Kemi Adeosun, NYSC, And The Search For Justice -By Jiti Ogunye

On July 7, 2018 Premium Times newspaper, in a major investigative report, published that the erstwhile Nigerian minister of finance, Mrs. Kemi Adeosun, failed to participate in the mandatory one year scheme of the National Youth Service Corps (NYSC). The report also stated that she forged and used a forged NYSC’s service exemption certificate in her documentation to secure her political appointments, as commissioner for finance, Ogun State, 2011-2015, and as the Nigerian minister of finance in 2015. The NYSC Exemption Certificate is normally issued to a category of persons, including those who, at graduation, are over thirty years, the statutory age above which tertiary academic institutions graduates could no longer participate in the youth service scheme, and above which they would thus be eligible to be exempted from enlistment in the scheme.

Following that story and the sustained and intensive “stay on the story” reports that followed, the NYSC was forced to conduct an investigation into the Exemption Certificate forgery allegation. The investigation established that the certificate did not emanate from the NYSC; meaning that it was forged. Eventually, Kemi Adeosun was compelled on September 14, 2018 to resign her position as minister of finance in the Executive Council of the (Nigerian) federation, after holding out for sixty-nine days. The day after, on September 15, 2018 she hurried out of Nigeria to the United Kingdom.

In the course of the sixty-nine days between when the story was published and when Mrs. Adeosun eventually resigned, many Nigerians called for her resignation, or removal from office, if she would not voluntarily resign. After her resignation, many have continued to call for her investigation and prosecution for a number of criminal offences allegedly committed, including forgery, perjury, and possession of fake document, uttering, and giving false information. After all, they affirm, there should be equality of all before the law in adherence to the dictates of the rule of law.

Kemi Adeosun, former Nigeria’s Minister of Finance who forged her documents and was forced to relinquish her position as minister

In this unsolicited legal opinion, we wish to briefly treat a number of interrelated issues on the Kemi Adeosun’s national youth service scheme debacle. These issues are: whether, having regards to the circumstances of Mrs. Kemi Adeosun’s birth and education in the United Kingdom and her nationality thereof, and her return to Nigeria, for permanent residency in 2002, at the age of thirty-five (35) years, she was eligible, as a Nigerian citizen, for the NYSC “draft”, call-up or mobilisation. If the provisions of the NYSC Act were applicable to her, when she graduated from the United Kingdom, or at any other time thereafter; whether her non-participation in the national youth service scheme and her alleged procurement and use of a fake exemption certificate constituted criminal acts, punishable under the law; whether in the interest of justice and in vindication of the rule of law, her criminal prosecution is warranted or desirable. If her prosecution is warranted, how her potential prosecution and the adjudication of the charge that may be preferred against her should be conducted; and finally, having regards to the facts of the entire exemption certificate forgery, possession and use saga, and upon a calm and sober consideration of the circumstances of her conduct, there are extenuating or exculpatory grounds for a presidential pardon or exercise of the prerogative of mercy powers in her favour to obliterate the taint of conviction, were she to be successfully prosecuted and convicted of the offences with which she may be charged.

Our purpose for treating these issues is to use the Kemi Adeosun’s story to teach the Nigerian state a lesson on how it can ensure that all and sundry, without exception, are subject to and governed by the rule of law: the powerful and powerless, the high and low, the rich and the poor, the government and the governed, the political class and the ordinary citizens.

So, let us now treat the issues, one after the other.

Our first issue is whether, having regards to the circumstances of Mrs. Kemi Adeosun’s birth and education in the United Kingdom and her British nationality, and her return to Nigeria, for permanent residency in 2002, at the age of thirty-five (35) years, the provisions of the NYSC Act, Cap N84, Volume 11, Laws of the Federation of Nigeria, 2004, were applicable to her, to make her eligible for the NYSC “draft”, call-up or mobilisation.

By virtue of the provision of Section 2 (1) (b) of the NYSC Act, every Nigerian who graduated at any university, outside Nigeria, starting from the 1975-76 academic year, who is not over thirty years of age, must participate in the National Youth Service Scheme, except such a Nigerian is exempted from the youth service scheme, as provided by Section 17 of the Act. It is, thus, clear that if Kemi Adeosun was a Nigerian citizen, when she graduated from the university in the United Kingdom in 1989, she was under a legal duty to participate in the national youth service scheme.

Mrs. Kemi Adeosun (maiden name, Folakemi Oguntomoju) was born on March 9, 1967 outside Nigeria, in the United Kingdom, to parents, who were Nigerian citizens. She was, therefore, a Nigerian citizen by birth, as defined by the Nigerian Constitution, (see Section 12 of the Constitution of the Federation of Nigeria, 1963, as amended by the Constitution {Suspension and Modification} Decree No. 1 of 1966). The Section provided that “a person born outside Nigeria after the thirtieth day of September 1960, shall become a citizen of Nigeria at the date of his birth if at that date his father is a citizen of Nigeria otherwise than by virtue of this section or subsection (2) of Section 7 of this Constitution.”

The 1963 Republican Constitution and its amendments and modifications by military decrees were superseded by the (Presidential) Constitution of the Federal Republic of Nigeria, 1979, and its amendments and modifications, which established the legal order in Nigeria in 1989, when Kemi Adeosun graduated from the University.

According to her published biographical sketch and academic records, Kemi Adeosun graduated from the University of East London in 1989 at the age of 22 years. According to her statement in her resignation letter as minister of finance, before obtaining her first Nigerian Passport at the age of thirty-four years (presumably in 2001 or 2002), although she visited Nigeria on holidays, she did so vide visas obtained on her British Passport.

At the time of her graduation in 1989, dual citizenship was not allowed under Nigerian law. Thus, Kemi Adeosun, who was a Nigerian citizen at birth, was no longer a Nigerian citizen at the time of her graduation in 1989. Within twelve months of attaining the age of twenty-one years (that is before clocking twenty-two years), she ought to have renounced her British citizenship, if she did not want her Nigerian citizenship forfeited by operation of law. She did not. The law in Nigeria on dual citizenship was, as stated in Section 26 of the then prevailing and applicable grund norm: the Constitution of the Federal Republic of Nigeria, 1979, as amended by the Constitution (Suspension and Modifications) Decree, No. 1 of 1984. That Decree preserved and did not abolish Section 26(1) of the 1979 Constitution. That Section of the then operating Constitution provided thus: “subject to the other provisions of this section, a person shall forfeit forthwith his Nigerian Citizenship if he acquires or retains the citizenship or nationality of a country other than Nigeria.”

Section 26 (3) of the 1979 Constitution (as amended and preserved by the said Decree No. 1 of 1984) went on to provide that “a citizen of Nigeria by birth shall not forfeit his citizenship if, within twelve months of the coming into force of the provisions of this Chapter or of his attaining the age of twenty one years (whichever is the later) he renounces the citizenship or nationality of any other country which he may possess.”

Dual citizenship was also prohibited under the 1963 Constitution. Section 13 thereof stated that “any person, who upon his attainment of the age of twenty-one years, was a citizen of Nigeria and also a citizen of some country other than Nigeria shall cease to be a citizen of Nigeria upon his attainment of the age of twenty-two years (or in the case of a person of unsound mind, at such later date as may be prescribed by Parliament) unless he has renounced his citizenship of that other country, taken the oath of allegiance and, in the case of a person who is a citizen of Nigeria by virtue of subsection (2) of section 7 of this Constitution, has made such declaration of his intentions concerning residence or employment as may be prescribed by Parliament.”

There is no evidence to suggest or establish that within twelve months of the coming into force of the 1979 Constitution, on October 1st 1979; or upon Kemi Adeosun’s attainment of the age of twenty one (21) years in 1988, she renounced her British citizenship in order to preserve her Nigerian citizenship. As a matter of fact, by her said statement in her resignation letter, wherein she stated that until she obtained her first Nigerian Passport at the age of thirty-four years, she was using her British Passport to travel to and holiday in Nigeria, it is evident that she did not renounce her British citizenship when she attained twenty-one years of age, as demanded of her by the defunct 1979 Constitution of Nigeria. Thus, by operation of law, the Nigerian citizenship which Kemi Adeosun acquired by birth, by the dictates of the defunct Nigerian Constitution, 1963, was “forfeited” in 1989, when she attained the age of twenty-two years. The clear legal implication of this is that Kemi Adeosun was not a Nigerian Citizen when she graduated from the University of East London in 1989. The provisions of the NYSC Act were not applicable to her to make her eligible or compellable to participate in the national youth service scheme. At graduation, she was 22 years old.

However, in 1992, the law on forfeiture of citizenship changed before Mrs. Kemi Adeosun attained the age of 30 years, an age above which she would no longer be qualified to participate in the national youth service scheme, and for which reason she could rightly and legally be exempted from service on the ground of age, under Section 17 of the NYSC Act.

In 1986, the General Ibrahim Babangida military regime tinkered with Section 26 of the 1979 Constitution, as amended, by inserting therein the procedure by which a Nigerian Citizen could forfeit his citizenship. The tinkering was effected through Decree No. 26 of 1986. By that Decree, a new Section 26A was added to Section 26 of the 1979 Constitution, thereby amending that Section 26. The new Section 26A provided as follows:

“26A (1) Any citizen of Nigeria of full age who wishes to renounce his Nigerian Citizenship shall make a declaration in the prescribed manner for the renunciation; and the Armed Forces Ruling Council (AFRC) may cause the declaration to be registered, and upon such registration, that person shall cease to be a citizen of Nigeria;

26A (2) The Armed Forces Ruling Council may withhold registration of any declaration made under subsection (1) of this Section if it is made during any war in which Nigeria may be engaged or if in its opinion it is otherwise contrary to public policy.”

Curiously, the still birth Constitution of the Federal Republic of Nigeria, 1989, which was scheduled to commence on October 1st 1992, but which never did owing to the wilful abortion of the transition to civil rule programme of the Babangida military regime, regurgitated the provision of Section 26 of the 1979 Constitution, ipsissima verba. The provision of Section 26A was not reflected in that “1989 Constitution”

However, in 1992, the General Ibrahim Babangida Regime and his AFRC further tinkered with Section 26 of the 1979 Constitution, as amended. By the Constitution (Suspension and Modifications) (Amendment No. 3) Decree No 73 of 1992, which commenced on 10th October, 1992, Section 26 (1) of the 1979 Constitution was, by Section 1 of the Decree, deleted and substituted with a new Section 26 (1) of the 1979 Constitution, thus: “A citizen of Nigeria shall forfeit his citizenship only, if; being a citizen of Nigeria otherwise than by birth, he acquires the citizenship of another country”. Further, Section 26 (3) of the 1979 Constitution (as amended) which provided a timeframe to renounce a competing citizenship in order to save and preserve a Nigerian Citizenship (acquired by birth) was repealed or deleted altogether.

That Decree No.73 of 1992, therefore, established and recognised dual nationality under the Nigerian Constitution. Under the new amendment to Section 26 of the 1979 Constitution, a Nigerian citizen by birth was no longer compelled by the force of law to forfeit his citizenship on account only of having acquired or acquiring the citizenship of another country. Only Nigerian citizens, otherwise than by birth (naturalisation and registration) would thenceforth be so compelled.

From the forgoing statutory analysis, it becomes indubitably clear that although Kemi Adeosun lost or forfeited her Nigerian citizenship upon attaining the age of 22 years in 1989, in favour of her British Citizenship because of the “unconstitutionality of retaining the citizenship of the United Kingdom in combination with that of Nigeria”, her forfeited Nigerian Citizenship became restored in 1992, when she was 25 years old. At that age, by law, she was obligated to participate in the national youth service scheme under the NYSC Act, her age not being over thirty years.

Of course, it may be argued and seriously and plausibly contended that having forfeited her Nigerian Citizenship when she was twenty-two years of age in 1989 (the year of her graduation), Kemi Adeosun never truly regained or regularised her Nigerian citizenship until she obtained her first Nigerian Passport at the age of thirty-four years. Between the age of 22, when her Nigerian citizenship was forfeited and when she obtained her first Nigerian Passport, she did not take any practical or legal step to resuscitate, revive or recover her lost Nigerian citizenship. During that period, according to her, she was visiting Nigeria as a British citizen. Although citizenship is determined by law and not by the holding of a Nigerian Passport, the forfeiture of her Nigerian Citizenship at age 22, the fact that she did not obtain a Nigerian Passport until she was 34 years old, the fact that she was visiting Nigeria as a British Citizen (with her British Passport) until she attained that age, and the very arguable proposition of law that the 1992 amendment of Section 26 of the 1979 Constitution, recognising dual citizenship in Nigeria had no retroactive effect, all could combine to support the contention that the Nigerian Citizenship that Kemi Adeosun lost when she was twenty two years old was only regularised at 34, when she was over the 30 year statutory age of qualification for exemption, on age ground, from the national youth service scheme.

When the Babangida military regime was succeeded by the Sanni Abacha regime, it preserved the modifications made to Section 26 by Decree No. 26 of 1986 and Decree No. 73 of 1992 in the Second Schedule of its Constitution (Suspension and Modifications) Decree No. 107 of 1993. Thus, the law remained the same until the advent of the 1999 Constitution, which essentially incorporated the amendments to Section 26 of the defunct 1979 Constitution, and in Section 28 (of the 1999 Constitution) preserves dual citizenship, and in Section 29 provides for renunciation of citizenship.

In summary, Kemi Adeosun lost or forfeited her citizenship between the age of twenty-two in 1989 and the age of twenty five in 1992. She was, therefore, at the time that was material to the determination of the question of whether she wilfully failed to report for service or refused to make herself available for service (an offence under Section 13 (1) of the NYSC Act attracting, upon conviction, a penalty of a fine of two thousand naira (N2,000.00) or a term of imprisonment for twelve months, or both such fine and imprisonment) not qualified to participate in the NYSC scheme. That situation arguably changed three years thereafter in 1992, when by force of law, she became qualified to participate in the NYSC Scheme.

We now move to the issue of whether the non-participation of Mrs. Kemi Adeosun in the NYSC Scheme from the period when her Nigerian citizenship was restored at age twenty-five in 1992 to when she attained thirty years of age in 1997 was a criminal act, punishable under the NYSC Act; the issue of whether her alleged procurement and use of a fake exemption certificate constituted criminal acts, punishable under the law; and whether her prosecution for the alleged acts is warranted.

If it is accepted that Mrs. Kemi Adeosun was a Nigerian citizen from age twenty-five to age thirty, there is no question that she ought to have made herself available for enlistment in the National Youth Service Corps programme. Her failure to do so is an offence under Section 13 (1) of the NYSC Act, an offence for which she may be prosecuted. However, if one took the view that the Nigerian Citizenship that Kemi Adeosun lost at age 22 years was not restored until she obtained a Nigerian Passport at the age of 34 years, then the logical position to take would be that Kemi Adeosun was never eligible to participate in the national youth service scheme at the material time.

Section 13 (1) provides that “any person-(a) who fails to report for service in the service corps in the manner directed by the Directorate or as the case may be, prescribed pursuant to the provisions of this Act; or ( b) who refuses to make himself available for service in the service corps continuously for the period specified in subsection (2) of this section is guilty of an offence and liable on conviction to a fine of #2,000 or to imprisonment for a term of twelve months or to both such fine and imprisonment.”

In her resignation letter, Mrs. Kemi Adeosun admitted that she did not make herself available for the national youth service; and that after her return to Nigeria, but before her first political appointment as the Ogun State commissioner for finance, she procured an NYSC Exemption Certificate, through some associates and proxies, a certificate which she presented for vetting and security clearance by the State Security Service (SSS). That certificate was also part of the documentation she submitted for scrutiny, vetting, security clearance and confirmation screening and hearing by the Ogun State House of Assembly and the Senate, leading respectively to her appointment as Ogun State commissioner of finance, and thereafter as minister of finance. Given the fact that the NYSC denied that it issued the certificate, there is no doubt any longer that the certificate was forged.

However, there is doubt about who actually forged the exemption certificate. Was it forged by Kemi Adeosun or by somebody else with whom she conspired? Or was she a victim of forgery, the forged document having been represented to her to be an original exemption certificate by some NYSC scoundrels? Whatever the truth is, in the absence of evidence or proof, it cannot be assumed or inferred that she actually forged the exemption certificate or that she conspired in the forgery.

What is not in doubt, however, is that she used the forged exemption certificate, it was in her possession, and she arguably committed the offence of perjury by making written and oral sworn declarations that were false. She was not truly exempted from the national youth service scheme. She could not have been exempted. Yet her sworn to documentation submitted to the Ogun State House of Assembly and the Senate of the Federal Republic of Nigeria stated that she was exempted from the youth service scheme.

Section 13 (4) of the NYSC Act provides as follows:

“Any person who –
(a) in giving any information for the purposes of this Act knowingly or recklessly makes a statement which is false; or (b) forges or uses or lends to or allows to be used other than in the manner provided by this Act by any other person any certificate issued pursuant to the provisions of this Act; or (c) makes or has in his possession any document so closely resembling any certificate so issued as to be calculated to deceive, is guilty of an offence and liable on conviction to a fine of #5,000.00 (five thousand naira) or to imprisonment for a term of three (3) years or to both such fine and imprisonment.”

Evidently, Kemi Adeosun, by making a false representation that she obtained an NYSC service exemption certificate, and by having in her possession a document so closely resembling a service exemption certificate as to be calculated to deceive, did commit offences defined by and punishable under the NYSC Act. If the rule of law were to prevail, she ought to be prosecuted for committing these offences. During her prosecution and trial, she may plead that the alleged offences lacked the mens rea element, mounting a defence she did not knowingly or recklessly make the false statement that she legitimately and lawfully obtained the said exemption certificate, or that same was calculated to deceive and make a false representation that she was duly exempted from the youth service scheme. This line of defence may be available to her, but we humbly opine that based on the facts and circumstances of this matter, she ought to be prosecuted and tried for these offences. In the interest of justice and in vindication of the rule of law, her criminal prosecution is warranted and desirable.

We now move to consider our penultimate formulated issue: If Kemi Adeosun’s prosecution is warranted, how should her potential prosecution and the adjudication of the charge that may be preferred against her be conducted?

It is our considered view that any charge or offence that may be preferred against Mrs. Adeosun may only and rightly be restrictively charged for her alleged violation of the provision of Section 13(4) of the NYSC Act. There have been suggestions that she could be charged under the Criminal Code (the applicable principal but general penal legislation in Ogun State where the first part of the alleged offences were committed or the Penal Code (the applicable principal but general penal legislation in Abuja, Federal Capital Territory where the latter part of the alleged offences were committed).

Under Section 364 of the Penal Code, whoever commits forgery shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with imprisonment or both. Under Section 365, if the forged document has affixed to it a seal of the president or the public seal of any government in the Federation of Nigeria or the seal of the governor or any public seal lawfully appointed to be used for authenticating an act of state in any part of the federation, the punishment shall be imprisonment for life or for any less term and shall also include a fine. Under Section 366 (using as genuine a forged document), whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document; and under Section 368, whoever has in his possession a forged document knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to a fine.

Also, under the Penal Code, giving false evidence under section 158 (2), using evidence known to be false under Section 161, issuing or signing false evidence under section 162, using as true any certificate known to be false under Section 163, or making a false statement in a declaration which is by law receivable as evidence under Section 164, attracts each a term of imprisonment up to seven (7) years and also a fine.

Like the Penal Code, the Criminal Code provides for offences which relate to or govern the criminal offences allegedly committed by Mrs. Adeosun, including making false statements in statements required to be under oath or solemn declarations punishable, upon conviction, with a term of imprisonment of seven years, under Section 191; making false declarations and statements punishable, upon conviction, with a term of imprisonment of three years, under Section 192; forgery punishable, upon conviction, with a term of imprisonment of three years under Section 467; and uttering false documents and counterfeit seals, punishable, upon conviction, with a term of imprisonment of three years, under Section 468.

While it is conceded that a prosecution notionally may have the power, and indeed the discretion, to prefer a charge against a criminal suspect under more than one relevant or governing penal legislation, or as an option prefer a charge under one out of two or more governing penal laws, we totally reject the suggestion that Kemi Adeosun could or should be charged with offences under the Penal Code or Criminal Code.

In our view, Section 13 of the NYSC Act has comprehensively defined the criminal conduct being alleged against Mrs. Adeosun, and prescribed the punishment for the alleged criminal conduct. It is the law that when there are two provisions (legislations) governing a subject or question to be determined, the general and the specific, the specific provision or legislation is the applicable law for the purpose of determining the subject or question. We refer, in this connection, to the decision of our higher courts in NDIC v. Sheriff (2004) 1NWLR (Pt. 855), 563, CA, Pp 592, paras.A-D; Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635, Pp 657, paras.B-C; and Bamgboye v Administrator-General (1954) 14 WACA, 616. A prosecution, acting in good faith cannot abandon the offences and penalties relating to the forgery, use and false statements that may be made in respect of an exemption certificate under Section 13 of the NYSC Act, and go for the offences created and punished by the Penal Code or Criminal Code, general penal legislations. The fact that Section 13 (4) of the NYSC Act stipulates lighter punishments of a three (3) year imprisonment term and/or a fine of five thousand naira (#5,000.00) compared to the punishments of a term of imprisonment of up to seven (7) years or fourteen (14) years and/or an indeterminate fine; and therefore the prospect that she may likely be sanctioned with stiffer penalties were she to be charged under the criminal or penal code, should not be a prosecutorial reason to charge her under the Penal Code or Criminal Code. No Prosecution Guidelines mandating a preferment of a charge that attracts the highest penalty for the alleged criminal conduct should be relied upon to charge her under our general penal laws, just to achieve the mischief of making her to receive a harsher punishment.

If Kemi Adeosun is charged to court as we have suggested, apart from the defence she may put up to ensure that she is discharged and acquitted, her defence lawyers and prosecution may work together and take advantage in a plea bargain arrangement under Section 270 of the Administration of Criminal Justice Act (ACJA), 2015 to ensure that she secures the most lenient conviction and sentence possible under the criminal law. ACJA gives the judex adjudicating a criminal charge a wide latitude of discretion to deliver justice, including imposing fines or a non-custodial punishment in lieu of a custodial punishment that is prescribed by law as the court may deem fit, especially if the prosecution agrees with such exercise of discretionary judicial power. This is the innovation that is brought about by the ACJA, with which many people or lawyers are not yet familiar.

This innovation includes a one day detention order in lieu of imprisonment, order of probation, and suspended sentence.
Section 417 (1) of the ACJA provides that “where the court has power to pass a sentence of imprisonment, it may, in lieu of passing sentence of imprisonment, order the convict to be detained within the precincts of the court or at a police station till such hour not later than eight in the evening on the day on which he is convicted, as the court may direct.

Section 454 (1 & 2) of the ACJA provides that (1) “where a defendant is charged before a court with an offence punishable by law and the court thinks that the charge is proved but is of the opinion that having regard to: (a) the character, antecedents, age, health, or mental condition of the defendant charged, (b) the trivial nature of the offence, or (c) the extenuating circumstances under which the offence was committed, it is inexpedient to inflict a punishment or any order than a nominal punishment or that it is expedient to release the defendant on probation, the court may, without proceeding to conviction, make an order specified in subsection (2) of this section; and
“(2)The court may make an order under subsection (1) of this section: (a) dismissing the charge; or (b) discharging the defendant conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear at any time during such period not exceeding 3 years as may be specified in the order.”

And Section 460 (1–4) of the ACJA provides as follows:

(1) “Notwithstanding the provision of any other law creating an offence, where the court sees reason, the court may order that the sentence it imposed on the convict be, with or without conditions, suspended, in which case, the convict shall not be required to serve the sentence in accordance with the conditions of the suspension.

(2) The court may, with or without conditions, sentence the convict to perform specified service in his community or such community or place as the court may direct.

(3) A convict shall not be sentenced to suspended sentence or to community service for an offence involving the use of arms, offensive weapon, sexual offences or for an offence which the punishment exceeds imprisonment for a term of 3 years.

(4) The court, in exercising its power under subsection (1) or (2) of this section shall have regard to the need to:
(a) reduce congestion in prisons;
(b) rehabilitate prisoners by making them to undertake productive work; and
(c) prevent convicts who commit simple offences from mixing with hardened criminals.”

From the wording of the above cited provisions of the ACJA, if Kemi Adeosun is charged with the alleged offences and prosecuted, she is not likely to rot in jail as many may think or wish. She may be discharged and acquitted. She may be convicted and detained for a day in lieu of a sentence of imprisonment. She may be given a nominal punishment or put on probation. Or she may be given a suspended sentence, without being sent to prison at all. Since the alleged offences she committed, contrary to and punishable under Section 13(4) of the NYSC Act, attracts no more than three (3) years imprisonment or a fine of five thousand naira (#5,000.00), a trial judge is empowered and permitted under Section 460 (3) of the ACJA to give her a suspended sentence.

Finally, on our last formulated issue: whether having regards to the facts of the entire exemption certificate forgery, possession and use saga, and upon a calm and sober consideration of the circumstances of Kemi Adeosun’s alleged conduct, there are extenuating or exculpatory grounds for a presidential pardon or exercise of the prerogative of mercy powers in her favour to obliterate the taint of conviction, were she to be successfully prosecuted and convicted of the offences with which she may be charged.

We have no hesitation is resolving our last issue in the affirmative. If Kemi Adeosun is prosecuted and convicted, there are good grounds for the president to grant her a presidential pardon under the prerogative of mercy powers vested in the president by Section 175 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The allegation against Mrs. Adeosun is not related to economic and financial crimes. Therefore, we believe that in the event that she is successfully prosecuted for the offences that may be alleged against her, she deserves full presidential pardon in the circumstances.

It is of great concern that the Nigerian ruling class gives no serious consideration to the need to creatively (even if uncomfortably) apply or enforce the law so as to prevent the destruction of the myth of equality of all before the law, a cardinal component of the rule of law. Instead of promptly acting to bring a man or woman of power who allegedly has broken a law to a decent, fair and even a lenient justice in order to, among other ends, sustain the faith of the ordinary people in the equal application of the law to all and sundry, it mischievously or incompetently engages in hands-wringing, hoping and trusting that the bleach of time will efface the criminal allegation from public reckoning and memory. By doing so, it brings the concept of the rule of law into ridicule. The law is not so harsh as to demand the severing of the head of a criminal defendant who may be brought to justice; nor is it so supine that it lacks the capacity to punish an offender. It can give a mild stroke of rebuke and disapproval, and refuse, for good reason, to crush in severe desert.

The Nigerian justice administration system must be principled, courageous and adroit in bringing alleged offenders to justice, giving them the confidence and assurances that if they take responsibility for their actions, there are benefits in the criminal justice system that can rebuke them without destroying them.

Jiti Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the Legal adviser of Premium Times.