By Dr. Tonye Clinton Jaja
Dear Director of Public Prosecutions of the Federation,
My name is Dr. Tonye Clinton Jaja, I am a lawyer that qualified in the year 2004.
You can ask your colleague, the Director of Legal Drafting, Federal Ministry of Justice with whom we have participated in different legislative drafting workshops!!!
Please kindly permit me to open this letter by paying tribute to Prof. Nasiru Tijani.
Any lawyer who attended the Nigerian Law School, Abuja campus in the year 2003, cannot forget Prof. Nasiru Tijani. He was the lecturer of the Criminal Litigation course. He later served as the Deputy Director-General of the Nigerian Law School, Lagos campus.
He was a genius when it came (and comes) to the Law of Criminal Litigation. He could deliver his lectures without looking at any notes and he would answer all manner of questions thrown at him by students by reference to a long line of statutes and judgments of courts of law!!!
It was during one of his lectures that I learned that although Section 174 (and Section 211) of the Constitution of the Federal Republic of Nigeria, 1999 confers upon the Attorney-General of the Federation (and the Attorney-General of a State, and by extension the DPP), the said power and discretion to initiate and terminate prosecutions, is not absolute, it comes with a caveat!!!
“An Attorney-General is therefore domino litis (“master of the suit” or “owner of the case”) as regards prosecution of all criminal matters before any court other than a Court Martial, see Dr Adekanya vs FRN 2005 All FWLR (Pt 252) 514 at 533.”
However, this power and discretion of the AGF (and by extension the DPP) to initiate and terminate prosecutions must be exercised for the benefit of overriding public interests!!!
Therefore, the question arises: the recent decision of the DPP of the Federation to prosecute Senator Natasha Akpoti-Uduaghan, is it based on overriding public interests?
How can a matter that affects only two Nigerian citizens (Akpabio and Yahaya Bello) be deemed to be of overriding public importance?
Worst case scenario, could not the AGF and the DPP have granted a FIAT TO both Akpabio and Yahaya Bello to bring charges against Senator Natasha (at their own costs) instead of expending scarce resources of the Federal Government of Nigeria?
Senator Natasha Akpoti-Uduaghan and her lawyer, Dr. Ehiogie West-Idahosa, SAN, by letters dated 15th May 2025 and addressed to the AGF also complained of criminal defamation and threat to life by Akpabio and others. how come the DPP did not file prosecution against those against whom Senator Natasha complained?
An example of an instance wherein the exercise of the power to initiate and discontinue prosecution came under public scrutiny especially when it is perceived to have been exercised injudiciously is the case of THE STATE vs DEEPAK KHILANI & SUSHIL CHANDRA before Hon. Justice Atinuke Ipaye (SUIT NO. ID/1544c/2015) of the Lagos State High Court. Details can be read online at https://www.google.com/amp/s/www.vanguardngr.com/2017/10/nolle-prosequi-whose-interest/amp/
*How can the DPP of the Federation justify the decision to utilise the scarce resources (time and money ) of the federal government of Nigeria to call five witnesses in a case that borders on the allegations of injury to the reputation of two private citizens (Akpabio and Yahaya Bello)?
For example, Dr. Sandra Duru is listed by the DPP as one of the prosecution witnesses and considering that she is based in the United States of America (USA) more than ₦5,000,000 would be spent to secure her attendance at the trial.
In contrast, it is on record that the office of the AGF and the DPP has delayed the prosecution for terrorism of over 800 Boko Haram suspects on the grounds that it lacks funds to finance their prosecution, which commenced in the year 2017.
Using the excuse of lack of adequate funds, the AGF and the DPP of the Federation are reported to have appealed to the help of the Legal Aid Council of Nigeria to provide free legal services for the said 800 Boko Haram suspects who are being charged with terrorism.
A recent report by the Human Rights Watch states as follows:
“Nigeria’s prosecution of suspected Boko Haram members has been characterized by serious legal shortcomings, and the authorities are failing to prioritize prosecution of those most responsible for the group’s atrocities, Human Rights Watch said today.
In October 2017, authorities began trials of Boko Haram suspects, some of whom have been detained since the conflict began in 2009.”
Till today, the office of the AGF and the DPP have not yet concluded the said prosecution even though on the website of the Federal Ministry of Justice, it was reported in the year 2021 that the Office of the AGF and the DPP would”leave no stone unturned” in prompt prosecution of the said 800 Boko Haram suspects and their sponsors. See: https://justice.gov.ng/prosecution-of-boko-haram-sponsorsno-stone-will-be-left-unturned-fg/
“In May 2021 officials declared that the federal government was preparing 800 suspects linked to the terrorist group for prosecution, but Malami gave the fresh assurance in late January while receiving the Nigerian Ambassador to the Netherlands.”
The failure of the Office of the AGF and the DPP to fulfill this promise (while vigorously pursuing the less important prosecution of Senator Natasha) is a clear example of fiddling while Rome (or more appropriately) Nigeria burns with more important problem of terrorism for which Nigeria is now ranked 6th in the global index of terrorism!!!
“Nigeria has faced violent insurgencies for decades, ranking 6th on the 2025 Global Terrorism Index and accounting for 6% of global terrorism deaths in 2023. Since 2007, over 11,000 people have been killed, with millions more displaced. These insurgencies, especially in the North-East, North-Central and North-West, have severely impacted Nigeria’s local, state, and national socioeconomic fabric.
In Nigeria, key drivers of violent extremism include limited trust in the government, security forces and the justice system, limited socio-economic opportunities and religious conflicts. GCERF began investing in the country in 2016 and till date USD 11.75 million has been invested to address these drivers of violent extremism.” See the website: https://www.gcerf.org/nigeria/
In conclusion, Prof. Nasiru Tijani recently published an article (Tijani, N. (2023) The Effective Prosecution of the Crime of Terrorism and Terrorism Related Offences in Nigeria: Challenges and Prospects. Beijing Law Review, 14, 300-323) in which he pinpoints this problem. The article is available online at: https://www.scirp.org/journal/paperinformation?paperid=123865
In his examination of the power of the AGF (and by extension the DPP) to prosecute under the Terrorism (Prevention and Prohibition) Act, 2022, he stated as follows:
“The Attorney General of the Federation is now designated as both the prosecuting agency and the prosecuting authority (sections 3 (1) (c) and 74 of Terrorism (Prevention and Prohibition) Act, 2022). However, the Act does not provide for the procedure for trial and prosecution of terrorism offences. Hence recourse will be had to extant criminal procedural laws (section 2 (1) Administration of Criminal Justice Act, 2015 )
This brings to the fore the points made by (Chukwuemerie, 2006) as to dual or double criminality.
This result is that in the exercise of prosecutorial discretion, other considerations will come into play. The prosecutor may decide to charge a pipeline vandal under the Terrorism Act rather than the Miscellaneous Offences Act or a kidnapper under the Act rather than the Criminal Code Act or Penal Code Act,13 Criminal Law or the Anti-kidnapping Law.
Prosecutorial discretion could be coloured by political considerations. While a suspect in the ruling party may be arraigned for pipeline vandalism or acts likely to cause breach of the peace or murder or culpable homicide punishable with death under the extant criminal legislation, the suspect from the opposition party will be charged under the Terrorism (Prevention and Prohibition) Act.
There is need to curb this wrong use of the prosecutorial discretion to avoid political victimization especially in developing countries like Nigeria.”
I hope and pray that your mind and conscience would be moved by the contents of this letter.
Yours faithfully,
Dr. Tonye Clinton Jaja,
23rd May 2025.
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
