The Attorney General in Nigerian criminal proceedings compares to Hercules in the traditional Roman mythology. He is very powerful. The Supreme Court agrees that he is powerful. In Ezomo vs. AG of Bendel State, the Supreme Court described his power as ‘awesome’; in Ilori vs State, the Supreme Court calls him ‘a law unto himself’; ‘a master unto himself’; this power is beyond judicial review, restrainable only by public opinion or at the pleasure of the President who appoints him.
Sections 174 and 211 of the Constitution cement the position of the courts as illustrated with respect to the pre-eminence of the position of the Attorney General in criminal proceedings at any stage thereof (except in court martials).
Section 23 of the Police Act gives the police the power to prosecute suspected criminals, but it also makes such powers expressly subject to the power of the Attorney General. Their exercise of this power (as lay prosecutors) has prevailed since colonial times. They assumed that responsibility on a necessity basis because there were no trained hands suited for the purpose at the time.
Their continued hold on this responsibility is now heavily debilitating to criminal justice in Nigeria.
A plethora of times, lay prosecutors put the magistrates and judges in quite a difficult position due to their incompetence. They force them to become their tutors in open court which results in the descent of the umpires into the arena, against the wheel of justice and in contravention of our laws.
Most cases at the lower courts do not end in a conviction or an acquittal. It will most likely end in the court using the all-too-familiar and hackneyed expression: “This case is hereby dismissed for want of diligent prosecution,” to conclude the case. The reason? Most likely, incompetence. The litigant will most likely not retain the services of a lawyer because he is confident that it is more ‘cost effective’ to deal directly with the lay prosecutor; the lay prosecutor will throw the case under the bus (it is better to so do and get something out of the case than to altogether lose it to a trained hand in court). He is not a minister in the temple of justice; he does not owe the court much.
Most legal practitioners agree that the incompetence of these lay prosecutors and their unrelenting compromise have resulted in prison congestion in the country. The prisons are now really congested. According to the Comptroller General of Prisons, Mr. Ja’afaru Ahmed, there are about 70,000 inmates in Nigeria prisons, 70 per cent of them (48,000) are awaiting trial. At N450 per head, about N35,000,000 is spent to feed them on a daily basis. If 70 per cent of them are not supposed to be there, it, therefore, means that the country has no business burning N24,500,000 of tax payers’ money to feed these persons daily. This is aside the grave injustice done to them through unwarranted deprivation of their constitutional rights to liberty and dignity of their human person.
Armed with Section 7 of the Legal Aid Act, the indigent litigants now have access to actual legal advice and representation for free. This pits the lay prosecutor against a trained hand grounded in the business. The result is almost certain.
What is the fate of the lay prosecutor who only possesses a right to be heard merely because he is a member of an agency of government (and nothing more: situations in Olusemo v COP and FRN v Osahon be exempted) without being grounded in the rules of evidence and procedure against a Senior Advocate who is not only grounded in these rules but has paid his dues to earn the silk? The result? A potential convict who rightfully should be quarantined and declared a pariah in the society becomes reintegrated into same, spreading leprous and injurious impunity and recruiting seven-fold more dastardly cohorts into his fugitive fold.
Section 215 of the Constitution breeds ambivalence of loyalty Following the chain of command, the lay prosecutor’s ultimate allegiance is to his bosses who by hierarchy are at the federal level. This situation can undermine the role of the Attorney General of the state. It creates a unique conflict in our criminal law system that will only be cured when the Attorney General in the states take the saddle of omnipotence that the Constitution has bestowed upon them.
The Administration of Criminal Justice Act 2015 expressly changed the situation with respect to federal offences and the Federal Capital Territory. Following the Expressio Unius Est Exclusio Alterius rule, Section 106 of of the Act does not include lay prosecutors as persons who can prosecute offences thereunder, they are therefore excluded. The Federal Capital Territory and the Federal Government have strengthened this lead. On August 22, 2016, in a statement signed by his media aide, Salisu Isah, the Attorney General of the Federation barred the Nigeria Police Force from prosecuting criminal cases in all matters involving the Federal Government and the FCT.
Both the law and policy will ensure that core professionals are engaged to oversee and ameliorate the plight of the Federal Government in criminal procedings. It will also become easier to hold them accountable and make appraisal easier.
There is no equivalent provision of Section 106 in the criminal laws of other territories in the country. The only plank to be utilised now is the preeminent position of the Attorney General in the Constitution. He should take the bull by the horns. He should evolve the policy.
While some states can afford it, there is the economic argument against this move. But should the peace, order and safety of society be sacrificed on the altar of economics? If the quotient of justice in society is either very weak or non-existent due to tactless economic surrender, might will inevitably become right. It will become acceptable to members of society to deliver justice instantaneously while it is within their grasp and not wait for legal justice; it may be delayed or altogether subverted.
The clamour for state police has been one heavily canvassed by the states in recent times due to the near-complete domination by the Federal Government of that institution pursuant to the provisions of Section 214 of the Constitution. The states seem doomed to damage control – from this domination. They should salvage what they can. The reins of criminal procedure should be fully dominated by the state governments in return. Not in retaliation, but with responsible realisation and humble admission that the time has come for them to do this. The lay prosecutor is not trained to do this. Their role in the prosecution of criminal offences is one that came to be in pre-independent Nigeria due to lack of trained and suited-for-purpose hands to do the job. It is long expired. It ought to be quickly discarded.
Criminality has evolved. Curbing it should follow suit. Now there are suited hands available – suited hands in excess – more deserving of work in the stable.
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