To substantially understand this subject matter, one must apply a holistic approach flowing from deep knowledge of Jurisprudence and legal philosophy as it exists universally, not just a sectional knowledge of legal positivism of a developing jurisdiction considering that the fact in issue is global in nature and that no good law should seek to cause more damages in lieu of curing existing defects in any society.
Assuming but not conceding that positive laws in force in Nigeria at this material and challenging time are not expressly or even impliedly in support of saving the majority of precious lives of Nigerians, then the law of reason and good conscience demands practical relaxations of stringent legal positivism and rectifications with the instrumentalities of the state to save lives.
In 1945 one of world’s most influential proponents of stringent legal positivism who derided natural and divine law, Gustav Radbruch (1878-1949) a German legal philosopher and politician, a Minister of Justice (As he then was) under the Weimar Republic, after witnessing the horror and destruction wreaked by the German Reich on its neighbours had to fall out with his first faith in preference for natural law.
According to him in his Five Minutes of Legal Philosophy (1945): “There are principles of law that are stronger than any statute, so that a law conflicting with these principles is devoid of validity.
One calls these principles the natural law or the law of reason, the work of centuries has established a solid core of them” in another sense, Radbruch’s message was simple, that any law which is incongruous and incompatible with the law of reason, in this context, saving the precious lives of useful Nigerians who are currently incarcerated is prima facie unreasonable.
According to President Muhammadu Buhari, “this is not a joke. It is a matter of life and death. Mosques in Makkah and Madina have been closed. The Pope celebrated Mass on an empty St. Peter’s Square. The famous Notre Dame cathedral in Paris held Easter Mass with less than 10 people. India, Italy and France are in complete lockdown. Other countries are in the process of following suit. We cannot be lax”.
If the world could not insist on status quo for the sake of saving lives and effectuated these novel measures, then what is difficult about releasing our brothers and sisters from incarceration? I completely adopt the President’s position “this is not a joke, it is a matter of life and death…”
In another sense, talking about our laws stricto sensu ,in its restrictive sense, one of those who created legal positivism as a school of law, law as it is, Hans Kelsen an Austro-American Jurist in his Pure Theory of Law rendered legal explanations for legal systems to run without conflict, that law as a norm must derive its validity from higher norm, it then flows till the highest norm which he called grundnorm, here in Nigeria at present, our grundnorm is the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and this same position is very unambiguously stated under Section1(3) of the same Constitution: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”
With due respect, the authorities that took part in recommendations and advising the President on this recent pardon did not take an encompassing position, let me respectfully refer Nigerians to the position of our Constitution on the Presidential Pardon under the 1999 Constitution of the Federal Republic of Nigeria (As Amended) Section 175 (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.
With this unambiguous provision of our constitution, it is very clear that we have not gotten this right, If government drew her requisites for release of Nigerians under incarceration from the 2019 Correctional Service Act or any other Law, listing classes of inmates that qualify for the Presidential Pardon and others who do not only and without recourse to our constitution, with due respect and without equivocations, I must expressly say this is not sufficient.
This is not comprehensive enough, when it has to do with a very conspicuous provision of the constitution, a basic norm and when is not silent on a particular issue, it should not be ignored to embrace only a lower norm.
The aforementioned provision is very clear that the president under his prerogative of mercy can pardon any person of any offence, it is only instructive that he does this with recourse to the security of the general public and flight risk for those with conditions that may impose resumption of their trials, so when I hear those conditions as the only conditions for release when it is only supposed to be corroborating that of section 175 of the 1999 Constitution of the Federal Republic of Nigeria, I feel very unsatisfied with a lot of questions in my mind, when we are talking of matters of life and death. This is no joke.
As at January, 2020 the Correctional centers were remanding about 72,627 inmates under their custody, in this number, about 21,890 (30%) are convicted persons and about 50,737 awaiting trial about (70%), this has a lot of health implications already and the President has just given approval for the release of only 2600 inmates which is only about 3.5% of the total number, how can this infinitesimal proportion of 2600 be construed as a substantial decongestion of Correctional Centers?
The laudable efforts of government may be truncated if the government itself do not act proportionately on this matter because once this virus is transmitted into the Correctional centers with the current situation, we may lose many important and useful Nigerians.
On March 25, 2020 United Nations High Commissioner for Human Rights Michelle Bachelet urged governments to free their inmates and that the consequences of neglecting those behind the bars may be catastrophic. She also said: “Now more than ever governments should release every person detained without sufficient legal basis”.
Nations with ultramodern and hi-tech facilities within their prisons are fast releasing their convicted citizens pursuant to saving their lives. The authorities in the United States of America discovered that over 200 inmates tested positive to the virus, infected through health workers and authorized the release of thousands of inmates. Ghana released about 1,000 inmates through presidential pardon. Iran released 85,000, Indonesia freed 18,000, Morocco released 5000. This is the trend all over the world to save lives and Nigeria should effectuate same.
How could a government official acting in official capacity expressly pronounce that because some persons just came into the custody of the Correctional Centers and because they are convicted of corruption charges, then they are not within your criteria to be considered for release, making certain assertions like “we have our criteria”?
Without equivocations, no person’s criteria can constitute an ultimate law. Whatever criteria should only be considered to corroborate the Constitution and cannot vitiate or override the constitution. Could it be said that the State has impliedly sentenced some citizens to death by infectious decease against Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and against an inalienable and intrinsic provision under Article 3 of the 1948 Universal Declaration on Human Rights (UDHR) of the United Nations?
The best criteria in this situation is to exclude only those with Security risk, flight risk and violent in nature and release every other person with or without conditions even without sufficient legal basis to save precious lives.
Our Government needs to review her stand on this very fundamental issue that may aid this pandemic, government should do everything possible to avert exposing Nigerian citizens to this deadly virus. People must be alive to serve sentences, people must be alive to face trials.
Another, acting in official capacity said on air that the inmates may have low tendency of contracting the virus since they are under custody. With due respect too, this denotes that many of us are not even abreast with events globally, that the first 200 positive cases in US prisons came from health care givers and that visitors, staff and even legal practitioners or other government authorized persons may introduce the virus into the centers.
We know the nature of our health systems, especially the Correctional centers; so government should better release these people to avert the consequences and the ripple effects that may follow should this calamity occur.
Gradually Nigeria is losing her citizens even very notable citizens, government must act now to save the nation.
“This is not a joke. It is a matter of life and death…..” President Muhammadu Buhari.
Let’s remain resolute in this challenge, wash our hands, avoid large crowds and maintain physical distancing.
(Agbaeze writes from Abuja)