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Presidential Pardon and Prerogative of Mercy: A Necessary National Soothing Balm for Social Justice.
Abstract
A wrongful acquittal can sometimes involve injustice as grievous as wrongful conviction. The conviction as a matter of record, survives the pardon. Pardon expresses forgiveness not innocence. An innocent man cannot be pardoned but to apply for rescindment which is a total cancellation, not a pardon that leaves the record intact. Because the President as an Executive does not deal with law, he concerns himself with mistake of facts while the courts concern itself with mistake of law. There are usually wrongful convictions that are suitable for presidential pardon or prerogative of mercy. Some Presidents and Governors use this constitutional provision to add luster to their names or party patronage or to score political points. The danger of convicting the innocent calls for greater and greater care. This article examines the necessity of the prerogative of mercy as a means of correcting mistakes in the process of justice delivery and its use as a tool for calming political tides and uniting the nation. It is expected that this will kick start scholarly and legislative action for acceptable guidelines for the exercise of Presidential pardon and prerogative of mercy in the interest of our justice system.
... The President worries about factual errors whereas the courts are concerned with legal errors since the President, as an Executive, does not deal with law. Wrongful convictions are typically eligible for a presidential pardon or prerogative of mercy [10], but convictions based on substantive and cogent evidence need to be viewed from a special spectrum. The politization of the living nature of a constitution joint with Ousu Mendy. ...
The Constitution of the Republic of The Gambia, 1997 is promulgated with the original intent to be a living constitution with clauses that permit amendments. While a constitution is a legal and political document agreed upon by stakeholders as the principal instrument in governing the affairs of a state, it is a liability in the context of its dependency on what the people want it to ‘do’ and therefore, convictions based on cogent evidence need to be made from a different squint. Politization of the living nature of a constitution joint with partisan politics and the resolute nature of the political class in securing their ‘throne’ in democracy expresses the ideology and praxis of presidential pardon as a bait to attract masses to their camps. This research proposes for revisitation of Section 82 of the Constitution in the aftermath of the proclivity of the government to enforce it, notwithstanding the crimes inmates were convicted of. In this research, doctrinal legal research is used and finally concludes that Section 82 is not a constitutional fiat and thus, its application must be guided principally by constitutional ethos and mores in guaranteeing justice through respect and protection of the rights of the people.
Today, all the Constitutional systems in the world might not be opting for the strict separation of powers because that is undesirable and impracticable but implications of this concept can be seen in almost all the countries in its diluted form. It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the government. The doctrine was popularized by Baron de Montesquieu. It was wholly embraced under the 1999 Constitution of Nigeria and the principles have been imbibed into the legal tradition of Nigeria. The following questions emanate from this: what is the origin of the doctrine of separation of powers? How has the doctrine been used in the Nigeria? What is the position of the doctrine in Nigeria? What is the future of the doctrine of separation of powers especially with the nascent challenges to our democratic practices? Can the principles be made more effective to promote efficiency in governance? These are the questions which this paper seeks to answer and provide workable solutions to.
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