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By Thompson Essien
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I took some time out during the Easter break to critically examine the Application for Discovery initiated by Assam Assam, SAN on behalf of AKSG against IPU and I subjected same to a dispassionate legal analysis.

At the end of the exercise, I came to the irresistible conclusion that the Application is bound to fail as same is premised on very faulty legal foundation.

In so doing, I do not intend to hold myself out as expert in American Jurisprudence. NO. Far be it because I am not even qualified to practice law in America. However, I make bold to state that there are certain legal principles that cuts across both jurisdictions and are immutable in nature. It is on this basis that I proceed to share with you some of my thoughts in this regard in the manner set out hereunder.

My take-off point is the dissection of the enabling legal provision under which subject Application is initiated. Section 1782 (a) of Title U.S.C 28 provides as follows;

“The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made by a foreign or international tribunal or upon the application of any interested person”

The United States Court of Appeals for the Eleventh Circuit has, interpreting section 1782 (a) identified four mandatory factors: “(1) the request must be made 'by a foreign or international tribunal,' or by 'any interested person'; (2) the request must seek evidence, whether it be the 'testimony or statement' of a person or the production of 'a document or other thing'; (3) the evidence must be 'for use in a proceeding in a foreign or international tribunal'; and (4) the person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.”

I submit with respect that the Application, as it stands today, has woefully failed to satisfy the four statutory requirements highlighted above. Consequently, it is liable to be dismissed possibly with substantial cost. This conclusion is predicated on the arguments set out below.

a. The first requirement is that the request must be made by “a foreign or international tribunal” or by 'any interested person”. It is beyond cavil that the Attorney-General of Akwa Ibom State is not “a foreign or international tribunal” by any stretch of legal interpretation. He is not also “any interested person” within the contemplation of this section because such interest must clearly be identifiable within the purview of his constitutional powers.

Section 211 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, clearly spells out the powers of Attorney-General of a State. It provides that;

“211.-(1) The Attorney –General of a State 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 law of the House of 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 judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The powers conferred upon the Attorney-General of a state under subsection (1) of this section may be exercised by him in person or through officers of his department.

(3) In exercising his powers under this section, the Attorney –General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

There is nowhere in the aforestated section that a state AG, is empowered to INVESTIGATE anything. His powers include to institute, undertake, take-over and discontinue criminal proceedings.

Under Nigerian law, the powers to INVESTIGATE a crime is expressly vested in the Nigeria Police Force by virtue of section 4 of the Police Act Cap 19, Laws of the Federation of Nigeria.

It provides that;

“The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order; the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act.

Furthermore, it is worthy to note that the Nigerian Police Force is a creation of the Constitution. Section 214 of the 1999 Constitution, as amended

Provides that;
214.-(1) There shall be a Police Force for Nigeria, which shall be known as the Nigerian Police Force, and subject to the provisions of this section no other Police Force shall be established for the Federation or any part thereof.

(2) Subject to the provisions of this Constitution-

(a) The Nigerian Police Force shall be organized and administered in accordance with such provisions as may be prescribed by an Act of the National Assembly;

(b) The members of the Nigerian Police Force shall have such powers and duties as may be conferred upon them by law;

(c) The National Assembly may make provisions for branches of the Nigerian Police Force forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways and air fields.

In addition, section 215 (2) provides that
“The Nigerian Police Force shall be under the command of the Inspector-General of Police and any contingent of the Nigerian Police Force stationed in a State shall, subject to the authority of the Inspector-General of Police, be under the command of the Commissioner of Police of that State.”

With the benefit of the aforestated legal provisions, I wish to refresh your recollection to the effect that the events of March 22nd, 2011 have been conclusively investigated by the Inspector –General of Police of the Federal Republic of Nigeria. At the end of that investigation, a criminal charge of treason was filed against Senator J.J. Akpanudoedehe. This charge is still pending before Honourable Justice Adamu Bello sitting at Federal High court N0.3, Abuja.

So clearly, the incident, that the Honourable Attorney-General of Akwa Ibom State is trying to misrepresent as his “INVESTIGATION” to the United States judiciary is actually a federal matter that was handled by the Inspector –General of Police with a pending charge in a federal court

. Recall that, there is no State Police in Nigeria in sharp contradistinction to the U.S. Thus, in a hierarchical command structure such as we have in Nigerian Police Force, can a deputy commissioner of Police in a State override the directive of an IGP in respect of any matter? The obvious answer is a resounding No. Perhaps, the situation would have been different if subject Application was initiated by the Federal Attorney-General at the instance of the I.G.P pursuant to the treason charge. This would have possibly fitted, a little bit more snugly, into the requirements of section 1728 (a).

It does appear to my mind that the drafters of our Nigerian Constitution carefully and deliberately separated the powers to “investigate” from the powers to “prosecute” and allocated same to different authorities to avoid abuse of power and maintain the legal equilibrium flowing from the time-hallowed maxim that “NEMO JUDEX IN CASUA SUA”, meaning, a man shall not be a judge in his own cause. If this was not the case, then a prosecutor, like our State A.G may easily metamorphose into a PERSECUTOR just to satisfy the whims and caprices of an overbearing Governor, such as Godswill Akpabio.

For purpose of emphasis, let us quickly checkout the definition of investigation and prosecution in order to appreciate the fundamental difference between them. According to Black's Law Dictionary, 6th Edition, investigation is defined as;

“The process of inquiring into or tracking down through inquiry.”

While prosecution is defined as;

''A criminal action, a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime. The continuous following up, through instrumentalities created by law, of a person accused of a public offence with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused''.

From the foregoing, it is palpable that these two activities are distinct and separate from each other and cannot be confused for one another except to cause mischief.

Resultantly, I posit, with due respect, that while there cannot be any prosecution without investigation, the reverse is not the case as there can be investigation without prosecution. Not all investigated cases get prosecuted. For example, a sitting Governor can be investigated while in office but cannot be prosecuted by reason of immunity conferred on him by section 308 of the Constitution until after office. Timipreye Silva is a case in point. This is where the central clearing house role of the DPP (Director of Public Prosecutions) comes into play. It is this officer, who, on behalf of the A-G has the statutory responsibility of vetting every case file of investigated cases sent to it with a view to dispassionately determining which one can pass the legal litmus test of having enough evidence to proof the allegation beyond reasonable doubt as required by Law.

Ikpafak Essien writes from Portland Oregon.

Disclaimer: "The views/contents expressed in this article are the sole responsibility of Thompson Essien and do not necessarily reflect those of The Nigerian Voice. The Nigerian Voice will not be responsible or liable for any inaccurate or incorrect statements contained in this article."