By Layi Babatunde, SAN

Continues from last week

8.4 Attempts made by Non­ governmental Organizations

The World Bank has released its Six Strategies to Fight Corruption, which aim to provide nations with guidance in the battle against corruption. One strategy supported by the World Bank is to pay civil servants well enough that they don’t have a great incentive to become corrupt. If public servants are paid well, they usually won’t need to find illegal measures to boost their income. Another more elaborate strategy could be to promote transparency, making it more difficult for officials to hide bribes and other sorts of corruption. Tax exemptions, soft credits, extra­ budgetary funds, subsidies, and public procurement of goods and services are elements that could become more transparent. The World Bank believes, that another option is to remove any unnecessary regulations, but still enforce the fundamental ones. This strategy is intended to tackle the issue of governmental laws and programs that accidently breed corruption. The globalized economy provides reason for greater cross­ border corruption systems that could only be tackled with a multiplicity of conventions.[78]

8.5  Anti-Corruption Strategy for the Legal Profession

The Anti-Corruption Strategy for the Legal Profession is an initiative launched in April 2010 by the Organisation for Economic Cooperation and Development (OECD), the International Bar Association (IBA) and the UN Office on Drugs and Crime (UNODC). It began with a survey carried out by the IBA which was designed to assess the knowledge and understanding of the legal profession in terms of corruption. The purpose of the survey was not to determine what lawyers knew about international bribery but what they understood about their own role and their own risks. The results of the survey were fairly striking because a number of lawyers indicated that they knew of colleagues or competitors who had probably been involved in corruption schemes, and/or had experienced losing clients because they did not want to be involved in corruption. The survey indicated that corruption was not a hypothetical issue and at the same time that there was an amazing degree of ignorance among lawyers of their own role and risks.[79]

9.0         CONCLUSION AND RECOMMENDATIONS  

A Legal Practitioner is undoubtedly a special specie of a professional. The Law and the society vests him or her with much respect. Indeed, he is the only, one whose profession constitutionally guarantees him a seat, in the council of Ministers. Professor I. E. Sagay[80] speaking on the role of the Attorney General in the Administration of Justice, had this to say:

“In Nigeria, the Attorney-General is the most Senior Minister in the Executive Council of the Federal Government and of the States respectively. He is the only appointed member of the Council specifically mentioned and assigned functions in the Constitution.

By Section 150(1), the Constitution provides that “There shall be an Attorney General of the Federation who shall be the Chief Law Officer of the Federation and a Minister in the Government of the Federation. This is repeated in Section 195 in respect of Attorneys-General of States.

This pre-eminent position of the Attorney-General is further re-inforced by the wide and uncontrolled discretion and powers given to him with regard to criminal prosecutions. Under Sections 174 and 211, Federal and State Attorneys General are empowered:

“(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court marital in respect of any offence created by or under any Act of the National Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The powers conferred upon the Attorney-General of a State under subsection (1) of this section may be exercised by him in person or through officers of his department.

(3) In exercising his powers under section, the Attorney General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”

In holding that the exercise of the Attorney-General’s powers under public prosecutions, particularly, to enter a nolle prosequi is absolute and unfettered, and not subject to judicial review, Eso, JSC, giving the leading judgment in The State v. S.O. Ilori & Others (1983) 2 S.C 155 stated thus:

“The pre-eminent and incontestable position of the Attorney General, under the common law, as the chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognized by the courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature, the Attorney-General has, at common law, been a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise vis-à-vis his powers of instituting   or discontinuing proceedings. These powers of the Attorney General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.

In the learned Justice’s view, the requirement that the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process in exercising these powers, as contained in our Constitution, adds nothing to the position at common law.

The discretion of the Attorney-General remained absolute. According to the learned Justice it is one thing to point out the dangers of an Attorney-General in arriving at a decision without taking into consideration what he is expected to have regard to. However, to my mind, it would be completely wrong to regard this as a precondition to the exercise of his powers under S. 191 of the 1979 Constitution.

To be continued