Minister for Justice, Bello Adoke
Tobi Soniyi in Abuja
Two lawyers, Mr. Sebastine Hon (SAN) and Mr. Femi Falana (SAN), have expressed support for the decision of the Attorney General of the Federation (AGF) and Minister for Justice, Bello Adoke (SAN), to scrap police power to prosecute cases.
In a separate interview Tuesday, with THISDAY, both lawyers said the policy was commendable.
Falana said the plan deserved the support of the Nigerian Bar Association (NBA) which started the campaign in 1987 under the Alao Aka-Bashorun Presidency.
According to him, once there was a synergy between the AGF and the state Attorney Generals it is going to succeed.
He said: “Right now most criminal cases are lost because of the limited legal knowledge of police prosecutors. It is difficult for police prosecutors to match the expertise and knowledge of most defence counsel including senior advocates. With the cooperation of the NBA and the human rights community, I am sure the policy will succeed in the overall interest of the society.”
He also said the policy was in line with the Legal Aid Act 2011 which had imposed a duty on the council to make available to accused persons lawyers of their choice and not those imposed on them by the state.
He noted that even though there were police officers, who had read law there were just a few of them.
He said: “The policy requires the services of thousands of lawyers to man the area courts, magistrate courts and special courts dealing with sanitation and traffic offences.”
In an interview with THISDAY, Hon, who also expressed support for the plan, however, expressed doubt as regards the capacity of the ministry of justice to effectively prosecute all cases when the police have been divested of their power to prosecute.
He said: “On the statement by the AGF that he would scrap the prosecutorial powers of the police, the comments by the Attorney General, if not carefully and properly understood, would be unduly criticised.
“I think the AGF was rather bemoaning the apparent incompetence of the police while carrying out their prosecution duties. Section 174(1)(a) of the Constitution has imbued the AGF with power to institute and undertake criminal proceedings against any person and before any court of law in Nigeria, apart from a court martial. This has given the AGF wide prosecutorial powers, which take priority over any other power to undertake public prosecutions.
“Also, section 174(1)(b) has given him the constitutional backing to take over and continue any such criminal prosecution already undertaken by any other authority or person.
“Situating the AGF’s comments within the contextual meaning and extent of his constitutional powers over public prosecution, therefore, it will be idle to say the AGF was wrong when he said his office will take over the prosecution powers of the police. His comments should be interpreted as follows: if there are pending matters which are yet to get to court, my office will utilise section 174 (1)(a) of the Constitution to undertake criminal proceedings on them. On the other hand, if the police are already prosecuting certain persons, my office has power under section 174(1)(a) to take over such prosecutions. Where then has he erred?
“The problem, however, is the immediate workability of this initiative, given the dearth of trained lawyers in the office of the AGF. Let me quickly say the man knows best on this issue of staff strength; but he cannot be honestly faulted on the proposal. His statement should be seen more as an attempt to exercise his constitutional powers to their fullest capacity rather than as an attempt to abolish the public prosecution powers of the police.”
He explained that the Police Act, which gave the police the power to prosecute could not stop the AGF from exercising his constitutional power to take over all cases.
“That Act must be read subject to section 174 of the Constitution. The powers granted a sitting Attorney General are not just sweeping but awesome. In Ezomo vs. A-G of Bendel State (1987), the Supreme Court described an A-G as a ‘law unto himself’.
“While rationalising those awesome powers, the Supreme Court, in Attorney General of Kaduna State vs. Hassan (1985) per Aniagolu, JSC, held that ‘the makers of the Constitution were wise to make it so;’ because ‘the Attorney General is both the legal as well as the political officer who is answerable politically for acts done in the Ministry.”
According to him, the Police Act needed not be amended before the AGF can exercise those powers in section 174 of the 1999 Constitution.
He said: “This does not amount to abolishing police powers of prosecution; at best, if the AGF carries out his proposal, this will amount to keeping the Police Act on public prosecutions in abeyance, pending when the AGF feels the police can competently prosecute. Mind you, the Attorney General is, under our Constitution, the “Chief Law Officer” of the Federation!”
Speaking at a national dialogue on torture, extra-judicial killings and national security, titled, Human ‘Rights Implications’, organised by the National Human Rights Commission (NHRC), Adoke said his office planned to take over from the police the power to prosecute any criminal suspect in the courts.
He also admitted that extra judicial killings in the nation had claimed about 7,195 innocent lives adding that the situation led to the increase in the level of insecurity experienced in the nation, adding the Nigeria Police Force was peopled by laymen who could not tackle defendants’ counsel in the court.
Under the AGF’s new plan, the police would only concern themselves with investigations of criminal acts of suspects, on the grounds that the inability to diligently prosecute offenders and the general state of helplessness for the victims of crime to get justice had led to a culture of self-help.
The minister who admitted that the wanton rot in the criminal justice system had escalated cultures of self help and spate of terrorist acts in the country, noted that the Federal Government was concerned that the police had through the years relied on “Police Force Order 237” to commit extra-judicial killings.
He also said the order which allowed the police to shoot any suspect or detainees trying to escape or avoid arrest had led to extra-judicial killings of 7195 people in four years, out of which 2500 were detainees.
“Although these figures have been stoutly disputed by the police, even the most charitable defenders of the Force cannot deny that some dishonourable officers indeed have taken the law into their hands in the most barbaric fashion by killing suspects and innocent citizens,” Adoke said.