Attorney-General’s powers not absolute — Ubani

A Senior Advocate of Nigeria (SAN), Monday Ubani, has clarified the scope and limits of the constitutional powers vested in the Attorney-General (AG) in criminal prosecution, stressing that while such powers are wide-ranging, they are not absolute and must be exercised strictly in the public interest.

In a statement titled “Clarification on the Powers of the Attorney-General in Criminal Prosecution Under Nigerian Law,” Ubani cautioned against misinterpretations and misinformation regarding the AG’s constitutional role.

He noted that the 1999 Constitution (as amended) grants the AG significant prosecutorial authority, but emphasised that the exercise of such powers must align with the rule of law, the interest of justice, and the prevention of abuse of legal process.

Quoting Section 211(1) of the Constitution, Ubani explained that the State Attorney-General has the power to institute, take over, and discontinue criminal proceedings in respect of offences created by state law. These powers may be exercised personally or through officers of the AG’s department, to the exclusion of any other authority or person.

However, he noted that Section 174(3)—which applies to state AGs by virtue of Section 211—imposes a mandatory standard: the AG “shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process” when exercising such powers.

Citing the Supreme Court’s decision in State v. Ilori (1983) 2 SC 155, Ubani explained that the AG’s discretion in criminal prosecution is quasi-judicial and ordinarily immune from interference by other authorities, including the executive.

Courts, he said, will only intervene in exceptional circumstances where there is evidence of bad faith, corruption, fraud, or abuse of legal process.

“The AG’s discretion is vast, but it is not carte blanche,” Ubani stated.

“The exclusivity under Section 211 does not translate into absolute, unreviewable authority. The AG is a public officer bound by constitutional obligations to abolish corrupt practices and abuse of power, and credible evidence of abuse can open the door to judicial review,” the SAN added.

Ubani emphasised that while, in practice, courts accord enormous deference to the AG’s prosecutorial discretion, the Constitution and judicial precedents ensure that such powers cannot be wielded arbitrarily.

Turning to the recent controversy involving the police and the Attorney-General of Anambra State, Ubani criticised the attempt by the Inspector-General of Police’s office to arrest or intimidate the AG over the exercise of nolle prosequi powers.

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According to him, there is no constitutional provision authorising the police to review the AG’s decision to discontinue a case.

“If there is a review, it is only the judiciary that can perform that responsibility—and not the police,” he stressed.

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Ubani described the move by the police as “an aberration and a derogation of the grundnorm,” warning that such actions could undermine the independence of the AG’s office and the sanctity of constitutional provisions.

He urged legal practitioners, public commentators, and state actors to ground their statements and actions in a clear understanding of constitutional provisions, and to avoid spreading misinformation or attempting to intimidate those who offer well-reasoned legal opinions.

In conclusion, the SAN reiterated that Section 211 grants the AG exclusive and wide prosecutorial powers, but as clarified by Section 174(3) and the Supreme Court in State v. Ilori, the exercise of such powers must remain subject to the overarching principles of public interest, the interest of justice, and the prevention of abuse of process.

“The Constitution is clear, and so is the law. Let us therefore read the provisions in full and respect the limits it imposes,” Ubani said.