The National Council of State and the Constitutional Finality of Presidential Mercy: A Rebuttal to the Attorney-General’s Overreach
By Charles Ude, Esq.
Legal Practitioner, author and Scholar of Constitutional Law
Email: charlesude2014@gmail.com
This paper interrogates the constitutional architecture of the National Council of State (NCS) and the inviolability of the Prerogative of Mercy vested in the President under Section 175 of the 1999 Constitution (as amended). It refutes the legality and propriety of any attempt by the Attorney-General of the Federation (AGF) to “review” or overturn a presidential pardon duly granted after consultation with the NCS. The paper argues that such an attempt would be an unconstitutional excess, a breach of the doctrine of separation of powers, and an affront to the rule of law. It concludes that the AGF, who is constitutionally responsible for vetting and preparing such instruments, must be held squarely accountable for their content and consequences. The recent advisories emanating from his office, including in the ongoing case of Mazi Nnamdi Kanu, raise serious questions about the quality, consistency, and constitutional fidelity of the Attorney-General’s counsel to the Federal Government.
I. The Constitutional Personality and Advisory Function of the National Council of State
The National Council of State (NCS) is one of the few constitutional institutions designed to temper presidential discretion with collective wisdom. Established under Part I, Paragraph 5 of the Third Schedule to the 1999 Constitution, it operates as a consultative body rather than an executive organ. Its remit covers the most sensitive and symbolically weighty exercises of presidential power, including the conduct of population censuses, the award of national honours, and the grant of the Prerogative of Mercy.
Comprising the President, all former Heads of State and Presidents, all former Chief Justices of Nigeria, the President of the Senate, the Speaker of the House of Representatives, and all sitting State Governors, the NCS embodies the institutional memory and moral compass of the Republic. Its advice, though not binding, is constitutionally required in matters where the framers intended the President’s discretion to be moderated by collective deliberation.
II. The Attorney-General’s Role and Constitutional Boundaries
The Attorney-General of the Federation, under Section 150(1) of the Constitution, is the Chief Law Officer of the Federation. His powers under Section 174 concern criminal prosecutions , the initiation, takeover, or discontinuance of proceedings , but do not extend to the revocation or reinterpretation of presidential prerogatives. Within the NCS, the AGF serves only as a member under Paragraph 5(1)(h) of the Third Schedule; he possesses neither veto authority nor review competence over the Council’s advice or the President’s subsequent decisions.
Crucially, as the government’s principal legal adviser and the officer responsible for vetting and preparing the instruments by which such pardons are formalized, the Attorney-General cannot feign detachment or ignorance. Where controversy arises over the propriety or process of a presidential pardon, the AGF must be held squarely accountable for the advice tendered and the legal sufficiency of the documentation executed.
If the Attorney-General now seeks to question or review the very act for which his office was the constitutional conduit, such conduct would be both contradictory and constitutionally untenable. It would amount to the AGF sitting in appellate judgment over his own legal handiwork , a grave violation of administrative propriety and the maxim nemo judex in causa sua (no one should be a judge in his own cause).
III. The Prerogative of Mercy as a Sovereign and Final Executive Power
The Prerogative of Mercy is one of the most solemn attributes of sovereignty. Under Section 175(1)–(3) of the Constitution, the President may grant a pardon, respite, substitution, or remission of punishment to any person convicted of a federal offence, provided that he has consulted the NCS. Once such consultation has occurred and the President has exercised the power, the act is final, complete, and irrevocable.
A valid pardon is not a temporary administrative indulgence but a definitive constitutional act that obliterates the legal consequences of guilt. As affirmed in Federal Republic of Nigeria v. Achida & Anor. (2018) LPELR-46065(CA), the effect of a pardon is to “wipe away the offence and its penalty, restoring the offender to the status of innocence.” In other words, the President’s mercy, once lawfully conferred, is beyond recall or review by any subordinate authority — including the Attorney-General.
IV. Rule of Law, Estoppel, and Institutional Stability
The rule of law demands that government actions be consistent, predictable, and legally final once perfected. The beneficiaries of a presidential pardon rely upon it in the same way citizens rely on the certainty of law. To revoke such a pardon would violate the doctrine of constitutional estoppel , the principle that the State cannot resile from its own solemn commitments.
Moreover, to empower the Attorney-General to reverse or review the President’s act of mercy would subvert the constitutional order and breach the separation of powers. The Prerogative of Mercy, like the assent to a bill or the declaration of war, is an act of the sovereign executive authority ,one that is insulated from bureaucratic caprice or ministerial revisionism.
If every presidential decision could be undone by the Attorney-General’s whim, Nigeria would descend into constitutional anarchy ,a Republic perpetually undoing itself.
V. The Question of Accountability: The Attorney-General’s Office Under Scrutiny
Given his central role in the preparation and authentication of presidential pardons, the Attorney-General must bear institutional responsibility for any alleged irregularities in the process. It would be an act of political dissimulation to scapegoat the President for actions emanating from the legal advice and documentation provided by his principal adviser.
Indeed, this controversy should invite a broader scrutiny of the Attorney-General’s recent advisory conduct. The government’s handling of the ongoing prosecution of Mazi Nnamdi Kanu provides a pertinent case study. The vacillation, inconsistency, and legal overreach that have marked that matter illustrate the dangers of politically inflected legal advice masquerading as constitutional interpretation.
When the Attorney-General’s counsel oscillates between law and expediency, the credibility of the entire justice system suffers. His duty is not to please political masters, but to preserve constitutional integrity. Where he fails, accountability must follow.
VI. Political and Institutional Dangers of Revisionism
The proposal to review presidential pardons is not merely constitutionally defective; it is politically reckless. It would establish a precedent of executive instability, whereby each new administration seeks to invalidate the lawful acts of its predecessors. The result would be a perpetual institutional regression ,a Republic in constant constitutional relapse.
To undermine a pardon granted after consultation with the National Council of State is to repudiate not only the President’s discretion but the collective wisdom of an elite constitutional forum composed of Nigeria’s past and present leadership. Such revisionism would desecrate the sanctity of the state’s highest deliberative council and open a Pandora’s box of political vengeance and legal uncertainty.
VII. Conclusion
The Attorney-General of the Federation has no constitutional power to review, nullify, or reverse a presidential pardon granted in accordance with Section 175 of the Constitution. His role is advisory and administrative , not supervisory or appellate. Any attempt to reinterpret or rescind a duly granted pardon is ultra vires, unconstitutional, and destructive of the rule of law.
Moreover, as the legal custodian responsible for preparing and vetting such instruments, the Attorney-General bears ultimate accountability for their content and validity. His recent advisory patterns, including those relating to Mazi Nnamdi Kanu, warrant urgent institutional scrutiny.
To condone such overreach is to permit the law’s guardian to become its violator. The Prerogative of Mercy, once exercised, stands as a sovereign act of grace. What has been constitutionally pardoned cannot be administratively unpardoned. To suggest otherwise is to invite constitutional chaos , a form of institutional self-immolation that would erode the very foundations of Nigeria’s constitutional democracy.
Finally, Implicit in the comment credited to the Honourable Attorney General that “nobody has left the prison yet” is a self- indictment and swipe at the skewed Constitutional process that resulted in the monumental embarrassment we are confronted with. Nothing in recent times has portrayed us as a Banana Republic as much as this botched exercise of the prerogative of mercy. The president has about 6 Years more left of his tenure, what is the rush to free these people all about?
