Maryam Sanda: The Supreme Court Did Not, and Cannot, “Override” President Tinubu: A constitutional clarification on the prerogative of mercy

By Sylvester Udemezue

The headline published by The Nation reads: “BREAKING NEWS: Supreme Court overrides FG’s pardon for Maryam Sanda, affirms death sentence.” With due respect, this headline is misleading, legally inaccurate, and constitutionally unsustainable. It mischaracterises both the Supreme Court’s role and the scope of the President’s Prerogative of Mercy under section 175 of the Constitution of the Federal Republic of Nigeria, 1999.

THE SUPREME COURT DID NOT, COULD NOT OVERRIDE THE PRESIDENT IN THE CIRCUMSTANCES

The Supreme Court merely performed its judicial duty: it determined the appeal before it and affirmed the conviction and sentence passed by the lower courts. Nothing in the judgment revoked, voided, negated or restricted the powers of the President under section 175 of the Constitution. A court cannot (and did not) strip the President of the Prerogative of Mercy. That prerogative remains plenary, exclusive, and constitutionally entrenched. To suggest that the court “overrode” the President is therefore a misunderstanding of law and a distortion of constitutional boundaries.

WHAT THE SUPREME COURT ACTUALLY SAID, DID

While affirming the death sentence, the Supreme Court (per Adumein JSC) observed that “It was wrong for the executive to seek to exercise its power of pardon over a case of culpable homicide, in respect of which an appeal was pending.” However, with profound respect to my learned Lord, this statement does not accurately capture the extensive scope of presidential mercy under section 175. The Prerogative of Mercy is not limited by the judicial calendar. It is not suspended by the pendency of an appeal. It is not held in abeyance until the courts have finished their work. The President’s power exists independently, co-equally, and at all times, subject only to the Constitution.

SECTION 175 CFRN: A POWER THE SUPREME COURT CANNOT CURTAIL

Section 175(1) of the Constitution enables the President to:

1. Grant any person concerned with or convicted of an offence a pardon,
2. Substitute a less severe form of punishment, or
3. Remit the whole or part of a sentence.

These powers may be exercised (a). Before conviction; (b). After conviction; (c). During appeal; (d). After appeal; (e). Even after affirmation by the Supreme Court. Unlike section 174 (Nolle Prosequi), which cannot be invoked after judgment, section 175 is not time-bound. The Prerogative of Mercy is a sovereign executive power, not subject to judicial veto. Courts interpret laws; the President dispenses mercy. The two spheres do not collide: they complement each other within constitutional design.

EVEN TODAY, PRESIDENT TINUBU MAY STILL NEUTRALISE THE DEATH SENTENCE

Despite the Supreme Court’s judgment affirming the death sentence, President Tinubu still retains unrestricted authority by virtue of Section 175 of the Constitution to (a) grant absolute pardon to Maryam Sanda, setting her entirely free; (b). commute her death sentence to life imprisonment; or (c). reduce the sentence to any lesser term he considers appropriate. This would not “invalidate” the Supreme Court judgment: it would merely neutralise its penal consequences, exactly as the Constitution permits. Mercy does not erase guilt; it only extinguishes punishment. The judiciary pronounces judgment. The executive may temper its effect. That balance is foundational to constitutional democracy.

THIS DEBATE IS NOT ABOUT WHETHER MARYAM SANDA SHOULD BE PARDONED

The moral or policy question of whether she deserves clemency is not my concern here. The present discourse is strictly about constitutional competency. And on that question, the answer is clear: Yes: President Bola Ahmed Tinubu has the constitutional power to “override” the effect of the Supreme Court’s judgment through the Prerogative of Mercy. To say otherwise is to misunderstand the Constitution and mislead the public.

CONCLUSION

The Supreme Court did not override the President. It could not, and it did not attempt to. It simply affirmed a judicial decision. The President’s Prerogative of Mercy stands untouched, fully operative, and constitutionally supreme within its domain. Therefore, the headline proclaiming that the Supreme Court has “overridden” the President is inaccurate and should be corrected for the sake of public enlightenment.

Respectfully,
Sylvester Udemezue (Udems),
Lawyer, Law Teacher and Public-interest Advocate.
08021365545.
[email protected], [email protected].
(12 December 2025)

The views expressed by contributors are strictly personal and not of Law & Society Magazine.