By Hameed Ajibola Jimoh Esq.

The Police Act, 2020 recently signed into law by the President of Nigeria has generated some arguments among the legal communities and many comments have been made against the provisions of the section 66(2) of the Act by lawyers. I intend by this short piece, to contribute to the discourse to the best of my knowledge.

 

The said section 66(2) of the Police Act provides thus ‘ (2) A police officer may, subject to the provisions of the relevant criminal procedure laws in force at the Federal or State level, prosecute before the courts those offences which non-qualified legal practitioners can prosecute’.(Underlining is mine for emphasis). From the wordings of this provision, I have observed that where the issue or objection by lawyers (including my humble self) relates to is those underlined part of the sub-section 2.What these underlined words imply in my humble view is that a police officer who is not a lawyer can still prosecute criminal cases before courts of law, even though that there is no such offences which nonqualified legal practitioners can prosecute under our criminal laws! Furthermore, though the provision provides that the provision is subject to the provisions of the relevant criminal procedure laws in force at the Federal or State level, notwithstanding this nomenclature, it is my humble submission with due respect to the National Assembly, that the content of the Act legislating on criminal procedures (whereas all offences generally are on the residual legislative list) is a usurpation of the legislative powers of the State House of Assembly! More so, the provision in this sub-section 2 in my humble view, does not relate to substantive criminal laws but rather it relates to procedural laws and these procedural laws emanate from the substantive criminal laws. Also, since the criminal laws on the substance, are on the residual legislative list, the National Assembly has in my humble view, acted altra vires of its powers having regard to the provisions of the section 66(2) of the Act. Nevertheless, the provision of section 66(2) of the Act  shall (in my humble view) only be applicable to the Federal Capital Territory-herein referred to as FCT and other Federal Courts as appropriate, alongside the provisions of the Administration of Criminal Justice Act, 2015, in relation to prosecutorial powers by the police officer in Nigeria. See the case of: A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. where the Supreme Court held thus: ‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list. The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws. The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists’. Also see the Preamble and section 2 of the ACJA. I must also point out that it is doubtful in my humble view that the said sub-section 2 of the Section 66 of the Act would have any effect on the FCT courts and Federal courts having regard to the provisions of section 106 of the ACJA which provides thus ‘106. Subject to the provisions  of the Constitution,  relating  to the powers  of prosecution  by the Attorney-General  of the Federation,  prosecution of all offences  in  any  court  shall be undertaken by:

(a) the Attorney-General of  the  Federation  or  a  Law   Officer in his Ministry or Department; (b) a legal   practitioner authorised by the Attorney-General   of the Federation;  or (c) a legal practitioner authorized to prosecute by this Act or any other  Act of the National Assembly.’. While section 109 of ACJA provides for the methods of instituting criminal proceedings thus ‘109. Subject to the provisions of any other law, criminal  proceedings may, in accordance with the provisions of this Act,  be instituted:

(a) in a Magistrates court,  by a charge or a complaint whether  or not on oath or upon receiving  a First Information Report;

 (b) in  the  High  Court,  by  information  of  the  Attorney-General  of  the Federation, subject to section  104 of this Act;

(c) by information or charge filed in the court after the defendant  has been summarily committed for perjury by a court under  the provisions  of this Act; 

(d) by  information  or charge  filed  in the  court  by  any  other  prosecuting authority;  or

(e) by information  or charge  filed by  a private  prosecutor subject  to  the provision  of this Act.’. Therefore, the sub-section does not have any effect on the FCT and Federal Courts respectively since the ACJA is emphatic that only a legal practitioner shall prosecute in any of such courts including those inferior courts such as the Magistrate courts, etc. Furthermore, it is my recommendation that the Attorney-General of the States should either institute an action in the appropriate court of competent jurisdiction to strike out the provisions of the section 66(2) of the Act which usurps the powers of the State House of Assembly or for the States’ Houses of Assembly (which have no similar laws such as that of the ACJA referred to above) to make their laws which aims at restricting prosecution of criminal cases in courts by a non-lawyer police officer, since the said section 66(2) of the Act provides that ‘subject to…’. The words ‘subject to…’ was defined in the case of PETROLEUM (SPECIAL) TRUST FUND V. WESTERN PROJECT CONSORTIUM LTD. & ORS. (2006) LPELR-7719(CA) as follows” Subject to” means liable, subordinate, subservient, or inferior to, governed or affected by; provided that; provided; answerable for; See Blacks Law Dictionary 6th Edition page 1425. Where “Subject to” is used, a condition, restriction, limitation is introduced. See: Oke v. Oke (1974) 1 All NLR (Pt.1) p. 443; Aqua Ltd. v. Ondo State Sports Council (1988) 10 – 11 SC p. 31; (1988) 4 NWLR (Pt.91) 622; Olusemo v. COP (1998) 11 NWLR (Pt. 575) p. 547.” Per RHODES-VIVOUR, J.C.A. (Pp.21-22, Paras.F-A).

Finally, I humbly urge lawyers to disregard the provisions of section 66(2) of the Police Act as it concerns the FCT and the Federal High Courts respectively, since same is likely not to have any effect having regard to the relevant provisions of the ACJA cited above, while I humbly recommend that the Attorney-General of any State or all the States of the Federation should either jointly or severally institute an action in the appropriate court to strike out the provisions of the said section 66(2) of the Act as it has usurped the powers of the State House of Assembly which is the appropriate legislative arm of government saddled by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to make laws on items on the residual legislative lists such as crimes and or offences and their procedures as they relate to the State.

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