A Comparative Examination of Prosecutorial Discretionary Powers of the Attorneys General in the United States of America and Nigeria

This paper explores prosecutorial discretionary power known as the doctrine of Nolle Prosequi, a Latin expression meaning “to be unwilling to prosecute,” significance in Nigeria’s criminal justice system. Being also a common law, it empowers the Attorney-General to discontinue criminal proceedings at any stage before judgment is delivered. The research examines its constitutional foundation under Sections 174 and 211 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which vest in the Attorney-General of the Federation and the Attorney-General of a State, respectively, the authority to initiate, and discontinue criminal prosecutions. Fundamental to this analysis is the Supreme Court decision in Ilori v State, where the Court reaffirmed the discretionary powers of the Attorney-General, highlighting their expansive nature and limited scope for judicial review. This study interrogates the extent to which such discretion can affect judicial independence, prosecutorial accountability, and the broader pursuit of fairness within the Nigerian legal framework. Comparative dimension is introduced through examination of how prosecutorial discretion operates in the United States of America. Although both jurisdictions possess similar powers to discontinue prosecutions, they are however, exercised by institutional safeguards, such as legislative accountability, which mitigate the potential for arbitrariness in decision making. This study employs a doctrinal methodology in examining constitutional provisions, precedents and legal expert analysis to evaluate the Nigerian context, with focus on the AG's discretionary authority and the probable risks of its abuse. The findings of this research highlight a reform to promote accountability, transparency, and fairness in the justice system. Recommendations include clarifying statutory frameworks, judicial accountability, transparency, and separation of powers to ensure the rule of law and justice. This research aims to contribute to the understanding of this legal concept and its nuances in the Nigerian context