My basic analysis is that OAG's argument that the Article 29(5) of the Constitution which states that " The Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law" gives power to OAG for this purpose as only provided under the law. Thus, OAG's very power of institution of suit relies on the law made by the parliament which basically means it is an exceptional clause to the power of the OAG. This means, this Article seems to me that instead of empowering the OAG, the Article limits the power of OAG since it states that OAG can only prosecute in accordance with the laws made by the parliament. This also means, that if parliament decides to empower other agencies in prosecution, it can do so, as long as there is law made by the parliament.
Another interesting thing is that in fact for me, Section 128(2) which states "The Office of the Attorney General shall undertake
prosecution of persons on the basis of the findings
of the Commission for adjudication by a Court." makes the OAG to prosecute mandatory once the ACC sends the findings to the OAG which means OAG does not seem have the choice to reject or refuse prosecution. The subsequent sub-section 128(3) which states "(3) Notwithstanding subsection (2), the Commission may carry out its own prosecution of a person
charged with an offence under this Act or take over
the prosecution process from the Office of Attorney
General when the case is:
(a) Delayed without a valid reason;
(b) Manipulated; or
(c) Hampered by interference"
Thus,this section further reduces OAG's power by empowering the ACC to prosecute on any of the three grounds.
Further Section 16 of OAG Act 2015 states that "16. The Office shall prosecute criminal cases in accordance
with the provisions of this Act when referred to it by any
agency of the Government under the relevant laws" which means OAG is required to prosecute when referred by the other agencies.
However, the Section 29, 30 and 31 of the OAG Act grants the discretionary power subject to conditions laid down to prosecute or not to prosecute the cases.
Now reading the Article 29(5), 128(2) & (3), the Section 128 (2) mandates the OAG to mandatory to prosecute while Section 128(3) provides the power to ACC to prosecute under three conditions, I personally feel that both OAG Act and ACC Act are fulfilling the conditions of the Article 29(5) hence should be both constitutional as long as prosecution is carried within the threshold provided under these laws.
The News paper reports