Monday, November 29, 2021

Controversy Surrounding The Pardoning Of Prisoners


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In commemoration of the feast of Idul Adha commonly referred to as Tobaski, the President of the Republic pardoned seven prisoners.

The press release reads:

“The general public is hereby informed that His Excellency Mr. Adama Barrow), exercised his powers of prerogative of mercy and granted pardon to the following convicted prisoners.

Sulaiman Bah, Registration No. 102/17, Gambian

Alieu Njie, Registration No. 200/17, Senegalese

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Fallou Ceesay, Registration No. 265/14, Senegalese

Gibbrill Fall, Registration No. 233/15, Gambian

Matarr Touray, Rdgistration No. 35/156, Gambian

Matarr Sowe, Registration No. 06/18, Gambian

Svein Agesandakar, Registration No. 408/12, Norwegian


The question now arises: What is the root of the controversy surrounding the decision of the president? Section 82 of the Constitution gives the following powers to the President regarding the exercise of prerogative of mercy:

“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 specified 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 or any penalty otherwise due to the Republic on account of any offence.”

Hence section 82 empowers the President to give conditional or unconditional pardon to prisoners. To ensure accountability and transparency in exercising such a function an advisory committee is to be set up to serve as a consultative body. The composition of the committee is spelt out in subsection (2) of section 82 as follows:

“There shall be a Committee on the exercise of the prerogative of mercy consisting of the Attorney General and three other persons appointed by the President subject to confirmation by the National Assembly.”

This provision did not say whether all the members of the committee must be present before they could give advice to the President. Hence as far as Foroyaa is concerned the key question is: Does the committee exist? If so who are the members of the committee. If not, how has the President been exercising his prerogative of mercy since 19 January 2017 when he assumed office?

It is therefore important for the President to adhere to the principle of the rule of law in exercising his powers. Of course according to section 231 subsection (4) the President is not obliged to act according to the dictates of his advisers but is nonetheless required to consult committees engendered by constitutional provisions. It states:

“Where under any provision of this Constitution  any person or authority  is authorised  or required  to exercise  any function  after consultation  with any other person or authority,  the person or authority  first referred to shall not be required to act in accordance  with the advice of that person or authority.”

Foroyaa will conduct more investigation be reviewing the Gazettes to determine whether the pardons are conditional or not and further examine whether the committee on the prerogative of mercy exists.

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