Assessment of the Power and Implications of Nolle Prosequi on Justice Administration in Nigeria
ABSTRACT
The concept and practice of the power to institute, take over, and terminate any criminal proceedings in all recognized statutory courts in Nigeria, as conferred on the Attorney General, has over the years been subject to various legal and political discourse due to its perceived abuse.
This exercise of power by the Attorneys General has consequently been described as one of the symptoms of a deeper malaise afflicting the administration of proper legal processes and due dispensation of justice, particularly when invoked unjustifiably to serve personal interests at the expense of justice, the power rather than being exercised on reasonable grounds, has been wielded arbitrarily, driven by whims and caprices, and with little or absolute disregard for the public interest and interest of justice.
This paper examines the arbitrariness or otherwise of the power of the Attorneys General, analyzing whether its exercise undermines transparency, the effective administration of justice, and the democratic principle of the rule of law. It further explores the potential adverse effects such actions have on judicial independence. Ultimately, this paper argues that the misuse and arbitrary use of this power pose a significant threat and undue interference with the judiciary’s independence as a separate arm of government and erodes public confidence in the Nigeria’s administration of justice system.
KEYWORDS: Nolle Prosequi, Attorney General, Legal System, Justice, Rule of Law, Constitution, Court.
Introduction
The Attorney General enjoys several constitutional and statutory powers, particularly, the power to initiate, takeover, and terminate criminal proceedings in every court in Nigeria, excluding martial courts, before judgment is given.1 This power to terminate criminal proceedings by the Attorney General otherwise known as Nolle Prosequi and originating from Common law, can historically be traced back to England in early thirteenth century.
At that time, the sovereign could not stand in court to plead in cases affecting his interests, necessitating the appointment of an attorney to represent his interests and plead the sovereign’s case on his behalf. This attorney, known as the Attorney General, maintained the king’s interests before the royal court. In addition to representing the king and advising on legal matters, the Attorney General was regarded as a guardian of the public interest, particularly in initiating or terminating criminal prosecutions.”
According to Black’s Law Dictionary, 9th edition2, nolle prosequi as a Latin phrase meaning “Not to wish to prosecute. A legal notice that a law suit or prosecution has been abandoned”. Here it is also viewed as a mechanism employed in the termination or discontinuance of any legal matter whether civil or criminal.
This power, otherwise called nolle prosequi, is exercised as a royal prerogative by the Attorney General and is not subject to judicial review in English courts. Due to British colonial rule and the reception of English law in Nigeria, the office of Attorney General was introduced to Nigeria’s legal system, where it primarily operated as a civil service role within the Executive. The Republican Constitution of 1963 and preceding constitutions have continued to provide for this office, which has also been globally adopted with similar constitutional functions.
The power of instituting and terminating legal proceedings confers on the Attorney General has, since its implementation, dominated legal and political discourse due to its perceived abuse and its potential conflict with the principles of rule of law, justice and accountability. For instance, John S. Edwards highlights that nolle prosequi serves as a safeguard against unwarranted prosecutions, yet cautions that unchecked discretion can erode public trust in the legal system3.
Similarly, Kenneth Culp Davis argues that its proper application ensures prosecutorial efficiency but also underscores the need for mechanisms to monitor its use to avoid arbitrary or biased decisions Hence the objective of this paper is to critically analyze the nature and scope of the Attorney General’s power to enter a nolle prosequi, with a particular focus on issues of transparency, irregularities, possible arbitrariness and abuse surrounding the exercise of this discretion. Additionally, this paper seeks to evaluate the potential adverse impacts of such decisions on public interest and the administration of justice.
The Discretion of the Power of the Attorney General to Enter Nolle Prosequi Under the Nigeria Law
The 1999 constitution, like other preceding constitutions recognizes the office of the Attorney General. Although it is a political appointment, it lapses with the tenure of the appointing authority both at the Federal and State levels, usually appointed at the federal level by the President subject to confirmation by the Senate and at the State level by the Governor of a state with confirmation by the House of Assembly of the State.
The Constitution provides for the appointment of the Attorney General, with Section 150 and 195 outlining similar terms for the office at the federal and state levels.
Section 150(1) provides:
1. There Shall be an Attorney General for the Federation who shall be the Chief Law Officer of the Government of the Federation.
The subsection two also clearly outlines the qualifications required before a person can be appointed as the Attorney General. This subsection is saying in essence that a person cannot assume the office of Attorney General unless he is a legal practitioner in Nigeria and has been so qualified for not less than ten years. This ensures that the Attorney General is not just anybody but a lawyer who has, infact, garnered significant legal experience to defend and safeguarding the rule of law, while assisting the government in recognizing and upholding the people’s rights.
The Attorney General, by virtue of the sacred and sensitive position he occupies, is expected to be fair, upright, and transparent in exercising of his constitutional duties. These duties are outlined in similar terms both in Section 174 and 211 of the 1999 Constitution, particularly, regarding the power of nolle Prosequi4
Section 174 provides5 that:
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 takeover and continue any such criminal proceedings that may have been instituted by any other authority or person; any
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.
2)The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.
3) In exercising his powers under this Section, the Attorney General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
Paragraph c of this section affirms the discretion of the Attorney General to enter a nolle prosequi, which is a notice of discontinuance o prosecution against an accused person. An Attorney General may, at anytime, before judgment, terminate the prosecution of an action against an accused person, a decision that is not subject to judicial review or challenge. This discretion of the Attorney General was upheld in London County Council v. Attorney General,6 Where Lord Halsbury stated;
“The courts have no power to interfere with the discretion of the Attorney General as regards the litigation he may or may not initiate in the public interest”.
In State v. Ilori7, the Supreme court considered the powers of the Attorney General to institute, undertake and to discontinue any criminal proceedings at any stage before judgement. Eso Jsc furthers explained the scope of the powers of the Attorney General thus
” At common law, the attorney general, subject to only to ultimate control by public opinion and that of the Legislature, is a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise in relation to his powers of instituting or discontinuing criminal proceedings by entering a nolle prosequi whether such criminal proceedings are by the State or by any other person or authority.”
The combined effect of Section 174(1)(c)8 and judicial pronouncements affirming the discretion of Attorney General forms the basis for the misuse and abuse of authority of nolle prosequi in numerous cases, contrary to the subsection 3 of the Section, which urges the Attorney General to have regard for the public interest, the interest of justice, and the need to prevent abuse of legal process.
However, in practice, recent Attorneys General have exercised this power in perfidious and self-serviving ways, often disregarding public interest and justice and using the power as a tool to gratify their personal interests. infact, nothing in the Section provides a mechanism for accountability as the phrase “shall have regard to public opinion, public interest and the need to prevent abuse of legal process” is not a panacea for addressing the incessant deplorable exercises of nolle prosequi. In State v. Ilori, ESO JSC interpreted “shall have regard to” as Permissive language, according to the Interpretation of Statues, meaning, a phrase that imports a discretion but certainly doesn’t create a condition. Hence it is a phrase which is merely declaratory of what Attorney General takes into consideration in the exercise of his powers.
In the same vein, Earl Cairns LC in Julius v. Lord Bishop of Oxford (1880) interpreted similar expression as “directory, permissory and enabling.”9
It is evident that the power of nolle prosequi is inherently subjective, lying entirely within the Attorney General’s discretion. This authority enables them to decide how to wield this unfettered power, allowing them to discontinue any criminal prosecution against any individual at any point before judgment. The nature of the Attorney General’s appointment, which is predominantly political, coupled with the vast power of nolle prosequi conferred upon them, creates the potential for significant influence over the administration of justice.
This raises the concern that Attorneys General may exploit this power to discontinue prosecutions or absolve their political allies of criminal liability, thereby setting free individuals who might have a strong likelihood of guilt. Moreover, numerous instances highlight the arbitrary misuse of this power, further emphasizing the risks associated with granting such broad discretion to an individual in a political office, for instance the former minister of Justice and Attorney General of the Federation, Michael Aondoakaa10 had been reportedly terminated several corruption cases initiated by the Economic and Financial Crime Commission EFCC against corrupt politicians11.
Same way in the recent case of EFCC v. Danjuma Goje12 where the defendant who was the a senator representing Gombe Central was standing trial for corruption and abuse of office during which time he was also contesting for the Senate presidency, not long that the office of Attorney General took over the case and on a dubious circumstances that the Attorney General discontinued the case against Senator Goje on the circumstances suspected to be a plea bargain for dropping out from the race of contesting for Senate presidency in the exercise of his conferred constitutional power of nolle prosequi likewise other cases instituted by private individual, It was in the same manner that the then Oyo State Attorney General exercised the power and entered nolle prosequi in the murder case of the former minister of Justice and Attorney General of the Federation, Chief Bola Ige in a controversial circumstances which made the lead prosecution counsel in the case Chief Debo Akande SAN with no option but to withdraw the case in favour of the accused persons. while expressing his displeasure with the decision of the attorney general to enter nolle prosequi in favor of the accused persons without consulting him beforehand. The Attorney General responded to him that he his under no obligation to state his reason or seek opinion of anybody before entering a nolle prosequi.
The Attorney General as a political appointment or member of the executive branch, may be under pressure to employ nolle prosequi for political reasons. If this power is exploited, it may give the impression that the court is subservient to the executive, undermining its independence and credibility.
It need not be re-emphasized that the power of nolle prosequi conferred on the Attorney General is a total impediment to the enforcement of human rights and access to justice. Would it not be worth considering the primary essence of the fundamental human rights guaranteed by the Constitution in light of the misuse and operation of the power of nolle prosequi by the Attorney General, which is also guaranteed by the same Constitution? or are these constitutional rights merely myths, non-existent in the face of the Attorneys General, even though Chapter IX13of the Constitution explicitly recognizes these rights and guarantees access to courts for redress when they are violated? This is in consonance with Section 46(1),14 which attempts to safeguard and protect people’s rights.
“Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.”
The court, which serves as a beacon of hope for the enforcement of human rights, seems powerless and lack judicial power to overrule the Attorney General’s power to waive criminal charges that may may have been instituted against any person before the court. This is true even when the court is aware that injustice is likely to result from the exercise of this power. The only remedies against Attorney General when this power is wrongly invoked are the reaction of the appointing authority and adverse public opinion which may force the Attorney General to resign his position as was aptly put on the remedies against an Attorney General by Eso JSC in Ilori v. State,15as follows:
” The appellant has strenuously harped on the possibility of abuse of his powers by an Attorney General who is left with this absolute discretion. I have already pointed out earlier, that the sanction lies in the reaction of his appointor and also in public opinion. But more importantly is the fact that a person who has suffered from unjust exercise of his powers by an unscrupulous Attorney General is not without remedy; for he can invoke other proceedings against Attorney General. But certainly, his remedy is not to ask the court to question or review the exercise of the powers of the Attorney General.”
With the above dictum, it is established that there are no cogent or reasonable remedies to challenge the exercise of the power of nolle prosequi in court. Cases brought before the courts on this ground, have on different occasions, been struck out on the basis that the court lacks the power to review such exercises of the power of nolle prosequi.
In the words of Osita Mbah,16while lamenting the arbitrary exercise of the power of nolle prosequi, he states:
“However, it is regrettable, but not surprising, that Mr Aondoakaa’s discontinuation of the criminal proceedings against Mr Orji Uzor Kalu and Jimoh Lawal and his refusal to prosecute the suspects in the siemens, Willbros and Halliburton corruption scandals, to give a few examples, were not only defended on the basis of the decision in Ilori but equally escaped legal challenge because of that decision.”
A careful perusal of this reveals nothing but helpless situation of courts in their inability to render meaningful legal assistance to victims of the arbitrary exercise of the power of nolle prosequi by the Attorney General. Apparently, the unfettered power of nolle prosequi conferred on the Attorney General to discontinue criminal proceedings not only undermines the authority of the courts to enforce human rights and ensure justice, but is also a drawback to democracy, the rule of law and accountability, which are the primary duties of the courts to ensure and uphold.
Consequently, when the Attorney General uses the authority of nolle prosequi, it can essentially suspend judicial procedures before they are fully adjudicated. This may impair the judiciary’s ability to make independent decisions and decrease public trust in the courts as impartial arbiters of justice.
The Attorney General’s Power of Nolle Prosequi and the Principle of Rule of Law
The fundamental existence of the principle of the rule of law is important in any democratic polity and society, as it ensures good governance and strives to prevent the arbitrary exercise of powers by superiors.17This doctrine of the rule of law is one of the pillars upon which true democracy rests. It encompasses the equal and fair recognition of people’s rights, as opposed to the rule of dictatorship or despotism, and serves as a means of preventing the abuse of discretionary power18. The rule of law, as propounded by A.V DICEY connotes three major elements19
First, it connotes the absolute supremacy of law, meaning that the law must be supreme over any authorities. All persons’ actions must be subject to the law of the land and governmental powers must be exercised in accordance with the law, the rule of law opposes the arbitrary use of power and authority. Hence, the absolute supremacy of law is incompatible with the doctrine of nolle prosequi and its assertions20.
The 1999 Constitution, as amended, being the groundnurm, is founded on the rule of law, the Constitution in Section 1(1)21 states: “This constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the federation.” The constitution forbids any person or group of persons from taking control of the government of Nigeria or any part thereof, except in accordance with its provisions.
It presupposes that the Nigerian Constitution explicitly affirms the supremacy of both the Constitution and the rule of Law. This principle is strongly upheld by the judiciary, as exemplified by the Supreme Court’s ruling in Governor of Lagos State v. Ojukwu22. In this case, the Court declared that the law does not recognize distinctions between individuals, authorities, or governments, emphasizing that the judiciary serves as a safeguard to ensure that the state and its officials operate within the bounds of legality.
Supporting this view, Justice Obaseki, in his concurring opinion, highlighted the foundational role of the rule of law in the Nigerian Constitution. He noted that the essence of the rule of law is adherence to established legal principles, ensuring that government actions are constrained by recognized rules and do not rely on arbitrary discretion. Citing Coke, he described this principle as the “golden and straight metwand of law” in contrast to the “uncertain and crooked cord of discretion.”
Second, it connotes the equality of all persons before the law23, the law does not recognize the idea of exemption in the administration and application of the ordinary law of the land, and the law of any particular society shall applies to both the people and the rulers. No government officials will be exempted from obeying the law that governs all other citizens. Hence, this rule means that every person, regardless of their status in the society, is subject to the ordinary law of the land.
Meanwhile, the Constitution, which shields some government officials from prosecution by granting them immunity while in office, such as the President, Vice president, Governor and Deputy Governor, maybe seen as an exception to this general rule of law.
Third, respect for fundamental human rights, the principle which holds that citizens of a country should enjoy certain basic inalienable rights and liberties under the law, violation of which they have the right to seek redress in the law court. These individual rights are specified in most written constitutions. In the Constitution, human rights are best delineated as inalienable rights of the citizens breach of which entitled the victim for redress and adequate compensation for the unlawful violation of his fundamental human rights.
These rights are well established in the Chapter Four of the Constitution, African Charta on Humans and Peoples’ Rights and other regional and International bills of Rights.
The concept of rule of law according to John Locke24 “Freedom of men under government is to have a standing rule to live by, common to everyone of that society and made by the legislative power created in it and not be subject to inconstant, unknown, arbitrary will of another man.”
John Locke25 explains that human beings have natural rights to life, liberty, and property, which they retain even when entering into a social contract. Freedom, under government, is not absolute but is regulated by laws made with the consent of the governed, ensuring that liberty is consistent with the rights of others and the rule of law.
In this regard, and by the established rule of law system operating in Nigeria, the constitutional power of nolle prosequi seems to run in deviation to the rule of law. This power ignores the supremacy of law because it is not subject to judicial review. As established in the Supreme Court judgment in State v. Ilori, the actions of the Attorney General are universally acknowledged to be a law unto himself. The often repeated dictum of the Supreme Court is that the26:
“The pre-eminent and incontestable position of the Attorney General, under the common law, as the chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognized by the courts, In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature, the Attorney-General has, at common law, been a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings. These powers of the Attorney-General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities”.
This decision, of the supreme court has, on several occasions, been denounced by the public, as the power apparently does not respect the rule of equality before the law. The power can be arbitrarily exercised against the interest of another person especially, when Attorneys General, who are often described with the unfettered golden title ‘as the law unto himself’. can only be controlled by public opinion and fear of their appointor.
This, by every implication raises them above all persons and authorities, it behooves one to learn that even their appointors such as the President or the State Governor are generally subject to checks and balances to prevent their excesses, it is frustrating and egregious to find that while actions, powers, and operations of those who appointed Attorney Generals are not unlimited, those appointed to the office of Attorney General can exercise powers that their appointors are not constitutionally privileged to enjoy. Yet, the power of nolle prosequi is so enormous that it extends to disregarding the fundamental human rights enshrined in the Constitution especially the right to access to courts.
This also breaks the solemn covenant made by the court to ensure impartiality, as stated in Section 17 (2)(e)27which guarantees the independence, impartiality and integrity of the courts as well as easy accessibility thereto. Even after a fresh charge is pressed against the accused shortly after a nolle prosequi has been entered in the case, it is appalling to see that Attorney General still has the power to re-enter another nolle prosequi on the same matter, this supports the words of ESO JSC: “Indeed if nolle prosequi has been entered and the court has acted upon it, a fresh or further indictment are commenced, there is nothing to stop the attorney general from entering yet another nolle prosequi. This he can do as many times as the proceedings rear their heads.”
Further research need not be conducted to assert and establish that nolle prosequi is indeed inconsistent with the intent of the Constitution, repugnant to the principle of separation of powers among the three arms of the government, an undue interference with the independence of the judiciary as the custodian of the law, and wholly contrary to the intention of the rule of law as well as a significant drawback to democracy. As a matter of fact, the rule of law requires that legal processes are followed and that justice is administered without undue interference. The frequent or arbitrary use of nolle prosequi undermines this principle by preventing the judiciary from fulfilling its constitutional mandate to adjudicate disputes and uphold justice.
Conclusion
In conclusion, the role of the Attorney General often involves acting on the directives of their superior, whether that be the President or State Governor, depending on the jurisdiction.28 This dynamic effectively positions the Attorney General as an agent executing the desires of their master, leaving little room for independent checks on the exercise of their authority. Such unchecked power undermines the principles of the rule of law and the separation of powers, posing a significant challenge to the modern justice system.
In Nigeria, this power hampers the independence of the judiciary. A notable example is the decision in the case of Ilori, which continues to perpetuate the traditional common law powers of the Attorney General. The Nigerian judiciary, particularly the Supreme Court, must find the courage to overrule itself in this case and move beyond these outdated precedents.
The adverse effects of the unjustifiable exercise of nolle prosequi by unscrupulous Attorneys General can be mitigated by amending the necessary provisions of the Constitution that empower the Attorney General. These amendments should limit and regulate the use of nolle prosequi, thereby ensuring transparency and accountability. Most importantly, the Nigerian courts should be constitutionally empowered to review and, where necessary, overturn decisions to terminate pending cases before the courts through nolle prosequi.
Lessons can also be drawn from Kenya, where a progressive decision in Crispus Karanja v. Attorney General29 marked a pivotal shift. The Kenyan High Court, acknowledging the evolving nature of justice under the Constitution, overturned its earlier position, declaring that the practice of nolle prosequi being immune to judicial challenge was untenable under the Kenyan Constitution. This landmark judgment, supported by Section 26(3) of the Kenyan Constitution, sets a precedent that Nigeria can emulate, especially given the similarities with Section 174(3) of the 1999 Nigerian Constitution30. Embracing such judicial bravery would be a significant step towards reinforcing the independence of the judiciary in Nigeria.
1 Section 211 (3) of the 1999 Constitutionis same as the said section 191 (3) of the 1979 Constitution
2 17 Encyclopaedia Britannica 9thed, 1907. Cited in Black’s Law Dictionary, Ibid.
3 Edwards, J. S. The Role of the Prosecutor in the Administration of Justice. Cambridge University Press, 1984, pp. 75–76.
4 Section 211 of the 1999 constitution as amended defines the powers of the Attorney General of a state
5 Section 174 which confers similar powers is concerned with the powers of the Attorney General of the federation
6 London County Council v. Attorney General [1902] AC 165.
7 State v. Ilori (1983) 1 SCNLR 94.
8 Section 174(1)(c) 1999 Constitution as amended
9 Julius v. Lord Bishop of Oxford (1880) 5 App Cas 214.
10 See O. H. Tobechukwu & Rev. Fr. S. C Chukwuma; ‘Rethinking the Power of Nolle Prosequi in Nigeria: The case of State v Ilori; Global Journal Politics and Law Research Vol.2, No.1, pp.1-11, March 2014 (European Centre for Research Training and Development UK) (www.eajournals.org)
13 The Federal Republic of Nigeria Constitution Chapter ix provides for the fundamental human rights
14 The Federal Republic of Nigeria Constitution Section 46(1)
15 Ilori v State[1983] 1SCNLR 94 at 109
16 Osite. Mba; (n.8)
17 Akomolafe, M.A “The rule of law and its practice in Nigeria: an assessment”. (Majop) Vol. 2, No.2..
18 See NUCHE “Attorney General’s Power of Nolle Prosequi: A Relic of Colonialism Or A Burden to Rule of Law”? AJLHR 5(2) 2021)
19 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959), pp. 187–192.
20 A. K. Yadav, Rule of law(Note 52, P. 207)
21 Section 1(1) Constitution FRN as amended Supremacy of the Constitution’
22 See Government of Lagos State v Ojukwu [1986] 1 NWLR (Pt. 18) 621 (SC).
23 MA Mohammed & TS Ajepe “Rule of Law in Nigera”, Journal of Law, Policy and Globalization”
Vol., 3 (2012), pg 69.
24 John Locke, Two Treatises of Government (Peter Laslett ed, Cambridge University Press 1988), Second Treatise, Ch. IV, pg, 22
25 John Locke. An Study Concerning the True Original Extent and End of Civil Government,(London: Awnsham Churchil 1690)
26 Alok. K. Yadav; ‘Rule of Law’International Journal of Law and Legal Jurisprudence Studies:ISSN:2348-8212: Volume 4 Issue 3(2017), P. 206
27 Section 17(2)(e) 1999 Constitution
28 Onuche, attorney general’s power of nolle prosequi: a relic of colonialism or a burden to rule of law? AJLHR 5 (2) 2021)
29 High Court Kenya Criminal Application No. 39 of 2000
30 O. H. Tobechukwu (n 35 p.10
About Author
Akanmu Jamiu is a passionate legal researcher and a 500l Law student at Osun State University.
