The Powers of the Attorney General in criminal matters are stipulated in the Code of Criminal Procedure Act No. 75 of 1979 (as amended), the Judicature Act No. 2 of 1978 (as amended). Accordingly, the Attorney General is empowered to play diametrically different functions in Criminal Matters, such as advisory functions, prosecutorial functions and quasi judicial functions.
* Advisory functions
As the chief legal advisor to the Government the Attorney General is empowered to advise State Departments, public officers, officers of the Police, the Tri Forces as well as officers in Statutory Boards and Public Corporations in respect of any matter that is primarily criminal in nature, whenever necessary either upon advice being sought or on his own initiative.
* Prosecutorial and Quasi Judicial functions
The Attorney General is vested with wide and unique prosecutorial powers which at certain instances take quasi judicial nature, such as the most crucial power to decide whether or not to indict a person to be tried before a High Court in terms of section 12 of the Code of Criminal Procedure Act No. 75 of 1979 (as amended).
In particular with regard to prosecutorial powers section 193 of the said Code of Criminal Procedure Act No. 75 of 1979 (as amended) mandates that a prosecution of an accused so indicted by the or at the instance of the Attorney General to be conducted by the Attorney General or the Solicitor General or a State Counsel or by some pleader generally or specially authorized by the Attorney General in that behalf.
Several of the aforesaid powers vested in the Attorney General, pertaining to criminal matters, which constitute advisory, prosecutorial and/or quasi judicial functions, can be set out as follows:
Direct the Police to institute criminal proceedings in the Magistrates’ Courts
- The power to grant sanction to institute criminal prosecutions in respect of certain criminal offences and to grant sanction to appeal from an order of acquittal by a Magistrate
- The power to tender a pardon to accomplices.
- Power to call for the original record of Magistrate’s Courts and the High Courts.
- Power to quash a committal made by a Magistrate in Non Summary Proceedings and issue instructions to a Magistrate
- Power to direct a Magistrate to commit an accused who has been discharged in Non Summary Proceedings.
- Order a Magistrate in Non Summary Proceedings to take further evidence as may be specified or to record the evidence of any expert witness
- Power in his discretion to inform the High Court that the accused will not be further prosecuted upon the Indictment or any charge therein (enter a “Nolle Prosequai”)
- Power to transfer any inquiry into or trial of any criminal offence from any court or place to any other court or place
- Power to decide the Magistrate’s Court having jurisdiction to try a case when opinion is sought by a Magistrate who is in doubt.
- The Attorney-General also makes his recommendation to His Excellency the President as to whether or not the sentence of death passed on an accused may be carried out.