Agenda for Incoming AGF
After a two-month wait, President Bola Ahmed Tinubu finally presented his Ministerial nominees, who are currently being screened by the Senate. From this list will emerge, the Attorney-General of the Federation and Minister of Justice (AGF). The consensus is that, at this critical time in the nation’s ‘Lego’ political history, only a thorough-bred Lawyer, well-grounded in law and the nuances of the rule of law and governance, can do justice to this portfolio. Though Ministries are yet to be attached, out of all the Lawyer Ministerial nominees, the one whom this cap seems to fit the most, is Prince Lateef Fagbemi, SAN. What should be the focus of the new AGF, when he assumes office? How will he overcome the hitherto, less than pleasant perception of that office, and enhance its image? Olawale Fapohunda, SAN, Awa U. Kalu, SAN, Adeniji Kazeem, SAN, and Oluwaseun Abimbola, SAN, all former Attorneys-General and Commissioners for Justice of their respective States, set an agenda and roadmap for the incoming AGF in this Discourse
The Attorney- General that Nigeria Needs
Olawale Fapohunda, SAN
Appointment on Merit
I am frequently asked the question, ‘What does it take to be a successful Attorney- General?’ I have been especially humbled by the recognition given to me by some of the newly appointed State Attorneys-General, who have asked for a template of what I did in Ekiti State. My response has always been that, the circumstances in each State is different. The ability of an Attorney-General to succeed, is largely dependent on a number of factors. Not in the least important, is how he got the job in the first place. An Attorney-General who was headhunted and persuaded to take up the job by a President/Governor is more likely to make progress and be respected, than one who either had to beg or lobby for the job. An Attorney-General who serves at the ‘mercy’ of the President/Governor is more likely to act in pursuit of a particular political agenda, rather than solely in accordance with the rule of law.
Respect for the Office Holder
The job is never going to be always easy going. It involves making oneself unpopular by telling the President/Governor that he cannot pursue certain policies and legislation, because they are incompatible with the law. It is the relationships founded on respect and trust, that survive. A good healthy relationship with the President/Governor isn’t just good for the Attorney-General, it is good for the rule of law. It goes without saying that an appointee must have a second address, and should be able to walk away when respect takes flight. I am aware of at least two of my colleagues who walked away from the job, when disrespect by the appointing authority was being served as appetiser and the main dish.
Must have a Clear Agenda
An Attorney-General must come into office, with a clear agenda of what he wants to achieve. It helps to publish the agenda, and get approval from the appointing authority. It is very easy to be distracted by the ongoings in government. Without an agenda, it becomes difficult to achieve the level of focus that the office deserves. As a two- term State Attorney-General, and one that has been on the reform team of every Attorney-General of the Federation since 1999, I have observed at close range the necessity of not only having an agenda, but having an agenda that responds to current realities in the justice sector. Those Federal and State Attorneys-General who have succeeded, are those who came into office with an activity plan. The responsibilities of the Ministry of Justice are broad in scope.
As Ekiti State Attorney-General, I organised the Justice Ministry’s wide-ranging responsibilities into five strategic goals which served as a guide through out my tenure. These were: (1) Uphold the Rule of Law (2) Keep Ekiti State Safe (3) Protect fundamental human rights, specifically the rights of the vulnerable (4) Actively support State Government’s efforts at removing obstacles to the ease of doing business (5) Provide leadership for the justice sector.
This plan also included the objectives and strategies the Ministry will pursue to advance each of these five overarching goals, as well as performance indicators to measure our progress.
Need for Reform Mentality
It is important to stress that, the role of the Attorney-General has changed over the years. The idea that the sole responsibility of an Attorney-General is to be the Chief Legal Adviser to Government, is no longer in vogue. Those Attorneys-General who have adopted this narrow definition of their mandate, have, at the end of their tenure, struggled to identify key areas of achievement. At the Federal and State levels, the operative word is ‘reform’. An Attorney-General who comes into office without a reform mentality, will be swimming against expectations of citizens and justice sector stakeholders. Reform must be accelerated to keep up with the expectations of Nigerians and all communities, regardless of ethnic group, gender, money, social class or any other difference, particularly those of the poorest and most vulnerable communities.
A Justice Sector Reform Agenda
In setting an agenda for the Attorney-General of the Federation, it has to be emphasised that the state of the nation today, including the less than enviable citizens’ perception of our justice sector, makes the case for far-reaching interventions in the justice sector. Every aspect of the infrastructure of our justice system, requires fundamental rethinking. Our approaches to policing, adjudication, bail, sentencing, imprisonment needs change in significant ways. The Attorney-General of the Federation, cannot simply be the Minister of the Federal Ministry of Justice. He must in addition to overseeing State legal affairs, set the agenda for the justice sector. For clarity, a justice sector reform agenda will include facilitating immediate to long term reform measures in the Judiciary, Police, Correctional Services and Access to justice institutions (Legal Aid Council, National Human Rights Commission). The overall objective of justice sector reform is to build a justice system which is affordable, efficient, independent, transparent, professional and accountable to Nigerians, one that ensures the rule of law and the observance of human rights, and contributes to reclaiming the trust of Nigerians in the Justice system.
Priority Interventions for the AGF
Priority Interventions in the Judiciary will include, a review of judicial salaries and allowances, as well as supporting constitutional amendments that ensure that only matters of significance are heard in the Supreme Court. There are related matters of judicial appointments, and reinforcing the sanctity of our courts and its decisions. The Attorney-General must be interested in Police reform. The absence of credible and reliable data on the human, equipment and other resources available to the Police, is a concern that retards crime prevention and obstructs criminal prosecution. There is also a need for a holistic response to citizen’s concerns, about Police handling of complaints of Police abuse.
The State of our Correctional Centres, including incidents of frequent jailbreak, overcrowding and the conditions of service for correctional officers, must be of concern to any Attorney-General. No less important is the need to interrogate the appropriateness of the Correctional Services located in the Ministry of Interior, and not in the Ministry of Justice.
Finally, there is a need to take a closer look at our access to justice institutions (National Human Rights Commission, Legal Aid Council of Nigeria) and the Federal Ministry of Justice itself. The Attorney-General should find out whether the level of endowment of these institutions is such that, individually and collectively, they can be said to be fulfilling their responsibilities to the people of Nigeria.
Olawale Fapohunda, SAN, Immediate Past Ekiti State Attorney-General and Commissioner for Justice
What Nigerians Ought to Expect from the Incoming AGF
Awa U. Kalu, SAN
Preface: Judge Taslim Elias’ Advice
I would love to preface this conversation by referring to an advice provided by a former Attorney-General of the Federation and Minister of Justice who later translated to the office of Chief Justice of Nigeria, and much later, to the office of the President of the International Court of Justice at the Hague- that is, the late Honourable Judge Taslim Elias (formerly Dean of the Faculty of Law of the University of Lagos). He said:
“Never before in the long history of human thought has law had to face a more challenging situation, than that in contemporary Nigeria. The prevailing social and economic forces call for a type of Lawyer who is at once a social engineer and an analyst, a Pericles and a plumber, capable of apprehending the values of existing institutions and more, and yet ready to make a dynamic contribution to the maintenance of a proper balance between the claims of the State and that of the individual. Law and society should engage in a continuous dialogue both as to the choice of means, and as to the end in view. If Nigerian law can fulfil the role of stimulating economic growth and social well being, elevate the diverse ethnic groups and become a common law for the country under which no man is oppressed, it will have made an important contribution in the world of ideas for the cause of human betterment”.
When Honourable Judge Taslim Elias fingered the need to maintain a proper balance between the claims of the State and that of the individual, he did not envision that more than fifty years after his prescription, the unending antagonism between the claims of the State and those of the individual would remain unabating. He could not also have envisaged that several State legislatures would continue the everlasting debate with regard to the utility of capital punishment, in connection with serious offences such as murder and treason, but extending it to kidnapping for ransom and heinous sexual offences. Our highly regarded jurist, Dr Taslim Elias may also not have foreseen that a segment of Lawyers may face intimidation and hatred, for accepting to defend individuals or corporate organisations charged with corruption related offences. Who would have foreseen that the question, “whether or not bail should be granted in circumstances made clear by the Administration of Criminal Justice Act or Law as the case may be, would become interminable and probably at large?” Even Nostradamus could not foresee some of the intractable Legal and Constitutional issues, which now overshadow good sense as well as the Law. Who would have thought that after the Electoral Mathematics that featured in Awolowo v Shagari in 1979, our electoral process and adjudication would become a land mine of some sort – a magicians’ island? Who also would have foreseen that the powerful Chairman of the Economic and Financial Crimes Commission as well as the Governor of the Central Bank of Nigeria, would soon after election be languishing in custody of State apparatus? Similarly, was it reasonably foreseeable that officers of the DSS as well as the Correctional Service, would openly fight for the safe custody of a high Government official.? Who would, who would and who would…? There are endless questions, as well as convoluted answers.
Following the advice of the late Judge Taslim Elias, it is not difficult to express the view that one of the reasons for establishing the office of the AGF as well as for the different States, is to make it easy to separate the demands of the State from the demands of the individual. It is very well known that this country has had an Attorney-General at the centre, as well as in the federating units since independence in 1960 and even earlier. To that extent, the present Constitution, that is, the Constitution of the Federal Republic of Nigeria, 1999, recognises the Office of the Attorney-General and indeed, creates the Office of Attorney-General of the Federation who is also the Chief Law Officer of the Federation and Minister of the Government of the Federation. Similarly, the Constitution provides that there shall be for each State an Attorney-General, who shall be a Commissioner in the Government of that State. The Supreme Court in the case of Attorney-General of the Federation v ANPP, provides clarification for the nature of the office of the Attorney-General. In that case, the Apex Court held that:
“Section 150(1) of the Constitution of the Federal Republic of Nigeria, 1999 creates the office of the Attorney-General of the Federation and a Minister of the Government of the Federation. The Attorney-General is the only Minister specifically created in the Constitution, as Section 147(1) of the Constitution merely ominously creates the office of the Ministers of the Government of the Federation. In view of the fact that the office is created in the Constitution, and unless and until the office is abrogated, it will continue in perpetuity”.
The Court further held that “Any suit by or against the Attorney-General, will in law, be absorbed by the office, which never dies unless the Constitution abrogated it”.
Since this is not a full length article, it may serve our present purpose to note that the office of the Attorney-General is created for States under Section 195 of the extant Constitution, and the power of the Attorney-General of a State is similar to the powers of the Attorney-General of the Federation as stated in Section 174 of the said Constitution. The section provides as follows:
“174(1) The Attorney-General of the Federation shall have power-
a) To institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court-Martial, in respect of any offence created by or under any Act of the National Assembly;
b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
c) To discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”.
The provision of the Constitution which has been reproduced above, puts it beyond dispute that the role of the Attorney-General goes beyond the initiation of criminal proceedings. He may, in addition, take over and continue any of such criminal proceedings initiated by some other person or authority. Finally, he can discontinue proceedings initiated by himself, or any other persons or authority.
Attributes of a Good AGF
Having regard to the foregoing, there can be no doubt that the office of the Attorney-General is not only of great antiquity, but of inestimable value to the stability of the Republic, and whoever sits on that throne must be mindful of the great expectations of the general public.
Anyone appointed to that office, expectedly, must be brilliant and of great intellect, incorruptible, purposeful, graceful and insightful. Nigeria is at crossroads and it is only a gentle mind that will discern, “which way Nigeria?”
Awa U. Kalu, SAN, FNIALS, former Abia State Attorney-General and Commissioner for Justice
New AGF Must Focus on Justice Sector Reforms, Innovation and Speedy Dispensation of Justice
Adeniji Kazeem, SAN, FCArb
As Chief Law officer of the Federation, the Attorney- General is expected to ensure stability, Law and Order and the public’s confidence in the justice system, in particular the criminal justice system.
A Huge Agenda for the Incoming AGF
The agenda of the incoming Attorney-General of the Federation (AGF), is a very huge one. As we know, the office is dual, being the Attorney-General (mainly to prosecute or discontinue prosecution) and Minister of Justice which essentially deals with access to justice issues, rule of law, and seamless and transparent administration of justice generally. We must also not fail to mention policy issues on justice reform and innovation, especially on how justice is dispensed swiftly and transparently. Lastly, timely and qualitative unbiased advice to the Government and its organs, no matter how unpalatable is very important.
1. One of the first focus issues, is to strengthen the AGF’s prosecutorial powers. From what we can see in recent times, a lot of those powers are being eroded by specialised agencies, who sometime pursue a separate agenda different from that of the AGF. The office of the Attorney-General is the constitutional warehouse for all Government prosecution except delegated by instrument, and even in delegation there must be proper supervision. Once this anomaly is addressed frontally, then issues of premature prosecution, shoddy prosecution, selective prosecution, incompetent prosecution compromised prosecution, and questionable plea deals amongst other things will be reduced, if not eliminated. This is also going to require reformation of the criminal justice institutions under the office of the AGF, to bring them in synergy with his vision for rule of law and compliance with judicial pronouncements and orders.
2. Proper Perception of the office is key, and a strong agenda point must be to improve the international perception of Nigeria in upholding the rule of law and regards to People’s and human rights. In other words, the office must improve its image to reflect the duties of a people-centric public defender, whenever necessary.
3. The AGF should focus on re-energising the Body of Attorney-Generals, to ensure synergy and better collaboration with State Attorney-Generals in achieving compliance with rule of law, and to resolve inter-State disputes and Federal Government and State disputes especially on Revenue sharing and taxation issues.
4. Prison congestion continues to be a very worrisome, across all Correctional Centres. The AGF must therefore, address issues of delay in trials and overcrowding of Correctional Centres, with the collaboration of the NBA and State Governments and the Ministry of the Interior. State Governments should be encouraged to build new Correctional Centres, now that correctional services have been included on the concurrent legislative list.
5.The next key item would be the Judiciary, and some related agencies. The Judiciary is the main mirror with which the citizens assess the actual effect of a good justice system. A compromised, nepotistic, poorly motivated, poorly paid, badly funded, State-intimidated, badly trained Judiciary will always rub off negatively on the Executive and the Federal Government, and blame will also be levied on the AGF. This Agenda must involve proper interconnectivity with the Judiciary, not to compromise or intimidate it, but to understand its unique problems and how to solve them swiftly. Disputes will always arise between Government and citizens, Government and Government, citizens and citizens etc, and the Judiciary will be called upon to adjudicate on these disputes, and it must do so fairly, but firmly with the support of the AGF’s office without outside interference. The office of the AGF must never be perceived as an enemy, competitor, or adversary of the Judiciary, instead it must be clearly seen as a handmaiden of justice. In this regard, the AGF-Judiciary liaison function with the Ministry must be overhauled and strengthened, to eliminate any gaps.
6. Another key agenda point must be the motivation, training, and welfare of the AGF’s inner team and Federal Ministry of Justice staff, who will work with the AGF and serve as his incubator and executor of his policies and ministerial objectives with minimal interference from other arms of Government. A badly motivated work force, is a potentially destructive workforce that can easily truncate even the best thought out agenda. In this regard, the incoming AGF must fight for his staff and at every opportunity, so they can fight for him. Resources are scarce and the intangible service that Lawyers, and support workers provide are often not fully appreciated, but they are very crucial to the survival of any Government. The AGF must learn how to properly articulate and project this staff value to the right quarters within Government, to ensure welfare is enhanced and protected.
7. The next item will be technology. There is no gainsaying that Technology is upon us, and every single function of office AGF needs to be reformatted with technology in mind, to provide more efficient service to the public. Access to justice means the ability of the public to interface with the instruments of justice in an efficient, fast, and transparent manner devoid of undue interference. This obviously means that the AGF must work closely with the Judiciary, at least at the Federal level, to completely and effectively automate the Court system which I know is ongoing, but is nowhere near global best practice. The office of the AGF must also embrace a modern document management system through digitisation of all legal documents, if not already in place. Finally, forensics must be fully deployed to improve the certainty of criminal prosecution and adjudication.
8. Nigeria is an important member of the international community, so the incoming AGF must ensure full compliance with the terms of treaties, conventions, bilateral agreements, and international regulations; enforce compliance and facilitate the operationalisation of these agreements beyond ratification and domestication.
9. In terms of day-to-day governance, the office of the AGF is supposed to play a critical role in saving money for Government through enforcement of Government contracts against Contractors who collect advance payments and refuse to execute for various reasons, including vested interest. The AGF must obtain a clear mandate working seamlessly with all MDA’S to pursue and prosecute to conclusion recalcitrant and fraudulent contractors and save Government money, especially in these tough economic times. Clear and universal policy trigger guidelines for contracts going-bad, must be established by the AGF with accompanying proper fast- track prosecution practice and procedural guidelines.
10. A full agenda can never be fully exhausted in this write up, but one of the greatest challenges for an AGF will always be how to sufficiently insulate his office from undue external influence, and balance Government or personal interest with the constitutional obligation to protect the human rights of the citizens, no matter whose ox is gored, including the Government he represents. What this means is that the AGF, as a key member of the Executive must be able to build the political will and confidence, to sometimes tell the Executive unequivocally when it is wrong, and take steps to correct those wrongs where they occur. Also, Counsel from the Federal Ministry of Justice working in MDA’s must never work in silos; there must be regular co-ordination to ensure the AGF’s office works as one single effective unit devoid of uncertainty and discord.
In summation, the incoming AGF must be discerning, bold, urbane, fearless, and practically spotless, so that he or she can project and carry that very important office with the independence, panache, and weight that the office truly deserves.
Adeniji Kazeem, SAN, FCArb, former Lagos State Attorney-General & Commissioner for Justice
Nomination of Prince L.O. Fagbemi, SAN as Attorney-General and Minister of Justice
Oluwaseun Abimbola, SAN
I believe the preponderance of members of the Bar familiar with the personality of Prince Lateef Olasunkanmi Fagbemi, SAN, would welcome his nomination as a Minister of the Federal Republic of Nigeria, and indeed, look forward to his appointment as the Honourable Attorney-General of the Federation.
Prince Fagbemi is a thorough bred and well rounded peg in a round hole. The Office of the AGF demands a thorough advocate, a versatile and quick mind, a business savvy professional with diverse skills, and familiar with the existing and developing legal issues on the Nigerian economy and her international obligations. Prince Fagbemi comes with such depth, and diversity of knowledge and skill. I know him as a straight shooter, yet diplomatic. We saw perhaps, a side of his straight shooting at the Senate hearing, yet, he is not arbitrary in thought and actions. I have known him most of my professional life and I believe he has a huge goodwill at the Bar and the respect of the Bench, to push through much needed reforms and policies that will aid the restoration of our justice sector.
Prince Fagbemi has led me as Lead Counsel and many others in various cases, and I am familiar with his immense capacity for work, presence of mind on the job, and his excellent character for such an office. In this season in the life of our nation, as he assumes office as HAGF, all eyes are on him to walk the talk and rise to the accolades he commands. He may have to take some tough decisions, if we must restore respect for constitutionality and the rule of law, as an anchor of our democratic experience. This principle must be respected by all institutions of State, no matter their temptations or excuses not to. Our law enforcement agencies cannot claim to be enforcing the law, while they are breaking it. They are breeding unconscious lawlessness in their rank and file, and by extension, the citizenry, by so doing. If government agencies disrespect the law and our Constitution, what right or justification have they to hold any citizen accountable to law and order? This is why so much indiscipline exists in many of our agencies among their officers, disregarding protocols and our laws, etc.
For the Incoming AGF’s Attention
We need to change this seeming innate culture, in Nigerian law enforcement bodies. The recent show of shame at the Lagos Federal High Court between the DSS and Correctional services, the wearing of masks by DSS for operations, the issuance of arm chair directives and threat of sanctions by Government without requisite legislative backing, etc, are all relics of the militarisation of our society in the past, yet the hangover is being carried into our democracy. These are practices of our institutions that do not put Government and its agencies in good light.
How can any agency of State engaging with the civilian populace cover their faces with masks, carry no name tags on their apparel, while wielding weapons? Under what law can they do that? None. If they adopt such practice in their protocols, do their protocols supersede our laws? No. Are they not bound by the Constitution anymore? While on missions against insurgents or in a war zone they may claim justification to mask up, but not while engaging with citizens and civilians. What If they accidentally discharge live bullets that injure or kill civilians, or cause mayhem, which we have seen before, are we saying they are unaccountable in such situations? Have law enforcement officers become such uncontrolled beings under our laws? This must stop, and the AGF nay need to rein in such agencies, working with their superior officers in command.
Again, we need to restore confidence of the people in our Government, institutions, systems and its processes. Our justice sector, needs urgent revamping and sharpening. We have had cosmetic constitutional amendments affecting the sector, but these have little or no impact, nor assure the efficiency of the judicial system and processes to eliminate delays in the system, assure a credible output, and assert judicial independence. A reform of the system, policies and procedural rules, review of judicial appointment processes, operational protocols, improved welfare and training of Judges, etc, are all a combination of issues needing urgent attention.
Furthermore, it is high time judicial function is left for Judges and court administration, professionalised as a separate function. Heads of court are unduly exposed, when along with their judicial functions and administration of justice, they are additionally tasked with court administration which entails budgeting, procurement, implementation of projects, etc, which exposes them to executive influence and interference that may inhibit judicial functions. In other jurisdictions, Judges are insulated from such commercial procurement responsibilities, by domiciling court administration in a separate agency of the Judiciary, not chaired by the Chief Judge or Head of court. These are reforms we must dare to implement, if we must insulate and defend the independence of the Judiciary.
There are many threats to judicial independence, from forces outside the Judiciary itself. It however, becomes self-inflicted in instances like the recent report that AMCON sponsored a recent training trip for some judicial officers, a practice EFCC and others have done in time past, with associated logistics support. This may not give an appearance of judicial independence. If AMCON or any other specialised agency wishes to train Judges, it should be midwifed and run by the National Judicial Institute, and the agency just acts as facilitators/resource persons. We do not want any suggestion brewing in the mind of the reasonable man, of the agency (AMCON) paying the piper to dictate the tune. It infringes on the independence of the Judiciary, especially in the mind of a reasonable man having an action in your court against AMCON. Justice, we say must not only be done, but be seen to have been manifestly done. In a situation as described, can a Claimant or Defendant against AMCON whose judicial adjudicator is taken on a sponsored trip by a party, have confidence in the adjudicator sponsored on such trip?
No doubt, the incoming AGF has a full plate before him considering the myriad of issues concerning the justice sector, and affecting the nation. It is yet early days in the current administration as the cabinet takes shape. We are confident the nominee, Prince Fagbemi can effectively occupy that justice space with significant positive impact. There is a lot to be done across multiple sectors to rewrite a new image for Government business processes, and re-establish in our consciousness respect by our Government structures and citizens for constitutionality. Institutions must work regardless of who occupies them at any given time. Nigeria and Nigerians need to learn that we have no alternative to the rule of law if we must rebuild our society, respect constituted authorities, and maintain a decent and responsible citizens participation in the democratic process. All these start with, the State and Government examples. Police should not drive against traffic, disregard traffic regulations, and the new IGP too has issued some reassuring directives on some of this. We hope members will ensure compliance.
The AGF has many roles with respect to the Bar and its various bodies involved in legal training, regulation, privileges, etc, and it would be refreshing to see a continuing collaboration between these agencies and the NBA, to ensure the legal profession is held to the highest standards required of practitioners of the noble profession.
It is my prayer and expectation that the incoming AGF will be able to turn things around in the profession and the justice sector, working in collaboration with the Judiciary. We all wish him well, and the very best of success.
Oluwaseun Abimbola, SAN, former Oyo State Attorney-General and Commissioner for Justice
