Both men were convicted under Sections 115, 119, 309 and 315 of the Penal Act, Cap. 532, Laws of the Federation of Nigeria, 1990. The offences were allegedly committed between November 2000 and May 2007 (i.e., after the 1999 Constitution came into effect) – when they were Governors of their respective States and the funds involved belonged those States.
At that time, the said Penal Code Act was ostensibly an existing law within the contemplation of Section 315 of the Constitution. This would, however, depend on the extent, if any, to which the subject matter of the Act was within the legislative competence of either the National or State Houses of Assembly as the case may be.
The provenance of the Act, however, shows indisputably; that it is a State – as opposed to a Federal – law. It’s subject matter (particularly the offences for which both men were convicted) puts this beyond peradventure. The National Assembly is incompetent to enact such provisions beyond the FCT – certainty not in Taraba or Plateau States were the offences allegedly occurred. This was enough to have invalidated the trials at the High Court of the FCT which convicted them because it robbed the court of the requisite jurisdiction.
In other words, the so-called Penal Code Act, took effect as a State Law under Section 315(1)(b) of the Constitution. To that extent, only the Plateau and Taraba State High Courts were competent to try them. By the same token, only the respective States’ Committees on the Prerogative of Mercy could have competently recommended their pardon or clemency to their respective Governors within the contemplation of Section 212 of the Constitution.
I believe that Section 175 of the Constitution was wrongly invoked by the President to pardon them because the offences in question were not Federal, but State, offences. The President can only pardon a person who is convicted of an offence against an Act of the National Assembly.
Notwithsranding its name, the Penal Code Act is not an Act of the National Assembly. Rather, it is an existing law which is deemed to have been passed by the Houses of Assembly of the 19 States of the old Northern Region – including Plateau and Taraba States where both men allegedly committed the offences in respect of which the President purported to pardon them.
Is it yet uhuru for them? Is it too soon for them to celebrate?. It remains to be seen.