THE POLICE PROSECUTION POWER AND THE POWER OF THE AG UNDER THE 1999 CONSTITUTION
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 variouscommunities and the ethnic nationalities thus ensured the protection of lives and properties, the maintenanceof law and order and the observance of the ethical values of the society. There was also in existence thetraditional and customary policing system.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 thesociety must remain in peace, individuals with criminal tendencies must be put under close checks and theiractivities monitored and checkmated. Also, if and when their activities therefore offend against the social normsand standards and the established law, criminal law must intervene to do justice to all and sundry involvedthecriminal deviant, the victim and the society at large.
Therefore, to enhance this, the police is the very first institution that a criminal suspects comes in contact with. Whether or not the suspect will obtain justice depends on how the police go about its duty.One area where theNigerian Police has been bitterly criticized is the area of criminal justice. In Nigeria, we have a failingcriminal justice system and the police, the courts and the prison institutions all have their various shares ofblame.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 andsubject to the provision of this section; no other police force shall be established for the federationor any part thereof. The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law.
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.
However, the position of the Nigerian Constitutional Law on the Power of the AttorneyGeneral 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. 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.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. 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.
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. In ATTORNEY GENERAL, KADUNA STATE V. HASSAN, 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.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. 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. 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.
AbegundeBabalola, Legal Practitioner and Lecturer, Faculty of Law, Ekiti State University, Ado-Ekiti,
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.
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.
Ibid. Note that justice is said to be tripartite: justice to the State, justice to the accused and justice to the victims.
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.
 See AkinIbidapoObe, (2002) Essays on Human Rights Law in Nigeria, Concept Publications Ltd, Lagos PP.295-299.
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.
 (2002) II NWLR PT.779, p. 437
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.
See Sections 174 (2) and 211 (2), 1999 Constitution.
Nwadialo, (Supra) note 1 at p. 365.
(1985) 2 NWLR PT. 8 p. 483
Similar to section 211(1) (c) of the 1999 Constitution: The A.G.;s power to institute and undertake public prosecution against
See Sections 174 (1) (a) and 211 (1) (a) of the 1999
See Emeakayi V. C.O.P. (2004) 4 N.W.L.R. PT. 862 p. 158
See Sections 174 (1) (c) and 211 (1) (c ) of the 1999 Constitution.