Legality Of Provisions The Administration Of Criminal Justice Law Of Ebonyi State Seeking To Disqualify The Nigeria 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