Queenetta K. Bassey Esq.
When Owelle Rochas Okorocha was charged to court by the Economic and Financial Crimes Commission (EFCC) on allegations bordering on 2.9 billion Naira fraud, the public was filled with expectations about the possible outcomes, bearing in mind that he was a former governor of the same political party that controlled the federal government. On the 6th of February 2023, Justice Iyang Ekwo of the Federal High Court Abuja struck out the case on the ground that the prosecution flouted the provisions of Section 105(3) of the Administration of Criminal Justice Act 2015 (ACJA), when it failed to honor the directive by the Attorney General of the Federation to submit to his office the case file for review.
Power of Attorney-General to Review Case Files
Section 105 of ACJA provides:
1. The Attorney-General of the Federation may issue legal advice or such other directive to the police or any other law enforcement agency in respect of an offence created by an Act of the National Assembly.
2. Where any proceeding is pending in respect of the offence for which legal advice or other direction referred to in subsection (1) of this section is given, a copy of the legal direction shall be forwarded by the Attorney General of the Federation or director of Public Prosecutions to the court before whom the proceeding is pending.
3. The Attorney-General of the Federation may request from the Police or any other agency for the case file in any matter in respect of an offence created by an Act of the National Assembly and the Police or any other agency shall immediately send the case file as requested.
Section 105 ACJA acknowledges and re-emphasizes the supervisory and ultimate powers of the Attorney General of the Federation with respect to the prosecution of federal crimes. The ACJA is not an isolated legislation on this topic. Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) spells out the powers of the Attorney General of the Federation as follows:
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 under any Act of the National Assembly;
b) to take over any and continue any such criminal proceedings that may have been 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
2. The powers conferred on the Attorney General of the Federation under this sub-section (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.
Section 105 of ACJA reaffirms the powers vested in the Attorney General in section 174 of the Constitution. It creates a window of opportunity for the Attorney General of the Federation to intervene in the course of a criminal proceeding without necessarily invoking the powers under section 174 of the Constitution to terminate the process via a nolle prosequi. It enables supervisory administrative intervention without the added burden of having to commence the process de novo. This fits in well with the fundamental objectives of ACJA to improve and promote the effective implementation and dispensation of criminal justice in Federal Courts, guide against the abuse of power and protect the fundamental rights of defendants.
Mandatory Compliance of Federal Prosecutors with the Attorney General’s Directives
Any person or authority prosecuting a federal crime exercises that power by the express or implied delegated powers of the Attorney General of the Federation and all federal prosecutions are subject to the power of review under section 105 of the ACJA. The issuance and compliance with the directives under section 105 should ordinarily be administrative. A combined reading of section 174 of the Constitution and section 105 of ACJA imposes a responsibility of compliance on all agencies prosecuting offences created by an act of the National Assembly, to handover case files for review. It should not require a judicial order before any person or authority complies with the directive issued under section 105. The court should only be informed that section 105 has been activated and appropriate steps will be taken by the court in each given circumstance.
Balance of Interests and Checks on the Powers of the Attorney-General
The Constitution and the courts place a heavy moral burden on the occupier of the Office of the Attorney General to be circumspect in the exercise of these enormous powers. Section 174 (3) of the Constitution expressly provides that “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.”
In State V. Ilori, the Supreme Court expressed the view that any Attorney-General, be of the Federation or of a State, is answerable for his actions not only to his appointor, but also to the National or State Assembly as the case may be. He is, of course, also subject to the comments, favorable or otherwise, of the members of the legal profession and to the glaring scrutiny of public opinion. It may not be out of place to record, in this context, the public's general aversion to mixing politics with the enforcement of the criminal law. The supreme importance of maintaining the independence of the Attorney-General when discharging his responsibility, inherent in his office, for the proper administration of the criminal law must therefore be emphasized.
Whether the Honorable Justice of the Federal High Court Abuja in Rochas Okorocha’s case should have adjourned the case pending the outcome of the review process or strike the case out, is an open question. Since there are no constraints on the timing for the exercise of powers under section 105, it might be the preferable option for the court to adjourn within the permissible ACJA limits. It is the public’s expectation that in spite of the fact that the Attorney General is a political appointee of the President, the power granted under section 105, a great ministerial prerogative coupled with grave responsibilities, will be exercised with sobriety and in the larger interest of justice. As observed by Fatayi-Williams CJN in State v. Ilori, it is of paramount importance that when an Attorney-General is being appointed, the appointor should, at all times, bear in mind the integrity, ability, experience, and maturity required of the person holding this high and important office. He should be a person who, in the discharge of his duties, will always "have regard to the public interest, the interest of justice, and to the need to prevent any abuse of legal process."