The Federal Government through the
Attorney General of the Federation Mohammed Adoke withdrew the corrupt charges
of N446.3BN (Four Hundred and Forty Six Billion Naira Only) against Mohammed
Abacha, son to the late head of state and Dictator General Sani Abacha.
This power exercised by the
Attorney General has raised a lot of controversies, why he would withdraw such
suit and make him a free man; he has simply encouraged corruption and
injustice.
The Socio Economic Rights and
Accountability Project (serap) has dragged the Federal Government and the
Attorney General to court over the withdrawal of this suit for failing to live
up to their responsibilities as provided under the Nigerian constitution Section 13 of Chapter ii of CFRN state that;
It shall be the duty and responsibility of
all organs of government, and all authorities and persons, exercising
legislative , executive or judicial powers, to conform to, observe and apply
the provision of this chapter of the constitution.
Section 15(5) also states that the state shall abolish all corrupt
practices and abuse of power. The organisation has dragged the Federal
Government and Attorney General to court for not acting in accordance with
these provisions.
We shall be discussing who an
Attorney General is, his right and power to institute and discontinue criminal
proceedings, what to consider when exercising these powers and many more.
The Attorney General is the chief
law officer of the Federation or state meaning that we have AG at the federal
and state level, the AG’s authority is enshrined in the constitution of the FRN
by virtue of Section 174 which
states that he shall have power to institute and undertake criminal proceedings
against any person before any court of law in Nigeria other than the court
martial, in respect of any offence created by or under Act of the National
Assembly, to take over and continue any such criminal proceedings that may have
been instituted by any other authority or person,to discontinue at any stage
before judgement is delivered.
Also in The state V. Chukwurah&ors it was held that the AG can
discontinue any case before the honourable court at any state either by himself
or through an officer in his department armed with a written authority to that
effect.
Section 174(3) further states that in exercising his powers under
this section (discontinuance) 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.
The effect of
discontinuance by the AG by virtue of section 73(1&2) of the Criminal Procedure Act is that all
proceedings against the accused persons shall be stayed and he shall be
discharged in respect of the charge or information for which nolle prosequi (discontinuance) is
entered section 73(3) of the same
act also state that such discharge shall not operate as a bar to any subsequent
proceedings against the accused person on the same facts. In CLARKE&ANOR V.AG OF LAGOS STATE it
was held that the effect of discontinuance is that it is just a mere discharge
and not an acquittal. Also in STATE V.
ILORI the Supreme Court held that a nolle prosequi is only a temporary
proceeding which has the effect only of a stay and not of quashing of the
indictment, which technically may later be prosecuted without a fresh
indictment.
The question to ask now is
whether the Attorney General exercised his right to discontinue criminal
proceeding in this regard in the interest of the public or is it right to say
it is a violation of public policy, considering how the public funds was looted
by the late Dictator and his family, will this act of discontinuance encourage
the present and future leaders to continue to loot public funds knowing that
they can get away with this criminal act.
Thank you.
Oyenike Alliyu-Adebiyi LLB(hons)BL
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