The principle of double jeopardy versus the principle of condonation: revisiting the Supreme Court’s decision in Nigerian Army v Aminun Kano

Abstract

The Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees the rights of every person in Nigeria, including persons accused of the commission of any crime. These rights are classified as ‘fundamental rights’, and they include: the right not to be subjected to double trial for the same offence, popularly referred to as right against double jeopardy² and the right not to be tried for an offence for which one has been pardoned.³ These two rights formed the bedrock of the decision of the Supreme Court in Nigerian Army v Aminun Kano.⁴ This paper critically examines and reviews the decision and observed that had the Supreme Court considered the meaning of double jeopardy under the Constitution of the Federal Republic of Nigeria, on the one hand, and condonation and pardon on the other, the court would have discovered that these triumvirate concepts do not exactly mean the same thing and consequently may have varied legal outcomes when applied, and as such, the court may have provided a different reason for their judgment in the case. This paper finds that since the principle of the right against double jeopardy requires a judicial trial and a judgment to inure, while pardon and condonation is wholly administrative action, the principle of double jeopardy should never have been invoked in the case under review because there was no prior judicial decision that exculpated or incriminated the respondent. The paper recommends that in future, if the Supreme Court is faced with the same scenario, it should make a clear distinction between the principles of right against double jeopardy and pardon and condonation so as to clarify the jurisprudential perspectives of these principles.

Keywords: Judicial, Double Jeopardy, Condonation, Pardon, Court Martial, Fundamental Rights, Constitution