Legality of Provisions of the Administration of Criminal Justice Law of Ebonyi State Seeking to Disqualify the Nigerian Police from the Prosecution of Crimes – By Felix Ogunmade

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Felix Ogunmade
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Legality of Provisions of the Administration of Criminal Justice Law of Ebonyi State Seeking to Disqualify the Nigerian Police from the Prosecution of Crimes – By Felix Ogunmade

News making the rounds report that the Ebonyi State House of Assembly has recently enacted a law seeking to disqualify men/officers of the Nigerian Police from undertaking the prosecution of crimes within the State. The Attorney-General of the State was quoted by newsmen saying:

“By this law, Police officers are no longer qualified to prosecute criminal matters in our Courts …. All criminal matters henceforth are to be prosecuted by lawyers from the Ministry of Justice.”

The writer of this article is of the opinion that the law is destined to fail if it truly contains the said provisions.

The power to make laws relating to the Nigeria Police forms Item 45 of the Exclusive Legislative List under Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended). As such, the House of Assembly of Ebonyi State lacks the Legislative competence to make any law touching on the powers and operations of the Nigeria Police. However, the Attorney-General of a State does not even need a state law to stop the Police from undertaking criminal prosecutions. Section 211 of the 1999 Constitution provides that the Attorney-General of a State shall have power;
“(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; and (c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
For the avoidance of any doubt, Section 211(2) of the Constitution provides that “the powers 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”.

Also, under Section 23 of the Police Act Cap P19, Law’s of the Federation of Nigeria 2004 made by the National Assembly pursuant to its exclusive Legislative powers, the Police have been effectively empowered by that national legislation to prosecute crimes, subject only to the powers of the Attorney-General. Thus, Section 23 of the Police Act provides:
“Subject to the provisions of Sections 174 and 211 of the Constitution of the Federal Republic of Nigeria 1999 (which relates 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.”

The Constitutional powers of the Attorney-General are therefore already enormous and unquestionable. The State Legislature cannot even compel him to exercise the powers as we are made to believe now. It is entirely a matter for discretion of the Attorney-General. All he needs do is to authorize lawyers in the Ministry of Justice to initiate, takeover or discontinue all the criminal prosecutions. That is if he has the personnel to undertake the prosecution of all the criminal matters in the State, anyway.

The relevant provision of the Criminal Justice Law of Ebonyi State seeking to disqualify the Police from undertaking criminal prosecutions is therefore needless but rather, null and void to the extent of its inconsistency with provisions of the Constitution and the Police Act.

Felix Ogunmade
Lagos-based Legal Practitioner


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