President Bola Tinubu’s recent grant of state pardon to over 170 individuals has stirred nationwide debate — not just because of those included on the list, but also due to what followed. The Attorney-General of the Federation (AGF) announced that his office would “review” the list to ensure legal compliance. While this might appear well-intentioned, such an action risks triggering a wave of lawsuits and, more importantly, raises serious constitutional questions about the scope and limits of the President’s prerogative of mercy under the 1999 Constitution.
Can the Attorney-General Review a Presidential Pardon?
Two fundamental questions emerge.
First, does the Attorney-General possess any authority to review a presidential pardon list once it has been approved by the Council of State and announced by the President?
Second, at what point does the exercise of presidential pardon under the Nigerian Constitution become complete and irreversible?
Both questions are closely linked. The AGF’s power to “review” depends entirely on whether anything remains to be reviewed once the President publicly announces or publishes the pardon list.
Section 175(1) of the 1999 Constitution empowers the President to “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.”
However, subsection (2) provides that the President must exercise this power after consultation with the Council of State. This consultation is not ceremonial — it is a constitutional safeguard designed to ensure collective input and accountability in what is otherwise a highly discretionary act.
In practice, the President presents a proposed list to the Council of State, which then advises him. While he is not bound to accept every recommendation, he cannot exercise the power without consulting the Council. Therefore, the consultation must precede and guide his decision.
Once the Council’s advice has been obtained and the President makes a formal decision, the process becomes constitutionally complete. He may choose to exclude some names but cannot unilaterally add new ones that were not part of the Council’s deliberation. Any additions would require a fresh consultation as mandated by Section 175(2).
Why the AGF’s “Review” Is Constitutionally Problematic
The AGF’s claim that the “final administrative stage” of the clemency process involves reviewing the names to ensure compliance has no constitutional basis. The 1999 Constitution does not grant the Attorney-General any supervisory authority over the President’s prerogative of mercy.
Once the President, having consulted the Council of State, approves and publicly announces the pardon, the decision becomes final. Any subsequent “review” by the AGF under the guise of administrative oversight is unconstitutional — unless it pertains strictly to clerical or procedural errors.
When Does a Presidential Pardon Become Legally Complete?
A critical issue arises: at what point does the pardon take legal effect?
Is it upon the Council’s advice, the President’s public announcement, or the signing of a formal instrument of pardon?
Section 175 does not specify that a pardon must be gazetted or formalized through a particular document. The provision merely grants the President the power to pardon, with the only prerequisite being prior consultation with the Council of State. Thus, the act of mercy becomes complete once the President publicly communicates his decision. Any subsequent documentation serves merely as administrative evidence of what has already been constitutionally accomplished.
The pardon process typically involves four stages:
Compilation of the list by the Presidency or Prerogative Committee.
Consultation and advice from the Council of State.
Presidential decision and public announcement.
Preparation and issuance of the formal instrument of pardon or release.
The real question is whether the pardon becomes binding at stage 3 (announcement) or stage 4 (formal signing).
If the pardon is complete only after signing, the instrument is constitutive — it creates the legal effect.
But if it is complete upon announcement, the instrument is merely evidentiary — a record of what has already been validly done.
This distinction determines whether the AGF can lawfully intervene. If the pardon is complete upon announcement, any “review” would amount to tampering with a concluded constitutional act.
The Constitutional Limits of Administrative Review
While administrative processes ensure proper documentation and implementation, they do not authorize substantive reconsideration of the President’s decision. Once the President has acted following the Council’s advice, the remaining steps are purely ministerial. They must be carried out within a reasonable time to give effect to the constitutional decision — not to reopen it.
Delays or attempts at “revalidation” could be challenged in court through an order of mandamus, which compels a public official to perform a legal duty. If the President’s announcement represents a completed act of pardon, the AGF and other relevant officials have a duty to prepare and transmit the necessary instruments promptly. Failure to do so could invite judicial intervention to enforce compliance.
The government would then bear the burden of proving that any post-announcement alterations were due solely to administrative or clerical errors — not a substantive review of the President’s constitutional decision.
Conclusion: Upholding Constitutional Boundaries
Ultimately, the questions of when a pardon becomes complete and whether the AGF can review an approved list are constitutional in nature and fall within the jurisdiction of the courts.
However, a plain reading of Section 175 supports the view that a presidential pardon becomes legally effective once the President, after consulting the Council of State, publicly announces it. All subsequent steps are administrative and must be executed without delay.
Allowing indefinite “reviews” by the AGF would undermine the supremacy of the Constitution, distort the hierarchy of executive powers, and potentially nullify the President’s completed constitutional act of mercy.
