ACJA 2015: Furore over police prosecutorial powers

It is no longer news that the Administration of Criminal Justice Act (ACJA) 2015 was passed into law by the 7th Senate. What is left now is to make the Act known to the people and assist them to understand it.
At the time of filing in this report, the nation was at the verge of applying both the spirit and the letters of the ACJA 2015.
Daily Trust gathered that one of the major innovations in the new law is the removal of the prosecutorial powers from members of the Nigeria Police Force (NPF) who are not lawyers.
Section 106 of the ACJA stipulates that prosecution of all offences in any court shall be undertaken by: (a) the AGF or a Law Officer in his Ministry; (b) legal practitioner authorised by the AGF (c) a legal practitioner authorised to prosecute by law.
This is in line with the clamour to promote speedy dispensation of criminal justice in the country.
According to Yemi Akinseye George (SAN), a professor of law, it is also a deliberate attempt to lay to rest the issue of lay prosecution as endorsed in the case of Federal Republic of Nigeria V. Osahon (2006)5 NWLR (pt. 973) 361.
In that case, the Supreme Court reaffirmed the powers of the police prosecutor, whether qualified as legal practitioner or not, to prosecute in any court.
Historically, the practice of using policemen (who are not lawyers) to prosecute cases, known as lay prosecution, originated during the colonial era due to insufficient manpower (lawyers) to handle criminal cases in the country.
The lay magistrates (mostly district officers) also existed at the same time for the same reason.
But the practice has over the years punctuated the nation’s criminal justice system due to its inherent lacunae which on the long run did not adequately justify the use of lay prosecution in the police force to prosecute criminal cases.
Besides, the current campaign to stop the practice may have been accentuated by limited legal knowledge of some police prosecutors which culminate into shoddy handling of cases before the courts.
Specifically, under our law, a prosecuting police officer who is not a lawyer is forbidden to reply to a point of law whenever it is raised by a defence lawyer before the court of law during trial.
Recently, a Lagos high court dismissed a murder case against five accused person in the murder of late politician, Chief Alfred Rewane, over shoddy prosecution of the matter which made the suspects spend more days in cells without concrete evidence linking them to the crime.
Other judges have not only dismissed cases for want of diligent prosecution by the police but also lampooned the police force for miscarriage of justice.
It is not uncommon to witness police officers hurriedly parading suspects before a magistrate court, before looking for evidence against same, under the pretext of the illegal holding charge.
The development is also responsible for the spiraling rate of awaiting trial cases and prison congestion in the country.
Today, the NPF is populated by laymen who could not tackle defendants’ counsel in the court, even though the police employ the largest number of lawyers.
It was gathered that the wanton rot in the criminal justice system had escalated cultures of self-help and spate of terrorist acts in the country.
The Nigerian Bar Association (NBA) has thrown its weight behind the plan to remove prosecution powers from lay policemen.
Okey Wali (SAN), the former NBA president, said the removal of prosecutorial powers from lay policemen was long overdue, adding that the move was in the interest of the country and dispensation of justice.
He said: “We have been saying it that the police should allow lawyers to handle prosecution. The issue is not about removing the police power to prosecute, it is about not leaving the prosecution of criminal cases in the hands of non-lawyers.
“Most times, the police prosecutor does not fully understand court proceedings. Sometimes, when they appear before the magistrate, they are unprepared and might not know what to say. They might not know when to raise objections in court and that is because their knowledge of law is limited.”
He maintained that lay police prosecutors lack the competence to win cases against defence counsels, which may include senior advocates, adding that the stance of the association was premised on the need to prosecute criminal cases to logical conclusions in Nigeria.
“This is not about creating more jobs for lawyers. It is a clear fact that the lay police prosecutors lose case they should have won because they are not competent to handle those cases. There is no way we can have justice if that continues.”
A Lagos-based lawyer, Barrister Femi Falana (SAN), said the plan to remove police prosecutorial powers was in order. He said that, currently, most criminal cases are lost because of the limited legal knowledge of lay police prosecutors, adding that it is difficult for police prosecutors to match the expertise and knowledge of most defence counsel, including senior advocates.
He explains that the decision to remove police prosecutorial powers was in line with the Legal Aid Act 2011 which had imposed a duty on the Council to make available to accused persons lawyers of their choice, and not those imposed on them by the state.
He notes that few police officers have read law, adding: “The policy requires the services of thousands of lawyers to man the area courts, magistrate courts and special courts dealing with sanitation and traffic offences.”
Another lawyer, Mr. Sebastine Hon (SAN) expressed support for the removal of lay police prosecutorial powers, adding that the development would go a long way to promote speedy dispensation of justice in Nigeria.
He expressed doubt over the ability of the ministry of justice to effectively prosecute all cases when the lay policemen have been divested of their power to prosecute.
Section 174(1)(a) of the Constitution has imbued the AGF with power to institute, undertake and discontinue (nolle prosequi ) criminal proceedings against any person and before any court of law in Nigeria, apart from a court martial. This has given the AGF wide prosecutorial powers, which take priority over any other power to undertake public prosecutions.
Also, section 174(1) (b) has given AGF the right to take over and continue any such criminal prosecution already undertaken by any other authority or person.
If there are pending matters which are yet to get to court, the AGF’s office will utilise section 174 (1) (a) of the Constitution to undertake criminal proceedings on them.
On the other hand, if the police are already prosecuting certain persons, AGF’s office has power, under section 174(1) (a), to take over such prosecutions. It was gathered that the Police Act, which gave the police the power to prosecute could not stop the AGF from exercising his constitutional power to take overall cases.
This is because the powers granted a sitting AGF are not just sweeping but awesome. In Ezomo vs. A-G of Bendel State (1987), the Supreme Court described an A-G as a ‘law unto himself’.
“While rationalising those awesome powers, the Supreme Court, in Attorney-General of Kaduna State vs. Hassan (1985) per Aniagolu, JSC, held that ‘the makers of the Constitution were wise to make it so; “because the AG is both the legal as well as the political officer who is answerable politically for acts done in the Ministry.”
A Port Harcourt based lawyer, Nathaniel Obiokole, said although no statute expressly provided for police prosecutorial powers, the practice only gained currency through judiciary pronouncement.
In all these situations, emphasis were on the fact that lay policemen only prosecute in the inferior courts of the land and go no further, the question on whether or not police can prosecute in superior courts never formed an issue until the case of Olusemo Vs COP.

“In Olusemo V. COP, the Court of Appeal interpreted S.23 of the Police Act to mean that any police officer can prosecute in Superior Courts but that such police officer should have been called to the Nigerian Bar.”
As a prelude to the whittling down of police prosecutorial powers, the Federal Capital Territory High Court has announced that it will soon stop police officers who are not trained lawyers from prosecuting criminal suspects at the magistrates’ court.
The Chief Judge of the FCT High Court, Justice Ishaq Bello, said the development was in line with the provisions of the new ACJA, 2015, which provides that prosecution must only be done by law officers.
He said the judiciary was poised to ensuring the full implementation of the law, calling on the authorities and other arms of government to play their part by providing the necessary funding and facilities required of them under the law.
He said that in line with the desire of the FCT judiciary to commence full implementation of the law, lay prosecution by non-lawyers would only be tolerated for a while during the transitional period.
But an assistant commissioner of police, legal section in the Force Headquarters, Abuja, David Igbodo, said the police had enough trained lawyers to deploy for prosecution, adding that police and the ministry of justice are working to achieve the same aim. “So, there is no issue of taking over because there is nothing to take over,” he said.
Igbodo’s position was given a fillip by the recent Court of Appeal ruling which held that the NPF can prosecute all offences, including those under the National Security and Civil Defense Corps Act, 2007.
The ruling came on the heels of an appeal in Federal Republic of Nigeria (FRN) VS Daniel Abuh, where the Federal High Court held that the NPF lacks the vires to prosecute cases of pipelines vandalism brought under the miscellaneous offences Act, 2004.
It is obvious that the moves to remove lay police prosecutorial powers in the country may not come on a platter of gold.
Meanwhile, speaking, recently, at a workshop organised in Abuja by the Nigerian Institute of Advanced Legal Studies (NIALS), Mr. Austin Emumejakpor of Austin Laurel Consulting said that “prior to the enactment of the Act, we are all aware of the delay in prosecuting criminal cases.
The ACJ Act, 2015, he said, mandates courts, law enforcement agencies, probation, prisons, and administration of justice monitoring committee, amongst others, to comply with reporting requirements to attain the objectives of the Act.
S.1 (1) The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim.
S.15 directs that a register of arrests containing the particulars shall be kept in the prescribed form at every police station or agency authorised by law to make arrests .

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