IN THE SUPERIOR COURTS OF THE GAMBIA
IN THE SUPREME COURT OF THE GAMBIA
SC CRIMINAL APPEAL NO.007/2015
AMADOU SANNEH ….. APPELLANT
THE STATE …… RESPONDENT
Hon Mr. Justice H. B. Jallow Chief Justice
Hon. Mr. Justice G.B.S Janneh JSC
Hon. Mr. Justice R.C. Sock JSC
Hon. Mr. Justice C. S. Jallow QC, JSC
Hon. Mrs. Justice M.M. Sey JSC
Ms. Rachael Y. Mendy for the Appellant
Mr. M. B. Abukakar for the State
RULING DELIVERED THE 17TH DAY OF FJULY, 2019.
M. M. SEY, JSC
1. On 13th December 2013, the Appellant herein was convicted by the trial Court for the offence of sedition contrary to section 52 (1) (c) and conspiracy to commit an act with seditious intention contrary to section 52 (a) of the Criminal Code. Aggrieved by the trial Judge’s decision, the Appellant appealed to the Court of appeal which in a unanimous judgment delivered on 30th July, 2015 affirmed the decision of the trial judge and dismissed the appellant’s the Appellant’s appeal. Being dissatisfied with the decision of the Lower Court, the Appellant has now appealed to this Court by a Notice of Criminal appeal No. SC. CR 007/2015 filed on the 27th day of august 2015. The singular ground of appeal states that the judgment of the Court of appeal is unreasonable and cannot be supported having regard to the evidence. It is noteworthy that, whilst the appeal was pending before this Court, the President, in pursuance of his power under section 82 (1) (a) of the 1997 Constitution of the Republic of the Gambia, granted a pardon to the appellant on 30thJanuary 2017 by Gazette N0. 2 Vol. 134 published on the 31st day of January 2017.
2. On 5th December 2018, when the appeal came up for mention before this Court, state counsel Mr. Abubakar applied for the appeal to be struck out on the basis that the Appellant had been granted a pardon. However, Ms. Mendy, of counsel for the Appellant, contended that the Appellant wanted to proceed with the hearing of his appeal because the said pardon does not wipe away his conviction. We therefore invited the parties to address us on the sole issue as to whether the grant of a pardon to the Appellant wipes away the fact of the conviction.
3. Learned State counsel, Mr. Abubakar, submitted that when an offender is granted a pardon before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties, disabilities and blots out his conviction and a pardoned convict is deemed never to have suffered the conviction to which his pardon relates and any pending appeal against such conviction is rendered nugatory. Mr. Abukakar further submitted that it follows from the provisions of section 82 (1) (a) of the constitution that, a person once granted a pardon unconditionally and accepted by the grantee, as in the instant case, the pardon so grated wipes out the legal effect of the conviction and restores the person to the same legal status which he had enjoyed prior to his conviction. To buttress his submission, leaned state counsel cited the Nigerian case of Olu Falae vs Obasanjo (No.2) (1999) 4 NWLR Pt. 599 Page 476, wherein the court had relied on the decision of the U.S. Supreme Court in Ex Parte Garland, 71 U.S. (4 wall) 333 – 280 (1866) in reaching the conclusion that “….. the effect of a pardon is to make the offender, a new man (novus homo), to acquit him of all corporal penalties and forfeitures annexed to the offence pardoned.”
4. Furthermore, our attention has been drawn to the ruling delivered by this court on the 22nd day of May 2017 in Yankuba Camara vs The State, Criminal Appeal 0072014 and Lang Dibba vs The State, Criminal appeal 8/2014. Learned State counsel submitted that this Court has struck to these two appeals in view of the Presidential pardon granted to the Appellants whilst the appeals were pending. It is learned counsel’s further submission that the Ruling of this Court seems to be a validation and approval of the position by the Courts in the cases of Olu Falae vs Obasanjo (No. 2) and Ex Parte Garland cited above on the effect of a pardon.
5. For the sake of clarity, it is important to mention straight away that the application that was made to this Court for Criminal Appeals No. 007/2014 and 008/2014 to be struck out was made by the state/Respondent in the absence of the appellants and their counsel. Thus, unlike in this present appeal, we never invited the parties to address us on the effect of the pardon on the appeals filed and the Appellants were never heard on the said striking out application. We simply granted the application as prayed for and struck out the said appeals on the 22nd day of May 2017. Suffice to say that this Court never held that an offender who accepts a pardon pending an appeal against conviction waives all his right upon appeal.
6. The main thrust of the argument advanced by Ms. Mendy, of counsel for the appellant, is that the Constitution does not give the President the prerogative of justice, but only a prerogative of mercy which cannot remove a conviction but only pardons its effect. Learned counsel submitted that it is only the Court of appeal and this Honourable Court which have the statutory power to quash the conviction. Furthermore, Ms Menday submitted that the case of Olu Falae v Obasanjo (N0. 2), relied upon by the Respondent, can be distinguished from this case because the issue in the case was whether or not the pardon removes the civil liberties of a convicted person as to disqualify him from contesting for the Presidential elections. Learned counsel argued that, in this present case, the issue is whether or not a person granted a pardon after a conviction could still pursue an appeal to remove the fact of conviction even after pardon. Ms. Mendy finally submitted that the conviction of the Appellant is still outstanding and remains so until quashed by this Court. She therefore urged the Court to hold that the Appellant’s appeal against his conviction is properly filed before this Honourable Court.
7. It is timely to look at the provisions of section 82 (1) of the Constitution which state that:
“(1) the President may after consulting the Committee established by subsection (2);
(a)Grant to any person convicted of any offence a pardon either free or subject to, lawful conditions;
(b) Grant to any person a respite, either indefinite or for a specific period, of the execution of any punishment imposed on that person for any offence;
(c)Substitute a less severe form of punishment for any punishment imposed on any person for any offence;
(d) Remit the whole or any part of any punishment imposed on any person for such an offence of any penalty otherwise due to the State on account of any offence.”
8. The words of the pardon are instructive in themselves: “WHEREAS BY Section 82 (1) (a) of the 1997 Constitution of the Republic of The Gambia the President may exercise his Prerogative of Mercy in respect of any person convicted of any offence. AND WHEREAS His Excellence the President considers the circumstances of the convicted prisoners named in the schedule, as warranting the exercise of his Prerogative of Mercy.
Now therefore I ADAMA BARROW, the President of the Republic of The Gambia, in exercise of the powers conferred on me by Section 82 (1) (a) of the Constitution of the Republic of The Gambia, do hereby grant pardon to the persons named in the schedule hereto.
………………32. AMADOU SANNEH”
9. It seems clear from the words in the Proclamation that the prerogative of mercy is a form of pardon that can be exercised by the President as one of the powers defined by section 82 (1) of the Constitution. The Appellant herein was granted a pardon without any conditions.
The definition in law of a pardon according to the Oxford English Dictionary is declared to be: “a remission, either free or conditional, of the legal consequences of crime.” Wikipedia (the free encyclopedia) states that “a pardon is a government decision to allow a person to be absolved of guilt for an alleged crime or other legal offense, as if the act never occurred. The pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction.” Blackstone in his Commentaries on the Laws of England, Vol. 4 at page 402, states as follows: “the effect of such pardon by the king, is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offence for which he obtains his pardon; and not so much to restore his former, as to give him a new, credit and capacity.”
11. The crucial question for this Court’s determination is the effect of the pardon on the conviction. Does it wipe away the fact of the conviction or is it just the legal consequences which are wiped out? The gist of the Respondent’s contention is that a pardon wipes out the crime ab initio, whereas the Appellant’s submission is to the effect, that a pardon is not the equivalent of an acquittal. It is timely to mention that, although the court of Appeal had dealt with a similar application in the case of Ousainou Darboe and Ors v The State, Criminal Appeal No.66/2016 (unreported), the effect of a free pardon upon the continuing existence of a conviction has not previously been considered by this Court.
12. In the leading case of Ex parte Garland (supra), the United States Supreme Court had reached the conclusion that “a pardon reaches both the punishment prescribed for the offense and the guilt of the offender…it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense…it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” The same legal effect would appear to be the conclusion of the English courts. Thus, in Hay v Justices of the Tower Division of London (1890) 24 QBD 561, the plaintiff was convicted of an offence but was pardoned by the Queen. He then applied for a licence to sell spirits by retail. The law then was that persons convicted were forever disqualified from being granted a licence to sell spirit by retail. The court held that: “When the crime of which a man has been convicted is pardoned, he is absolved not only from the punishment inflicted upon him by the judge who pronounced sentence, but from all penal consequences, such as disqualification from following his occupation. To treat it otherwise would be contrary to all good sense”.
13. However, contrary views have recently been expressed by the English courts as can be gleaned from the decision in R v Barry Foster (1984) 79 CR APP. R, 61. In that case, the Home Secretary, being persuaded of the innocence of the appellant upon the charge of rape, recommended to Her Majesty the Queen that the appellant be pardoned. On 11 March 1982, a free pardon was granted by her Majesty to the appellant in respect of his conviction for rape. For ease of reference, the words of the pardon are reproduced hereunder as follows: “Now know ye that We in consideration of some circumstances humbly represented unto us, are graciously pleased to extend our grace and mercy unto the said Barry Arthur Foster and to grant him our free pardon in respect of the said conviction, thereby pardoning, remitting and releasing unto him all pains, penalties and punishments whatsoever that from the said conviction may ensue.” The Court of Appeal observed that it would seem from the words of the pardon “that the beneficiary of the pardon is pardoned in respect of all pains, penalties and punishments ensuing from the conviction, but not pardoned in respect of the conviction itself”.
14. Also, it is noteworthy that, prior to R v Barry Foster (supra), Commonwealth countries like Tasmania and New Zealand had considered the position of pardon vis-à-vis conviction and made some pronouncement on the issue. For instance, in the case of Rec v Cosgrove (1948) Tas.S.R. 99, which involved corruption, the Supreme Court of Tasmania held that “the pardon granted was not the equivalent of an acquittal”. Also, see Re Royal Commission on Thoma’s Case (1980) 1 NZLR 602, wherein in the Auckland High Court held that “The effect of the pardon was to remove the criminal element of the offence named in the pardon, but not to create any factual fiction, or to raise the inference that the person pardoned had not in fact committed the crime for which the pardon was granted.”
15. Another case point is the Nigerian case of Okongwu v The State (1986) 5 NWLR (pt. 44) 721 wherein the Court of Appeal held that “a pardon does not raise the inference that the person pardoned had not in fact committed the crime for which the pardon was granted. A pardon stops with the punishment and the consequences attaching thereto but does not wipe out the fact of conviction”. In that case, the issue raised by their Lordships, suo motu, was “Whether the appeal was competent having regard to the fact that the appellant had been pardoned.”
16. Having thoroughly considered the import of the various aforementioned decisions, we are inclined to agree with the preposition that pardon is in no sense the equivalent of an acquittal. The effect of the pardon is prospective and not retrospective. It does not change the past and cannot annihilate the established fact that the Appellant was convicted of the offence. For all intents and purposes, the fact of the conviction remains untouched and the criminal record is not erased. We agree with the submission of Ms. Mendy, of Counsel for the Appellant, that the 1997 Constitution does not give the President the prerogative of justice, but only a prerogative of mercy which, cannot remove a conviction, but, only pardons its effect.
17. Furthermore, by virtue of Section 120 of the 1997 Constitution, “the judicial power of the Gambia is vested in the courts and shall be exercised by them according to the respective jurisdictions conferred on them by law”. Thus, only the Courts with appellate jurisdictions have the statutory power to quash a conviction. It follows, therefore, that a pardon is not a substitute for judicial reversal of the Appellant’s conviction. It is an act of forgiveness and nothing more. Consequently, we hold that the Appellant’sCriminal Appeal No.SC.CR. 007/2015 filed on the 27th August, 2015, against his conviction, is properly filed before this court and, accordingly, it should proceed to hearing on the merits.