THE STATE AS ZEALOUS ADVERSARY: A CRITIQUE OF PUBLIC DEFENDER SYSTEM IN NIGERIA

Abstract

The Ministry of Justice in Nigeria headed by the Attorney-General is saddled with the responsibility of counselling the state in all legal matters. By a structural design, the same Ministry houses the Department of Public Prosecution and the Department of Citizens’ Rights. Using Lagos State as a case study, the paper examine the fundamental structural conflict this would create in the criminal justice system and analyses how this institutional design creates an inherent conflict of interest that violates the constitutional guarantee of fair trial and effective legal representation. There is bound to be institutional conflict, in the sense that MOJ funds public defender system while at the same time conducting prosecutions. This arrangement involves far reaching implications for access to justice and fair hearing as well as impacting on indigent defendants. It is against this background that the authors examine the extent of involvement of the Nigerian state as a zealous adversary in public defender system as well as associated implications on access to justice. By employing doctrinal legal analysis, the constitutional provisions (particularly Section 36(6) (c) of the 1999 Constitution), statutory frameworks (Administration of Criminal Justice Law 2015, Lagos State Office of Public Defender Law), judicial precedents, and selected international human rights instruments are all examined. The paper therefore argues that when both prosecution and defense answer to the same Attorney-General within a unified ministerial hierarchy, the adversarial system's fundamental premise structure being opposing parties will be compromised. The authors therefore maintain that a reasonable observer cannot be assured of confidence in the impartiality and effectiveness of defence counsel structurally subordinated to the very authority prosecuting the accused. The study concludes that the constitutional powers conferred on the Attorney-General under Sections 174 and 211 are exclusively prosecutorial and do not extend to supervising defence functions as well as constituting an ultra vires exercise of authority and violates the maxim nemo judex in causa sua.