National Issues
An Appraisal Of The Power Of The Attorney General To Institute And Discontinue Proceedings In Nigeria -By Sulaimon Adebodun
It can thus be argued further that this proviso is merely complementary to the exercise of the powers of the Attorney-General and is not a shackle to the exercise of the powers. Furthermore, the fact that the test of ascertainment of this provision is a subjective one manifests that the Attorney-General is subject to no restraints when exercising his powers.
Abstract
The powers of the attorney general is so supreme, with regards to instituting, continuing and discontinue proceedings. However these powers, unlike the erstwhile constitutions, has been curtailed substantively; according to sub-section three of the same provisions that provides for the powers of the attorney general. However the effect of this proviso has been paid less attention to. This paper thus seek to address the powers of the attorney general, the provision of an erstwhile constitution and the procedural effect of the proviso to the powers of the attorney general.
Introduction
The attorney general is the chief law enforcement officer of the federal or a state government. The attorney general can be deemed to be a representative of the public in all proceedings for the enforcement of law and the protection of rights. In Nigeria, according to section 195(1) of the Nigerian constitution 1999 (as amended) describe an attorney general as the chief law officer of the state and commissioner for justice of the government of that state, while section 150(1) of the constitution provides for the attorney general of the federation.
The provisions of section 150 and section 195 of the constitution, went further in their sub-section (2) to state that a person shall not be allowed to hold or perform the functions of the office of the attorney general, unless he’s qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period not less than ten years.
Powers of the attorney general
The powers of the attorney general of a state and the federal has been well addressed in the ground norm law; section 174 & 211, which provides that:
Section 174 sub-section (1): the attorney general of the federation shall have the power
- To institute and undertake criminal proceedings against any person before any court of law in nigeria, other than a court-martial, in respect of any offence created by or under any act of the national assembly;
- To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
- To discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
Section 211 sub-section (1): the attorney general of a state shall have the power
- To institute and undertake criminal proceedings against any person before any court. Of law in Nigeria other than a court-martial in respect of any offense created by or under any law of the house of assembly;
- To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
- To discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
The provision of section 174 is in pari materia with that of section 211, only that, section 174 provides for the powers of the attorney general of the federation and section 211 provides for that of the state. And in a bid to relevantly address the word “shall” , according to the authority of national assembly v. C.c.i. co. Ltd[1], it was held that the word “shall” is a word of command and it denotes direction, compulsion, a mandate, an obligation and gives no room for discretion.
The powers of the attorney general can be carried out by him or he can delegate the power, as contained in section 174(2) and 211(2), which provides that:
The powers conferred upon the attorney general of the state/federation under sub-section (1) of section 174 and 211, may be exercised by him in person or through officers of his department.
And, in the case of ibrahim v. The state[2], it was held that though the attorney general of a state/federation can delegate his power of instituting criminal proceedings, but the officer must be from within his department. Which explicitly is in line with the provisions of section 174(2) and 211(2) of the constitution of the federal republic of Nigeria 1999 (as amended).
However, the word “shall” does not mandate the attorney general to carry out the functions set out in sub-section (2), but only set out the powers. The attorney general has wide and unfettered discretion to determine the execution of the functions set out in subsection (2).
Appraisal of the powers of the attorney general to institute and discontinue action in the interest of justice, public interest and the prevention of abuse of legal process
According to the authorities cited above, the attorney general of the state/federation, have the power to institute and undertake criminal proceedings, take over and continue, and to discontinue at any stage before judgement is given. However, sub-section (3) of section 174 & 211 of the constitution 1999 (as amended) provides a clause to the provision, which is:
In exercising his powers under this section, the attorney-general of the state/federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
Unlike section 104(2) of the 1963 constitution, sub-section (3) hereof now specifically provides for the additional safeguards which the attorney-general should show regard for when exercising his powers under sub-section (2). These are the public interest, the interest of justice and the need to prevent abuse of legal process.
However, it’s effect is close to that of section 104(2) of the 1963 constitution, in that the determination of whether the execution of the powers set out in sub-section (2) are done in public interest, the interest of justice and the need to prevent abuse of legal process is made by the attorney general himself. And whatever decision he makes, whether bona fide or mala fide, it is unquestionable.[3]
As also held in the case of Edet v. State, where the accused was facing a charge of manslaughter at the Magistrate’s Court while another charge of murder was instituted against him at the High Court; the Supreme Court held that this amounted to an abuse of legal process. The court further noted that since the powers of the Attorney-General in instituting or discontinuing criminal proceedings cannot be questioned, the remedy for abuse of this power does not lie in judicial review.
It can thus be argued further that this proviso is merely complementary to the exercise of the powers of the Attorney-General and is not a shackle to the exercise of the powers. Furthermore, the fact that the test of ascertainment of this provision is a subjective one manifests that the Attorney-General is subject to no restraints when exercising his powers.
However, it should be noted from the case of Abubakar Malami in 2016, where he was called before the Senate to explain whether he acted in the public interest and without abusing his position in a conflict of interest situation while filing forgery charges against the two Senate presiding officers, Senate President Abubakar Bukola Saraki and his deputy, Ike Ekweremadu, as well as two other bureaucrats. It should be noted that the legislature thus have the authority to question whether the attorney general’s powers, as set forth in Sections 174(1) and 211(1) of the Federal Republic of Nigeria’s constitution, were exercised in accordance with the proviso, as set forth in Sections 174(3) and 211(3) of the same law, even though the attorney general decides how to apply his powers and whatever decision he makes is unquestionable.
In conclusion, the exercise of the powers of an attorney general is subjective and not objective; in that the determination in made by the attorney general himself, and whatever his decision may be, is unquestionable, by even the court. However, the compliance with the proviso to the powers of the attorney general as contained in sub-section (3) of the section establishing the powers of the attorney general, is questionable by the legislature, because any act otherwise to make unquestionable the decision of the attorney general with respect to whether in the execution of the powers, it was done with regards to the proviso, as contained in Sub-section(3) of section 174 & 211, would render the provision as a toothless bull dog, an orphan close of the justiciable part of the constitution on mere exhortations
[1] (2008) 5 NWLR (Pt. 1081) 519 at P.540 paras. D – G (CA), Tanko v. Caleb (1999) 8 NWLR (Pt. 616) 606; Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 76; Abimbola v. Aderoju (1999) 5 NWLR (Pt. 601) 100; Adewunmi v. A.-G., Ekiti State (2002) 2 NWLR (Pt. 751) 474
