PROSECUTION OF ELECTORAL OFFENCES: PANACEA TO RESTORATION OF PEACE AND CONFLICT RESOLUTION IN NIGERIA by: Akin Olawale Ogundayisi LL.

B(Hons), B.L, ACIArb. Principal Partner, BENAKOL CONSULTING, Abuja.

INTRODUCTION Electoral process is usually bedeviled with series of offences which are unique and different from offences provided under the Criminal Code Law. Prior to the E lectoral Act 2010 (as amended), there were no substantial provisions for elector al offences and power to prosecute these offences. But a cursory look at the new regime on electoral process shows that there are various electoral offences und er the law which shall be highlighted in this work. On the contrary, the Act fai led to provide explicitly for persons entitled to prosecute these offences. The question then is who can prosecute electoral offences under the new regime. The general rule in any criminal proceedings is that the Attorney General of the Fed eration and State has the constitutional power to prosecute any offences. The At torney General can also give authority to private persons to prosecute such offe nces. The purpose of this article is discuss in detail the power of various pers ons who can prosecute electoral offences in Nigeria. ELECTORAL OFFENCES It is important to first examine the blanket provision of the Electoral Act on e lectoral offences before examining who has power to prosecute them. Many of the offences created by the new regime are still today unknown to many although the position of the law is that ignorance of the law is not an excuse. Thus, the bur den to reproduce the provision of Part VIII of the Electoral Act which deals wit h electoral offences, for citizens of this country to read and know what act con stitute an offence before, during and after the conduct of an election pursuant to the new regime. I had the opportunity of listening to some political analyst on media believing some acts are not criminalized by the electoral law. This is partly true and partly wrong. While a lot of criminal act has been taken care of as it shall soon be seen, few are yet to be covered by the new amendment. It is my humble opinion that our electoral shall from time to time be subject to revi ew to cater for areas of development, research and demand from the citizens. The offences currently provided for shall be mentioned and detail provision for eac h shall be reproduced accordingly. 1. Offences in relation to registration:Section 117 of the Act states that a person who(a) Without authority, destroys, mutilates, defaces or removes or makes any alteration in any notice or document required for the purpose of registration un der this Act; (b) Knowingly gives false information or makes a false statement with refere nce to any application for registration of his name or with reference to any obj ection to the retention of the name of a person in the register of voters; (c) Presents himself to be or does any act whereby he is by whatever name or description however, included in the register of voters for a constituency in w hich he is not entitled to be registered or causes himself to be registered in m ore than one registration or revision centre; (d) Publishers any statement or report which he knows to be false or does no t believe to be true so as to prevent persons who are qualified to register from registering as voters; (e) Makes in any record, register or document which he is required to prepar e, publish or keep for the purpose of registration, any entry or statement which he knows to be false or does not believe to be true;

(f) Impedes or obstructs a registration officer or a revision officer in the performance of his duties; (g) Without proper authority, wears the identification of a registration off icer or assistant registration officer or wears any other identification purport ing to be the identification of a registration officer or assistant registration officer; (h) Forges a registration card; or (i) Carries out registration or revision of voters at a centre or place not designated by the Commission; commits an offence and liable on conviction to a m aximum fine N1,000,000 or to 12 months imprisonment or to both. 2. Offences in respect of nomination Section 118 of the Electoral Act provides for offences in respect of nomination of party candidates thus: A person who(a) Forges any nomination paper or result from; (b) Willfully defaces or destroys any nomination paper or result form; (c) Delivers to an electoral officer any nomination paper or result form kno wing it to be forged; (d) Signs a nomination paper or result form as a candidate in more than one constituency at the same election; (e) Forges any ballot paper or official mark on any ballot paper or nay cert ificate of return or result form; (f) Willfully destroys any ballot paper or official mark on any ballot paper or nay certificate of return or result form; (g) Without authority gives a ballot paper or result form to any person; (h) Willfully places in any ballot paper or result form to any person; (i) Willfully removes from a polling station any ballot paper or result form whether or not the ballot paper or result form was issued to him in that pollin g station; (j) Without authority destroys or in any other manner interferes with a ball ot box or its contents or any ballot paper or result form then in use or likely to be used for the purpose of a election; (k) Signs a nomination paper consenting to be a candidate at an election kno wing that he is ineligible to be a candidate at that election, commits an offenc e; A person who commits an offence under subsection(1) of this section is liable on conviction to a maximum term of imprisonment for 2 years. Subsection (3) provides that: A person who(a) Without proper authority prints a ballot paper or what purports to be or is capable of being used as a ballot paper or result form at an election; (b) Being authorized by the Commission to print ballot papers or result form prints more than the number or quantity the Commission authorized; (c) Without authority, is found in possession of a ballot paper or result fo rm when he is not in the process of voting and at a time when the election for w hich the ballot paper or result for is intended is not yet completed; (d) Manufacture, constructs, imports into Nigeria, has in his possession, su pplies to any election official or uses for the purpose of an election, or cause s to be manufactured, constructed or imported into Nigeria, supplies to any elec tion official for use for the purpose of any election, any ballot box including any compartment, appliance, device or mechanism or by which a ballot paper or re sult form may or could be secretly placed or stored in, or having been deposited during polling maybe secretly diverted, misplaced or manipulated, commits an of fence. A person who commits an offence under subsection(3) of this section is liable on conviction to a maximum fine of N50,000,000 or for a term of imprisonment of no t less than 10 years or to both. An attempt to commit any offence under this sec tion shall be punishable in the same manner as the offence itself.

3. Disorderly behavior at political meeting This can be found in section 119 of the Act. It states that: Any person who at a political meeting held after the date for an election has be en announced(a) Acts or incites another to act in disorderly manner for the purpose of p reventing the transaction of the business for which the meeting was convened; or (b) Has in his possession an offensive weapon or missiles; commits an offenc e and liable on conviction to a maximum fine of N500,000 or imprisonment for 12 months or both. 4. Improper use of voters On improper use of voters, section 120 provides that: Any person who(a) Being entitled to a voter s card, gives it t some other person for use at an election other than an officer appointed and acting in the course of his duty u nder this Act; (b) Not being an officer acting in the course of his duty under this Act, re ceives any voters card in the name of some other person or persons for use at an election uses it fraudulently; (c) Without lawful excuse has in his possession more than one Voter s Cards; or (d) Buys, sells, procures or deals, with a voters card otherwise than as pro vided in this Act; commits an offence and is liable on conviction to a maximum f or 12 months or both.

5. Improper use of vehicles Section 121 of the Act states that No person shall provide for the purpose of conve ying any other person to a registration office or to a polling unit any governme nt vehicle or boat, or any vehicle or boat belonging to a public corporation exc ept in respect of a person who is ordinarily entitled to use such vehicle or boa t and in emergency in respect of an electoral officer. Any person who contravene s the provisions of subsection(1) of this section; commits an offence and is lia ble on conviction to a maximum fine of N500,000 or to imprisonment for six month s or to both. 6. Impersonation and voting when not qualify The offence of impersonation and voting when not qualify is provided by section 122 of the Act. It states that any person who(a) Applies to be included in any list of voters in the name of some other p erson, whether such name is that of a person living or dead or a fictitious pers on; (b) Having once to his knowledge been properly included in a list of voters under this Act as a voter entitled to vote at any election, applies, except as a uthorized by this Act, to be included in any other list of voters prepared for a ny Constituency as a voter at an election; (c) Applies for a Ballot Pape in the name of some other person, whether such name is that of a person living or dead or of a fictitious person; (d) Having voted once at an election applies at the same election for anothe r ballot paper; (e) Votes or attempts to vote at an election knowing that he is not qualifie d to vote at the election; or (f) Induces or procures any other person to vote at an election knowing that such other person is not qualified to vote at the election, commits an offence and is liable on conviction to a maximum fine of N500,000 or 12 months imprisonm ent or both. Any person who commits the offence of impersonation or who aids, abets, counsels or procures the commission of that offence, shall be liable on conviction to a maximum fine of N500,000 or 12 months imprisonment or both. No person charged wi

th the offence of impersonation shall be convicted except on the evidence of at least two witnesses. Sub-section (2) and (3) 7. Dereliction of duty Section 123(1) states: (1) Any officer appointed for the purposes of this Act, who without lawful excu se commits any act or omits to act in breach of his official duty commits an off ence and is liable on conviction to a maximum fine of N500,000 or imprisonment f or 12 months or both. (2) Any Polling Officer who fails to report promptly at his polling unit on an election day without lawful excuse commits an offence of dereliction of duty and is liable on conviction to a maximum fine of N500,000 or 12 months imprisonm ent or both. (3) Any polling officer who fails to discharge his lawful duties at his poll ing unit without lawful excuse commits an offence of dereliction of duties and i s liable on conviction to a maximum fine of N500,000 or 12 months imprisonment o r both. (4) Any person who announces or publishes an election result knowing same to be false or which is at variance with the signed certificate of return commits an offence and is liable on conviction to 36 months imprisonment. (5) Any Returning Officer or Collation Officer who delivers or causes to be delivered a false certificate of return knowing same to be false, commits an off ence and is liable on conviction to a maximum imprisonment for 3 years without a n option of fine. (6) Any person who delivers or causes to be delivered a false certificate of return knowing same to be false to any news media commits an offence and is lia ble on conviction to imprisonment for 3 years. 8. Bribery and Conspiracy Apart from the extensive provision of Independent Corrupt Practices and Other R elated Offences Commission Act, the Electoral Act in its section 124 provides th at (1) Any person who does any of the following(a) Upon or in consequence of any gift, loan, offer, promise, procurement or agreement corruptly, procures, or engages or promises or endeavors to procure, the return of any person as a member of a legislative house or to an elective of fice or the vote of any voter at any election; (b) Advances or pays or causes to be paid any money to or for the use of any other person, with the intent that such money or nay part thereof shall be expe nded in bribery at any election, or who knowingly pays or causes to be paid any money to any person in discharge or repayment of any money wholly or in part exp ended in bribery at any election; (c) After any election directly, or indirectly, by himself or by any other p erson on his behalf receives any money or valuable consideration on account of a ny person having voted or refrained from voting, or having induced any other per son to vote or refrained from voting or having induced any candidate to refrain canvassing for votes for himself at any such election, commits an offence and is liable on conviction to a maximum fine of N500,000 or 12 months or both. (2) A voter commits an offence of bribery where before or during an election directly or indirectly himself or by any other person on his behalf, receives, agrees or contracts for any money, gift, loan, or valuable consideration, office , place or employment, for himself, or for any other person, for voting or agree ing to vote or for refraining or agreeing to refrain from voting at any such ele ction. (3) Nothing in this section shall extend or apply to money paid or agreed to be paid for or on account of any lawful expenses bona fide incurred at or conce rning any election. (4) Any person who commits the offence of bribery is liable on conviction to a maximum fine of N500,000 or imprisonment for 12 months or both. (5) Any person who conspires, aids or bets any other person to commit any of

the offences under this part of this Act shall be guilty of the same offence an d punishment thereto. (6) For the purpose of this Act, a candidate shall be deemed to have committ ed an offence if it was committed with his knowledge and consent or the knowledg e and consent of a person who is acting under the general or special authority o f the candidate with reference to the election. 9. Requirement of secrecy in voting Offences relating to requirement of secrecy in voting is provides for under sect ion 125 thus: (1) Every person in attendance at a polling unit including every officer cha rged with the conduct of an election and his or her assistants and every polling agent and candidate in attendance at a polling station or at the collation cent re, as the case may be, shall maintain and aid in maintaining he secrecy of the voting. (2) No person in attendance at a polling booth under this section shall, exc ept for some purpose authorized by law, communicate to any person information as to the name or number on the register of any voter who has or has not voted at the place of voting. (3) No person shall(a) Interfere with a voter casting his vote, or by any other means obtain or attempt to obtain in a polling unit information as to the candidate for whom a voter in that place is about to vote for or has voted for; or (b) Communicate at any time to any other person information obtained in a po lling unit as to the candidate to whom a voter is about to vote or has voted for . (4) Any person acting contrary to the provisions of this section commits an offence and is liable on conviction to a maximum fine of N100,000 or to imprison ment for a term of 6 months or both. 10. Wrongful voting and false statement Any person who(a) votes at an election or induces or procures any person to vote at an el ection, knowing that he or such person is prohibited from voting threat; or (b) Before or during an election, publishes any statement of the withdrawal of a candidate at such election knowing it to be false or reckless as to its tru th or falsity; or (c) Before or during an election publishes any statement as to the personal character or conduct of candidate calculated to prejudice the chance of election of the candidate or to promote or procure the election of another candidate and such statement is false and was published without reasonable grounds for belief by the person publishing it that the statement is true, commits an offence and is liable on conviction to a maximum fine of N100,000 or imprisonment for a term s of 6 months or both. 11. Voting by unregistered person The Electoral Act equally prohibits voting by an unregistered person. The provis ion of section 127(1) provides that any person who knowingly votes or attempts t o vote in consistency in respect of which his name is not on the register of vot ers commits an offence and is liable on conviction to a maximum fine of N100,000 or to imprisonment for a term of 6 months or both. At he same time a person who knowingly brings into a polling unit during an election a voter s card issued to an other person would suffer the same fate. 12. Disorderly conduct at elections Disorderly conduct could be any conduct that tends to disrupt, obstruct or delay the process of election in an orderly manner. Under this provision, any person who at an election acts or incites others to act in a disorderly manner commits an offence and is liable on conviction to a maximum fine of N500,000 or imprison ment for a term of 12 months or both.

13. Offences on election day Offences on the election day is stated by section 129(1) of the Electoral Act th us: No person shall on the date on which an election is held do any of the following acts or things in a polling unit or within a distance of 300 metres of a pollin g unit(a) Canvass for votes; (b) Solicit for vote of any voter; (c) Persuade any voter not to vote for any particular candidate; (d) Persuade any voter not to vote at the election; (e) Shout slogans concerning the election; (f) Be in possession of any offensive weapon or wear any dress or have any f acial or other decoration which in any events is calculated to intimidate voters ; (g) Exhibit, wear or tender any notice, symbol, photograph or party card ref erring to the election; (h) Use any vehicle bearing the colour or symbol of a political party by any means whatsoever; (i) Loiter without lawful excuse after voting or after being refused to vote ; (j) Snatch or destroy any election materials, and (k) Blare siren The punishment provisions for these offences can be found in sub-section(2) thus : No person shall within the vicinity of a polling unit or collation centre on the da y of which an election is held(a) Convene, hold or attend any public meeting during the hours of polls as may be prescribed by the Commission; (b) Unless appointed under this Act to make official announcements, operate any megaphone, amplifier or public address apparatus; (c) Wear or carry any badge, poster, banner, flag or symbol relating to a po litical party or to the election. A person who contravenes any of the provisions of this section commits an offenc e and is liable on conviction to a fine of N100,000 or imprisonment for a term o f 6 months for every such offence. Any offence who snatches or destroys any election material commits an offence an d is liable on conviction to 24 months imprisonment. 14. Undue influence By the provision of section 130, a person who(a) Corruptly by himself or by any other person at nay time after the date o f an election has been announced, directly or indirectly gives or provides or pa ys money to or for any person for the purpose of corruptly influencing that pers on or nay other person to vote or refrain from voting at such election, or on ac count of such person or nay other person having voted or refrained from voting a t such election; or (b) Being a vote, corruptly accepts or takes money or any other inducement d uring any of the period stated in paragraph (a) of this section, commits an offe nce and is liable on conviction to a fine of N100,000 or imprisonment for a term of 12 months or both. 15. Threating Section 131 states that a person who: (a) Directly or indirectly by himself or by another person on his behalf, ma kes use of or threatens to make use of or threatens to make use of any force, vi olence or restrain (b) Inflicts or threatens to inflict by himself or by any other person, any

minor or serious injury, damage, harm or loss on or against a person in order to induce or compel that person to vote or refrain from voting, or on account of s uch person having voted or refrained from voting; or (c) By abduction, duress, or a fraudulent device or contrivance, impedes or prevents the free use of the vote by a vote or thereby compels, induces, or pre vails on a voter to give or refrain from giving his veto, (d) Prevents any political aspirants from free use of the media, designated vehicles, mobilization of political support and campaign at an election; commits an offence and is liable on conviction to a fine of N1,000,000 or imprisonment for a term of 3 years imprisonment(emphasis mine) 16. Offences relating to recall Section 132 :The offences referred to in this Act shall apply to recall of a mem ber of a Legislative House and a member of an Area Council. PERSONS EMPOWERED TO PROSECUTE ELECTORAL OFFENCES Institution of criminal proceedings deals with the persons entitled by law to pr osecute a criminal offences and the mode adopted in prosecuting such cases at th e different courts of criminal jurisdiction. Essentially, there are four classes of persons who are legally recognized to commence criminal proceedings against any person in Nigeria. These are: 1) The Attorney General; 2) The Police; 3) Special Prosecutors; and 4) Private persons. Understanding the extent of power given to person entitled by law to institute c riminal action is fundamental. This is very important because wherever there is incompetence on the part of the prosecutor, the whole proceedings shall be a nul lity including any judgment that may have been obtained there from. For these, see the case of Olatunji v. The State (2000) FWLR (PT 30) 2635. POWER OF THE ATTORNEY GENERAL The first person entitled by law to institute criminal proceedings is the Attorn ey General of the Federation or State. This is because the Attorney General of t he Federation is the Chief Law Officer of the Federation while the Attorney Gene ral of the State is the Chief Law Officer of the State. By the provisions of Sec tions 171(1) and 211(1) of the 1999 Constitution, each Attorney General, that is , Attorney General of the States and the Federation has the power to institute, take over and to discontinue criminal proceedings before a Court in Nigeria in h is respective jurisdiction, except in a Court Martial. It should be noted that t he power of Attorney General of Federation covers all Federal offences as define d by any Act of the National Assembly while that of states is usually limited to state offences. However, the definition of federal offences made by Section 28 6 of the Constitution is to the effect that where a Federal law is to take effec t as a State law, the Attorney General of the State is competent to institute cr iminal proceedings against any person because that law is deemed to be a State l aw. In effect, this section does not confer jurisdiction as respects Federal causes or Federal offences upon a court presided over by a person who is not or has not been qualified to practise as a legal practitioner in Nigeria. In the case of Emelogu v. The State (1988) 2 NWLR (PT 78) at page 524, the Attorney General of Imo State prosecuted the appellant who was later convicted by the court for robb ery under the Robbery and Firearm Act. He appealed contending that the Firearm Act under which he was prosecuted being an Act of the National Assembly, the Att orney General of Imo was not competent to prosecute under the said Act. It was h eld that the Firearm Act was meant to operate as a State law. It was also held that since the offence of armed robbery was not included in the Exclusive Legisl ative List or Concurrent list, it falls within the Residual List and hence any S tate Attorney General can prosecute without any delegation from the Attorney Gen

eral of the Federation. See also the case of Attorney General of Ondo State v. A ttorney General of the Federation (2002) FWLR (PT 111) page 1972, particularly a t page 2073. While the Federal Attorney General cannot exercise powers granted to him under S ection 174(1) in respect of State offences, the State Attorney General also cann ot exercise the power granted to him under Section 211(1) in respect of federal offences. In the case of Anyebe v. The State (1986) 1 SC page 87, it was held t hat only the Attorney General of the Federation can institute and undertake proc eedings against any person in relation to matters within the Exclusive Legislati ve List. It was also held that the power of the Attorney General of the Federat ion can be exercised by him in person or through an officer of his department ex pressly delegated. Hence, the Attorney General of Benue State is not an officer in the Department of the Attorney General of the Federation. The Attorney Gene ral of a State only has power to institute criminal proceedings in respect of of fences created by or under any law of the State House of Assembly while the powe r of the Attorney General of the Federation is limited to matters over which the National Assembly can legislate. With respect to electoral offences to which the context of this paper is targete d, the Independent National Electoral Commission has the power under the law to prosecute offence referred to it by any tribunal. See section 149 Electoral Act (as amended). Such an offence can be instituted in any Magistrate Court, High Co urt of a State of Federal Capital Territory wherever the offence is committed. S ection 150(2) restrict persons who can prosecute offences under the Act thus: A prosecution under this Act shall be undertaken by Legal Officers of the Commis sion or nay Legal Practitioner appointed by it. The question that one could therefore ask form this provision is that: would the Attorney General of a State or Federation has to be appointed by INEC before pr osecuting electoral offences within is geographical limitation? Certainly not. T his is because the provision of the constitution which empowers the Attorney Gen eral to prosecute any criminal offence is supreme over any other law or Act. Sim ilarly, the Police Act is another Act of the National Assembly existing before t he Electoral Act 2010. The Police Act give power to the police to prosecute offe nces in any court subject to the overriding power of the Attorney General. These shall be examined accordingly. EXAMINING THE CONSTITUTIONAL PROVISIONS FOR POWERS OF ATTORNEY GENERAL The combine provision of section 174 and section 211 of 1999 Constitution provid es for the powers of Federal and State Attorney General. Thus, Section 174(1) of the 1999 Constitution provides: The Attorney General of the Federation shall have power: a. To institute and undertake criminal proceedings against any person befor e any court of law in Nigeria other than a Court Martial in respect of any offen ce created by or under any Act of the National Assembly. b. To take over and continue any such criminal proceedings that may have be en instituted by any other authority or person; and c. To discontinue at any stage before judgment is delivered any such crimin al proceedings instituted or undertaken by him or any other authority or person. From this provision, it is clear that the Attorney General does not have jurisdi ction in Court Martial. The implication is that the Attorney General can neither undertake any proceeding, continue or discontinue at any state any criminal pro ceedings at the Court Martial. It has also been argued that the Attorney General cannot exercise these powers in Coroners Court because it is only a court of i nquest and not court where proceedings take place. POWER TO INSTITUTE AND UNDERTAKE CRIMINAL PROCEEDINGS The power of the Attorney General of the Federation or of a State to institute c

riminal proceedings is an absolute one. What this means is that where two or mor e persons are alleged to have committed an offence, the Attorney General has the power to prosecute one or more of them and let one or more of them go. He is u nder no obligation to give reasons for exercising his discretion. See generally the case of Bagudu v. Federal Republic of Nigeria (2004) 1 NWLR (PT 853) page 1 83; See also the case of Attorney General of Ondo State v. Attorney General of t he Federation (Supra). In State v. Okpegboro (1980 2 NCR page 291, a State Counsel filed a charge befor e a Magistrate Court and an objection was taken on the ground that by Section 78 (B) of the Criminal Procedure Act, only a Police Officer could bring and file a charge before a Magistrate Court. The objection was overruled, the Court holdin g that the powers of the Attorney General contained in Section 191(1) of the 197 9 Constitution supersedes the power of the Police as provided in Section 78(B) o f the Criminal Procedure Act. THE POWER TO TAKE OVER AND TO CONTINUE PROCEEDINGS By Section 174(b) of the Constitution, the Attorney General has the e over proceedings, which may have been instituted by him or by any or authority. This power is an absolute one and what that means is not need to give any person any reason as to why he is taking over ngs. power to tak other person that he does the proceedi

In Amaefule v. The State (1988) 2 NWLR (PT 75) page 156, the accused persons wer e charged before the Magistrate Court for certain indictable offences. After sev eral adjournments, the Magistrate adjourned the case sine die. While the procee dings was still going on, the Attorney General filed an information in respect o f the same charges against some of the accused persons. The accused persons obj ected on the ground that it was an abuse of process and that the information be declared null and void. The Supreme Court rejected this contention although in i ts judgment, it acknowledged that it was desirable to have withdrawn the charges before the Magistrate Court. In Edet v. The State (1988) 2 SC (Pt. 1) page 103, the appellant was charged alo ng with three others before a Magistrate Court on a charge of manslaughter. Ten months thereafter, information was filed at the High Court charging all four of them for murder. They were convicted. In an ultimate appeal to the Supreme Court against his conviction, the appellant contended that the trial was a nullity in that the procedure adopted at the High Court, which was affirmed by the Court o f Appeal, was an abuse of process. The Supreme Court held at page 173 per Uwais, JSC (as he then was) as follows: No citizen should be the subject of persecution by the State. The Courts frown at such action and will not hesitate to deprecate it even if the law has provide d no remedy. The learned Justice, however, concluded that the trial and convict ion of the appellant was in order as nothing affects the powers of the Attorney General over proceedings at any stage of the proceedings. POWER TO DISCONTINUE The Attorney General also possesses the constitutional power to discontinue any pending criminal proceedings instituted by any person. This is otherwise known a s the power of nolle prosequi. This power just like the two earlier powers disc ussed, is equally absolute. But neither the two provisions Section 174 nor Secti on 211(1) of the Constitution make any provision as to how the power of nolle is to be exercised. Section 73(1) of the Criminal Procedure Act (CPA) and Section 253(2) of the Crim inal Procedure Code (CPC) make provisions in that regard. By the combine provis ions, the Attorney General is required to come to Court personally and make an o ral application in that regard or send any officer in his department with a writ ten authority under his hand.

In The State v. Chukwura (1964) NMLR page 64, a State Counsel made an oral appli cation to discontinue proceedings. The application was refused. Also in the cas e of State v. Ilori (1983) 2 SC page 155, it was held that the nature of nolle p rosequi is such that once the plea is entered, the Court does not go behind it i n order to question the Attorney General as to the reasons for so exercising his powers. It held further that the words shall have regard to the public interes t used in Section 191(3) of the 1979 Constitution, now Section 211(3) of 1999 Const itution, are not mandatory but directory. The Court concluded that the only che ck or control on the Attorney General in the exercise of his powers is adverse c riticism and possible removal by his appointor who is the President in the case Federal Attorney General and Governor in the case of State Attorney General. EFFECT OF A NOLLE The effect of a nolle prosequi is that once a nolle is entered, the person is di scharged although it shall not operate to further prosecution on the same facts. See the provisions of Section 73(1) and (2) of the CPA and Section 253(3) of th e CPC. You may also see Section 74(4) of the CPA. See also the case of Clarke v. Attorney General of Lagos (1986) 1 QLRN page 119. It is therefore clear that the powers of the Attorney General is not subject to review by any Court or authority and is, therefore, an authority onto himself. It must be noted that the observation by the Court of Appeal in the case of Atto rney General v. Hassan that an aggrieved person may maintain a civil action agai nst the Attorney General has no legal or constitutional backing. In other words , that opinion stands alone. The reason is that the issue before the Court was n ot whether an aggrieved person could maintain an action against the Attorney Gen eral for improper exercise of the power of nolle prosequi. Rather, the issue be fore the Court was whether the power of nolle prosequi was exercisable when ther e is no incumbent Attorney General. A careful reading of the case of Ilori v. The State (Supra) shows that no action , criminal or civil can lie against the Attorney General in the exercise of the power of nolle or any other power specified in Sections 211(1) or 174 of the 199 9 Constitution. Note the differences between discontinuance under Section 211(1 )(c) and withdrawal from Prosecution by the Prosecutor under Section 75 of the C PA. In the case of Attorney General of Kaduna State v. Hassan (1985) 2 NWLR 487 , it was held that the powers of the Attorney General to enter a nolle prosequi are personal to him hence the Solicitor General has no power to enter a nolle pr osequi so as to discontinue the case. DIFFERENCES BETWEEN NOLLE PROSEQUI AND DISCHARGE BY WITHDRAWAL 1. The effect of a nolle prosequi is a discharge while under withdrawal in Section 75, the effect would depend on the stage of the proceedings. Where the accused person has not put in his defence, a withdrawal would lead to a discharg e but where he has already put in his defence, a withdrawal would lead to an acq uittal. 2. Also, the Court must consent to a withdrawal while no consent is require d before a nolle can be entered. 3. By the proviso to Section 75(1) paragraph (b) (ii), even where withdrawa l is done before the accused puts in his defence, a Court has a discretion to ei ther discharge the accused person or acquit him. DELEGATION OF POWERS By Section 174(2) and Section 211(2) of the Constitution, the Attorney General m ay exercise all the powers enumerated in subsection (1) either personally or thr ough officers of his department. Thus, Section 174(2) provides: The powers conferred upon the Attorney General of the Federation under subsectio n (1) of this Section may be exercised by him in person or through officers of h is department.

Given a literal interpretation, it would appear that all the three powers, that is, power to institute, to take over and to discontinue, may be exercised by the Attorney General either personally or through any officer of his department wit hout any limitation whatsoever. However, in the case of Obasi v. The State (1998 ) 9 NWLR (PT. 567) page 686, the court made a distinction between the powers of the Attorney General to commence and take over on the one hand and the power to discontinue on the other hand. In OBASI s case, the accused person were tried for m urder on an information and they raised an objection that there being no Attorne y General in office at the time the criminal prosecution commenced, their arraig nment and trial was unconstitutional. In rejecting this contention, the Court he ld that the power to commence and take over can be exercised by any law officer in the Attorney General s office while the power to discontinue, which is nolle pros equi is exercisable by the Attorney General only either in person or by his expr essed written authority. See also the case of Attorney General of Kaduna State v. Hassan (SUPRA) and the case of Attorney General of the Federation v. ANPP (20 03) 18 NWLR (PT 851) at page 182. Apart from the power of nolle prosequi, the Attorney General can delegate any of his powers either expressly or by necessary implication. In other words, every law officer in the Office of the Attorney General has an implied power to comme nce criminal proceedings against any person or to take over any of such proceedi ngs. It is important to note that there is no limit to the powers, which the Attorney General can delegate. In Ibrahim v. The State (1986) 1 NWLR (PT 18) at page 65 0 the delegation of power expressed by the Attorney General contained in the Ond o State Official Gazette No. 14 of 5th July 1980 reads: I hereby authorize the Director of Public Prosecution and all grades of State Co unsel in the Department of Public Prosecution [acting under the immediate direct ion and control of the DPP] to exercise on my behalf and acting under and in acc ordance with such general order, such directions in writing as I may from time t o time issue to the DPP, all and sundry, the powers conferred upon me as Attorne y General of the State by subsection (1) and (5) of the said Section. It was held in this case that there was nothing constitutional or legally wrong for the Attorney General to delegate all his powers to his subordinates and that where there is a blanket delegation as in this case, a State Counsel could vali dly sign an information with necessarily mentioning the Attorney General as the ultimate authority. THE POLICE The next most important organ or authority in the Criminal Justice system in Nig eria established with respect to criminal prosecution is the Police. The power of the Police to prosecute derives its source from Section 23 of the Police Act, Cap P.19, Laws of the Federation of Nigeria (LFN), 2004. The Section provides thus: Subject to the provisions of Sections 160 and 191 of the Constitution of the Fed eral Republic of Nigeria (which relate to the power of the Attorney-General of t he Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law i n Nigeria), any Police Officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name. The above provision is clear and unambiguous and the literal interpretation of s ame would mean that the Police can prosecute in any Court (save a Court Martial) even up to the Supreme Court and this power is limited only by the powers confe rred on the Attorney General by virtue of Sections 174 and 211 of the 1999 Const itution. In the case of Olusemo v. Commissioner of Police (1998) 1 NWLR (PT. 57 5) at page 547, it was held that by virtue of Section 23 of the Police Act, any Police Officer may conduct in person all prosecutions before any court in Nigeri a subject to the powers of the Attorney General of the Federation and the State.

In Osahon v. Federal Republic of Nigeria (2003) 16 NWLR (PT. 845) at page 89, th e provisions of Section 56(1) of the Federal High Court Act was held by the Cour t of Appeal to have effectively robbed the Police of the powers to prosecute in the Federal High Court. The Court held that a Police Officer does not come with in the meaning of law officer as used in the Criminal Code or of the Law Officer s Act and is, therefore, incompetent to prosecute in the Court, that is, in the Federal High Court. On further appeal to the Supreme Court in Federal Republic o f Nigeria v. Osahon & 7 Ors. SC 23/2004, decided in February 2006, the Supreme C ourt overruled the Court of Appeal s decision. Belgore, JSC who read the lead judgm ent of the Court held at page 15 as follows: From Colonial period up to date, Police Officers of various ranks have taken up prosecution of Criminal cases in Magistrate Courts and other Courts of inferior jurisdiction. They derive their powers under Section 23 of the Police Act but w hen it comes to superior Courts of record, it is desirable though not compulsory that the prosecuting Police Officer ought to be legally qualified. He conclude d at page 16. For the foregoing reasons, I allow this appeal and hold that a Po lice Officer can prosecute by virtue of Section 23 of the Police Act, Section 56 (1) of the Federal High Court Act and Section 174(1) of the Constitution of the Federal Republic of Nigeria, 1999 . Thus, it is clear that there being no constitutional or statutory provision proh ibiting the Police Officer from prosecuting in any particular Court, the Police can validly file an information in the High Court. The exclusion of Police Offi cers from appearing in the High Courts is, therefore, only matter of practice an d not of law. PRIVATE PERSONS By the provisions of Sections 59(1) and 143(e) of the CPA and CPC respectively, a private person can commence criminal proceedings. By Section 59(1) of the CPA , the power of a private person to make a complaint against any person is subjec t only to statutory provisions, which says that only a particular person or auth ority may make a particular complaint (as a matter of procedure). Section 143(e) of the CPC further provides that the Court may take cognisance of an offence if from information received any person other than a Police Officer, he has reason s to believe or suspect that an office has been committed. The following are instances of statutory provisions that may limit the powers of a private person to lay a complaint: 1. Section 98(C)(ii) of the Criminal Code provides that no proceedings for an offence of official corruption may be commenced against a judicial officer sa ve upon a complaint or information signed by or on behalf of the Attorney Genera l. 2. Section 52(2) of the Criminal Code provides that a person shall not be p rosecuted for the offence of sedition unless the consent of the Attorney General is obtained. 3. Also, by Section 142(1) of the CPC, any complaint of offences such as ad ultery and related offences itemised in Section 387 and 389 of the Penal Code sh all only be made by the husband, father, or guardian of the woman or girl involv ed. It is important to mention also that with the endorsement of the Attorney Genera l, a private person can validly file an information whereupon an application by a private person to prosecute. If the Attorney General refuses to either prosec ute or endorse, an order of mandamus may lie against him. In the case of Fawehi nmi v. Akilu (1987) 11 TO 12 SCNJ 151 and Attorney General of Anambra State v. N wobodo (1992) 7 NWLR (PT. 256), private persons successfully obtained an order o f mandamus compelling the Attorney General to endorse and certify their private information.

In some states such as Lagos State, the power of private person to file an infor mation in respect of indictable offences has been limited to the offence of perj ury. See the case of Akilu v. Fawehinmi (1989) 1 NWLR (PT. 25) 26. SPECIAL PROSECUTORS The statute creating a particular offence may specify the person or class of per sons who may institute proceedings in respect of the same offence. See Section 176(2) of the Customs and Excise Management Act (CEMA), Cap C.45 LFN, 2004. The section provides that only the Attorney General of the Federation can prosecute for offences under the Act after the board must have sanctioned the same. See also the case of Customs and Excise v. Senator Barau (1982) NCR (Nigeria Crimina l Report) 1. See also Section 66 of the Factories Act, which vests power of prosecution in re spect of Factory offences on the Inspector of Factories. LIMITATION OF TIME TO COMMENCE CRIMINAL PROCEEDINGS As a general rule, there is no time limit within which to commence criminal proc eedings against an offender. In other words, proceedings may commence at any ti me after the commission of the offence. There are, however, some statutory exce ptions: EXCEPTIONS TO THE RULE 1. Sedition Under Section 52(1) of the Criminal Code, proceedings in respect of sedition mus t be commenced within six months. 2. Treason and Treasonable Felony By virtue of Section 43 of the Criminal Code, criminal action in respect of pers ons and treasonable felony must be commenced within two years. 3. Having Carnal Knowledge of a Girl under 16 Contrary to Sections 218 and 221 of the Criminal Code, offences under these two sections must be commenced within two months. 4. Offences under CEMA Finally offences under the Customs and Excise Management Act must be commenced w ithin 7 years. See Section 176(3) of CEMA. It should be mentioned that there is no limit of time for the offence of conspir acy even when the substantive offence has become statute barred. See the case o f Rex v. Simmonds (1967) 51 CRIM. APP. REP 316. It must be borne in mind that the protection accorded to public officers by Sect ion 2 of the Public Officers Protection Act is only in respect of civil actions and not criminal proceedings. In the case of Yabugbe v. Commissioner of Police (1992) 4 NWLR (PT. 234) 152, the trial court held that the provision of Section 2(a) of the Public Officers Protection Act, Cap 379 only protects public officer s from civil proceedings. The Court of Appeal confirmed this decision. On furt her appeal to the Supreme Court, it was held: i) That it is only civil legal proceedings against public officers that is subject to the limitation period of three months; ii) That Public Officers Protection Act does not limit criminal proceedings against public officers for criminal acts or omissions committed in their offici al capacity. Public officers remain liable to criminal proceedings arising from criminal acts or omissions in the course of their duties. CONCLUSION Flowing from the above analysis, it appears that the power to prosecute electora l offences in Nigeria today can be exercise by the Attorney General of the Feder

ation or State, the Independent National Electoral Commission, the Police or a L egal Practitioner with authorization from INEC. Thus, the provision of the Elect oral Act (as amended) does not intend to limit the prosecution to the Commission alone bearing in mind the relevant provisions of the Constitution and other st atutes in force.