The Attorney General of the federation and minister of Justice, Mr Abubakar Malami (SAN) by a letter dated December 11th, 2019 addressed to the Director-General of Department of State Services(DSS) Yusuf Bichi directed the immediate takeover of the prosecution of all charges in respect of Omoyole Sowore by the Federal Ministry of Justice in line with the provisions of Sections 150(1) and Sections 174(1) a-c of the 1999 constitution as amended. This development is probably due to the disgraceful handling of the case with the invasion of the Federal High court, Abuja by the operatives of the DSS in their bid to rearrest Sowore on Friday December 6th, 2019. The focus of this article will be to examine the Powers of the AG over prosecution of Criminal offences in Court vis a vis the present charge(s) against Omoyole Sowere the convener of “Revolution Now”.
Mr. Omoyole Sowere, the founder of Sahara Reporters was arrested by the DSS on August 3rd, 2019 over a planned protest slated for Monday 5th August,2019 which he tagged “Revolution Now”. According to the Security Agency, Mr Sowore was arrested for threatening public safety, peaceful co-existence and social harmony in the country and was accused of planning to overthrow the government with his protest, the basis upon which he had been detained. Subsequently, the DSS charged Mr Omoyole Sowore alongside his co-defendant, Olawale Bakare to Court. The duo spent over three months in DSS custody. On Wednesday 6th November,2019 Hon. Justice Ijeoma Ojukwu ordered the release/bail of Sowore and his co-defendant. The DSS defiled the court order that granted them bail even after they met their bail conditions and in spite of several appeals and protest to secure their release. On 5th December,2019, the said Judge handling the matter blatantly rebuked the DSS for disregarding court order and fined the DSS the sume of 100,000 naira to be paid to the accused persons and gave the DSS and ordered the DSS to release the accused persons within 24 hours. On 6th December,2019 the court adjourned the matter to February 11th 2020 for trial and on the same day, less than 24 hours after they were released, Sowore was re arrested by about 15 DSS officials . Before the fresh arrest, it was reported that a stampede occurred as Sowore and his supporters tried to resist the officials of the DSS. The ensued commotion made court officials, lawyers, journalists and others to run for safety. DSS agents pulled their guns in a show of force in the court premises, causing confusion. The development disrupted the proceedings, which Justice Ojukwu was conducting after Sowore’s case was adjourned. The judge was therefore forced to suspend sitting, directing that the remaining cases on her list for the day be adjourned.
It has been alleged that Sowore was rearrested by the DSS within the court premises contrary to the extant Criminal procedure laws and that this amounted to desecration of the Court. On the other hand, the DSS has denied the allegations and claimed that the re-arrest was effected outside the court room. The DSS alleged that on December 5th 2019 when Sowore was released, he addressed a group of persons at Transcorp Hilton Hotel Abuja who he assured of his cause to create anarchy in the country contrary to his bail conditions. Despite DSS demnials there has been urgent calls and pressure from within and outside Nigeria for the immediate release of Sowore by the DSS whose actions of arrest, neglect to release and rearrest of Sowore amounted to Human rights infringement and violation of the rule of Law. The NBA has called for the impeachment of President Buhari if he fails to sack the DSS boss based on the fact that the DSS is directly under the control of the President who should call him to order. Following the rearest of Sowore, Amnesty International Nigeria, Socio-Economic Rights and Accountability project SERAP and other civil society groups have threatened to embark on a mass action if the Federal Government failed to release him unconditionally within 14 days. The gropus dmenaded for apology from FG over desecration of the FHC by DSS, called for sack of operatives involved in the Act and requested that the President address the nation on his commitment to human rights. It is on this background that the AGF exercised his constitutionally guaranteed powers to take over the prosecution of Sowere from the DSS.
The Attorney General of the Federation is the chief law officer of the Federation and primarily responsible for advising the Federal government on legal issues and representing the FG in Litigation. Section 174(1) of the 1999 Constitution provides for the powers/duties of the Attorney General of the federation as follows:
“174. (1) The Attorney-General of the Federation 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 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; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority.”
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The Attorney General of the states has similar powers over state matters under Section 211 of the 1999 constitution. The Attorney General has wide and expansive powers guaranteed under the constitution and indeed occupies a very prominent position in the government. The Supreme Court held in State v. Ilori (1982) 2 SC 155 that the Attorney General has at common law been a master unto himself, a law into himself and under no control whatsoever, judicial or other wise and that the AG is a great ministerial prerogative coupled with grave responsibilities. Also in Attorney-General of Ogun State v. Eganti (1986) 3 NWLR (Pt. 28) 256, the Court of Appeal held that the powers of the AG under the constitution are unchallengeable, hence while exercising that powers, the Attorney-General is not obliged to give any reasons or explanations and that no court of law has the power to pronounce on the validity of those powers. Therefore, that while a person aggrieved by the exercise of such powers can initiate other proceedings against the Attorney-General, such a person cannot ask the court to review the exercise of those powers.
The AGF has constitutional powers to institute, undertake, take over, continue, discontinue criminal proceedings before any court in Nigeria (other than a court martial)in respect to a federal offence. Furthermore, it is trite law that, the Power of the Attorney General to institute or undertake criminal proceedings in court is not exclusive. In other words the AG powers of public prosecution is not exclusive. In the case of Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & Ors. Vs Dr. Femi Adekanye & Ors. (No. 1) (2002) 15 NWLR (790) 318, the Supreme Court construed Section 160 of the 1979 Constitution, which is in pari materia with Section 174 of the 1999 Constitution. At page 329 D – F, the Court per Belgore, JSC held as follows:
“It is clear from the provisions of S. 160 of the 1979 Constitution that the Attorney General’s power of public prosecution is not exclusive; the “any other authority or person” in subsection (1) can institute and undertake criminal proceedings. The Central Bank of Nigeria and the Nigerian Deposit Insurance Corporation are also authorities that can institute criminal proceedings under Failed Banks (Recovery of Debts) and Financial Malpractices Decree, 1994 (see S. 24 thereof). The Attorney General can institute and undertake criminal proceedings in any court in Nigeria, other than a court-martial in respect of any offences and can take over or discontinue any such proceedings instituted by any other authority or person.”
In a more recent decision in F.R.N. Vs Osahon (2006) 5 NWLR (973) 361, the Supreme Court held that the Police authority can by virtue of the provisions of S. 174 (1) of the Constitution prosecute any criminal suit either through its legally qualified officers or through any counsel they may engage for the purpose. The Supreme Court further held that the Attorney General can take over or continue the prosecution from any such authority or person. He can also discontinue by way of nolle prosequi. The Supreme Court held Per Pats-Acholonu, JSC at page 417 E – F as follows:
“The implication of the intendment of section 174(1) aforesaid of the Constitution is that the office of the Attorney General does not have the monopoly of prosecution though it has the power to take over any case in any court and decide whether to go on with it or not.” (Underlining mine).
It follows from the above decisions of the apex court that the power to institute and conduct criminal proceedings is not exclusive to the Attorney-General of the Federation or the Attorney-General of a State. See also: Pharna Deko Plc. And anor v. Nigeria social Insurance Trust Funds management Board (2010) LPELR- 4849CA. However, the Attorney general has the full power and authority to take over any criminal prosecution in court for either of the following purposes;
to continue the prosecution;or
to discontinue the prosecution(nolle prosequi)
While the Power to institute criminal proceedings is not exclusive to the Attorney General, the AG has the exclusive power to take over criminal proceedings in court and such exercise of power cannot be succesfully challenged. It is our humble opinion that the take over of the Prosecution of Omoyole Sowore from the DSS by the Attorney General of the Federation has validity under the law. The AGF is merely exercising powers which are incontestably vested on him by the highest law of the land. The AGF could at this stage decide to continue the prosecution or enter a nolle prosequi(as demanded by the Defence counsel, Femi Falana SAN).
It is my considered view that, the AGF deliberately chose to take over the prosecution in order to cure the excesses of the DSS who have been widely accused of utter disregard to the rule of law and flagrant disobedience of court orders. Also the AGF must have acted with regard to the public interest and in the interest of justice and the need to prevent abuse of legal process. The relevant provision is Section 174 (3) of the 1999 Constitution. My belief is that the AGF will handle the matter with due regard to the rule of law being the chief law officer of the federation who is expected to have a mastery of the law and abide by same. Most certainly, all democratically elected governments must take steps to avoid human right abuses and enthrone the rule of law. Though it is not certain whether the AGF took over the suit to enter a nolle prosequi or to continue the proceedings which has been adjourned for trial, whatever is the case, due regard must be had to the rule of law and fundamental rights of the citizenry to avoid a state of chaos or lawlessness erupting in Nigeria.
