The Office of the Attorney General draws its powers from the Article 29, and Anti-Corruption Commission from the Article 27. Section 5 of Article 29 states that, “The Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law.” Please note the expression used, “in accordance with the law” for future reference I will be making. Section 5 of Article 27 empowers the Office of Attorney General to prosecute individuals, parties or organisations on the basis of the findings of the Commission, and it is required to be undertaken “expeditiously” for adjudication by the courts.
If you look at Section 128 of the Anti-Corruption Act, the Commission is mandated to refer the case to the Office of Attorney General for prosecution. Similarly, then as per Section 128(2) the Office of the Attorney General is mandated to undertake prosecution on the basis of the findings of the Commission, note the expression, “shall undertake prosecution…”, this seems to me that OAG is required by the law to prosecute and there is no option way out. And similarly, reading Section 128(1), (2) of the OAG Act and Article 27(5) of the Constitution in the conjunction, it is clear that ACC is mandated to refer the case for prosecution to OAG, they cannot assume the prosecution role without referring the case at least once to the OAG.
Section 128(3) of the Anti-Corruption Act provides, the Anti-Corruption Commission with discretionary power to take over the prosecution process from the OAG in three cases: (a) when there is delay in prosecution without a valid reason; (b) when case is manipulated; or (c) hampered by interference. In this provision, note the expression, “take over” and “or”. This indicates that, ACC can take over the case it referred to OAG on one or three grounds specified. That is, first there has to be referral to OAG, and second, there has to be either delay in prosecution, manipulation or hampering by interference. Therefore, for Commission to take over prosecution, it need not prove all three conditions, it will be enough for them to meet either of the three conditions.
Is Section 128(3) unconstitutional? To establish that, we need to prove that power of prosecution given to OAG is exclusive, meaning that OAG is given exclusive power to prosecute. Referring to Article 27(5), it may be construed that OAG is given exclusive power to prosecute in case of corruption. However, Article 29(5) states, “The Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law.” Nowhere in the Article 29 say that OAG has exclusive power to prosecute, rather it is limited by expression, “in accordance with the law.” Therefore, law limits OAG’s power – the Parliament can adopt law to regulate powers of the OAG. The Anti-Corruption Act in my opinion is law that is well covered by the expression, “in accordance with the law.” The OAG has power to prosecute, but the power is not unconditional or exclusive. Therefore, ACC’s power to take over prosecution if either of conditions laid down in Section 128(3) is met, is constitutional. The expression, “in accordance with the law” must be read as an exception or proviso to Article 29(5) itself, and Section 128(3) meets this requirement. Moreover, Article 27(6) states “the Anti-Corruption Commission shall function in accordance with the Anti-Corruption Act.” This implies that the Parliament is authorized to legislate on this issue, and further must be interpreted that the Parliament may not have intended enact a law, which is in direct contradiction to the Constitution. The inconsistencies, in this issue as mentioned above can be resolved by harmonious construction. Therefore, Section 128(3) in my opinion is not unconstitutional.
However, Section 128(3), as Dasho AG in Kuensel mentioned is required to show in the court of law that there is either delay in prosecution, manipulation or it is hampered by interference. If the Commission is able to show that one of these conditions is met, then the Commission has legal standing to assume the prosecution roles. This is very healthy practice, a very good system for check and balance, and we have witnessed this work very well before resulting in successful conviction though OAG refused to prosecute.