Nolle Prosequi: SANs differ on calls for review

By Henry Ojelu

For decades, Nolle Prosequi — the Attorney-General, AG’s power to “no longer prosecute” — has been a routine prosecutorial tool in Nigeria. Lately, however, that practice has been enmeshed in controversy.

A steady string of high-profile files discontinued after charges were filed has rekindled old questions: is the power an essential instrument of public-interest prosecution, or an unchecked prerogative that can be used to frustrate justice and shield the powerful?

The 1999 Constitution vests the discretion plainly in the chief law officers. Section 174(1) states in part: “The Attorney-General of the Federation shall have power … to institute and undertake criminal proceedings…” and to “take over and continue any such criminal proceedings.” Similarly, Section 211(1) gives the State Attorney-General parallel powers over offences created under state law.

The problem, however, is not the wording but about accountability. Some critics argue that the Constitution grants the power in broad terms without an express statutory or constitutional check to guard against political abuse — a gap that has produced public uproar when prosecutions involving public officials and politically connected suspects were suddenly halted.

Nolle Prosequi in other jurisdictions

In England and Wales, the AG can enter a nolle prosequi to stop proceedings but the intervention is rare and monitored. The Crown Prosecution Service also operates under a published Code and guidance designed to make decisions transparent and consistent.

In the United States, the entry of a nolle prosequi is a common prosecutorial device but it has produced important constitutional litigation, notably on speedy-trial and re-prosecution issues, demonstrating that unfettered discontinuance can raise other rights questions that courts sometimes must resolve.

In South Africa, nolle prosequi requires formal certification and courts have scrutinised procedural compliance with statutory requirements for issuing a nolle certificate — a check that has given private prosecutors and courts tools to challenge improper stoppages. Recent decisions in the country revealed that courts will insist on the prescribed formalities and on evidence that discontinuance is justified.

Nigerian court on nolle prosequi

The Supreme Court’s landmark decision in S.O. Ilori & Others v. The State (1982) remains the bedrock authority. In that case, the Court held that the Attorney-General’s discretion to enter a nolle prosequ is an exclusive constitutional prerogative under Sections 174 and 211 of the 1999 Constitution.

The Court ruled that this discretion is not subject to judicial review, even where the motives are questioned, effectively insulating the AG’s decision from interference by the Bench.

SANs speak

Some senior lawyers who spoke to Vanguard Law & Human Rights on the relevance of nolle prosequi in the Nigerian justice system, harped on the need for constitutional amendment to strike a balance between protecting prosecutorial independence and safeguarding the public’s right to transparent, accountable justice.

There must be middle ground —Prof Ojukwu, SAN

Prof. Ernest Ojukwu, SAN, believes nolle prosequi is a legitimate prosecutorial tool but warns that absolute discretion without oversight invites political abuse. He proposes a middle ground that preserves independence while ensuring accountability.

He said: Historically, the AG is the state’s chief law officer, entrusted with dropping weak or politically sensitive cases that would waste court time or public funds, correcting prosecutorial errors without lengthy trials, and protecting the public interest in situations where continued prosecution would cause more harm than good.

“An absolute power without oversight creates fertile ground for abuse, by shielding political allies from prosecution (common in politically charged cases), blocking justice in corruption cases where there is public interest in full trial, and undermining judicial independence by halting cases already in progress.

“In several corruption prosecutions involving politically-connected individuals, nolle prosequi was entered without clear explanation. This has been a recurring theme in Nigerian anti-corruption discourse, especially when administrations change.

A middle ground could be: mandatory written reasons for nolle prosequi filed in court and made public; the right of victims or interested parties to challenge the decision via judicial review; and parliamentary oversight where the AG must report such cases annually.”

There is need for constitutional amendment—Prof Erugo, SAN

Prof. Sam Erugo, SAN, maintains that the powers granted the AGF and the states to discontinue criminal proceedings are firmly rooted in the 1999 Constitution. However, he warns that such powers must be exercised strictly within constitutional boundaries and in ways that promote justice, protect public interest, and prevent abuse of the legal process.

“Sections 174 and 211 of the 1999 Constitution vest the Attorneys-General with the discretion to take over, continue, or discontinue criminal proceedings in any court. While this is a constitutional power, it is not an absolute or unfettered one. The Constitution remains the supreme law of the land, and under the rule of law, no public officer—no matter how highly placed—is above it.

“One of the core elements of the rule of law is that crimes capable of being proved should be punished. Therefore, the discretion to enter a nolle prosequi must be exercised in line with the principles of justice, in the public interest, and to prevent abuse of legal process. These three guiding conditions are expressly provided in subsections (3) of Sections 174 and 211.

“If these conditions are not satisfied, such a decision can be challenged. Importantly, any exercise of discretion tainted by fraud is inherently invalid because fraud vitiates every official act. In such cases, the courts have a duty to intervene.

“Though the power is constitutional, it should not be mistaken as beyond judicial review. Where there is evidence of bad faith, arbitrariness, or an abuse of the prosecutorial process, the courts can step in to safeguard the integrity of the justice system.

“I strongly advocate a constitutional amendment that would explicitly empower the courts to review nolle prosequi decisions. This would ensure there is a formal legal mechanism to check any misuse of prosecutorial discretion, while still preserving the independence of the AG’s office.

“The goal should be to maintain public confidence in the justice system, ensure fairness to all parties, and protect the constitutional values upon which Nigeria’s legal framework rests.”

AG’s powers should remain absolute but… —Opara, SAN

Mr Victor Opara, SAN is of the view that AGs constitutional powers to institute, take over, and discontinue prosecutions must remain absolute and free from judicial review, but should only be exercised fairly, responsibly, and in the public interest.

While acknowledging the potential for abuse, he maintained that such risks also exist in the judiciary and that safeguards lie in appointing AG of unquestionable integrity, not in curtailing their discretion.

He said: “All prosecutorial powers reside in the Attorney-General of the Federation or of a state. The Constitution clearly gives them authority to institute, prosecute, and take over any prosecution from bodies such as the police, NDLEA, Customs, EFCC, or ICPC. This means the AG can decide to stop or take over a case.

“The essence of this power is to act in the public interest and ensure prosecutions are handled objectively, dispassionately, and appropriately. Once you subject it to judicial review, you destroy its purpose, and the AG may lose the ability to make necessary policy decisions.

“There are many reasons to discontinue a matter—some purely policy-driven, others in the national interest. For instance, if a person accused of a serious offence provides sensitive intelligence that prevents insurgents from overrunning the country, a political decision may be taken to discontinue prosecution.

“The Supreme Court in State v. Anuri has ruled that these powers cannot be questioned by any court. Abuse is possible, yes, but judicial powers are also sometimes abused. The real solution is to ensure the office is occupied by someone of proven integrity and pedigree.

“If an AG abuses his powers, he can be removed by the President or Governor. We should not run to court for every dispute—that is why our courts are overburdened. Transparent elections and proper governance will reduce needless litigation.

“Governors must not be distracted by political advisers pushing frivolous cases. Lawmakers, too, should understand the fundamentals of their powers and not legislate unnecessarily. Personal discipline and clarity of role are key. I do not believe in exercising these powers whimsically. They should remain absolute but be used fairly and responsibly.”

Law is clear, abuse is not—Dr Ubani, SAN

Dr Monday Ubani, SAN, insists the Constitution grants the AG wide powers but within strict constitutional limits tied to public interest, justice, and prevention of abuse. He rejects interference by non-judicial bodies.

He said: “Section 211(1) of the 1999 Constitution provides that the State Attorney-General shall have power to institute, take over and discontinue criminal proceedings at any stage before judgment is delivered (nolle prosequi).

“Section 174(3)… provides that: ‘In exercising his powers under this section, the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.’

“In State v. Ilori, the Supreme Court held that the AG’s discretion… is ordinarily not subject to control, except in very exceptional cases.

…There is nowhere in the Constitution the police is authorised to review the exercise of the powers of nolle prosequi by the AG. If there will be a review, it is only the judiciary that will perform that responsibility and not the police.”

“Let us therefore read the constitutional provisions in full and ground our public commentary in the law, avoiding misinformation or intimidation of those who offer well-reasoned legal opinions.

“My submission is without prejudice to the recent incidence involving the police and the AG of Anambra state. There is nowhere in the constitution, the police is authorised to review the exercise of the powers of nolle by the AG.

“If there will be a review, it is only the JUDICIARY that will perform that responsibility and not the police. The attempt by the IG’s office to arrest or intimidate the AG of Anambra in the exercise of his constitutional powers is an aberration and a derogation of the grundnorm.

Courts should enforce section 174(3)—Edun, SAN

Kunle Edun, SAN, accepts the AG’s discretion but says many misuse it for political ends, and courts should apply Section 174(3) more rigorously to protect the public interest.

He said: “Can we really say that the various Attorneys General have so far exercised this power in strict adherence to the provisions of the Constitution? How many Attorneys General are bold enough to refuse to discontinue a criminal case when directed by his Governor?

“We have had instances when Attorneys General used the power to take over and discontinue cases the Government has interest in either because the Defendant is a member of the same political party as the appointor of the AG or he is a friend, relation or political associate of the President, Governor or is highly connected to the powers that be.

“All these are abuse of power and certainly not in the public interest. It is akin to the cases of the presidential pardon that were granted to some convicted former Governors of some northern States who embezzeled their States’ funds while in Government. The looted funds for which they were convicted for were never returned. The public interest was never considered.

Therefore, a proactive judiciary should be bold enough to interpret section 174 (3) of the Constitution to protect the public interest, our commonwealth and prevent corruption in public offices. A Court would be right to set aside any nolle prosequi entered in any criminal case if the Prosecution is unable to show that it is in the public interest. The onus is on the Prosecution to prove this. However, and sadly, until the apex Court decides to courageously change its position of absolute power of the AG to enter nolle, the politicians will continue to use section 174(1)(c) to mess up the rule of law and enthrone a regime of corruption  in governance.”

He predicted that sub-Saharan Africa and Brazil would become the world’s “breadbaskets” due to their abundance of arable land and water, driving up fertiliser demand.

Edwin said currently, most of Dangote’s fertiliser output is exported to the United States, Brazil, Argentina, Mexico, and parts of Europe, but the company is shifting focus to Africa’s rapidly expanding agricultural markets.

However, Edwin lamented the challenge of inadequate crude supply to the refinery, which has forced imports from the United States.

He expressed optimism that the situation would improve, enabling the refinery to further contribute to Nigeria’s economic growth.

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