Osita Mba^*

(2010) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

The pre-eminent position of the Attorney-General under the common law as the chief law officer of the State, generally as chief legal adviser to the State and specifically in all court proceedings to which the State is a party, is a common feature of the Constitutions of the Commonwealth countries. In many jurisdictions, including Nigeria, the Constitution confers the officer with similar powers to the common law prerogative to exercise ultimate control over prosecutions. However, despite this statutory basis the courts traditionally bestow the powers with the orthodox common law immunity from judicial review of the prerogative powers. This article challenges both the applicability of this orthodoxy to such jurisdictions and its continued validity under the common law. The first part deals with English law. It examines the origin and development of the orthodoxy in English law and argues that it should no longer apply to prerogative prosecutorial powers in view of the House of Lord’s decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 that prerogative powers that raise justiciable issues are amenable to judicial review. It further argues that the orthodoxy should not apply to statutory prosecutorial powers including the power to stop prosecutions in order to safeguard national security set out in the new Protocol between the Attorney-General and the Prosecuting Departments. The second part analyses the relevant provisions of successive Nigerian Constitutions to show that the orthodoxy has never been imported into post-Independence Nigerian law. It uses judicial interpretation of similar provisions in the Constitutions of other Commonwealth countries to establish the error in the Supreme Court’s decision in The State v Ilori [1983] 1 SCNLR 94 by which the orthodoxy was transplanted into Nigerian law. The third part applies the established grounds for judicial review to the exercise of the respective Attorney-General’s prosecutorial powers to give effect to the rule of law in both jurisdictions. The article concludes that judicial review will restore the right to private prosecution as a necessary safeguard against executive excesses and incompetence in both jurisdictions. Although the article deals specifically with English and Nigerian laws, the principles it sets out are applicable to other Commonwealth jurisdictions where the Attorneys-General or other officers such as the Directors of Public Prosecutions enjoy similar powers.

Table of contents

• 1. Introduction
• 2. Justiciability of the Prosecutorial Powers of the Attorney-General in English Law
  • 2.1 Prosecutorial Powers of the Attorney-General at Common Law
  • 2.2 Prosecutorial Powers of the Attorney-General under English Statutes
  • 2.3 The Attorney-General’s power to give directions necessary to safeguard national security
• 3. Justiciability of the Prosecutorial Powers of the Attorney-General in Nigerian Law
  • 3.1 Prosecutorial Powers of the Attorney-General and the Director of Public Prosecutions under the Colonial Constitutions
  • 3.2 Prosecutorial Powers of the Director of Public Prosecutions under the 1960 Constitution
  • 3.3 Prosecutorial Powers of the Attorney-General under the 1963 Constitution
  • 3.4 Prosecutorial Powers of the Attorney-General under the 1979 Constitution
    • 3.4.1 The Ratio Decidendi of The State v Ilori (‘Ilori’)
    • 3.4.2. The Obiter Dicta in Ilori
  • 3.5 Prosecutorial Powers of the Attorney-General under the 1999 Constitution
• 4. Grounds for Judicial Review of the Prosecutorial Powers of the English and Nigerian Attorneys-General
  • 4.1 The Public Interest, National Security and The Rule of Law
  • 4.2 Public Interest, Interests of Justice and the Need to Prevent Abuse of Legal Process
• 5. Conclusion
• Endnotes

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