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For the purpose of our current discourse, the criminal justice trials cover issues before, during and after trials. It concerns issues relating to crime prevention, investigation, trial and post-trial management of victims and offenders. There are major ways of effective adoption and mainstreaming of ADR processes into the criminal justice sector reforms in Nigeria. These are:- Crime Prevention and Management, Prosecutorial Discretion/ Nolle Prosequi, Defence Options, Judicial Discretion, Prerogative of Mercy, Plea Bargaining And Restorative Justice.
123 3.4 Prosecutorial Discretion / Nolle Prosequi
The office of the Attorney General of the Federation is provided for in section 174 of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and the office of the Attorney General of a state is equally provided for in section 211 of the same Constitution. The Attorney General of the Federation is the Chief Law Officer of the Federation, while the Attorney General of a state is the Chief Law Officer of the state.
The respective Attorneys General have power to institute, conduct, continue, take over and discontinue criminal proceedings in any court except a court martial179. The powers conferred on the Attorney General can be exercised by him in person or through officer of his department.180 In instituting criminal proceedings, the Attorney General can, after filing information in the court, call upon a private legal practitioner to prosecute the case181. In the case of FRN v. Adewunmi182, the Attorney General of the Federation by a letter appointed Emeka Ngige, SAN as prosecuting counsel for the Failed Banks Tribunal Lagos zone and given the fiat to prosecute case arising from the Failed Banks Degree No 18 of 1994. The appellant instituted criminal proceedings against the respondent before the tribunal. Before the trial could be completed, the 1999 Constitution came into force and the Failed Banks Decree No 18 of 1994 was repealed. The charge against the respondent was transferred to the Federal High court which started the matter de novo. The respondent raised objection to the charge on the ground among others that if does not comply with the provision of the Constitution. The trial Judge dismissed the objection while the Court of Appeal upheld it. On further appeal to the Supreme Court it was
179 see CFRN 1999, ss. 174 (1) and 211(1) respectively and Administration of Criminal Justice Act, 2015, ss.107 and 108.
180 Ibid, ss.174 (2) and 211 (2), CFRN 1999.
181 See DPP v. Akozor (1962) 1 All NLR 235; Nafiu v. The State (1980) 8 - 11 SC 130; The State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548; Gwonto v. The State (1983) 3 SC 67
182 (2007) ALL FWLR (Pt.368) 978
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held that Emeka Ngige, a private legal practitioner could validly sign the charge since he had the fiat of the Attorney General to prosecute the case183.
It is worthy of note that a private legal practitioner who wants to prosecute a criminal case must be equipped with the Attorney General's fiat. The term 'fiat' in latin literally means 'let it be done'. It denotes an order or decree, especially an arbitrary one, as in judicial fiat, a court decree, etc184. A private legal practitioner cannot proceed on his own volition without the authorization of the Attorney General. He has an onerous duty to first of all apply for and obtain the fiat of the Attorney General before he can commence the private prosecution of an accused person in a court of law. Where he proceeds on his own volition without the Attorney General's fiat, such proceedings will be declared null and void ab initio by the court185. The Attorney General cannot take over such proceedings instituted by a private legal practitioner without his authorization as there will be nothing to take over by the Attorney General. The defect is beyond mere irregularity which can be cured by the takeover by the Attorney General as it goes to the root of the charge itself186.
Thus, in the case of Ikpongette v. COP187, the private legal practitioner who held a watching brief for the complainant at the trial filed an appeal against the decision of the trial court on behalf of the complainant. The Court of Appeal held that the Notice of Appeal filed is null and void and consequently there was no appeal for the Attorney General to takeover.
183 See also Comptroller Nigerian Prisons Service v. Adekanye (No.2) (2002) FWLR (Pt.120) 1659; Adekanye v.
FRN (2005) ALL FWLR (Pt. 252) 514.
184 See COP v. Tobin (2009) ALL FWLR (Pt. 483) 1302.
185 supra
186Ibid
187 (2009) ALL FWLR (pt.471)
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In exercise of his prosecutorial powers the Attorney General shall have regard to public interest, the interest of justice and the need to prevent abuse of legal process.188
Apart from private legal practitioners, the Attorney General may also delegate his authority to other authorities or bodies established by law. In the case of Amadi v. FRN,189 the Supreme Court held that the Economic and Financial Crimes Commission is a common agency for both the Federal and States as such it qualifies as any other authority to institute criminal proceedings and to which the Attorney General may delegate his power under section 211 of the Constitution of the Federal Republic of Nigeria, 1999. The Court held further in that case that any staff of Economic and Financial Crimes Commission can exercise the power delegated to the anti-corruption body.
Nigerian laws recognize the general prosecutorial discretion and in fact give it a constitutional flavor. The Attorney General, and by constitutional delegation, his Law Officers, enjoy Supreme prosecutorial powers in all courts in Nigeria, except a court martial. Therefore, the Attorney General in exercise of his constitutional powers may settle or compound any case before or during trials.
Apart from the constitutional caution of upholding public interest, interest of justice and the need to prevent abuse of legal process, we firmly submit that the Attorney General can resolve any criminal case through ADR processes or mechanisms. This may be by negotiation and settlement with the criminal defendant or preferably by initiating victim- offender mediation.
188Constitution of the Federal Republic of Nigeria, 1999, ss. 174(3) and 211 (3) (Hereinafter referred to as The Constitution; Adekanye v. FRN (2005) ALL FWLR (pt 252) 514; COP v. Tobin (2009) ALL FWLR (pt 483) 1302
@ 1327-1328
189 (2009) ALL FWLR (pt.462) 1103
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The researcher is not ignorant of the fact that section 127 of Criminal Code creates the offence of compounding felony, but we further argue and submit that this provision is subject to the constitutional powers of the Attorney General to exercise prosecutorial discretion.190
Presently, there are no clear prosecutorial policies and guidelines for public prosecutions in Nigeria both at Federal and State levels. We are also of the view that to maximizes the potentials of the use of prosecutorial discretion and ADR in criminal cases, it is necessary for the Attorney General to promulgate clear prosecutorial policy and guidelines to guide his law officers. Thus this will go a long way in helping to prevent abuse of the powers; ensure protection of public interest, the interest of justice; and the abuse of legal process.