Time to Separate AGF from Minister of Justice

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“The president himself spoke about putting square pegs in square holes. From the performances of the ministers, I have not seen the evidence of that as at now. Sadly, they are people who have always taken decisions, which are clearly contrary to national interest. I give you one example: the Attorney-General of the Federation”
– Junaid Mohammed (Sun Newspaper, March 20, 2016)

While one may not buy the above assessment by Dr. Junaid Mohammed, an unapologetic Buhari supporter, radical politician, and Second Republic Member of the House of Representatives, wholesale events in the polity since Mr. Abubakar Malami (SAN) assumed the exalted position of the Attorney-General and Minister of Justice, are certainly worrisome.

From the brazen disobedience to court orders, endless detentions by the anti-graft and security agencies using the long-obsolete and illegal holden charge, to the flagrant disregard for resolutions by the National Assembly, as well as the shady events that culminated in the emergence of Alhaji Yahaya Bello as the Governor of Kogi State, coupled with the capture of the Kogi State House of Assembly by a group of five, one can say unequivocally that Malami’s tenure has so far been most inglorious and unprofessional.

The final straw that seems to be breaking Malami’s back is the leadership crisis that has preoccupied the 8th Senate since its inauguration. One would have expected the ruling party to move on to tackle the myriads of challenges facing the nation or mobiise its supporters in the Senate to impeach Senator Bukola Saraki and Senator Ekweremadu if it feels so compelled about it.

Unfortunately, rather than doing that, the APC government has been behaving like the unwise man who doesn’t mind burning down his entire house because of a provocative rat. The Senate Unity Forum, believed to be working with the APC leadership and the executive arm, petitioned the Inspector-General of Police, alleging forgery of the Senate Standing Order, 2015. They also instituted a civil suit seeking to nullify the emergence of Saraki and Ekweremadu, on the basis of the alleged forgery.

However, Senator Gilbert Nnaji (PDP, Enugu East), who is also a member of Senate Like Minds (a group of APC and PDP Senators canvassing independence of the Senate) went to the Federal High Court, Abuja, as an individual, to challenge the powers of the police to pry into the internal affairs of the Senate.

In the course of the trial, he also filed an application seeking to restrain the police from continuing with the investigation pending the determination of the case. But Justice Gabriel Kolawole did not grant it, on the premise that he wants the Police to have its day in court. He, however, ordered parties involved in the suit not to do anything to undermine the pending case, adding that the court reserved the powers to nullify the police report even if the security agency went ahead with the investigation and report.

Interestingly, Abubakar Malami was, before his appointment as the AGF, the legal counsel of Senator Hunkuyi (APC, Kaduna) and Secretary of the Senate Unity Forum, who applied to be joined in the suit as a defendant. Hunkuyi, is the author of the Petition that led the Police into investigating the matter in the first instance.
The above explanation is vital in understanding the suppressed anger of Justice Kolawole over the decision of the Attorney-General to file criminal case against the duo of Ekweremadu and Saraki, relying on the same police investigation and report, which is a bone of legal contention, as it were.

In the words of the Honourable Justice, “the said criminal charge dated 10/6/16 and attached as exhibit “B” to the Plaintiff’s ‘motion ex parte’ dated 23/6/16, given the course of these proceedings as I had in detail, highlighted, can only be seen as one that constitutes an ‘abuse of legal process’ to use the very words in section 174(3) of the constitution”.

He reasoned that assuming the AGF was not in the know of such pending fundamental case challenging the police report and investigation, the AGF was duty bound to invoke the provisions of Section 174(1) of the 1999 Constitution, which empowers the AGF to discontinue such criminal proceedings against Saraki and Ekweremadu since, in his view, the said “criminal charge in the long run, constitutes an ‘abuse of legal process’”.

Now the clinchers: “The converse situation, which the drafters of the constitution, perhaps never envisaged appears to have occurred in this case as the 2nd defendant (AGF) who is required, by section 174(3) of the constitution, to ‘discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person’ where such proceedings constitute ‘abuse of legal process’, is in fact the very person who initiated a criminal proceedings in a matter in which he had, as a private legal practitioner, acted for one of the ‘interested’ Senators who had petitioned the 1st defendant (Police) on 30/6/15”.

“In all of these facts and issues, having regard to the pendency of this suit in which the defendants have both filed processes, one question that did not cease to resonate in my thoughts is why this “desperate haste” to prefer the criminal indictments in exhibit “B,” the investigation of which is at the heart of this suit and of the parallel suit in exhibit “E”, and which indictments, by law are not time barred as the substantive suit before this court, had by consent of both the Plaintiff’s Counsel and the 1st defendant’s Counsel, been scheduled for 6/7/16 for hearing”.

“It is the event of the steps taken by the defendants (IGP and AGF) in utter defiance of this pending suit, that in my view, unobtrusively betrayed the possible genuineness of the defendants’ intention and of the 2nd defendant’s motives as steps taken, which are beyond serving the “public interest” by the commencement of a criminal trial in the FCT High Court in order to subvert the pending suits in the Federal High Court one of which has been fixed for 6/7/16”.

While I will not hold brief for Abubakar Malami, I would still like to state that our real problem is putting trust in “good men” rather than in strong institution and laws. Thomas Jefferson once admonished Americans that “In matters of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution”.
It is for the avoidance of the ugly situations such as we have in hand that the 1999 Constitution Fourth Alteration Bill remains one of the greatest efforts made by the National Assembly to strengthen Nigeria’s democracy. The Fourth Alteration Bill, among other highly critical amendments, divorced the Office of the Attorney-General of the Federation (AGF) and that of States from the Office of the Minister/ Commissioners of Justice. This was borne out of the need to insulate the very important office of the AGF, described by Section 150 of the Constitution as “the Chief Law Officer of the Federation”, from political impediments and interferences.

As could be seen in Section 174 of the Constitution, by simply entering a nolle proseque, the Attorney-General of the Federation can discontinue any case, just as he/ can also be used to press charges that are more of political persecution as the Saraki/Ekweremadu’s case clearly show. A political appointee is not only answerable to his appointer, a politician is also naturally inclined to play politics.

Thus, the 7th National Assembly amended Section 150 to provide for the establishment of the Office of Minister of Justice separate from Office of the AGF. It inserted new Sections 174A-174H to outline the qualifications of an AGF and guarantee the independence of the Office of the AGF through financial autonomy and security of tenure. The same was applied to the States in Section 211 of the Constitution. Unfortunately, it was not signed as the presidency resorted to self-preservation. Today, we are back to Square One.

Now that the constitution amendment exercise is on the move again, one can only call on the National Assembly to reintroduce this separation to safeguard our democracy. Failure to do that would amount to endorsing the continued politicisation of justice and abandoning the nation’s democracy to the whims and caprices of politically appointed AGFs, who may unfortunately be mere ‘charge and bail lawyers’. Apologies, Dr. Junaid Mohammed.
––Odunla writes from Lagos.