Date Published: 01/23/10

The AGF In The Public Eye By Chimezie  Elemuo

             Arguably, the office of the Attorney –General is the only office of a cabinet member recognized by the constitution. The constitution did not only recognize the office of the Attorney-General, but equally spell out his functions under the office. From this premise, the Attorney- General is a very powerful cabinet member and functionary of the government. Recently, the media and public opinion have been awashed with allegations that the AGF is not keen in fighting the anti-corruption war and the worst of it, that he is shedding corrupt officials and former governors from prosecution. There is nothing wrong in laying allegations so long there are facts to back them up. Unfortunately, these allegations are bereft of any legal background. They forget that the AGF occupies an office the constitution has dictated how it should function.

        What we see is that any of the media that wants to sell its newspapers must strike at the AGF. Anybody who wants to be noticed or seeking relevance must strike at the AGF. Everyone of them making the same tin-song-he is protecting corrupt officials and past governors whom they believe are corrupt. They forget that every Nigerian is innocent until he is proved guilty. They equally forget that the power of prosecution lays with the AGF and he has a discretion not to prosecute. And no authority, not even the president can query him on this. It has been noted that the Attorney –General “should decline to receive orders from the Prime Minister, or Cabinet or anybody else he shall prosecute. His first duty is to see that no one is prosecuted with all the majesty of the law unless the Attorney-General as Head of the Bar is satisfied that a case for prosecution is against him. He should receive orders from nobody.” Eso, JSC, noted in State V. Ilori (1983) 2 SC 155 that “ the pre- eminent and incontestable position of the Attorney –General, under the common law, as the chief law officer of the state, either general as a legal adviser or specially in all court proceedings to which the state is a party, has long been recognized by the courts…. The Attorney-General has, at common law, been a master unto himself, and under no control whatsoever, judicial or otherwise vis-vis his powers of instituting or discontinuing criminal proceedings.” In exercising his powers under the constitution, the AGF should have regard to public interest, the interest of justice and the need to prevent abuse of legal process. And it has been noted that if the AGF should have regard to all these, it “could engineer the prosecution of suspects or otherwise.”

        In Nigeria , once an individual is accused of an offence (particularly if that individual has been in government), before the public eye, such individual is already guilty of the offence. And when the prosecutorial agencies try to follow the due process of the law, cyanides and the general public go mad with criticisms. And this is where the Attorney-General’s problems with his accusers come in. For them, an accused person must be convicted at all cost. And he should be tripped of all his fundamental rights. In Odofin Bello V. The State (1967) NMLR 1 PP 6-7, the Supreme Court held that the duty of the prosecution is not to convict the accused at all cost. The court said “we … remind counsel that it is the duty of the prosecution to put all the facts at his disposal before the court and not to hide any part. Anything short of this is an attempt to conceal from the court any evidence favorable to the accused” If there are documents or evidence favourable to the accused person, the AG has a duty to place them before the court. And this is what those who criticize the AG would want taken away once the accused person is a former or current public officer. All accused persons share equal rights under the law.

                  While it is acknowledged that official conducts are expected to be subjected to criticisms by the public who may be affected one way or the other by it, caution should always be the catch word. Really, the US Supreme Court in New York Times Company V. Sullivan (1964) 376 U.S. 254 held that “the theory of our constitution is that every citizen may speak his mind and that every newspaper express its views on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative or judicial capacity must expect that his official acts will be commented upon and criticized.” But does this give the right to publish what we read in our newspapers today about the AG? I think the answer is no. Equally, I believe that the opinion of the Supreme Court in Akintola V. Adegbenro (1962) WNLR 183 will be reflected upon by the AG and those who believe that they are engaged in any public good any time they are against the AG. The court said that “ours is a constitutional democracy. It is of the essence of democracy that all its members are imbued with a spirit of tolerance, compromise and restraint. Those in power are willing to respect the fundamental rights of everyone, including the minority. And the minority will not be over- obstructive towards the majority. Both sides will observe the principle as an accepted principle in a democratic society.” And I hope this ill serve us well.

                       Chimezie  Elemuo is a Port Harcourt- based legal practitioner.

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