By Confidence Mbang, Esq, LLM, AICMC
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The Enigma
Nigeria operates a constitutional democracy where the rule of law prevails. This implies that the government and her institutions must act according to the black letters of the Constitution. In fact, section 1(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), provides that “this Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria. This simply means that no person or authority is expected to contravene its provisions save for exceptions, which may be express or implied.
In a new line of event, the Nigerian Police has once again proven itself to be a serial violator of the Constitution. It is a shocker that the Nigerian Police developed the liver and kidney to invite and release on bail the Director of Public Prosecution, and other officials of the ministry of justice of Anambra State for exercising the power of nolle prosequi. More shocking is the extension of the invitation to the honourable Attorney-General of the state. Honestly, this should be regarded as the “worst institutional affront” of the century, not just on the Constitution but the legal profession. What an odour odoriferous saga!
Brief Facts and Kernel of the Matter
The event leading to the affront was due to the withdrawal of a controversial homicide charge filed against one Joshua Chukwubueze Ikechukwu, who was accused of opening fire on the operatives of the Economic and Financial Crimes Commision (EFCC), resulting to the death of one Salisu, and injury to other officers, on January 17, 2025. However, Ikechukwu maintained that the men were unidentified intruders who gained unlawful access to his abode through the fence without proper identification. The question that begs for an answer is whether there are no laid down procedures for carrying out a search/arrest under the Nigerian law? If the narration of Ikechukwu is true, can it be said that the EFCC exhausted the procedures? Your answer is as good as mine. Please, do not get me wrong, no citizen is allowed to bear arms unauthorized, even for purposes of protection, but considering the circumstances surrounding this matter, would it had been fair to morals and conscience for Ikechukwu to standby amidst unknown intruders?
The Law
The position of the law on the powers of the Attorney General of a state is settled. By virtue of section 211 of the Constitution, the Attorney General of a state is empowered to institute and undertake, take over and continue, and discontinue at any stage before judgement, any criminal proceedings instituted by him or any person or authority. It should be noted that the exercise of this power was not made to operate in vacuum. In other words, the AG must act with due regards to public interest, the interest of justice, and the need to prevent abuse of legal process as provided in sub-section 3 of the section. In essence, the AG is only subject to the factors highlighted in the preceding sub-section, and no other. The exercise of this power is subject to no review even by the highest court of the land. At best, the AG is only answerable to his political appointor.
Accordingly, this powers have received judicial imprimatur in plethora of decisions from foreign and Nigerian courts since ages. Smith L.J. had this to say in R v. Comptroller of Patents, Designs and Trademarks, ex parte Tomlinson (1899) QB 909 (CA), hear him;
“Everybody knows that he (Attorney-General) is the head of the English Bar. We know he has had from earlier times power to perform high judicial functions, which are left to his discretion…the Attorney-General has the power to enter when a case is before a judge…the Attorney-General alone has the power to enter a nolle prosequi and that power is not subject to any control.”
In the Nigerian case of Akilu & Anor v. Chief Gani Fawehinmi (1983) 3 NWLR (Pt. 112) 685, per, Ogundare JCA, as he then was, held thus:
“…the abuse of power by the Minister of State, if any, is the responsibility of the political power that appointed him. It is to that extent not justiciable as the court does not question the exercise of the power of the Attorney-General…If he refuses to hear and consider an application for a fiat, we would compel him by mandamus to hear and consider…the Attorney-General may be made responsible to Parliament. If he has made an improper decision, the Crown may and if properly advised, dismiss him but we cannot review his decision”
In fact, in State v Illorin (1985) 2 SC 155, the Supreme Court was firm when it declared that the Attorney General “is a law unto himself” only subject to the Constitution and his appointor.
Consequently, with this new development, one may be tempted to ask where the Nigerian Police derived its powers to question, nor even invite/release on bail a DPP and officers of a ministry of justice on the propriety of a nolle prosequi. What is the advisory role of Police lawyers? Or was this affront deliberate, solely due to the fact that an officer of a law enforcement agency was involved? On the whole, it is worrisome that a principal institution like the Nigerian Police would err on a simple and straightforward matter as these. I thought the discussion of nolle and the powers of the AG should be left for law students and not a full blown institution like the Nigerian Police. It is indeed, an odoriferous saga, it really stinks. Phewwwwww!
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