This is provided
for under section 36(8) of the 1999
Constitution of the Federal Republic of the Nigeria.
The provision
provides thus:
“No
person shall be held to be guilty of a criminal offence on account of any act
or omission that did not, at the time it took place, constitute such an
offence, and no penalty shall be imposed for any criminal offence heavier than
the penalty in force at the time the offence was committed”.
This means that
no one shall be guilty of any criminal charge except there was an existing law
at the time he committed the criminal offence which prescribes the offence
committed. The same thing applies to penalties also, as no one would be
penalized for a crime more than that stipulated by law. Thus, an accused person
can only be charged and penalized under an enactment which was in force at the
time of the alleged criminal offence.
In essence, it
means that the section is intended to prevent retrospective legislation in the
field of criminal law whereby an innocent act or omission or a non-criminal act
when it took place might not over night be converted into a criminal act or
omission punishable under the law and to prevent the imposition of a heavier
punishment for an offence which at the time of its commission could only
attract a light punishment – Godwin Ikpasa v. The State (1981) 9 SC 7
The provisions
against retrospective and retroactive criminal legislation nullifies such
decrees as the Foreign Exchange Decree of 1970 enacted under the Military
regime – Sele v. State (1993) 1 NWLR (Pt. 269) 276 SC.
The combined
provisions of section 36(8) and section
36(12) suggests that whereas no person can be tried and convicted of an
offence which did not exist at the time of its commission, or which is not
contained in an existing law, there is no constitutional or other prohibition
against trial and conviction of a person for an offence which is known to law
and is in existence at the time of its commission but the relevant status has
been incorrectly stated – Ogbomor v. The State (1985) 1 NWLR (Pt. 2)
233.
However, the
provision of section 36(8) seeks to protect a person from being prosecuted and
punished for an act or omission which when it occurred did not constitute an
offence, the reasons being to prevent retrospective legislation in the field of
criminal law and to prevent the imposition of a heavier punishment for an
offence which at the time of its commission could only attract a lighter
punishment – Ikpasa v. The State (1982) 3 NCLR 152.
RIGHT AGAINST TRIAL FOR AN OFFENCE FOR
WHICH ACCUSED HAS BEEN PARDONED
This is provided
for under section 36(10) of the 1999
Constitution of the Federal Republic of the Nigeria.
The provision
provides thus:
“No
person who shows that he has been pardoned for a criminal offence shall again
be tried for that offence”.
This provision
is similar to section 211(1)(b) of the
CPA.
This means that
an accused person, who states and proves that the appropriate authority has
pardoned his conviction, should not be tried again for the same offence. The
appropriate authority that can grant pardon to a convict for a federal offence
is the President of the Federal Republic of Nigeria while for state offences;
it is the Governor of the respective State – sections 175 and 212 of the 1999 Constitution. However, where the
grant of pardon is not qualified, it shall be deemed to be granted without
conditions – Falae v. Obasanjo (1999) 4 NWLR (Pt. 599) 476 at 495.
Once pardon has
been granted to a convict, he shall not serve the penalty again and whatever is
left of the penalty shall be removed. Thus, no one shall be liable to be tried
or punished again in criminal proceeding under the jurisdiction of the same
State for an offence for which he has already been finally acquitted or
convicted in accordance with the law of that State.
The effect of pardon
is to renew the convict (novas homo),
to acquit him of all or corporal penalties and forfeitures annexed to the
offence pardoned.
Application for
pardon by a convicted person can only be made to the Committee on Prerogative
of Mercy and not to the Supreme Court or any other court – Okeke v. The State (2003) 15 NWLR
(Pt. 842) 25
Pardon should
not be mistaken for any of the following –
1.
Nolle prosequi – granted by the
Attorney-General of the Federation or State pending on the case to those who
are being prosecuted.
2.
Amnesty – granted to those who are
alleged to have committed a crime.
Finally, the
underlying elements of the principle of bis
in idem are that the accused has been acquitted, the judgment is question
is final and that the new proceedings are based on the same issue. click on any picture at right hand or left hand side for more insight.
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