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Exercise of the AGF Prosecutorial Powers

By Olukayode Majekodunmi

The constitutional power of the Attorney General of the Federation to discontinue criminal prosecution at any stage before judgement is delivered in any criminal proceedings instituted or undertaken by him or any other authority or person is not in doubt. The only debate is as to the propriety or otherwise in the exercise of the awesome powers vested in the Attorney General in Section 174 of the 1999 Constitution of the Federal Republic of Nigeria.

The popular sentiment is that in the exercise of this power, the Hon Attorney-General should address his mind and have regard to public interest, the interest of justice and the need to prevent abuse of legal process. In several celebrated cases, our courts have deliberated on the overriding consideration. The central conclusion is that the bona fide of the Attorneys General could not be questioned.

The genesis of the allegation of forgery of Senate rules that culminated in the preferment of charges and arraignment of Dr Olusola Saraki and Mr Ike Ekweremandu, the President and Deputy President of the Senate respectively is traceable to the inner power struggle within the APC and political intrigue to their assumption of the plum offices at the inauguration of the 8th Senate of the National Assembly. Dr Saraki fashioned an accord with his erstwhile political soul mates in the PDP to thwart the anointed candidate of the All Progressives Party, Ahmed Lawan.

Having been outmanoeuvred by Saraki and his backers from across the aisle, the members of the APC supporting Ahmed Lawan became bellicose and swore to bring down Saraki and Ekweremandu. They expressed special resentment of the idea of having a member of the Peoples Democratic Party (PDP) as the Deputy President of the Senate.  To them, the duo must be made to pay for their actions. And as they say, as in war all things are fair in politics.

After futile bids to oust the Senate Leadership, the anti Saraki/Ekweremadu eventually came up with allegations of alteration to sections of the Senate Standing Rules. The replacement of ‘open’ with the ‘secret’ voting system, among other amendments to the rules, thus set the stage for the calls to prosecute the Senate President Bukola Saraki and his deputy, Ike Ekweremadu, on allegations of conspiracy and forgery. There were explanations from some standing Senators and members of House of Representatives that it is the practice of Parliaments worldwide for bureaucracy to work on the Rules of Parliament and the elected officials only votes to adopt or reject the amendments at any time subject to their convenience.

Some Senators reported the alleged forgery to the Police high command with a call for investigation and if need be, prosecution of those involved. However, on the 27th June, 2016, about a year to the break of the news of the alleged forgery, 4 persons, namely Bukola Saraki, Ike Ekweremadu, Mr Salisu Maikasuwa, and Mr Benedict Efeturi were arraigned at FCT High Court, Abuja.

The latter 2 were the Clerk of the Senate and his deputy at the time of inauguration of the 8th Senate. From the onset, Saraki had consistently proclaimed his innocence as to the formulation of the contentious Senate Rules. He alleged that the preferment of forgery charges and his arraignment before the FCT High Court, Abuja, was another phase in the orchestrated persecution he had been facing since his emergence as Senate President.

One must recall that while all these were going on, Sen. Gilbert Nnaji (PDP-Enugu East) approached a court to stop the police from investigating the alleged forgery of the 2015 Senate Standing Order. Responding to the suit, the former Inspector-General of Police, Mr Solomon Arase, via a counter-affidavit, said that no court of law in the country had the power to stop the police from carrying out its statutory function of investigating crimes. According to him, nobody in the country, including the 74 political office holders covered by the provisions of Section 308 of the 1999 Constitution (as amended), is exempted from investigation.

The points raised by the then Inspector General of Police were very strong in law especially if one consider the decision of the Supreme Court in the case of Gani Fawehinmi V Inspector General of Police where the Court established the principle that immunity does not stop investigation.

Senator Saraki alleged that some cabals, who had taken over the control of President Muhammadu Buhari’s administration, were now using it to perpetrate their nefarious activities. He said that the trial of the Senate leadership was an attack on the legislative arm of government.

The Federal Government recently withdrew the forgery charges it instituted against the Senate President, Dr. Olusola Saraki, his deputy, Ike Ekweremadu, and two others. Lead prosecuting counsel, Mr. Aliyu Umar (SAN), told the trial judge, Justice Yusuf Halilu of the High Court of the Federal Capital Territory, that the charges were being withdrawn because of a pending case related to the charges before the Federal High Court in Abuja.


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