Much Ado About Prosecutorial Powers, By Dele Agekameh
There is a growing debate over whether the police should retain their prosecutorial powers. The Nigeria Police Force (NPF) is saying that it must be accorded the powers to prosecute criminal matters before the law courts. This may not be a wrong idea after all. Perhaps, it should be seen as a zealous desire by the NPF to be part of a justice system that is supposedly under reform. It can also be seen as an intention to ensure that ‘good police work’ is followed up with even better police prosecution. In that case, the public should be moved by what seems like a gallant effort to protect those powers.
But make no mistake about it, the issue has been brewing for several years in the light of the seeming incompetence of the police in prosecuting cases in the law courts. At any rate, the public is not fooled. The public is unmoved, but is only wary of police work in general and the entire justice system as a whole. In truth, there ought to be no controversy over this issue at all. The present round of debate was reignited recently by the Chief Judge of Delta State, Justice Marshall Umukoro, while speaking at the 2017 Aquinas Day Colloquium of the Dominican Institute in Ibadan, where he suggested that the police should be stripped of all prosecutorial powers in order to stem its abuse of those powers.
The fact is that this recently renewed call was not instigated by Justice Umukoro’s recommendation. A piece of legislation passed in 2015 as part of the apparent reformation of the justice system, the Administration of Criminal Justice Act (ACJA) began the process by stating in section 106 that only qualified legal practitioners can prosecute criminal matters in the courts. This provision had already excluded “lay prosecutors” within the police force who have no legal training – evidenced by a call to the bar – from prosecuting criminal matters. This put to bed the Supreme Court pronouncement in F.R.N V Osahon (2006) 5 NWLR (pt. 973) 361, which affirmed that all police prosecutors, with or without legal training, can prosecute cases in court. That case has been notoriously cited by the police when challenged in the past.
It has been said that the police now employs many trained lawyers and as such may still actively prosecute cases through these trained officers. In truth, the trained officers are not so easily distinguishable from the lay prosecutors within the force. This is because they employ the same tactics and are motivated by the same factors, ending in the same results – needlessly endless prosecutions, easily reversible convictions upon appeal, and dismissal/discharge of the accused for varying reasons connected to poor prosecution.
There have also been reports of ‘soft padding’ of charges in exchange for pecuniary benefits that sometimes reach all the way to magistrates who, over time, have developed improper relationships with police prosecutors within their jurisdiction. In short, the corrupting influence of the wider police force and their shoddy practices rub off on all police prosecutors, trained or not. In the end, the real issue may not be about formal legal training of police prosecutors, but the lack of confidence in the police force as a whole.
Perhaps it was in consideration of this that the Attorney General of the Federation (AGF), Abubakar Malami (SAN) signed an order in August, 2016 going further to remove all powers of prosecution from the police, without exception. Even then, the police prosecutors continued to defy the order by the AGF, who is considered as the Chief Prosecutor of all criminal matters, meaning that all powers of prosecution by any other person or body are derived from, and are at the instance of, the AGF. Section 174 of the 1999 Constitution grants the AGF wide powers to institute, take over or discontinue all prosecutions over any matter in any court in the land. The Supreme Court has acknowledged these wide powers in previous cases, describing the AGF as “a law unto himself” in this regard.
Despite the mounting campaign to rid the justice system of police prosecutors, the police force has remained adamant for reasons undisclosed. Even if the ACJA left a window for continuation of prosecutions by trained police officers, surely the AGF has the power to remove that power, as all powers of prosecution are at his pleasure, so to say. This is why any kind of controversy or defiance by the police is not only unwarranted but perplexing from a legal stand point, especially on the back of the bad record of prosecutions recorded by police prosecutors till date.
…the federal government and the AGF need to align their intentions and put this matter to bed now before it graduates into a bigger problem for the justice system.
The lay prosecutors, some of who may still be actively prosecuting cases, are no match for well-versed defence lawyers. Lay prosecutors are also unable, by force of law, to make replies to issues raised on points of law during trials. Their trained colleagues are not much better off as one would imagine. One should then ask: Why is the police so eager to continue prosecuting cases? Surely, there are many more demanding issues that require police attention.
The argument against police prosecution goes beyond incompetence. It has been directly linked to the incidence of thousands of awaiting trial inmates who are arrested on sometimes flimsy grounds and have to remain remanded whilst the police saunter about courtrooms unsure of what charges to bring, or delay the proceedings indefinitely, aided by an overindulgent magistrate. Case files have been forgotten for years, and when they do get to trial, as Justice Umukoro pointed out in his speech, magistrates sometimes become assistant prosecutors, descending into the arena in what can only be described as a legal faux pas of the worst kind, leading to a miscarriage of justice. The police prosecutor becomes trapped in a routine that kills any legal ingenuity that he/she might have once possessed. One only needs to visit a courtroom to observe a police prosecutor in action, to understand what this means.
While some, like Ahmed Raji (SAN), have said that the AGF cannot make an order of the kind made in August 2016, without the sanction of a federal government committee, it is clear that the issue needs to be put to bed. This should be done in the interest of the reform taking place and for clarity and uniformity. Although no legal provision qualifies the AGF’s powers in this regard, it is not unsurprising that everything in Nigeria is politicised.
As an alternative system, Justice Umukoro advocated that a separate body responsible for prosecutions on behalf of the government should be created, similar to the Crown Prosecution Service in England and Wales. This is because there are too many agencies with power to prosecute, which sometimes overlap and lead to issues in the courts, thereby delaying proceedings. At the end, the move to strip police prosecutors of their powers is traceable to the need for swift and effective dispensation of justice. This is why the suggestion to create a specialised body with well-trained professionals may be a veritable option.
The issue with this proposition, however, is the problem associated with the creation of yet another body, adding to the many government-funded and operated agencies already in existence. For this reason, a preliminary streamlining of already existing agencies involved in the justice system may make the introduction of this new body less problematic. Alternatively, or in addition, a reformation of an already existing department like the Department for Public Prosecutions (DPP) can achieve the same objective.
However, whatever step is taken going forward, the present reality where agencies of government jostle for “prosecutorial rights” is untidy, especially when it does not translate to well-prepared prosecutions. The police may function better if it focuses on investigations and works closely with dedicated professionals who handle the prosecutions. There are also bound to be fewer possibilities for abuse if the investigators and prosecutors are properly separated. This is why the federal government and the AGF need to align their intentions and put this matter to bed now before it graduates into a bigger problem for the justice system.
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