Grant of presidential pardon in the United States and Nigeria: posthumousness, corporateness and other matters

Abstract

Presidents Donald Trump and Muhammadu Buhari of the United States and Nigeria respectively exercised their constitutional pardon power in recent times, in circumstances that many persons view as controversial. Although pardon power is well recognised, its scope has not, however, been fully explored. This article provides a nuanced articulation of the complexities inherent in the scope of pardon power. The questions it addresses are, can pardon be granted before conviction? Can pardon power be exercised to undermine court’s power to penalise contempt? Can corporate entities be pardoned? Does a deceased person come within the scope of constitutional pardon power?

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Ebuka Onyeji and Oge Udegbunam, ‘Decades after, Buhari Pardons Ambrose Alli, Ehanoro Posthumously’ Premium Times Newspaper (Nigeria, 10 April 2020) <https://www.premiumtimesng.com/news/top-news/387081-decades-after-buhari-pardons-ambrose-alli-ehanoro-posthumously.html> accessed on 11 April 2020. The first known posthumous pardon in Nigeria was granted by former President Goodluck Jonathan to General Shehu Musa Yar’Adua on 12 March 2012. See Uduma Kalu, Abdulwahab Abdullah, Dapo Akinerfon & Gbenga Oke, ‘Rumoured Pardon for Alams, Others Sparks Outrage’ Vanguard Newspaper (Nigeria, 13 March 2012) <https://www.vanguardngr.com/2013/03/rumoured-pardon-for-alams-others-sparks-outrage/> accessed 11 April 2020.

2 For reactions to this presidential pardon, see Eniola Akinkuotu, ‘Buhari Deserves no Praise for Pardoning Ambrose Alli-Adebanjo’ The Punch Newspaper (Nigeria, 10 April 2020) <https://punchng.com/buhari-deserves-no-praise-for-pardoning-ambrose-alli-adebanjo/>; John Owen Nwachukwu, ‘Buhari under Fire “for pardoning Ambrose Alli after overthrowing him in 1983”’ Daily Post Newspaper (Nigeria, 10 April 2020), <https://dailypost.ng/2020/04/10/buhari-under-fire-for-pardoning-ambrose-alli-after-overthrowing-him-in-1983-video/>; Henry Umoru & Ozioruva Aliu, ‘PRESIDENTIAL PARDON: Our father was never guilty-Andrew Alli’, The Vanguard Newspaper (Nigeria, 13 April 2020), <https://www.vanguardngr.com/2020/04/presidential-pardon-our-father-was-never-guilty-andrew-alli/> accessed 27 April 2020.

3 Julie Hirschfeld Davis and Maggie Haberman, ‘Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration’, The New York Times (New York, 25 August 2017) <https://www.nytimes.com/2017/08/25/us/politics/joe-arpaio-trump-pardon-sheriff-arizona.html> accessed 18 April 2020.

4 Richard Pérez-Peña, ‘Former Arizona Sheriff Joe Arpaio Is Convicted of Criminal Contempt’, The New York Times (New York, 31 July 2017) <https://www.nytimes.com/2017/07/31/us/sheriff-joe-arpaio-convicted-arizona.html> accessed 18 April 2020; United States v. Arpaio, No. CR-16-01012-001-PHX-SRB, 2017 WL 3268180, at 7 (D. Ariz. July 31, 2017).

5 Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 992–93 (D. Ariz. 2011), aff’d, 695 F.3d 990 (9th Cir. 2012); ‘Joe Arpaio racially profiled Latinos in Arizona, Judge rules’ The Guardian Newspaper (USA, 25 May 2013) <https://www.theguardian.com/world/2013/may/25/joe-arpaio-latinos-arizona-judge> accessed 18 April 2020. For a criticism of this pardon, see Bernadette Meyler, ‘Trump’s Theater of Pardoning’ (2019–2020) 72 Stan L. Rev. Online 92, 96 (‘Through pardoning Arpaio, Trump expressed disregard for the constitutional protections against discrimination that the court’s contempt conviction had attempted to enforce’).

6 Davis and Haberman, ‘Trump Pardons Joe Arpaio’ (n3).

7 Mahita Gajanan, ‘President Trump Just Pardoned the Boxer Jack Johnson. Here’s What to Know About the Original Case’ Time Newspaper (USA, 24 May 2018) <https://time.com/5290570/jack-johnson-trump-pardon/> accessed 18 April 2020.

8 These constitutional provisions will be analysed below.

9 (1986) 5 NWLR (Pt 44) 721 (where a state Governor granted pardon to a person who was convicted of contempt of court, on the same day the court decision was given. Upon receiving pardon, the ex-convict still went ahead to appeal against his conviction. The substance of this case, which would be discussed below, turned on whether an appeal against conviction is needless, where pardon already exists).

10 (2018) LPELR 46065 (CA) 23.

11 390 F.Supp, 1372 (W. D. Mich. 1975).

12 United States v. Arpaio, D.C. No.2:16-cr-01012-SRB-1 (D.C. February, 2020), full judgment. Available at <https://drive.google.com/file/d/1bpgOGlhG14Jph7SWHCbpWtfJlagxFlna/preview> accessed 18 April 2020. See also the Nigerian case of Okongwu v State (n9).

13 A reading of section 175 of the Nigerian Constitution reveals that the presidential pardon power is not applicable in respect of state offences and where there has been no prior consultation with the National Council of State. On its part, Section 2 of Article II of the US Constitution provides that the presidential pardon power is not exercisable in respect of state offences and in cases of impeachment.

14 Amgbare v Sylva (2007) 18 (pt 1065) 1; Nawa v Attorney-General, Cross Rivers State (2008) All FWLR (pt 401) 807 (where it was held that, ‘[a] principle of statutory interpretation of statutes is that express mention of one thing in a statutory provision automatically excludes any other thing which otherwise would have applied by implication with regard to the same issue, expressio unius exclusion alterius’).

15 See the discussion below on cases of wrongful convictions of innocent persons who later received posthumous pardon.

16 See generally K.D. Moore, Pardons: Justice, Mercy, and the Public Interest (Oxford University Press 1997).

17 Stephen Greenspan, Posthumous Pardons Granted in American History, (the Death Penalty Information Center: March 2011) 14. Available at: <https://files.deathpenaltyinfo.org/legacy/documents/PosthumousPardons.pdf> accessed 11 April 2020.

18 Olusola Babatunde Adegbite, ‘Presidential Pardoning Power, Judicial Review and New Face of Mercy: An Examination of Pardoning Power in Nigeria and India’ (2019) 6 LUMS LJ 69.

19 It is commonly believed that the 38th American President Gerald Ford’s pardon to his former boss President Richard Nixon, who resigned over Watergate, did not only affect the administration but it also led to the failure of Ford’s re-election bid. See Donald Rumsfeld, ‘How the Nixon Pardon tore the Ford Administration apart’ Politico (USA, 20 May 2018) <https://www.politico.eu/article/how-richard-nixon-pardon-tore-gerald-ford-administration-apart-watergate/> accessed 20 April 2020.

20 Jonathan Law & Elizabeth A. Martin, Oxford Dictionary of Law (7th ed, Oxford University Press 2009) 391.

21 Bryan A. Garner, Black’s Law Dictionary (10th ed, Thomson West 2015).

22 Edward Coke, The Third Part of the Institutes of the Laws of England (4th ed, London 1669) 233.

23 32, US (7. Pet.) 150(1833) 159–60; 32 U.S. 435 (1833).

24 32 U.S. 435 (1833)438.

25 Adeola v State (2017) LPELR 42327 (CA).

26 (1999) 4 NWLR (pt. 599) 476.

27 2 Samuel 19:16-23 of the Holy Bible.

28 Daniel T. Kobil, ‘The Quality of Mercy Strained: Wresting the Pardoning Power from the King’ (1991) 69 Tex L Rev 569.

29 Ibid.

30 Ibid.

31 Zachary J Broughton, ‘I Beg Your Pardon: Ex Parte Garland Overruled; The Presidential Pardon Is No Longer Unlimited’ (2019) 41 W New Eng L Rev 183.

32 John 18:38-40 of the Holy Bible.

33 Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest 16 (1989) cited in Zachary J Broughton (n31).

34 William F. Duker, ‘The President’s Power to Pardon: A Constitutional History’ (1977) 18(3) Wm Mary L Rev 475.

35 Daniel T. Kobil (n28) 586.

36 Williams Blackstone, Commentaries (1769) 390.

37 Harold J. Krent, ‘Conditioning the President’s Conditional Pardon Power’ (December 2001) 89(6) Calif Law Rev 1665.

38 (1686) 11 St Tr 1166.

39 Ibid [1050]–[1].

40 Solomon A.M. Ekwenze, ‘Presidential Pardon and Prerogative of Mercy: A Necessary National Soothing Balm for Social Justice’ (June 19, 2014). Available at SSRN:<https://ssrn.com/abstract=2541929 or http://dx.doi.org/10.2139/ssrn.2541929> accessed 15 April 2020.

41 William F. Duker (n34) 479.

42 Ibid 478.

43 David Gray Adler, ‘The President’s Pardon Power’ in Thomas E. Cronin (ed), Inventing the American Presidency (University Press of Kansas, 1989) 213.

44 William F. Duker (n34) 489.

45 Brian C. Kalt, ‘Pardon Me: The Constitutional Case Against Presidential Self-Pardons’ (1996–1997) 106 Yale L J 779.

46 William F. Duker (n34) 496.

47 Article II s.2 US Constitution and s.175 Nigerian Constitution respectively.

48 Wilson (n23).

49 71 U.S. 333(1867).

50 Garland (49) [380]–[1]. A similar decision was held in the similar-fact case of In the Matter of Petition for Disbarment of Emmons, 29 Cal. App. 121, 154 Pac. 61g (i915) 46. See also Hildreth v. Heath, I Ill. App. 82, 87 (1878) where the court said that a presidential pardon for a federal offense would remove the disqualification, if any, to hold the office of alderman, notwithstanding that the city charter declared that persons convicted of malfeasance, bribery, etc., shall be ineligible.

51 91 U.S. 474 (1875). See also In the matter of an Attorney, 86 N. Y. 563, 569 (1881) where it was held that, ‘The pardon does reach the offence for which he was convicted, and does blot it out, so that he may not now be looked upon as guilty of it. But it cannot wipe out the act that he did, which was adjudged an offence. It was done and will remain a fact for all time’ (but see Samuel Williston, ‘Does a Pardon Blot Out Guilt’ (1914–1915) 28 Harv L Rev 647. criticising this judicial opinion as being an ‘unpardonable reasoning’ because of the court’s seeming approbation and reprobation).

52 Osborn (n51) 477.

53 95 U.S. 149, 154 (1877).

54 Knote (n53) [153]–[4]. Emphasis mine. In Boyd v. United States, 142 U. S. 450 (1892), it was held that a pardonee had a new credit, meaning that he now had competence to testify in court, despite his previous conviction, although the fact of conviction can be used to question his credibility during cross-examination.

55 Knote (n53).

56 Bracton, On the Laws and Customs of England 371 (Twiss trans., 1879), cited in Samuel Williston, ‘Does a Pardon Blot Out Guilt?’ (1915) 28 Harv L Rev 647.

57 80 Eng. Rep. 231 (1615).

58 The court also observed that pardon does not, however, affect private persons’ rights (e.g. contractual rights).

59 (1890) 24 QBD 561.

60 (1999) 4 NWLR (pt. 599) 476.

61 236 U.S. 79 (1915).

62 Ibid 90.

63 274 U.S. 480 (1927).

64 Ibid 486. Emphasis mine.

65 62 F.3d 1434 (D.C. Cir. 1994).

66 662 A.2d 867 (D.C. 1995) (Abrams 1), vacated and reh g en banc granted, 674 A.2d 499 (D.C. 1996) (Abrams 11). rev’d, 689 A.2d 6 (D.C. 1997) (Abrams III), petition for cert. filed, 65 U.S.L.W. 3767 (U.S. May 6, 1997) (No. 96-1778) Abrams 111, 689 A.2d 6 (D.C. 1997).

67 In North (n65).

68 Abrams (n66).

69 In North (n65) 1437.

70 Abrams (n66) 7.

71 Arpaio, (n12). Also see Okongwu (n9).

72 Lauren Castle, ‘Joe Arpaio to go back to Court over Criminal Contempt Conviction’ Azcentral (USA, 15 December 2019) <https://eu.azcentral.com/story/news/politics/arizona/2019/08/13/joe-arpaio-appeals-court-criminal-contempt-conviction-trump-pardon/1997447001/> accessed 18 April 2020.

73 Edvard Pettersson, ‘Trump Pardon Won’t Erase Arpaio’s Criminal Past in Comeback Bid’ Bloomberg (27 February 2020) <https://www.bloomberg.com/news/articles/2020-02-27/trump-pardon-won-t-remove-sheriff-joe-arpaio-s-guilty-verdict> accessed 18 April 2020.

74 State v Hawkins 44 Oh. St. 98, 5 N. E. 228 (1886).

75 Williston (n56) 647.

76 Wilkins (n57) 82.

77 I22 Fed. Cas. No. 13234 at 922 (C. C. D. Ore. 1878) where it was held than an alien who seeks to satisfy the statutory condition of naturalisation-which requires him to be a man of good moral character- cannot rely on his pardon to show good character.

78 906 F.2d 952, 958 (3d Cir. 1990)).

79 1 QB 115 [1984] 2 ALL ER 679 [1984]; 3 WLR 401, 79 Cr. App. Rep 61.

80 Ibid 130.

81 Okongwu (n9).

82 [1998] EWCA Crim 2516.

83 Okongwu (n9).

84 Spenser (n77).

85 Henry Weihofen, ‘The Effect of a Pardon’ (December 1939) Univ Pennsyl Law R 179.

86 Alexander Hamilton, James Madison and John Jay, The Federalist Papers: A Collection of Essays Written in Favour of the New Constitution, No. 74 (C. Rossiter ed., Coventry House Publishing, 1961) 447.

87 R. v John Timothy Evans, trial transcripts of shorthand, TNA, CAB 143/11.

88 734 Parl. Deb., H.C. (5th Ser.) at 38–40 (1966)25.

89 The Governors’ equivalent pardon power is contained in section 212 of the Constitution. Owing to their similarities, this discussion on the presidential pardon power should be taken as covering that of the Governors as well.

90 That was the decision in Murphy v Ford 390F Supp 1372 (WD Michigan 1975).

91 (2018) LPELR 46065 (CA) [45]–[6].

92 Krent (n37).

93 This is a constitutional body created by Part I of Third Schedule to the Constitution which itemises its composition as the President who is the Chairman, the Vice President as the Deputy Chairman, all former Presidents and Heads of the Federal Government of Nigeria, all former Chief Justices of Nigeria, the President of the Senate, the Speaker of the House of Representatives, all the Governors of the states of the Federation, and the Attorney-General of the Federation. For a critique on the necessity of this body, see Obi Nwaknma, ‘Council of State? What is that?’ The Vanguard Newspaper (Nigeria, 25 February 2018) <https://www.vanguardngr.com/2018/02/council-of-state-what-is-that/> accessed 20 April 2020.

94 Benjamin Obi Nwabueze, The Presidential Constitution of Nigeria (C. Hurst & Company, 1982) 144.

95 US Legal. Available at <https://definitions.uslegal.com/c/consultation/> accessed 20 April 2020.

96 Achida (n91)68 and Nigerian Evidence Act 2011 s.168.

97 Ibid.

98 Nigerian Constitution, s.175(3).

99 Imo Udofa, ‘The Abuse of Presidential Power of Pardon and the Need for Restraints’ (2018) 9 Beijing Law R 113.

100 Ibid.

101 Emphasis mine.

102 For a comprehensive discussion on this debate, see Ashley M Steiner, ‘Remission of Guilt or Removal of Punishment–The Effects of a Presidential Pardon’ (1997) 46 Emory L J 959.

103 Hamilton (n86) 447.

104 Kalt (n45) 805.

105 Perovich (n63).

106 Mark J Rozell, ‘The Presidential Pardon Power: A Bibliographic Essay’ (1989) 5 JL & Pol 459.

107 Edwin Brown Firmage and Richard Collin Mangrum, ‘Removal of the President: Resignation and the Procedural Law of Impeachment’ [1974] Duke LJ 1023.

108 Leon Jaworski, The Right and the Power: The Prosecution of Watergate (Reader’s Digest Press; Gulf Publishing Co. 1976) 299.

109 Garland (n49).

110 E.g., Ex-President Nixon was not a convict when President Ford granted him a pardon.

111 Affirmed in Abubakar V Yar’adua (2009) All FWLR (Pt. 457) 1 which held that ‘or’ is not the same as ‘and’.

112 Ndoma-Egba V Chukwuogor (2004) 6 NWLR (Pt. 869) 382 (‘In ordinary usage, the word “or” is disjunctive and “and” is conjunctive. But … there are situations which would make it necessary to read “and” in place of “or” and vice versa. This may occur in order to carry out the intention of the Legislature…’). Also see Philip E. Oamen, ‘Judicial Attitude towards Entitlement to practise Law in Nigeria vis-à-vis the Competence of Court Processes signed by Law Firms’ (2015) 4 Univ Benin J Priv Property Law 42–63.

113 Achida (n91) [45]–[6].

114 I already stated that section 212 of the Nigerian Constitution gives identical pardon power to state Governors.

115 Achida (n91) 44–5.

116 See Umeze v. State (1973) S.C. 221 where it was held that there must be a final judgment before the doctrine of double jeopardy can arise.

117 However, under the Dual Sovereignty Rule, a pardon for a federal offence does not inhibit subsequent state prosecution if the same facts also constitute an offence under the state laws, and vice versa. See Gamble v United State 587 U. S. ____ (2019).

118 Cap C41, Laws of the Federation of Nigeria (LFN) 2004.

119 Emphasis mine.

120 (2010) 5 NWLR (Pt. 1188) 42.

121 Achida (n91) 46–49.

122 Aminun-Kano (n120) 467–9. Emphasis mine.

123 Coke (n 22); Maitland, Frederic William, and H. A. L. Fisher, ‘The Constitutional History of England’ (Cambridge University Press, 1963) 480.

124 Bowens v Quinn, 561 F.3d 671, 676 (7th Cir. 2009).

125 Achida (n91) 24. The equivalent identical power for the federal A-G is in section 174.

126 See Clarke v. AG Lagos State (1986) 1 QLRN 119.

127 By section 174 of the Nigerian Constitution, the A-G cannot prosecute, take over or discontinue criminal cases in a Court-Martial which tries military offences. This is unlike presidential pardon which applies to all federal offences.

128 See Attorney General of Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483 where it was held that discontinuance power is personal to the A-G and that a Solicitor-General or any other person cannot exercise same when there is vacancy in the AG’s office.

129 Philip E. Oamen & Tijani A. Abdulhakeem, ‘The Constitutional Jurisdiction of the National Industrial Court: The Unsettled Exclusiveness Question’ (2013) 3(1) Ambrose Alli Univ Law J 1; AM. JUR. 2D Constitutional Law 67 (2009), cited in Mia So, ‘Resolving Conflicts of Constitution: Inside the Dominican Republic’s Constitutional Ban on Abortion’ (2011) 86 Ind Law J 713.

130 Equivalent of s.175.

131 Achida (n91) [59]–[60].

132 Buhari v Yusuf (2003) NWLR (pt 841) 446; (2003) 6 S.C. (pt. II) 156; Circuit City Stores Inc v Adams, 532 U.S. 105 (2001).

133 Emphasis mine.

134 For a detailed discussion on the difference between civil and criminal contempt of court, see Genevieve A Bentz, ‘A Blank Check: Constitutional Consequences of President Trump’s Arpaio Pardon’ (2018) 11 Alb Gov’t L Rev 250.

135 Duker (n34) 528.

136 In re Nevitt, 117 F. 448, 455 (8th Cir. 1902); Watson v. Williams, 36 Miss. 331, 341 (1858).

137 267 U.S. 87 (1925).

138 Ibid 272. See the earlier English case of Thomas of Chartham v. Benet of Stamford, YB 6-7 Edw. 2, reprinted in 24 SELDEN SOCIETY 185 (1909) which recognised the power of the British Sovereign to grant pardon for criminal contempt. However, see the earlier American case of Jones v. Mould, 132 N.W. 45, 49 (Iowa 1911) where it was held that the constitutional provision of due process, and thus pardon, applies ‘only to charges of crime’and contempt is not a crime though it is ‘generally spoken of as a quasi-crime’.

139 The court in Grossman however held that the pardon power does not extend to civil contempt proceedings because, unlike criminal contempt, the punishment in the proceedings is merely remedial and not punitive. See Paul M. Butler, ‘Contempt and Executive Power to Pardon’ (1929) 4 Notre Dame L. Rev. 548.

140 Bentz (n134) 253.

141 United States v. Arpaio D.C. No.2:16-cr-01012-SRB-1 (D.C. February, 2020), full judgment. Available at <https://drive.google.com/file/d/1bpgOGlhG14Jph7SWHCbpWtfJlagxFlna/preview> accessed 18 April 2020.

142 However, see the arguments in Bentz(n134) 281 to the effect that the two cases are distinguishable. According to the author, ‘What distinguishes this case is Arpaio’s targeting of Judge Snow’s wife, the spurious investigation of Judge Gary Donahoe, and public statements that Arpaio would continue his discriminatory practices regardless of what the court had ruled…’.

143 Grossman (n132), 265.

144 See United States v Klein 80 U.S. 128, 147 (1871) where it was held that ‘[i]t is the intention of the Constitution that each of the great co-ordinate departments of the government … shall be, in its sphere, independent of the others. To the executive alone is [en]trusted the power of pardon; and it is granted without limit’.

145 Grossman (n132).

146 Okongwu (n9).

147 Nasir Ayitogo and Kemi Busari, ‘Developing Story: Thugs invade Senate, steal Mace’, Premium Times Newspaper (Nigeria, 18 April 2018), <https://www.premiumtimesng.com/news/headlines/265329-developing-story-thugs-invade-senate-steal-mace.html >accessed 14 April 2020.

148 Kemi Busari and Nasir Ayitogo, ‘Live Updates: SSS blocks National Assembly as plot to remove Saraki thickens’ Premium Times Newspaper (Nigeria, 8 August 2018) <https://www.premiumtimesng.com/news/headlines/279141-live-updates-sss-blocks-national-assembly-as-plot-to-remove-saraki-thickens.html> accessed 14 April 2020.

149 561 F.3d 671, 676 (7th Cir. 2009).

150 Garland (n49) 380 where it was held that, ‘[t]he [pardon] power thus conferred is unlimited, with the exception [in cases of impeachment]. It extends to every offence known to the law and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restriction’.

151 Office of the Legal Counsel, Presidential Authority - Slovik Case 2 Op. Off. Legal Counsel 370, 373 (1977).

152 7 Ct. Cl. 595 (1871).

153 9 Ct. Cl. 224 (1873).

154 Garland (49)120.

155 Darryl W. Jackson, et al, ‘Beuding Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper’ (1999) 74 Ind Law J 1251.

156 Ibid 1253.

157 Gregory Korte, ‘A Trump Pardon for boxer Jack Johnson would be just the Third Posthumous Pardon in History’ USA Today (USA, 15 December 2019) <https://eu.usatoday.com/story/news/politics/2018/04/25/trump-pardon-boxer-jack-johnson-would-just-third-posthumous-pardon-history/539030002/> accessed 3 May 2020.

158 Gregory Korte, ‘A Trump Pardon for boxer Jack Johnson would be just the Third Posthumous Pardon in History’ USA Today (USA, 15 December 2019), <https://eu.usatoday.com/story/news/politics/2018/04/25/trump-pardon-boxer-jack-johnson-would-just-third-posthumous-pardon-history/539030002/> accessed 3 May 2020.

159 Cap I23 Laws of the Federation of Nigeria (LFN) 2004. Also see Philip E. Oamen, ‘The Fate of Human Rights in a period of State of Emergency in Nigeria’ (2013) 3 Nigerian Natl Hum Rights Comm J 230–59.

160 419 U.S. 256 (1974).

161 Ibid. 267. See also United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) where it was held that, ‘To the executive alone is intrusted the power of pardon, and it is granted without limit’.

162 Halsbury’s Laws of England, 4th ed. Reissue 1996, Vol. 8(2)823.

163 S. 164(1) & (2).

164 Bentley (n82) and Evans (n87).

165 Jackson (n155) 1292.

166 Ellen Stroud, ‘Law and the Dead: Is a Corpse a Person or a Thing? (2018) 14 Ann Rev Law Soc Sci 11. Available at: <https://www.annualreviews.org/doi/pdf/10.1146/annurev-lawsocsci-110316-113500> accessed 20 April 2020.

167 Cap 28, Laws of the Federation of Nigeria, 2010.

168 Kwame Gyekye, African Cultural Values: An Introduction (Sankofa 1996).

169 Jones M. Jaja, ‘The Dead in the Lives of the Living: A Socio- Cultural Survey of Burial Sites in the Niger Delta’ (2013) 13(3) Global J Hum Soc Sci 37.

170 51 S.E. 24, 25; Ga. 1905.

171 William Henry Francis Basevi, The Burial of the Dead (E.P. Dutton and Co. 1920).

172 Thomas C. Grey, The Legal Enforcement of Morality 105 (1983), cited in Tyler T. Ochoa and Christine Jones, ‘Defiling the Dead: Necrophilia and the Law’ (1997) 18 Whittier L. Rev 539. Available at <http://digitalcommons.law.scu.edu/facpubs/89> accessed 29 April 2020.

173 Floris Tomasini, Remembering and Disremembering the Dead: Posthumous Punishment, Harm and Redemption over Time (Palgrave Macmillan 2017).

174 Interpretation Act (n159).

175 Cap C20, LFN 2004. Section 65 provides that, ‘Any act of the members in general meeting, the board of directors, or of a managing director while carrying on in the usual way the business of the company, shall be treated as the act of the company itself and the company shall be criminally and civilly liable therefore to the same extent as if it were a natural person’. Note that this law is about to be repealed by the Companies and Allied Matters Act (Repeal and Re-enactment) Bill 2019 which is currently awaiting presidential assent at the time of writing this paper. However, the proposed law retains several corporate administrative and criminal offences.

176 Cap S9 LFN 2004.

177 Cap F2, LFN 2004.

178 For this proposition, see R v East Kent Coroner, Ex Parte Spooner and Others [1989] 88 Cr App 10; Mueller, ‘Mens Rea and Corporation’ (1957) 19 U P L Rev 21, cited in Samson Erhaze & Daud Momodu, ‘Corporate Criminal Liability: Call for a New Legal Regime in Nigeria’ (December 2015) 3(2) J Law Crim Just 63.

179 Eghosa Osa Ekhator, ‘Regulating the Activities of Multinational Corporations in Nigeria: A Case for the African Union?’ (2018) 20 Int Commun Law Rev 30.

180 Cap C38 LFN. 2004.

181 Ramon Olademiji, ‘Appeal Court Orders “My Pikin” Seller to Pay N1m Fine’ The Punch Newspaper (Nigeria, 31 May, 2016) <https://punchng.com/appeal-court-orders-pikin-seller-pay-n1m-fine/> accessed 29 April 2020. See also Olarinde E. Smaranda and Udosen Jacob, ‘Corporate Manslaughter Law in Nigeria: A Comparative Study’ (2020) 11 Beijing Law Rev 358.

182 S.477.

183 The principle of Corporate offence was first recognised in New York Central & Hudson River R.R. Co. v. United States 212 U.S. 481 (1909). Also see Brickey, K.F., ‘Corporate Criminal Accountability: A Brief History and an Observation’, (1982) 60 Wash Univ Law Quarterly 393; Beale, S.S., ‘Symposium: Corporate Criminality: Legal, Ethical, and Managerial Implication: Solution: Is Corporate Criminal Liability Unique?’, (2007) 44 Am Crim Law Rev 1503; John Hasnas,, ‘The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability’, (2009) 46 Am Crim Law Rev 1329; Ved P. Nanda, ‘Corporate Criminal Liability in the United States: Is a New Approach Warranted?’ in M Pieth and R Ivory (eds), Corporate Criminal Liability (Ius Gentium: Comparative Perspectives on Law and Justice, vol 9. Springer, 2011).

184 However, see Olarinde E. Smaranda & Udosen Jacob, ‘Corporate Manslaughter Law in Nigeria: A Comparative Study’ (2020) 11 Beijing Law Rev 358 for a contrary argument.

185 For example, section 1(6) of the UK’s Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) provides that upon conviction for manslaughter or homicide, a corporation shall be liable to a fine. This law is replicated in the Nigeria’s Corporate Manslaughter Bill (CMB), 2010.

186 For example, section 10 of the CMCHA provides that a corporate convict may be asked to publish the fact of conviction to the general public.

187 Stephen A. Yoder, ‘Criminal Sanctions for Corporate Illegality’ (1978) 69(1) J Crim Law Criminol 40.

188 Tony Kornreiser, ‘Federal Pardon Sought By Emprise Corporation’ The New York Times (New York, 14 September 1976) <https://www.nytimes.com/1976/09/14/archives/federal-pardon-sought-by-emprise-corporation-a-pardon-is-sought-by.html> accessed 01 May 2020.

189 Anthony Marro, ‘Emprise Corp, Loses Plea For U.S. Pardon’, The New York Times (New York, 29 September 1977) <https://www.nytimes.com/1977/09/29/archives/emprise-corp-loses-plea-for-us-pardon-sports-conglomerate.html> accessed 01 May 2020.

190 Kenji Yoshino, ‘Acts of Oblivion’ (2019–2020) 72 Stan. L. Rev. Online 65, 65–6.

191 Krent (n37)1673.

192 I. J. Story, Commentaries on the Constitution of the United States (Michigan: Microfilms International, 1851) 551.

193 Schick v Reed, 419 U.S. 256, 266 (1974).

194 Bernadette Meyler, ‘Trump’s Theater of Pardoning’ (2019-2020) 72 Stan L. Rev. Online 92, 94.

195 See Aaron Rupar, ‘Trump’s Latest Pardons Show How Quickly He’s Normalizing Corruption’ Vox (19 February 2020) <https://www.vox.com/2020/2/19/21142836/trump-blagojevich-kerik-milken-negron-debartolo-pardons-corruption> accessed 2 July 2020; James B. Stewart, ‘Pardon Closes the Book on Michael Milken’s Case but Can’t Rewrite It’ New York Times (21 February 2020) <https://www.nytimes.com/2020/02/18/business/michael-milken-case-lessons.html> (‘President Trump has sent two powerful messages: When it comes to justice, money counts. And white-collar crime doesn’t really matter’) accessed 2 July 2020.

196 Robert Weisberg, ‘The Drama of the Pardon, the Aesthetics of Governing and Judging’ (2020) 72 Stan L Rev Online 80.

197 See Maggie Haberman, ‘Trump Brings 2 Officers He Cleared of War Crimes Onstage at FundRaiser’ New York Times (8 December 2019) <https://www.nytimes.com/2019/12/08/us/politics/trump-war-crimes-pardons.html> accessed 2 July 2020.

198 Weisberg, ‘The Drama of the Pardon’ (n197) 80.

199 Adegbite (18) 79–81.

200 Kalt, (n45)796.

201 See Re Murchison, 349 U.S. 133, 136 (1955) where a Judge presided over a contempt proceeding concerning a separate forum in which he had personal involvement. The Court held that there could be a potential for bias, though he was not strictly speaking, judging himself or sitting as a judge over his own case.

202 Duker (n34)537.

203 For example, the US Congress used the independent or special counsel investigation process under the Independent Counsel Statute as a tool to embarrass the President and his cabinet members. For instance, Republican Congress used the statute to embarrass Democrat Bill Clinton Administration’s officials by instigating several investigations against them.

204 Duker (n34) 537.

205 Hamilton (n86) 417.

206 Jeffrey Crouch, ‘The Law: Presidential Misuse of the Pardon Power’ (December 2008) 38(4) Presidential Stud Quart 722.

207 Meyler, ‘Trump’s Theater of Pardoning’ (n195) 94–5.

Additional information

Notes on contributors

Philip Ebosetale Oamen

Philip Ebosetale Oamen is a Doctoral Researcher and Teaching Associate at the Birmingham Law School, University of Birmingham, United Kingdom where he teaches the Law of Contract. He is an Associate Fellow of the UK Higher Education Academy (Advance HE), and his research interests lie in Comparative Constitutional Law, Human Rights and Multi-level Governance.