THE POLICE PROSECUTION POWER AND THE POWER OF THE AG UNDER THE 1999 CONSTITUTION

THE POLICE PROSECUTION POWER AND THE POWER OF THE AG UNDER THE 1999 CONSTITUTION

CHAPTER ONE

INTRODUCTION

• BACKGROUND OF THE STUDY

Before the advent of the British and the introduction of colonial rule in the geographical areas presently known as Nigeria, both customary and Islamic criminal laws and practice were in use. The various communities and the ethnic nationalities thus ensured the protection of lives and properties, the maintenance of law and order and the observance of the ethical values of the society. There was also in existence the traditional and customary policing system[1] .The administration and dispensation of justice in general and that of criminal justice in particular plays an important role in governance irrespective of the system of government put in place, for if the society must remain in peace, individuals with criminal tendencies must be put under close checks and their activities monitored and checkmated. Also, if and when their activities therefore offend against the social norms and standards and the established law, criminal law must intervene to do justice to all and sundry involved the criminal deviant, the victim and the society at large[2] .

Therefore, to enhance this, the police is the very first institution that a criminal suspects comes in contact with[3] .  Whether or not the suspect will obtain justice depends on how the police go about its duty[4] .One area where the Nigerian Police has been bitterly criticized is the area of criminal justice. In Nigeria, we have a failing criminal justice system and the police, the courts and the prison institutions all have their various shares ofblame[5] .It is pertinent to mention that the creation of the Police Force has been given constitutional flavour in Nigeria. Hence, the Constitution of the Federal Republic of Nigeria, 1999 provides thus:

There shall be a Police Force for Nigeria which shall be styled the Nigerian Police Force and subject to the provision of this section; no other police force shall be established for the federation or any part thereof. The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law[6] .

Furthermore, one of such laws is the Police Act Cap P. 19 Laws of the Federation of Nigeria 2004, Section 4 of which confers on the police the power to prevent commission of crime, apprehend offenders and conduct prosecution of criminals.The foregoing makes it explicitly clear that Nigeria operates a Federal Policing System to the detriment of the state police as well as traditional policing methods. The constitution is unambiguous in saying that no other police force shall be established for the federation or any part thereof[7] .

However, the position of the Nigerian Constitutional Law on the Power of the Attorney General over Public prosecution seem to have been settled long ago following the decision of the Supreme Court in the landmark case of STATE V. ILORI & ORS[8] . However, the recent decision of the same apex court in the controversial case of ABACHA V. STATE appears to seriously question the law espoused in the ILORI case[9] .It would be shown that the ILORI case is an unsatisfactory statement of the law as it is founded on the wrong premise that the Attorney General has been conferred wide and unbridled discretionary power over public prosecution by the Nigerian Constitution[10] . On the other hand, the decision in the ABACHA case would be shown to be un-preferable either as it fails to set a discernable standard.Sections 174 and 211 of the extant Constitution of the Federal Republic of Nigeria, 1999 respectively make separate but identical provisions conferring on the Attorneys General of the Federation and of each of the states power over public prosecution. These include power to commence, continue and discontinue any criminal proceedings. In exercising the power, the Attorney General (hereinafter referred to as the “A.G.”) is empowered to act by himself or through officers of his department or Ministry[11] .

However, it seems that an officer in the A.G.’s department can only exercise this constitutional power upon actual delegation by the A.G. himself[12] . In ATTORNEY GENERAL, KADUNA STATE V. HASSAN[13] , without an incumbent A.G., the Solicitor- General of the state exercised the state A.G.’s powers under section 191 (1) (c) of the 1979 Constitution and discontinued a trial in the High Court. The Supreme Court heldthat the Solicitor General acted without competence since at the material time when he assumed the power and acted, there was no incumbent A.G. in the state who could have delegated the power to him[14] .The A.G.’s power to institute and undertake public prosecution against any person in Nigeria is only tenable in the regular court of law[15] . The power cannot be exercised in a court-martial, which is a court that adjudicates upon military offences under the Armed forces Decrees (No. 105) of 1993 (as amended). The A.G’s. can take over any criminal proceedings that may have been instituted by any other authority or person such as the commissioner of police[16] . The A.G. can only exercise the power to discontinue criminal prosecution before judgment. However, since the judicial process can proceed as far as the Appeal Court and even up to the Supreme Court, it is arguable if the A.G. can still exercise such power at the appellate level[17] .

• STATEMENT OF THE PROBLEM

Despite the society’s high expectation from the police, the government (society) itself is not prepared to pay the “price” for effective and efficient police system. The police in Nigeria is ill-equipped for effective discharge of its statutory responsibilities. Nigeria police still make use of outmodedequipments, the force lack modern communication gadgets and other relevant technologies to effectively police the society. The most important challenged of the police is the syndrome tagged corruption. The police is also short of manpower as well as bedevilled by poor welfare package[18] . The level of disenchantment in the force reached its peak when in February, 2002 Junior Officer and men of the force under the auspices of the National Union of Policemen embarked on strike due to poor condition of service and general welfare[19] .

An assessment of the force was aptly captured by kofiAkosah-Sanpong thus:

The Nigerian Police Force has indeed been overwhelmed by worsening domestic insecurity andundermined by it own internal problems including indiscipline, poor training, lack of expertise,specialized fields, poor pay and frequent strike, corruption and dishonesty is widespread, failure toreport crimes[20] .

Sometimes the alleged criminals are allowed to go scot-free while the complainant or other innocent individuals are arrested and detained for a long period and atimes prosecuted. One cardinal area where the Nigerian Police has been bitterly criticized is the area of criminal justice. The Nigerian Police has been severally criticized for its shoddy conduct of investigation usually froughtwith errors sometimes deliberates[21] .There are allegations that police arraign suspects in court before looking for evidence to prosecute them. Another awful practice by the police is the persistent use of the “holding charge” to detain awaiting trial suspect[22] . Another problem with the Nigerian Police is that it is saddled with the responsibility of building political unity which ought to be reserved entirely for the politicians[23] .

• AIM AND OBJECTIVE OF THE STUDY

The main objective of this study is to analyze the police prosecution power and the power of the Ag under the 1999 constitution.

The specific objectives of this study are to:

1. identify the general duties or roles of the Nigerian police force
2. determine the jurisdictional survey of police system
3. determine whether it is compulsory for prosecution police officer at superior court to be a legal practitioner
4. determine whether the office of attorney general has monopoly to prosecute criminal proceedings
5. examine the judicial attitude to the attorney general power over public prosecution.

• JUSTIFICATION OF THE STUDY

By virtue of Section 33 of the police Act, the Police have the power to conduct in person all prosecutions before any court of competent jurisdiction. The exercise of such power is strictly subject to the far-reaching powers accorded the Attorney-General of the Federal (or State) under Sections 174 and 211 of the constitution of the Federal Republic of Law 1999 as amended.76

It is quite common in Nigeria to find the A.G. refusing to exercise his power against persons heavily suspected of criminal complicity, while readily discontinuing criminal prosecution against accused persons whose conviction for crimes alleged against them seen certain. It is often the case that in such circumstances, the A.G. is motivated by political consideration over and above the “public interest” the “interest of justice” and “the need to prevent abuse of legal process”.

However, the results from this study will be very useful in providing a platform for the development of policy framework by policy makers that will result in an increase in the success rate of improving police standard against being ill-equipped for effective discharge of its statutory responsibilities. This study will also contribute to the body of knowledge base on constitutional responsibilities in Nigeria.

1.5       SCOPE AND LIMITATION OF THE STUDY

This study is limited to analyze the police prosecution power and the power of the Ag under the 1999 constitution. The study will also examine the jurisdictional survey of police system.  Regardless of the fact that research would be unbeaten, there are number of limitations of this study. In any study work, it may be impossible to take good care of all problems involved, the only thing a researcher can do is to mirror on those factors that are indispensable to research. The real limitation of the study is financial problems to accessing archives on time as well as time constraints owing to other academic pressure.

1.6     RESEARCH METHODOLOGY

In carrying out this research, various materials and research tools were employed. This includes; secondary source which consisted of library research in which published books, journals and the internet was considered. In the process of data collection, the library was consulted before embarking on the project, there is need to find out what has been written on the subject so as to guide the research on the general nature of the work and give root of background to the study. Hence, any information gathered was used to carry out proper work.

1.6     LITERATURE REVIEW

In many countries, prosecution falls under the ministry of justice or the Attorney General82. Theresponsibility to investigate and prosecute crimes in the United States rests on the executive branch of government which includes the Police. All federal prosecutors are parts of the United States Department of Justice. The federal government and each statehave its own criminal statutes, court system, prosecutors and police agencies[24] . More recently, police officers have stepped in to initiate criminal prosecutions[25] .In Australia, all states and territories (other than the Austalian Capital Territory) employ police prosecutors to work in their summary courts. These police prosecutors are sworn police officers who are trained to act as advocates in Summary Prosecutions. In Western Australia, the police prosecutors work in concert with that State’s Director of Public Prosecutions[26] . Some police prosecutors hold legal qualifications, however, this is not a requirement to perform the role of a prosecutor.

In the Judicial System of New Zealand, a police prosecutor is a lawyer employed by the police to present cases in district court as the counsel for the prosecution. These police prosecutors may be sworn member of the police or a civilian lawyer. In certain jurisdictions, police prosecutors are employed by the police, as counsel to present cases in court[27] .

In Britain, the criminal justice system is currently going through what is probably its biggest upheaval in a century, and as in so many other public services reforms and changes are largely driven by cost. Plans for police to deal with 50% of cases heard by magistrates might save on paperwork, but will increase staff costs. Magistrates deal with around 95% of all criminal cases, so police will be prosecuting a high proportion of the total[28] . The Home Secretary announced that police prosecution powers were restored, so as to take over nearly half of the cases that are heard by the Magistrates’ courts[29] . The Crown Prosecution Service is responsible for prosecuting crimes, while the police have the power to prosecute some uncontested low level traffic offences. The British government new policy has given British police more discretion to prosecute some high volume offences, which cause serious harm to the communities, quickly and effectively through the criminal justice system[30] .In South Africa, essentially, there are two separate police powers – the power to arrest and the separate power to prosecute[31] .

All over the world, the police have a measure of power to prosecute crime so as to compliment efforts of criminal justice system of the country. The police power to prosecute varies from one country to another. Also, International Criminal Police Organisation (INTERPOL) has been very effective at international scene by ensuring that criminals are apprehended and handed over for prosecution[32] .

 

 

 

[1] AbegundeBabalola, Legal Practitioner and Lecturer, Faculty of Law, Ekiti State University, Ado-Ekiti,

Nigeria,dominionbabz@gmail.com

[2] Dele Peters (2005), “Public Prosecution and the Concept of Restorative Justice in Nigeria” in Fountain Quarterly Law Journal (A Publication of the Ekiti State Ministry of Justice, Ado-Ekiti) Vol. 2, No, 1, May, P. 79. Dele Peters is now a Judge of the National Industrial Court of Nigeria.

[3] OlisaAgbakoba SAN and Willy Mamah “Towards A People’s Constitution in Nigeria” A Civil Education Manual for the Legal Community, (The Human Rights Law Services (HURILAWS) P. 32.

[4] bid.

[5] Ibid. Note that justice is said to be tripartite: justice to the State, justice to the accused and justice to the victims.

[6] Section 214 (1) Constitution of Nigeria, 1999. See Willie v Ibiok (2012) 52 WRN where the court elaborate on the

establishment and powers of the Nigerian Police.

[7] See AkinIbidapoObe, (2002) Essays on Human Rights Law in Nigeria, Concept Publications Ltd, Lagos PP.295-299.

[8] EDOBA B. OMOREGIE, LL.B (HONS.) LL.M, BL, Lecturer, Faculty of Law, University of Benin, Benin City, Nigeria.1 (1983) 14 N.S.C.C. 69. See generally F. NwadialoThe Criminal Procedure of the Southern States of Nigeria 2nd ed. (Lagos: MiIJ Publishers, 1987) pp. 368 –70.

[9] (2002) II NWLR PT.779, p. 437

[10] The operative constitution at the time was the Constitution of the Federal Republic of Nigeria, 1979. Sections 160and 191 of the Constitution respectively provided for the powers of the Attorneys General of the Federation and of the states over public prosecution. These provisions are similar in all material respect to sections 174 and 211 of the Constitution of the Federal Republic of Nigeria, 1999.

[11] See Sections 174 (2) and 211 (2), 1999 Constitution.

[12] Nwadialo, (Supra) note 1 at p. 365.

[13] (1985) 2 NWLR PT. 8 p. 483

[14] Similar to section 211(1) (c) of the 1999 Constitution: The A.G.;s power to institute and undertake public prosecution against

[15] See Sections 174 (1) (a) and 211 (1) (a) of the 1999

[16] See Emeakayi V. C.O.P. (2004) 4 N.W.L.R. PT. 862 p. 158

[17] See Sections 174 (1) (c) and 211 (1) (c ) of the 1999 Constitution.

[18] See Ajomo&Okagbue (eds) (1991) Human Rights and the Administration of Criminal Justice in Nigeria, Nigerian Institute of

Advanced Legal Studies (NIALS) Research Series No. 1.

[19] See Human Dignity, a Newsletter of the Human Rights Club Vol. 3, No, 1, January –April, 2002, P. 6.

[20] See Kofi, A.S. (2002) “Law, Order and Vigilate in Nigeria” Published in Federations Vol. 2. No 4.

[21] See Millar v. State (2005) 16 WRN, P. 45 ratio 18. Note also that this explains the long list of unresolved murders and

assassinations in Nigeria ranging from Chief Bola Ige, Funso Williams, Dele Giwa, Alfred Riwane, SeliatAdedeji and Hon.

OladimejiSegun (a.k.a. Segelu) See The Punch 22nd September, 2007 P. 11.

[22] Poor Prosecution: Lawyers back CJN against Police, Punch October 19, 2013

[23] See the Article titled: “Towards a New Police” Published in The Nation of December 9, 2007, P. 9.

[24] www.oas.org/juridico/mla/en/usa/en

[25] www.sunypress.edu/pdf/61690.pdf

[26] See, Article titled “Police Prosecutor” from Wikipedia free Encyclopedia

[27] Ibid

[28] Richard Bristow, the guardian.com Tuesday 22 May,2012

[29] Ibid

[30] See Gov.Uk, Crime and Policing. Policy: Police led prosecutions, Reducing re-offending and Improving Rehabilitation.

[31] Brodgen, M and Shearing, C.D (1993) “Policing for a New South Africa” Taylor and Francis publishers.

[32] AbegundeBabalola, Legal Practitioner and Lecturer, Faculty of Law, Ekiti State University, Ado-Ekiti, Nigeria,dominionbabz@gmail.com

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