Ever since the news broke that the attorney-general and commissioner of justice in Kano state has taken away the prosecution of criminal cases from the police in the state’s magistrates’ courts, legal practitioners across Nigeria have been voicing their takes on the matter, in their attempts to reveal the propriety or otherwise of the move.
While most of them believe it would engender diligent prosecution, some raised questions on possible discord between the step and subsisting decisions of the Supreme Court of Nigeria which avouched that the police has powers to prosecute criminal cases in Nigerian courts.
Can the attorney-general of Kano, or of any state for that matter, take away what the apex court has asserted that the police possess? If the rationale for taking that step was that most police prosecutors are not lawyers, what would happen to the lawyers among them who have, by all standards, qualified as barristers and solicitors of the Supreme Court of Nigeria?
In a Facebook coalescing point called NIGERIAN BAR ASSOCIATION MEMBERS, a highly civilized but thought-provoking interaction, so unlike most social media engagements by Nigerians, ensued between Nigerian lawyers.
Oladiran Ayodele stimulated the argument when he sort to know what becomes of qualified lawyers in the police. He queried: “Then what will be the effect of Olusemo VS COP and FRN VS OSAHON where the Supreme Court held that a police officer can prosecute cases even up to the Apex court? Will that authority not clash with the clear provisions of the ACJL? Even the Police have trained lawyers and by virtue of section 24 of the Police Act they can prosecute criminal cases. My humble self is a counsel for the Police. Is the AG Kano state saying that I can’t prosecute criminal cases on behalf of the Police?”
Lukman Olarewaju Bello explained to Ayodele that “When the judgment of the apex or another court is in conflict with the provision of a statute, which one will prevail? I want to strongly believe that it is the provision of the law that will prevail. As we know in the cases you cited, the apex court held that police can prosecute in any court, the same apex court will hold otherwise when confronted with the provision of the new ACJL in Kano. I stand to be corrected, though.”
Ayodele however insisted that Bello’s stance “did not reflect the position of section 24 of the Police Act which holds that a Police officer can prosecute a criminal matter. That section is also a provision of the law. If you look closely at section 109 of the ACJL of Osun state, it clearly states that legal practitioners so qualified can prosecute and this includes police Counsels. The Kano ACJL will have problem of implementation.”
Ayoola Julius said “this does not mean police cannot prosecute but where those function has been legislated away from the Police, there is nothing the Police can do especially where the offences are state offences.”
But Ayodele disagreed with Julius, saying “I do not agree with you sir. If you read section 24 of the Police Act with reference to section 174 then you will agree with me that the state must indicate interest in taking over the matter, otherwise nothing stops the Police Counsel from prosecuting state offences.”
In response, Usman Umar Fari, who wrote to judicialsketch.com on Ayodele’s concerns, offered an opinion that “There is no clash with the Supreme Court’s decisions in Osahon and Olusemo cases. Those cases affirmed the powers of the police to prosecute criminal cases subject to the powers of the Attorney-General to undertake and discontinue such proceedings.
“Osahon was principally decided based on the provision of section 56 of the Federal High Court Act while Olusemo was based on section 23 of the Police Act. Even if one believes that there is a seeming conflict between the ACJA and other legislations, the provisions of ACJA shall take precedence because it is the specific provision made purposely for prosecuting cases for a better criminal justice system. In law, specific provisions take precedence over general ones.”
Fari added that “Another issue worthy of consideration is that the power of the AG to take over the prosecution of cases is absolute and unquestionable. It was a power that was specially and specifically donated to him by the constitution. So, the police can prosecute subject to the powers of the AG.”
Joel Abdul Isah Jolly appeared to agree with part Fari’s submission, saying “The provision of section 24 of the Police Act is subject to the major laws governing criminal procedure. The ACJL is the major law governing criminal proceedings in the courts of Kano State and its provisions preponderate that of the Police Act. In essence, the prosecutorial powers of the police has been stripped away from them by the ACJL and even the Supreme Court won’t hold otherwise.”
Then, the issue of who drafts charges came up when Ayodele asked “…but can the state draft charges which does not first emanate from the Police? Arraignment is first done by the Police prosecutors just immediately after the IPO brings the defendant to Court.
On this, Julius said “the Police will now be expected to turn their files to the State and allow the state to draft the charges and the arraignment. Police Prosecutors save for the lawyers are a kill joy. It is even dangerous for the society to allow a non legal mind to attempt to prosecute
Ayodele however countered that “… even in Lagos which is the trail blazer in the Administration of Criminal Justice system, the police do not send their case files to DPP straight from the police station . That can’t happen sir.”
Gani Asiru brought a constitutional dimension to the discourse. He said: “Surprisingly my colleagues are relying on the Police Act and ACJL. We shouldn’t forget the constitutional power of the AG in criminal prosecutions. With or without ACJL the AG can stop the Police or any authority from prosecuting for offences under his jurisdiction. Read the sections dealing with the powers of Attorney General of the Federation and that of the State in the Constitution and section 1 (3). Any law inhibiting power of the AG will be null and void. AG is a law unto himself with regards criminal prosecutions.”
Anthony Oluwafemi Akinbinu simply said: “Don’t forget magistrate courts in Kano belong to the state not federal government and they can legislate on what they want in their courts.”
Igboneku Sunday Aduku appeared to agree with Ayodele when he said: “Point of correction here gentlemen, police prosecution is with reference to lay prosecutors not lawyers in police garb. Those ones are entitled to prosecute unfettered. Only the lay police prosecutors will be affected.”
Edirin Ariavee’s dimension of thought was interesting. He smartly saw something else in the offing when he said: “Job for Lawyers. They should establish office of the District Attorney (DA) for everything local government. This is restructuring in another way.”
Ayodele, who triggered the most interactive dialogue on the matter in the group, incidentally rested it by saying: “It is my humble opinion that both the AG and the Police are partners in the criminal justice system and the intention of the AG is not to weed out Police lawyers but to do away with the issue of lay prosecutors.”