gained independence in 1960, the Country has had fourteen presidents, eight of which presided
over a total of twenty nine military rule.
28
interventions. The Network on Police Reform in Nigeria & Open Society for Justice Initative
report75 notes that to aid the prevention of coups, successive military regimes systematically
degraded institutions which would have been involved in preventing human rights violations.
With senior police officers being appointed as military governors and administrators and revision
of the Police Act in 1967 to centralise operational control of the police in the heads of state, the
police became a tool in the hands of the Military government, with a degraded operational
effectiveness and a pitiable reputation.
The judiciary was handicapped during the Military regimes as well, as a result of the suspension
of various parts of the Constitution, especially the sections relating to the protection of rights
characteristic of military rule. According to Muhammed J.C.A in Okeke v. A-G Anambra
State,76 "The grundnorrm in Nigeria under the…. Military administration is the Constitution
(Suspension and Modification) Decree No. 107 of 1993 and the subsequent Decrees regulating
the exercise of executive, legislative and judicial powers in the country”. Section 5 of Decree
No. 107 referred to by the learned Justice enacts as follows:
“No question as to the validity of this Decree or any other Decree
made during the period 31st December 1983 to 26th August 1993
or made after the commencement of this Decree or of an Edict
shall be entertained by any court of law in Nigeria."
With the various organs established to ensure the protection of human rights effectively
curtailed, Human rights violations became the order of the day. There are a plethora of examples
of human rights violations in Nigeria during the various Military regimes
75
--, “Criminal Force : Torture, Abuse, and Extrajudicial Killings by the Nigerian Police Force (2010 Open Society
Institute, New York) 32
76
(1992) INWLR (pt. 215) 60
29

The arrest of M.K.O Abiola who won the 1993 Presidential election

There was a total ban on political parties

Detention and imprisonment of several human rights activists without trial

Incessant arrest and detention of pressmen

Shut down of various media houses in the process of trying to control information

Violations under Civilian Government in Nigeria
While acknowledging that a lot of human rights violations occurred during the Military era in
Nigeria, there have been instances of violation of human rights even in various civilian regimes
in the country. This is of more concern when one considers that the as opposed to a selfimposed authoritarian military government, a democratically elected government cannot protect
the rights of its citizens. In 2008, a presidential commission on the Nigerian Police Force headed
by former inspector-General of Police Mohammed Dikko Yusuf, concluded that policing in the
Nigeria is characterised
by unlawful arrest and detention, extortion, torture, extra judicial
killings and other forms of brutality. This conclusion still stands true, even till date
Extra-judicial killing practiced as a routine component of the criminal justice and law
enforcement process with an estimated 2,500 detainees are summarily killed by the police every
year77. The cases of Blessing Monday, a sixteen year old killed by police officers on being
suspected of have stolen a bag; Goodluck Agbariboite executed by the police on the premise that
he was an armed robber; Chika ibeku, killed by police in an alleged shootout and Freddie Phillip
Ockiya killed by members of a police unit after being whisked away from his home are all
examples of blatant human rights violations by the Police force. In the late Freddie Ockiya’s case
which occurred on the 12th of September, 2009, members of the police unit, Operation Famou
77
30
Tangbei (OFT)78 raided his home in Yenagoa, Bayelsa State and took him to the local police
station. His family had no idea where he was taken to and searched for him for a week before his
body was discovered in a morgue. His family remains unaware as to why he was whisked away
by the OFT, which has been disbanded but no one has been charged for his murder.
The inability to conduct criminal investigations either due to improper training or lack of
necessary facilities, sheer engagement in corrupt practices or a combination of any of these, are
responsible for the reliance on torture and ill- treatment to elicit confessions. Alex Nworgu was
arrested in Imo State and taken to the police anti-kidnapping unit in Rivers State. He claims that
while in custody, he was suspended from the ceiling by his feet every other day. After spending
more than a month in police custody, he was eventually remanded in prison before he was
eventually released on bail in July. His charges were changed from suspected kidnapping to theft
while he was remanded in prison.79
The issue of extrajudicial killing has not been limited to the police alone. Military forces are still
been implicated in human rights violations of very serious nature in response to the to the Boko
Haram violence. It is reported that soldiers have burned houses and executed Boko Haram
suspects and residents of the communities without allowing the process of the Law take its
course. Since October 2011, Goni Ali was arrested by members of Joint Task Force (JTF) at his
home in Maiduguri and has not been seen since then. A court order issued in January 2012 was
ignored by the JTF. In May 06, 2013, the JTF announced that Goni Ali was one of the arrested
suspect involved in the murder of the Late General Mamman Shuwa, a contradictory statement
to one made earlier in November 2012 where in the spokesman of the JTF Lt. Col Sagir Musa
78
Operation Famou Tangbe meaning “kill and throw away” in the local language, was set up by the Bayelsa
Government in 2011 to help fight crime.
79
Amnesty International www.amnesty.org/en/region/nigeria/report-2013#section-108-3. Last assessed 04/08/13.
31
stated that the late Saleh Ibrahim who was killed in an offensive attack, was responsible for the
assassination of the same late General Mamman Shuwa.
Disgruntled groups in Nigeria have also engaged in gross human rights violations, as has been
shown in the Niger- Delta militancy and Boko Haram sect. The prosecutor of the International
Criminal Court in 2010 announced the opening of preliminary examination of the situations in
Nigeria and concluded in 2012 that there was reasonable basis to believe that Boko Haram had
committed crimes against humanity.80 It is opined that justice for violations whether by Boko
haram or security forces is essential for victim and building long term peace in Nigeria. This
opinion is sound in reason and in logic as failure to hold to account the persons who have
committed the gravest crimes can fuel the commission of more atrocities. An instance of this is
not so far-fetched. After the Federal Government offered amnesty for the Boko Harman
militants, the Niger- Delta militants agitated for an increase in the stipends being paid to them on
the basis that the government had offered the Islamic group more than it had offered them.
The Place of Amnesty in Human Rights Discourse
Individual criminal accountability for serious crimes under international law is the basis of a
global human rights community. Amnesties covering ordinary offences are distinguished from
amnesties covering political offences. In the field of human rights, amnesty for ordinary offences
is an expression of the relatively broad power of civil society to grant every citizen the right of
oblivion, if only to facilitate his reintegration into society81.
80
International Criminal Court, Office of the Prosecutor, “Report on Preliminary Examination Activites 2012”, para.
90
81
Study on amnesty laws and their role in the safeguard and promotion of human rights Preliminary report by Mr.
Louis Joinet, (UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL E/CN.4/Sub.2/1985/16
21 June 1985)
32
The 1977 Protocol II to the Geneva Conventions82 which governs the protection of victims in
non-international conflicts, provides that “at the end of hostilities, the authorities in power shall
endeavour to grant the broadest possible amnesty to persons who have participated in the armed
conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they
are interned or detained.” This forms the legal basis to validate and uphold amnesties. The 1995
Promotion of Unity and Reconciliation Act of South Africa was considered consistent with both
the national Constitution and International law by the South African Constitutional Court in the
case of Azanian Peoples Organisation (ZAPO) and others v President of the Republic of South
Africa and others83.
According to international principles particularly the general principles of law laid down in
Article 38 of the statute of the International Court of Justice, amnesty laws which have the effect
of erasing crimes of the utmost gravity are incompatible with international humanitarian law, and
that the legal consequences of any such amnesty fall under the general doctrine of violation of
human rights. Perpetrators of serious human rights violation are to be held accountable. The
spokesperson for the UN Office of the High Commissioner for Human Rights (OHCHR), Rupert
Colville, while briefing journalists in Geneva, said that the Commission has held that
perpetrators of serious human rights violations, including Boko Haram elements and members of
the security forces, are held accountable, noting that amnesties are not granted to anyone
responsible for very serious violations84.
82
Additional Protocol to the Geneva Conventions of 12 Auguast 1949, and relating to the Protection of Victims of
Non- Interntional Armed Conflcit (Protocl II) 8 June 1977, art 6(5)
83
Constitutional Court of South Africa, Case No. CCT17/96 (July 25, 1996)
84
“Don’t grant Amnesty to Boko Haram – UN warns FG” (May 5 2013) http://oodera.com/2013/05/05/dont-grantrd
amnesty-to-boko-haram-un-warns-fg/ accessed on 3 Augustt 2013
33
The International Covenant on Civil and Political Rights, of which Article 15 (2) provides that
“nothing in this article shall prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognized by the community of nations.”
The position of the United Nations on amnesty has informed the attitude of the international
community on the amnesty laws of some countries such as El Salvador and Brazil, where the
amnesty laws have been regarded as being contrary to obligation to prosecute for grevious
crimes. In the case of El Salvador, it was originally agreed after the civil war that the Law of
National Reconciliation, reflecting the negotiated solution to the conflict and the process of
reconciliation which was to form an integral part of the postwar political landscape in El
Salvador be created.85 The standard of amnesty offered under this law was in accordance with
international law, meaning there were clear and specific cases and circumstances that were not
eligible for amnesty. Article 6 of the law specified that those responsible for genocide and crimes
against humanity would not be extended amnesty. Additionally, any persons named in the UN
Truth Commission Report (an investigation earlier agreed upon by both sides) would also not be
extended amnesty.86 The UN Truth Commission’s report on March 15, attributed over 80% of
the crimes committed during the civil war to the government forces, with the FMLN guerrilla
forces identified as being responsible for less than 20% of the remaining abuses. The Truth
Commission in addition to attributing acts of violence to one side of the conflict or the other,
went ahead to list the names of those responsible for thousands of crimes committed throughout
the civil war. This act was not acceptable to the government and was expressly forbidden by the
85
Kevin Dolliver, Steven Kanavel, and David Robeck, El Salvador’s Amnesty Law: A Monument to Impunity? (CDA
Report, June 2013)
86
Ibid.
34
government. This included information and names pertaining to some of the biggest massacres
and crimes of the war87.
The release of the UN Truth Commission report wreaked havoc in the ruling ARENA party as
many of its ruling elite were listed in the report in association with grave crimes. The
government had not expected this report to name people specifically responsible for crimes and
had previously agreed to the UN Truth Commission under this pretense. The response by
ARENA (political party) was to hold an emergency session of the ARENA-controlled national
assembly on Saturday, March 20, 1993. Without the presence, knowledge, or agreement of the
opposition, the ARENA party, enjoying a majority representation in the legislative assembly,
unilaterally passed the current Salvadoran amnesty law just five days after the UN Truth
Commission report was released. The resulting law changed the most important features of the
previous law: there were no exceptions to amnesty now; which meant that even those listed in
the report or linked with egregious war crimes would not be tried 88. This new amnesty law that
protected the perpetrators of acts including the assassination of Archbishop Oscar Romero on
March 24, 1980, the murders of six Jesuit priests in November 1989, the massacre of some 1,000
people in the town of El Mozote in December 1981, and offenses committed by Farabundo Martí
National Liberation Front (FMLN) guerrillas89. Victims and the families of victims despised the
amnesty because it prevented them from finding out who committed crimes against them and
their families. Poor people felt betrayed and hopeless because they now had no means to get
87
Kevin Dolliver, Steven Kanavel, and David Robeck, El Salvador’s Amnesty Law: A Monument to Impunity? (CDA
Report, June 2013)
88
Kevin Dolliver, Steven Kanavel, and David Robeck, El Salvador’s Amnesty Law: A Monument to Impunity? (CDA
Report, June 2013)
89
John McPhaul “Will El Salvador end amnesty?” (tico times.net Online newspaper Costa Rica, Friday, March 22,
2013) http://www.ticotimes.net/Region/Will-El-Salvador-end-amnesty-_Friday-March-22-2013 accessed on 4th
August 2013
35
answers or closure to their cases.90 Implementation of the amnesty law prevented further access
to the truth and blocked investigation of the abuses. The legality of the amnesty law in El
Salvador have been challenged as going against international norms and laws. The InterAmerican Commission on Human Rights (IACHR) report stated with respect to the Amnesty laws of
El Salvador that
“The Salvador Government argues that the amnesty approved by the Legislative
Assembly is based on the provisions of Additional Protocol II to the Geneva
Conventions. In the Commission's view, the Protocol cannot be interpreted to
cover violations of the fundamental human rights set forth in the American
Convention on Human Rights.”91
In consonance with this position, a decision on Dec. 10, 2012, by the Costa Rica-based InterAmerican Court of Human Rights ordered a reversal of the amnesty law, raising the possibility
that crimes committed during the civil war may be prosecuted after all. The ruling effectively,
though not explicitly, calls for overturning the 1993 amnesty that followed the civil war, which
ended with a U.N.-brokered agreement in 1992. The court’s rulings are binding for states that
recognize its jurisdiction, but the judicial body that operates under the auspices of the
Organization of American States has no enforcement powers92. The Salvadoran government of
President Mauricio Funes, of the disarmed FMLN, immediately issued a statement saying it
90
Kevin Dolliver, Steven Kanavel, and David Robeck, El Salvador’s Amnesty Law: A Monument to Impunity? (CDA
Report, June 2013)
91
OAS. "Report on the Situation of Human Rights in El Salvador." Inter-American Commission on
Human Rights. Inter-American Commission on Human Rights, 11 Feb. 1994.
<http://www.cidh.org/countryrep/ElSalvador94eng/toc.htm>.
92
John McPhaul “Will El Salvador end amnesty?” (tico times.net Online newspaper Costa Rica, Friday, March 22,
2013) http://www.ticotimes.net/Region/Will-El-Salvador-end-amnesty-_Friday-March-22-2013 accessed on 4th
August 2013
36
would abide by the decision. “The Salvadoran state, beginning with this government, has
recognized these and other cases, has opened dialogue with the victims, and undertaken efforts to
abide by the sentences and recommendations of the courts and the Inter-American Court of
Human Rights,” the Salvadoran Foreign Ministry stated in a press release. However, to date no
official move has been made to set aside the amnesty law93.
Human rights law, both international and domestic are premised on civil, social, economic,
cultural and political rights of individuals. A grant of amnesty that infringes on these rights will
not be justifiable as it will contradict human rights precepts. Due to the fact that granting
amnesty for international crimes goes against international law jurisprudence, some countries
have enacted amnesty laws that exclude the grant of amnesty for crimes against humanity. For
example, the German Democratic Republic Law of 25 September 1979 excluded crimes against
peace and humanity from amnesty. The same applies to Hungary in Decree-Law of 3 April
1985. Also in Belgium, persons having participated in German Army activities during the
Second World War are excluded from any amnesty.
Persons guilty of crimes against humanity cannot be considered as political refugees or be
granted territorial asylum. States are invited to adopt all necessary domestic measures, legislative
or otherwise, with a view to making possible the extradition of persons guilty of crimes against
humanity and to ensure that statutory or other limitations shall not apply to the prosecution and
punishment of such crimes. Going by this, the amnesty purportedly extended to the Boko haram
sect in Nigeria contradicts human rights basics.
93
Ibid.
37
The social and economic right of citizens may be in jeopardy in situations where perpetrators of
economic crimes are granted pardon or amnesty as the case may be. The harmful effects of
granting amnesty to perpetrators of financial crimes was recognised by the Senate of the Czech
Republic which impeached the country’s President on the 4th of March 2013, for granting state
pardon to criminals charged with financial frauds. By a vote of 38 to 30 the Czech Republic
Senate indicted and impeached President Václav Klaus, at an executive session, for issuing state
pardon on December 31, 2012, to cover a range of financial crimes; including investment funds
thefts, and, non-violent crimes or offences committed by elderly persons. President Václav Klaus
gave amnesty alongside to all criminals facing 10-year jail terms but whose court trials have
exceeded 8 years by December 31, 201294.
Recommendations
The concept of amnesty has played an important role in the human rights discourse both political
and economic discourse of so many countries, Nigeria inclusive, as well as in the international
arena, as we have seen in our discourse. The grant of amnesty by States is not necessarily bad,
neither is it in all cases that recognition of amnesties granted by a State is denied by international
communities; its acceptance is dependent on the situations in which it is granted.
In the Nigerian context, the law as
1. Amnesty should not be confused with Presidential pardon. While the latter is expressly
provided for in the Constitution, the latter has no legal backing in Nigeria.
94
Seyi Awofeso, “Czhec President impeached for State Pardon” (Sahara Reporters March 29 2013)
http://saharareporters.com/column/czech-president-impeached-state-pardon-seyi-olu-awofeso accessed on the
5th August 2013
38
2. The legislature should enact an amnesty law to give a framework to the grant of amnesty in
Nigeria.
3. The civil, social, political, cultural and economic rights of citizens should be upheld in
Nigeria. This should reflect in the grant of amnesty hence it should be endeavoured that
Amnesty should not be granted to persons that have infringed these rights.
CONCLUSION
Amnesty is provided for by international instruments which acknowledge the right of persons to
oblivion for the purposes of reintegration into the society. However, international human rights
law prohibits amnesty for crimes bordering on violations of human rights and also serious crimes
against humanity such as genocide. International human rights instruments require that states are
obliged to guarantee and to respect internationally acknowledged human rights. The instruments
also set out the responsibility of the state arising from the conduct of its officials or public
authorities, when that conduct constitutes a breach of the human rights, as set out in international
law, of a person or people under the authority of that state. The right of victims, and where
appropriate of their kin, in order to recover the full enjoyment of their rights, to obtain a fair and
equitable compensation, and to learn the full truth about any violations and their perpetrators,
must at all times, be protected by the State. In this context, a law of amnesty cannot apply to or
provide protection for actions which entail a violation of human rights as acknowledged in
international documents, nor can it apply to state officials who perpetrate such acts.
Amnesty as a concept lacks legal backing in Nigeria as it is not Constitutional neither is it
contained in any other legislation. Its operation is generally fused with that of pardon which is
39
provided for in the Constitution. The amnesty program in Nigeria is not compatible with human
rights precepts as it forbids prosecution to persons who have committed crimes against humanity.
This is against international human rights law which provides that such persons should be
prosecuted.
40