By Henry Ojelu
For many years, Nolle Prosequi — the Lawyer-Basic, AG’s energy to “not prosecute” — has been a routine prosecutorial instrument in Nigeria. Currently, nevertheless, that apply has been enmeshed in controversy.
A gentle string of high-profile recordsdata discontinued after prices have been filed has rekindled outdated questions: is the facility a necessary instrument of public-interest prosecution, or an unchecked prerogative that can be utilized to frustrate justice and defend the highly effective?
The 1999 Structure vests the discretion plainly within the chief legislation officers. Part 174(1) states partially: “The Lawyer-Basic of the Federation shall have energy … to institute and undertake legal proceedings…” and to “take over and proceed any such legal proceedings.” Equally, Part 211(1) provides the State Lawyer-Basic parallel powers over offences created underneath state legislation.
The issue, nevertheless, just isn’t the wording however about accountability. Some critics argue that the Structure grants the facility in broad phrases with out an specific statutory or constitutional test to protect in opposition to political abuse — a spot that has produced public uproar when prosecutions involving public officers and politically linked suspects have been abruptly halted.
Nolle Prosequi in different jurisdictions
In England and Wales, the AG can enter a nolle prosequi to cease proceedings however the intervention is uncommon and monitored. The Crown Prosecution Service additionally operates underneath a broadcast Code and steerage designed to make selections clear and constant.
In america, the entry of a nolle prosequi is a typical prosecutorial gadget nevertheless it has produced necessary constitutional litigation, notably on speedy-trial and re-prosecution points, demonstrating that unfettered discontinuance can increase different rights questions that courts generally should resolve.
In South Africa, nolle prosequi requires formal certification and courts have scrutinised procedural compliance with statutory necessities for issuing a nolle certificates — a test that has given non-public prosecutors and courts instruments to problem improper stoppages. Current selections within the nation revealed that courts will insist on the prescribed formalities and on proof that discontinuance is justified.
Nigerian court docket on nolle prosequi
The Supreme Court docket’s landmark determination in S.O. Ilori & Others v. The State (1982) stays the bedrock authority. In that case, the Court docket held that the Lawyer-Basic’s discretion to enter a nolle prosequ is an unique constitutional prerogative underneath Sections 174 and 211 of the 1999 Structure.
The Court docket dominated that this discretion just isn’t topic to judicial assessment, even the place the motives are questioned, successfully insulating the AG’s determination from interference by the Bench.
SANs communicate
Some senior legal professionals who spoke to Vanguard Legislation & Human Rights on the relevance of nolle prosequi within the Nigerian justice system, harped on the necessity for constitutional modification to strike a stability between defending prosecutorial independence and safeguarding the general public’s proper to clear, accountable justice.
There have to be center floor —Prof Ojukwu, SAN
Prof. Ernest Ojukwu, SAN, believes nolle prosequi is a authentic prosecutorial instrument however warns that absolute discretion with out oversight invitations political abuse. He proposes a center floor that preserves independence whereas guaranteeing accountability.
He stated: Traditionally, the AG is the state’s chief legislation officer, entrusted with dropping weak or politically delicate circumstances that may waste court docket time or public funds, correcting prosecutorial errors with out prolonged trials, and defending the general public curiosity in conditions the place continued prosecution would trigger extra hurt than good.
“An absolute energy with out oversight creates fertile floor for abuse, by shielding political allies from prosecution (widespread in politically charged circumstances), blocking justice in corruption circumstances the place there’s public curiosity in full trial, and undermining judicial independence by halting circumstances already in progress.
“In a number of corruption prosecutions involving politically-connected people, nolle prosequi was entered with out clear clarification. This has been a recurring theme in Nigerian anti-corruption discourse, particularly when administrations change.
A center floor may very well be: necessary written causes for nolle prosequi filed in court docket and made public; the correct of victims or events to problem the choice by way of judicial assessment; and parliamentary oversight the place the AG should report such circumstances yearly.”
There may be want for constitutional modification—Prof Erugo, SAN
Prof. Sam Erugo, SAN, maintains that the powers granted the AGF and the states to discontinue legal proceedings are firmly rooted within the 1999 Structure. Nonetheless, he warns that such powers have to be exercised strictly inside constitutional boundaries and in ways in which promote justice, shield public curiosity, and stop abuse of the authorized course of.
“Sections 174 and 211 of the 1999 Structure vest the Attorneys-Basic with the discretion to take over, proceed, or discontinue legal proceedings in any court docket. Whereas it is a constitutional energy, it’s not an absolute or unfettered one. The Structure stays the supreme legislation of the land, and underneath the rule of legislation, no public officer—regardless of how extremely positioned—is above it.
“One of many core components of the rule of legislation is that crimes able to being proved needs to be punished. Due to this fact, the discretion to enter a nolle prosequi have to be exercised according to the rules of justice, within the public curiosity, and to stop abuse of authorized course of. These three guiding circumstances are expressly supplied in subsections (3) of Sections 174 and 211.
“If these circumstances should not happy, such a call could be challenged. Importantly, any train of discretion tainted by fraud is inherently invalid as a result of fraud vitiates each official act. In such circumstances, the courts have an obligation to intervene.
“Although the facility is constitutional, it shouldn’t be mistaken as past judicial assessment. The place there’s proof of unhealthy religion, arbitrariness, or an abuse of the prosecutorial course of, the courts can step in to safeguard the integrity of the justice system.
“I strongly advocate a constitutional modification that may explicitly empower the courts to assessment nolle prosequi selections. This might guarantee there’s a formal authorized mechanism to test any misuse of prosecutorial discretion, whereas nonetheless preserving the independence of the AG’s workplace.
“The purpose needs to be to keep up public confidence within the justice system, guarantee equity to all events, and shield the constitutional values upon which Nigeria’s authorized framework rests.”
AG’s powers ought to stay absolute however… —Opara, SAN
Mr Victor Opara, SAN is of the view that AGs constitutional powers to institute, take over, and discontinue prosecutions should stay absolute and free from judicial assessment, however ought to solely be exercised pretty, responsibly, and within the public curiosity.
Whereas acknowledging the potential for abuse, he maintained that such dangers additionally exist within the judiciary and that safeguards lie in appointing AG of unquestionable integrity, not in curbing their discretion.
He stated: “All prosecutorial powers reside within the Lawyer-Basic of the Federation or of a state. The Structure clearly provides them authority to institute, prosecute, and take over any prosecution from our bodies such because the police, NDLEA, Customs, EFCC, or ICPC. This implies the AG can determine to cease or take over a case.
“The essence of this energy is to behave within the public curiosity and guarantee prosecutions are dealt with objectively, dispassionately, and appropriately. When you topic it to judicial assessment, you destroy its function, and the AG might lose the flexibility to make vital coverage selections.
“There are lots of causes to discontinue a matter—some purely policy-driven, others within the nationwide curiosity. For example, if an individual accused of a critical offence gives delicate intelligence that forestalls insurgents from overrunning the nation, a political determination could also be taken to discontinue prosecution.
“The Supreme Court docket in State v. Anuri has dominated that these powers can’t be questioned by any court docket. Abuse is feasible, sure, however judicial powers are additionally generally abused. The true answer is to make sure the workplace is occupied by somebody of confirmed integrity and pedigree.
“If an AG abuses his powers, he could be eliminated by the President or Governor. We must always not run to court docket for each dispute—that’s the reason our courts are overburdened. Clear elections and correct governance will scale back useless litigation.
“Governors should not be distracted by political advisers pushing frivolous circumstances. Lawmakers, too, ought to perceive the basics of their powers and never legislate unnecessarily. Private self-discipline and readability of function are key. I don’t consider in exercising these powers whimsically. They need to stay absolute however be used pretty and responsibly.”
Legislation is obvious, abuse just isn’t—Dr Ubani, SAN
Dr Monday Ubani, SAN, insists the Structure grants the AG broad powers however inside strict constitutional limits tied to public curiosity, justice, and prevention of abuse. He rejects interference by non-judicial our bodies.
He stated: “Part 211(1) of the 1999 Structure gives that the State Lawyer-Basic shall have energy to institute, take over and discontinue legal proceedings at any stage earlier than judgment is delivered (nolle prosequi).
“Part 174(3)… gives that: ‘In exercising his powers underneath this part, the Lawyer-Basic shall have regard to the general public curiosity, the curiosity of justice and the necessity to forestall abuse of authorized course of.’
“In State v. Ilori, the Supreme Court docket held that the AG’s discretion… is ordinarily not topic to regulate, besides in very distinctive circumstances.
…There may be nowhere within the Structure the police is authorised to assessment the train of the powers of nolle prosequi by the AG. If there will probably be a assessment, it’s only the judiciary that can carry out that duty and never the police.”
“Allow us to due to this fact learn the constitutional provisions in full and floor our public commentary within the legislation, avoiding misinformation or intimidation of those that provide well-reasoned authorized opinions.
“My submission is with out prejudice to the current incidence involving the police and the AG of Anambra state. There may be nowhere within the structure, the police is authorised to assessment the train of the powers of nolle by the AG.
“If there will probably be a assessment, it’s only the JUDICIARY that can carry out that duty and never the police. The try by the IG’s workplace to arrest or intimidate the AG of Anambra within the train of his constitutional powers is an aberration and a derogation of the grundnorm.
Courts ought to implement part 174(3)—Edun, SAN
Kunle Edun, SAN, accepts the AG’s discretion however says many misuse it for political ends, and courts ought to apply Part 174(3) extra rigorously to guard the general public curiosity.
He stated: “Can we actually say that the varied Attorneys Basic have up to now exercised this energy in strict adherence to the provisions of the Structure? What number of Attorneys Basic are daring sufficient to refuse to discontinue a legal case when directed by his Governor?
“We’ve got had situations when Attorneys Basic used the facility to take over and discontinue circumstances the Authorities has curiosity in both as a result of the Defendant is a member of the identical political occasion because the appointor of the AG or he’s a good friend, relation or political affiliate of the President, Governor or is very linked to the powers that be.
“All these are abuse of energy and definitely not within the public curiosity. It’s akin to the circumstances of the presidential pardon that have been granted to some convicted former Governors of some northern States who embezzeled their States’ funds whereas in Authorities. The looted funds for which they have been convicted for have been by no means returned. The general public curiosity was by no means thought-about.
Due to this fact, a proactive judiciary needs to be daring sufficient to interpret part 174 (3) of the Structure to guard the general public curiosity, our commonwealth and stop corruption in public places of work. A Court docket can be proper to put aside any nolle prosequi entered in any legal case if the Prosecution is unable to indicate that it’s within the public curiosity. The onus is on the Prosecution to show this. Nonetheless, and sadly, till the apex Court docket decides to courageously change its place of absolute energy of the AG to enter nolle, the politicians will proceed to make use of part 174(1)(c) to mess up the rule of legislation and enthrone a regime of corruption in governance.”
He predicted that sub-Saharan Africa and Brazil would turn out to be the world’s “breadbaskets” because of their abundance of arable land and water, driving up fertiliser demand.
Edwin stated presently, most of Dangote’s fertiliser output is exported to america, Brazil, Argentina, Mexico, and components of Europe, however the firm is shifting focus to Africa’s quickly increasing agricultural markets.
Nonetheless, Edwin lamented the problem of insufficient crude provide to the refinery, which has compelled imports from america.
He expressed optimism that the state of affairs would enhance, enabling the refinery to additional contribute to Nigeria’s financial progress.
The submit Nolle Prosequi: SANs differ on calls for review appeared first on Vanguard News.
