Let The Nolle Prosequi: An Appeal To The HAGF To Discontinue Trial Of #Endbadgovernance Protesters

 

A Brief Synopsis of the Trial

The trial of the #Endbadgovernance protesters commenced on the 2nd of September, 2024 across some states including the Federal Capital Territory, Abuja. The matter was reportedly instituted at the Federal High Court (9), before Honourable Justice Emeka Nwite against 10 out of 124 arrested protesters in Suit No: FHC/ABJ/CR/454/2024 Between Inspector General Of Police v. Micheal Tobiloba Adaramoye (Aka Lenin) & 9 Ors. The offence for which the protesters were charged borders on treason, intent to destabilize Nigeria, conspiracy to commit Felony, rioting and disturbing public peace, mutiny and inciting Nigerians against the administration of President Bola Tinubu.

The defendants through their Counsel applied for bail and the Court adjourned to 11th September, 2024 for ruling. On the next adjourned date, the Defendants/Applicants were granted bail except the 10th defendant and only female who was absent with no reason thereof. The Court granted the Defendants/Applicants bail in the following terms:

a. In the sum of ten million naira (N10,00,000.00) only each with one surety in the like sum and must be resident in Abuja.

b. Each surety must tender their credentials, international passports and 3 recent photographs to the Registrar of the Court.

c. The sureties must own properties in Abuja and are to deposit documents of the properties to the court registrar in addition to swearing to affidavit.

d. The Defendants/Applicants be remanded pending the determination of their bail condition.

e. The defendants are to refrain from participating in any public rally of protest throughout their trial.

The matter was adjourned to 27th September, 2024 for commencement of trial. Meanwhile, a date for the sister case filed by the Defendants/Applicants praying the Court to set aside the order remanding the protesters for 60 days would also be communicated.

However, it is quite expedient we make this call for the most revered and respected Honourable Attorney General of the Federation, Prince Lateef Fagbemi, SAN, to exercise the glory of his office in entering a Nolle Prosequi in favour of the Defendants.

The Latin word “nolle” is roughly translated as “will no longer” and ‘’prosequi’’ is Latin for “prosecute.” What Does Nolle Prossed mean? The Latin phrase is simply a lawyer talk for “case dismissed.”

The Powers of the AGF and Three (3) Cogent Reasons why the Trial should be Discontinued

Section 174(1) of the 1999 Constitution deals with the prosecutorial powers of the Attorney General of the Federation. The section provides that:

The Attorney-General of the Federation shall have power –

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, 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 judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

It should be noted that by virtue of section 211 of the 1999 Constitution, the Attorneys General of the States have same powers subject to jurisdictional boundaries. However, our main focus is in respect of the power of discontinuance. The AGF has the power to determine if the trial of the #Endbadgovernance should continue. In PHARMA DEKO PLC & ANOR v. NSITF MANAGEMENT BOARD (2010) LPELR-4849(CA) at (Pp 24 – 27 Paras C – A), Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA, now CJN, quoted Pats-Acholonu, JSC (as he then was) at page 477 E – F, thus:

“The implication of the intendment of Section 174(1) aforesaid of the Constitution is that the office of the Attorney General does not have the monopoly of prosecution though it has the power to take over any case in any Court and decide whether to go on with it or not.”(Underlining is mine).”

Therefore, we hereby call on the AGF to exercise his discretion towards the discontinuance of the trial. The AGF can exercise his powers subject to public interest alone. In other words, the AGF is a god unto himself, he is answerable to no other person other than his master and parliament alone. See State v Illorin State v S.O. Ilori & Others (S.C. 42/1982) [1983] NGSC 2. Therefore, the AGF can advise Mr President on the need for the charges to be withdrawn.

Entering a Nolle Prosequi to discontinue the trial of all arrested protesters across states due to the cogent and firm reasons below:

1. Protest is not a Criminal Offence: whatever the colouration of the charges against the protesters maybe, it runs foul to the settled fact that the right to protest is constitutional and cannot transmogrify into a criminal offence. (See my vista on Non-violent protest https://themetrolawyers.com/the-precept-of-non-violent-protest-amid-counter-protest-in-nigeria-the-fear-of-the-unknown-and-a-peep-through-the-ghandian-and-lutheran-thoughts-by-mbang-confidence-esq/). In essence, where a protest is found to be violent, the law has made provisions for our criminal law to take charge. In fact, this was the decision of the Court in the celebrated case of Inspector General of Police v. All Nigeria Peoples Party (2008) 12 WRN 65, where the Court of Appeal, per OLUFUNMILAYO ADEKEYE, JCA held, inter alia:

“The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done…

If as speculated by law enforcement agents that breach of the peace would occur, our criminal code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality -to holding meetings and rallies can no longer be justified in a democratic society.”

At best, if the Nigerian Police did their job professionally, they would have had the bare opportunity to charge citizen(s) that violated the precepts of lawful, peaceful and non-violent protest for criminal offences. Regrettably, the same agency that could not do its job professionally is now prosecuting citizens for heinous offences.

2. Reignites Trust in a Constitutional Democracy: if the AGF quashes the charges filed against the protesters, it would reignite the trust and confidence of the people in a constitutional democracy. If the practice of democracy is what it is professed to be, the charges ought to be quashed, and by so doing, the citizens would realize that the government is sensitive to straight forward issues of this kind.

3. International Applause: the government would be applauded if all the charges are quashed. Recall that the protest was broadcasted internationally, and there are still keen observers from around the globe monitoring the events as they unfold. If the AGF quashes the charges, Nigeria would receive a gigantic ovation and would be placed on the world map for strict observance of fundamental human rights to liberty, amongst others. I guess I am speaking your mind!

Conclusively and notably, a ‘’Nolle Prossed’’ by a prosecutor is only tantamount to a discharge, not an acquittal. See with approval the cases of AG KADUNA STATE v. HASSAN (1985) LPELR-617(SC); AUDU v. AG FEDERATION & ANOR (2012) LPELR-15527(SC). In consideration of this constraint, and given the fact that even after a Nolle is entered a person may still be arrested and charge to Court, we pray the AGF to also withdraw the entire charges against the defendants in order to ground acquittal.

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