Thursday, 28th March 2024
To guardian.ng
Search
Law  

Legal issues in discontinuance of ex-governor Silva’s trial

By Dr. Edoba B. Omoregie
06 July 2015   |   11:28 pm
Few days ago the media reported the discontinuance of the criminal trial of Former Governor Timipre Silva of Bayelsa State. In the past couple of months he had been facing trial for alleged corrupt practices while he was Governor of that state.
Lawmakers Wig

Lawmakers Wig

Few days ago the media reported the discontinuance of the criminal trial of Former Governor Timipre Silva of Bayelsa State. In the past couple of months he had been facing trial for alleged corrupt practices while he was Governor of that state.

Before the charge against him was dropped two solicitors, one of the Economic and Financial Crimes Commission (EFCC), the agency which brought the charge, the other said to be representing the office of Attorney General of the Federation, had traded words in open court over who authorized the discontinuance of the trial.

Notwithstanding, days later at the resumed hearing the charge against the former Governor was dismissed after having been dropped on the order of the “office of the Attorney General of the Federation”.

While it is disconcerting that the current administration of President Muhammandu Buhari would condone the discontinuance of a trial for corruption so soon after riding to power on the mantra of fighting corruption, it is even more bewildering that the discontinuance is said to have been authorized by the “office of the Attorney General of the Federation” without an incumbent Attorney General of the Federation who alone could exercise that power either by himself or by actual delegation.

The power to discontinue criminal trial initiated by the federation is one of the prosecutorial powers conferred on the Attorney General of the Federation in section 174 of the 1999 Constitution. The others are the power to initiate a criminal trial and the power to take over a criminal trial commenced by any other authority such as the police or even the EFCC, as the case may be.

The full amplitude of the power has been explicated in many cases decided by the Supreme Court of Nigeria. In one of such cases, Ilori v. State (see (1983) 14 Nigerian Supreme Court Cases, page 69) the Supreme held that in exercising the power of public prosecution the Attorney General cannot be questioned.

Thus, if he decides to discontinue a criminal trial, for instance as in the Silva case, he cannot be questioned by or in any court of law, not even by the Supreme Court.

This is perhaps one of the few occasions when the power of judicial review can be ousted in Nigeria, although in deciding the Ilori case (and subsequent cases on the issue) it would appear that the Supreme Court may have ignored the apparent intention of the framers of the 1979 Constitution when in section 160 (3) (reproduced as section 174 (3) of the 1999 Constitution) it is provided as follows: “In exercising the 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”. One may therefore ask, in whose interest was the office of the Attorney General acting when it discontinued the trial of the ex-Governor?

However, what is perhaps more worrisome because of its patent illegality is the exercise of the prosecutorial power of the Attorney General in discontinuing the trial when an Attorney General of the Federation is yet to be appointed.

Many years ago in Attorney General of Kaduna State v. Hassan (see [1985] 2 Nigerian Weekly Law Report, page 483), a similar scenario presented itself. The Solicitor General of Kaduna State purported to have exercised the power to discontinue a criminal trial when at the time there was no incumbent Attorney General for the state, as none had been appointed. The Supreme Court held that the Solicitor General acted without lawful authority and without competence since at the material time there was no incumbent Attorney General who could delegate the power to him!

It is therefore my considered view that the discontinuance of the criminal trial of former Governor Silva for alleged corrupt practices while in office is wrongful and patently illegal. First, there is no incumbent Attorney General of the Federation who could have exercised the power or delegated its exercise to an officer of his department or any other person.

Second, no genuine public interest has been explained as the basis for the discontinuance. The excuse that the charge was phantom (if at all) would not fly as only a full and complete trial would have determined that. Thus, assuming an Attorney General of the Federation had been appointed and functioning, he still would have had difficulty justifying the discontinuance on the ground of public interest or any other interest set out in the constitution given the current posture of anti-corruption of the Buhari Administration.

• Omoregie is an Associate Professor of Law, University of Benin, Benin City.

0 Comments