Powers of the Attorney General to Take Over Prosecution from Lay and Legally Qualified Police Officers

By Bashiru Ibrahim

The recent takeover of prosecution from the Police by the Kano State Attorney General has generated a lot of controversies even among lawyers. Some are of the opinion that the Police can still prosecute despite the takeover relying basically on the following assumptions:

  1. The ACJL cannot override the decisions in Osahon and Olusemo
  2. Only lay Police prosecutors are affected and not legally qualified police officers
  3. ACJL recognizes police powers to prosecute
  4. The Police Act empowers the Police to prosecute

Because of the misconception that the Attorney General relied solely on the newly enacted Administration of Criminal Justice Law of Kano State, 2019 (ACJL), to take over criminal prosecution from the police, we would leave the ACJL out of the discourse and see whether there is any other Law in support of the takeover.

The starting point is, who is Attorney General and what is his constitutional role? In simple terms, he is the Chief Law Officer of the State and a Law unto himself. Section 211 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is sacrosanct. It provides:

1) The Attorney-General of a State shall have power-

  • to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;
  • to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
  • to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.” (underline provided)

The only caveat on the exercise of these powers is to have regard to the public interest, the interest of justice and the need to prevent abuse of legal process. However, there has always being a presumption in favour of whatever decision he takes that he has had regard to this caveat. At any rate he is a Law unto himself and no one can question his exercise of these powers, not even his appointor. See the case of The State V. Ilori [1983]ANLR 85, [1983] 1 SCNLR 94. Where a full panel of the Supreme Court, per Kayode Eso JSC, held:

“These powers, whether under the common law or conferred by the 1960 and 1963 Constitutions (aforesaid), were not just exercised by the Attorney-General arbitrarily or on a rule of thumb. As the Chief Law Officer of the State, the Attorney-General has always exercised the powers with regard to the public interest, interest of justice and the need to prevent abuse of legal process. But what happens is that he takes sole responsibility in coming to a decision, in the exercise of his discretion, as to what amounts to public interest, interests of justice and the need to prevent abuse of legal process. It is in his taking this responsibility, that he is a master of his house and a law unto himself. Whether or not he makes any consultation is a matter peculiarly within his discretion, but whatever decision he arrives at, is his responsibility.”

“The exercise of these powers by the Attorney-General, that is, the institution and discontinuance of criminal proceedings cannot be questioned, and subject to the reserved right of his appointor to remove or even reassign him without giving any reason whatsoever for so doing, neither that appointor nor any other person for that matter can question such exercise of his powers.” (underline provided)

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It is true that the Police have powers to prosecute under Section 23 of the Police Act. However, these powers are subject to the Constitutional powers of the Attorney General. The Section provides thus:

“Subject to the provisions of sections 174 and 211 of the Constitution of the Federal Republic of Nigeria 1999 (which relate to the power of the Attorney-General of the Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria), any police officer may conduct in person all prosecutions before any court, whether or not the information or complaint is laid in his name.” (underline provided)

The decisions of the Supreme Court and the Court of Appeal in FRN V. OSAHON and OLUSEMO V. COP respectively, decided that the Police can prosecute and not that the Attorney General cannot take over such prosecution. In fact, these two decisions are in support of the takeover under consideration. The Supreme Court decision in Osahon is a decision of the full Court of seven (7) Justices whom, except one, later became Chief Justices of Nigeria. The Supreme Court, per Belgore (later CJN) adopted the reasoning of the Court of Appeal in Olusemo thus:

“Kalgo J.C.A. (as he then was) correctly summed up the situation in Olusemo v Commissioner of Police (1998) 11 NWLR (Pt. 575) 547, 558, when he said:

“By these provisions the Attorney-General of the Federation and of the State as the case may be, are themselves empowered to institute and undertake any criminal proceedings in any Court in Nigeria and if any other person or authority instituted or undertook any such criminal proceedings in any Court in Nigeria, within their respective jurisdictions, they have the power to take it over, continue or discontinue at any stage of proceedings. In the instance, the power to prosecute or undertake criminal prosecution is vested in the Police Officer under Section 23 of the Police Act subject to the exercise of powers conferred on the Attorney-General by the provisions of Section 160 of the Constitution. It is very clear and without any doubt that the Attorney-General of the Federation has not exercised his powers under Section 160 of the Constitution in the instant case. Therefore, the Police officers powers to prosecute in the criminal proceedings in this case is not limited, restricted or controlled. Mr. Ehindero qua Police Officer is competent to prosecute in these proceedings in any Court in Nigeria including the High Court.” (underline provided)

May we add that the power of the Attorney General to takeover is not restricted to lay Police prosecutors alone. It applies both to lay and legally qualified Police Officers and to any other person. While it is true that Legally qualified Police Officers have the right to practice even at the Supreme Court, this right cannot shield them against the powers of the Attorney General. They are not called to the bar with immunity from or as an exception to or resistant’s to the powers of the Attorney General but simply as Solicitors and Advocates of the Supreme Court of Nigeria just like any other lawyer. The Attorney General remains a Law unto himself.

We wonder why it has even become a subject of debate of whether the takeover is proper or not. We therefore make the following conclusions:

  1. With or without the ACJL, the Attorney General can properly take over criminal prosecution from the Police.
  • The decisions in Osahon and Olusemo are rather in support of the takeover.
  • Whether lay or legally qualified, Police Officers are all subject to the powers of the Attorney General.
  • The Attorney General, being a Law unto himself, can takeover with or without any consultation or consent.
  • Courts or cases the Attorney General has not taken over prosecution, the Police whether lay or legally qualified can prosecute under the Police Act and under the ACJL.

Finally, we wish to state that the Attorney General and the Police are very important institutions in the criminal justice system complementing each other’s effort for a better administration of justice. The Police are experts in crime detection and investigation while the Attorney General and his officers are experts in prosecution. They are partners in progress and there is no clash or conflict in their functions; unnecessary rancour should not be propagated.

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