PARDON OR PERVERSE OF JUSTICE? A CRITICAL APPRAISAL/IN-DEPTH INTERROGATION OF SECTIONS 36(10), 174 AND 211 OF THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA, 1999.
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Abstract
This research conducts a critical examination of Sections 174 and 211 of the Constitution of the Federal Republic of Nigeria 1999, which confer discretionary prosecutorial powers upon the Attorney-General of the Federation and the States. Additionally, it evaluates the broader constitutional protection afforded under Section 36(10), which safeguards individuals against double jeopardy. These provisions raise pressing inquiries regarding the equilibrium between executive discretion and the principles of justice, accountability, and fair hearings within Nigeria’s criminal justice system. The study investigates whether the extensive authority vested in the Attorney-General to initiate, pursue, or terminate criminal proceedings, particularly through nolle prosequi, has been exercised in accordance with the rule of law or has instead devolved into a mechanism for political interference and elite protection. This inquiry is contextualized within a conceptual and theoretical framework that examines justice (retributive, restorative, and distributive), prosecutorial discretion, and the principles of separation of powers and the rule of law. Employing doctrinal and analytical legal research methodologies, the study delineates the historical evolution of the Attorney- General’s office and the development of prosecutorial discretion in Nigerian constitutional law. Furthermore, it discusses judicial interpretations of these provisions in landmark cases
such as State v. Ilori, Abacha v. State, Usman v. FRN, Mohammed v. State, and FRN v. Osahon & Ors, revealing a concerning tendency of judicial deference that could potentially facilitate the abuse of prosecutorial authority. Section 36(10) is scrutinized as a
constitutional guarantee of finality in criminal trials, which precludes multiple prosecutions for the same offense, thereby preserving the integrity of criminal adjudication. Nonetheless, this safeguard is frequently undermined when prosecutorial discretion is misused to arbitrarily terminate trials, denying victims’ closure and eroding public trust in the justice system. The study concludes that, although Sections 174, 211, and 36(10) each fulfill significant constitutional functions, their interactions must be meticulously overseen to prevent distortions of justice. Recommendations encompass the establishment of clearer statutory guidelines, judicial oversight of prosecutorial decisions, and institutional checks to avert the risk of discretion devolving into impunity. This work contributes to ongoing deliberations concerning democratic accountability, prosecutorial ethics, and the reformation of Nigeria’s criminal justice framework
such as State v. Ilori, Abacha v. State, Usman v. FRN, Mohammed v. State, and FRN v. Osahon & Ors, revealing a concerning tendency of judicial deference that could potentially facilitate the abuse of prosecutorial authority. Section 36(10) is scrutinized as a
constitutional guarantee of finality in criminal trials, which precludes multiple prosecutions for the same offense, thereby preserving the integrity of criminal adjudication. Nonetheless, this safeguard is frequently undermined when prosecutorial discretion is misused to arbitrarily terminate trials, denying victims’ closure and eroding public trust in the justice system. The study concludes that, although Sections 174, 211, and 36(10) each fulfill significant constitutional functions, their interactions must be meticulously overseen to prevent distortions of justice. Recommendations encompass the establishment of clearer statutory guidelines, judicial oversight of prosecutorial decisions, and institutional checks to avert the risk of discretion devolving into impunity. This work contributes to ongoing deliberations concerning democratic accountability, prosecutorial ethics, and the reformation of Nigeria’s criminal justice framework
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