Davidson Iriekpen argues that the sheer incompetence of some state Attorneys-General and Commissioners for Justice in vigorously prosecuting cases is responsible for the lawlessness and disorderliness witnessed in the country’s judicial system
It is not in doubt that of all the cabinet portfolios in the country, whether at the federal or state level, the posts of attorneys-general are the most powerful. The two positions: Attorney-General of the Federation (AGF) and Minister of Justice and those of the Attorneys-General and Commissioners for Justice are the only ones recognised by the constitution.
For instance, while Section 151 (1) of the 1999 Constitution specifically states: “There shall be an AGF who shall be the chief law officer of the federation and a minister of the government of the federation, sub-section 2 of the statute book specifically defines the qualifications or criteria for the occupant of the office: “A person shall not be qualified to hold or perform the function of the AGF unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.”
Section 174(1) goes ahead to state that the AGF shall have powers: (a) 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 Act of the National Assembly; (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
Subsection 2 states that “the power conferred upon the AGF under subsection 1 of this section may be exercised by him in person or through officers of his department.
While subsection 3 states that: “In exercising his powers under this section, the AGF shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
While the powers of the AGF cover the entire federation, those of the state attorneys-general are limited to their respective states. For instance, Section 195 (1 and 2) of the Constitution equally states thus: “There shall be an attorney-general of a state who shall be the chief law officer of the state and a commissioner for justice of the government of that state. Sub-section 2 of the section also states that: “A person shall not be qualified to hold or perform the function of the attorney-general of the states unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.”
Also, Section 211(1) states that the attorney-general of a state shall have powers (a) 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; (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
Subsection 2 states that “the power conferred upon the attorney-general of a state under subsection 1 of this section may be exercised by him in person or through officers of his department.
While subsection 3 states that: “In exercising his powers under this section, the attorney-general of a state shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
It is believed that in spite of this recognition and the powers conferred on the occupants of these offices, they do not know their left from their right. Many analysts believe that one of the reasons why there is so much disorderliness and lawlessness in the judicial system today is because the AGF and state AGs are incompetent.
Almost on a daily basis, people are being killed, maimed and property worth billions of naira are destroyed without the AGF or state AGs filing charges against the suspects. Nigeria has literally been turned into a jungle where people can be hacked to death and nothing happens.
Currently, almost all the states of the federation have laws against kidnapping yet the menace thrives like stocks due to the incompetence of the AGs.
Apart from a few AGFs and Lagos State in particular where successive attorneys-general since 1999 from Professor Yemi Osinbajo, Supo Shasore to Ade Ipaye and the incumbent, Adeniji Kazeem vigorously pursued and initiated reforms aimed at sanitising the state justice system, others had or have practically been sleeping and docile.
Many observers have agreed that gone are the days when AGs at the federal or state level would be fully roped and be ready to prosecute an important case for the country or state in court. What Nigerians see these days are AGs who are interested in the pecks or carried away by the glamour of their offices. A majority of them have simply turned themselves to errands boys who run dirty deals for themselves, presidents, government officials or their respective state governors.
In Nigeria, offences such as murder, manslaughter, kidnapping, theft and other basic crimes such as traffic offences that could have created sanity in the country are within the purview of the state AGs to vigorously prosecute and pursued, but most times, these offences have been abdicated due to incompetence.
The incompetence of state attorneys-general was displayed in Edo State in 2013 when Olaitan Oyerinde, the Principal Secretary to the then Governor Adams Oshiomhole was killed in Benin City. Knowing that murder is a state crime to prosecute, rather than liaise with the state police command to bring the suspects to justice in the state, the state government took to matter to Abuja. But they met resistance from the then Attorney General of the Federation and Minister for Justice, Mohammed Bello Adoke (SAN).
After a bitter row, Adoke accused Oshiomhole and the state government of unnecessarily heating up the polity and politicising the murder. Adoke in a letter to the Chairman, House of Representatives Committee on Public Petitions, accused the state AG of incompetence. He said it was not his office but that of the state AG to prosecute the gruesome murder of Oyerinde. He noted that his ministry had nothing to do with murder case but that it was the state government that has the power to prosecute the murder cases.
Adoke, in the letter said: “My attention has been drawn to the representations that my office and the Federal Ministry of Justice’s alleged complicity and improper investigation in the murder of Olaitan Oyerinde. The Federal Ministry of Justice had examined the powers of the Department State Services (DSS) as provided by Section 3 of the National Security Act, Cap.N.74 LFN, 2004 and the powers of the Nigeria Police Force as provided by section 4 of the Police Act Cap. P.19 LFN, 2004 and had come to the reasoned conclusion that the power to investigate crimes of the nature under consideration (murder) resides with the Nigeria Police Force while the power to gather intelligence lies with the DSS, and (b) murder, the offence allegedly committed by the suspects is exclusively within the jurisdiction of the states in the federation. The Criminal Procedure Act, Cap., C. 38 LFN, 2004 is very clear on this matter.
“The Federal Ministry of Justice therefore has no power to prosecute murder cases as murder is a state offence committed against state law and that the matter was already being handled by appropriate authorities in Edo State.
“In view of the foregoing clear instructions and position, I am shocked, embarrassed and utterly disappointed by the representations reportedly allegedly made that I have accordingly instituted an internal investigation to unravel the mystery and appropriate measures will be taken to discipline any officer found wanting in this deliberate propagation of falsehood.”
Though many state AGs have argued that they do not always have the cooperation of the police, a federal agency, to investigate and prosecute criminal cases in their states, that argument had long been faulted by Justice Christopher Balogun of the Lagos High Court who in a recent ruling in the case between the People of Lagos State vs Ndi Okereke-Onyuike, held that the attorneys-general of the state do not need police investigation to prosecute criminal cases.
In the ruling which was upheld by the Court of Appeal, the judge submitted that since the power of the police is discretionary, the state AG can file criminal charges against anybody in a state court of law.
It was perhaps consequent upon this verdict and row between Adoke and Oshiomhole that human rights lawyer, Mr. Femi Falana (SAN), during the first year remembrance of Oyerinde in Benin City indicted the state AG for not taking up the case. He expressed displeasure with the state government for not having a coroner’s law which allows for an inquest to be conducted on suspicious deaths in this modern era.
Throwing the challenge to enact a coroner’s law at the state government, Falana said: “I advice that we should have a coroner’s law in Edo State for the investigation of unnatural deaths as it is the case in Lagos State.”
On his part, an Edo-based legal practitioner, Samson Omogbai, put the blame for the bungling of Oyerinde’s murder at the doorstep of the state government. He said the case died when the state government took the case to Abuja.
Eragbai said the state government should have handled the case with the state police command instead of involving the Force Headquarters.
“Murder to the best of my knowledge is a state offence, which does not need the AGF. Tell me what the state government wanted to achieve by taking the case to Abuja? What do they have AG for at the state level? What has the Edo State AG on his own done to bring the suspects to trial? For me, the murder was bungled when the case went to Abuja. They should have handled the case with the state police command and the state AG.”
Eragbai, who described most state AGs as lazy and incompetent wondered why a state like Edo does not have a coroner’s law in the 21st century. He noted that even minor offences that state AGs are supposed to handle and cleanse the society are left for the AGF.
“We have a lot of problems in this country. Every public officer either due to incompetence, shies away from his/her responsibilities and blaming other persons. Why do you think everybody feels that the federal government is not performing today? It is because the state governors have failed the people. It is equally because public institutions have failed the people,” he said.
Apart from a few AGFs and Lagos State in particular where successive attorneys-general since 1999 from Professor Yemi Osinbajo, Supo Shasore to Ade Ipaye and the incumbent, Adeniji Kazeem vigorously pursued and initiated reforms aimed at sanitising the state justice system, others had or have practically been sleeping and docile