DANGEROUS EFFECT OF NOLLE PROSEQUI IN NIGERIA CRIMINAL JUSTICE SYSTEM

Section 174(1)(a-c) and section 211(1)(a-c) provides for the office and functions of the Attorney-General.

(1).The Attorney-General of the federation/state(respectively) shall have power

(A).To institute & undertake a criminal proceeding against any person before any court of law in Nigeria, other than a court-marital, in respect of Any offence created by or under any Act of the National Assembly.

(B).To take over and continue any such criminal proceeding that may have been instituted by any other authorities or person, and

(C).To discontinue at any stage before judgment is delivered, any such criminal proceeding instituted or undertaken by him/ or any other authorities or person.

In view of the above provisions,it is clear that the Attorney-General has the right to discontinue at any stage before judgment any criminal proceeding. This is what is generally referred to as the power of NOLLE PROSEQUI. The attorney general can issue a nolle PROSEQUI with respect to a case which command determines that of the state in which name the prosecution are bought, and does not wish to prosecute the case.Thereby preventing any body from doing so as was seen in the case of AMADI V FRN

This function is either carried out by the Attorney general himself after informing the court of his intention to discontinue the proceedings or by an officer in his department or any other private person as provided by SECTION 174(2) & 211(2) respectively, but such person must be armed with a written authority or fiat of the Attorney general as was the decision of the court in STATE V CHUKWURA & ORTHERS.

The power of the Attorney general to issue a nolle PROSEQUI is different from the ordinary power conferred on the prosecutor under SECTION 75 OF THE CRIMINAL PROCEDURAL LAW OF THE STATE, (to withdraw a criminal trial before a magistrate court). As was exercised in CLARKE V A.G LAGOS STATE.

The Attorney general and minister of justice is the Chief principal officer,Chief law officer, and Chief legal adviser of the state or federation as the case may be. Most importantly he is also the head and minister/commissioner of justice.

The Solicitor General is the Permanent secretary of the ministry of justice, he is next to the A.G. The Director of Civil litigation (DCL) and Director of Public Prosecution (DPP) are next in rank to the S.G. It should also be noted that the ministry of justice is divided into two, First, THE CIVIL DIVISION headed by the (DCL) and Secondly, THE CRIMINAL DIVISION headed by the (DPP). It is with majorly these officers that the A.G discharges his constitutional functions.

Also note,that in exercise of the power of nolle prosequi,the attorney general may also be influenced by whatever reason however unmeaningful and he cannot be questioned for his decision, nor can his decision be reviewed by the court in that regards.

Majorly concerned, the effect of nolle prosequi when effectively entered, is a discharge of the accused person and not an acquittal as in was established in the case of STATE V ILORIN. This means that the accused persons may be subsequently prosecuted for the same offence.

In Nigeria, the office of the Attorney general is always combined with the Minister of justice at the federal level or Commissioner of justice at the state level. This automatically makes the Attorney general be it of the Federal level or state level a member of the executive.

In view of the above,it is my crucial submission that the power of the Attorney general is to wide and absolute, thereby making him a tool for manipulation of justice,as this is very harmful and dangerous for the administration of Criminal Justice.

let see some effect:

Firstly, since the Attorney general is a member of the executive council,he is automatically subject to the control of the executive arm of govt. In other words, it will be very impossible for the Attorney general to go against the will of his appointers (the executive) in matters that his appointers has interest.

Secondly, Criminal cases involving members of the ruling parties(executives) may be compromised by the Attorney general who is a dual member by invoking his constitutional power of nolle prosequi,thereby mishmashing and truncating the course of justice. This is evilly possible since the exercise of the power of the Attorney general cannot be challenged or reviewed by the court or any other authorities. A good instance of such constitutional aberration of power in favour of the accused person who was a loyalist to the ruling party then, occurred in Nigeria in 2009 when the A.G federation in person of (Andoke) wrote a letter to the British council, exonerating the former Governor of Delta state( James Ibori) from the criminal charges in respect to money laundry allegations against him. Unfortunately, he was later found guilty of the said offence.

Thirdly, the power of the Attorney general may also be selfishly invoked by the executive council to silence the oppositions of the ruling government by bringing unnecessary and needless criminal charges against them( their opposition), just to cow and disgrace them out of the political race.

Lastly, such manipulation is against the practice of the spirit of the rule of law and of democracy. It also undermines the threshold principle of separation of powers,and doctrine of check and balances of each organ of government by the other.The resultant effect of which may lead to lawlessness and usurpation of justice if not duely rectified.

The remedy for abuse of power by the Attorney general lies in separate proceedings against him by the person adversely affected and not in judicial review of the same proceedings.

If he disregarded the provision of the constitution or the will of the executive council, the only sanction against him is the reaction of his appointers or adverse criticism by the public, which he may be then forced to resign.

Conclusively,it is suggested that the provision of section 174 and 211 of the Constitution of the federal republic of Nigeria 1999 as amended be amended, so as to authorize the court to review the exercise of the power of the Attorney general where necessary, as it has occasions injustice to the masses and also to separate him from his dual functions so as to strengthen the age long principle of separation of power and independence

in the Nigeria Justice system.

REFERENCES

CONSTITUTION FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED.

AMADI V FRN(2009)ALL FWLR(PT.462)1103.

GEORGE V FRN(2011)ALL FWLR(PT.587)644

STATE V CHUKWURA & OTHERS(1964)NMLR 64

CLARKE V A.G LAGOS STATE(1986)19 LRN 1999

STATE V ILORI(1983)2 S.C 1555).

About the author

LAWRENCE EMEKA IS A LAW STUDENT OF

FACULTY OF LAW UNIVERSITY OF CALABAR,CALABAR. He can be reached via

[email protected]