‘You way die nar you sorry’ – Reforming the Presidential Pardon Powers in Sierra Leone
Every New Year or Independence Day, the President of Sierra Leone exercises his prerogative of mercy as Fountain of Honour to grant pardon to persons convicted of various offences in Sierra Leone. So, it was no surprise when we learnt from #FreetownStories yesterday that the President had pardoned one hundred and sixty inmates at the Correctional Service. Forty-three of those pardoned were from the Pademba Road Correctional Centre – thirty-eight males and five females. One hundred seventeen who were on death sentence had their sentences commuted to life imprisonment.
This would have been routine, and few would have paid little attention to it, but for another article written by Mohamed Konneh, who I learnt works for Prison Watch, an NGO formed to monitor human rights violations and abuses in detention centers throughout the country, headlined “Popular Herbalist LAC gets Presidential pardon.”
The article mentions that a popular Herbalist, Mbaimb Moiforay, aka LAC, was “among 43 inmates pardoned under the Presidential prerogative of mercy for the year 2022.” It further notes that “The popular herbalist convicted for murder in 2016 walked out of the prison gate as a free man and was allowed to go home after being pardoned. LAC has been behind bars for the last six years after he was convicted for the murder of popular Disc Jockey, Henry David Sydney Buckle, aka DJ Clef…. Popular Herbalists LAC is among those released after his murder conviction (Death Sentence) was committed to life imprisonment in 2020. He is today a free man after walking out of the Pademba Road Prison gate on 1st January 2022 pardon under the prerogative of mercy…DJ Clef decomposed corpse was found abandoned at the Murray Town-Macauley Street cemetery on 25 May, 2015 before it was swiftly taken to Pa Loko, Waterloo, where an Ebola cemetery was created for burial. The deceased got missing after attending a birthday party organised by Avril Orehbola Renner at the residence of Mbaimba Moiforay alias LAC on 22 May 2015. LAC was slammed 25 years jail term in guilty verdict of conspiracy and the death penalty for murder. Third accused Avril Renner was acquitted and discharged.”
The story raised a red flag because after only serving six out of twenty-five years in jail following a conviction of murder, Mbaimb Moiforay, aka LAC, was granted a pardon. Pardoning someone who has only spent six out of twenty-five years in jail for murder is highly unusual. A lot of facts are unclear about this case. Does Herbalist Moiforay still have a pending appeal, or has he exhausted all his right to appeal? In several jurisdictions, including Nigeria, courts have held that a pardon cannot be properly granted to a person whose appeal against conviction is pending in the appellate court. Has he shown remorse for the said act? What was the basis for the pardon? What were the criteria used by the Committee? Good behaviour in prison? Was the family of the late Henry David Sydney Buckle, aka DJ Clef, consulted about the pardon and release?
The law relating to pardons in Sierra Leone is contained in the 1991 Constitution. Section 63 provides as follows:
- Prerogative of Mercy – The President may, acting in accordance with the advice of a Committee appointed by the Cabinet over which the Vice-President shall preside— grant any person convicted of any offence against the laws of Sierra Leone a pardon, either free or subject to lawful conditions; grant to any person a respite, either indefinite or for a specified period of the execution of any punishment imposed on that person for such an offence; substitute a less severe form of punishment for any punishment imposed on any person for such an offence; remit the whole or any part of any punishment imposed upon any person for such an offence or any penalty or forfeiture otherwise due to the Government on account of such an offence. (2) Where any person has been sentenced to death by any Court for any offence, the Committee appointed under subsection (1) shall cause a written report of the case from the trial judge together with such other information, including a medical report on the prisoner, derived from the record of the case or elsewhere, as the Committee may require, to be submitted to it as soon as possible.
The President’s decision is based on the advice of the ‘Clemency Committee’ appointed by the cabinet and presided over by the vice president. It usually includes the Attorney-General and Minister of Justice. There is little guidance regarding how the Committee should function or the basis for pardon. Based on these provisions, it seems that the Committee can advise that any offence can be pardoned. This may be done with or without conditions.
Although there is no requirement for the Committee to consult with the deceased’s family in a murder case, it is ideal for them to consider the family perspectives and how the crime has affected them. The families of the deceased must be allowed to make representation and be informed of the decision so that they don’t first hear it on radio or tv. It will be unfortunate for the deceased’s family to hear the news first on social media when the convict is released. The victim’s family might also have safety concerns. Witnesses who testified at the trials may also have concerns, especially since we do not have any witness protection.
Another critical concern is equity and fairness. What is the basis for granting one person who was sentenced for murder a pardon and not granting another? The announcement of pardon does not include an explanation of the reasons for the pardon to the public. It is unfair for one person to be pardoned after six years and another to serve life in prison. Sierra Leone gained international acclaim last year when it abolished the death penalty. If we want the abolition of capital punishment to gain public acceptance, there is a clear need for sentencing guidelines or explicit provisions in the new Criminal Procedure Act that will specify the minimum term every person convicted of murder should serve. A murderer must serve the stated minimum before even being considered for parole or pardon.
Unrestrained exercise of the power to pardon is likely to lead to abuse of power. Those who are rich, influential, politically connected will usually be the ones who will benefit. The rest of society will be marginalized. As it is right now, the provisions of section 63 are liable to be abused. Clear parameters need to be set to guide the committee. In interpreting the pardon powers in the Indian Constitution, the Supreme Court of India said in Satpal & Another vs. State of Haryana & Ors (2000) that ‘that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power.’ It identified some of the grounds under which the pardon powers can be exercised. They include the interest of society and the convict, the period of imprisonment undergone and the remaining period, seriousness and relative recentness of the offence, the age of the prisoner and the reasonable expectation of his longevity, the health of the prisoner, good prison record, post-conviction conduct, character and reputation, remorse and atonement and deference to public opinion.
In addition, we need to make the pardon process more transparent. We have no idea how people are nominated for pardon? There are reports that prison officers make recommendations. There are also some stories that some civil servants ask others if they know people who should be pardoned. Why not publicize in the Gazette or newspapers the names of people under consideration and give the public an opportunity to comment and make representations that the committee will consider.
Presidential pardon has an important role, especially when the legal system fails. If used rightly, it can help prevent a miscarriage of justice. It must, however, be used judiciously. It cannot become the personal prerogative of the President not used for political purposes. The rationale of the pardon power was enunciated by Justice Oliver Wendell Holmes of the United States Supreme Court in the case of Biddle v. Perovich [71 L. Ed. 1161 at 1163]: “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” If not used properly, some pardons could lead to a lack of confidence in the judicial system. The public will expect convicts who are influential and politically connected to get pardoned after being convicted regardless of the offence. It may eventually lead to mob justice.