Legal Briefing on constitutional amendment. One of the issues up for debate in the ongoing constitution amendment is the separation of the office of the Attorney General of the Federation (AGF) from that of the Minister of Justice. Davidson Iriekpen examines the rationale for the debate One of the major proposals being considered by the National Assembly in the ongoing constitution amendment is the separation of the office of the Attorney General of the Federation (AGF) from that of the Minister of Justice. Currently, the justice minister is also the AGF at the federal level while, the Commissioner for Justice is also the AG at the state level. For as long as most Nigerians can remember, the thought of splitting the office is not new. Since the twilight of Chief Olusegun Obasanjo’s administration and partly, that of the late Alhaji Umaru Musa Yar’Adua where a former AGF and Minister of Justice, Michael Aondoakaa, played some ignoble roles in the polity, contrary to his dutiful role of upholding the constitution, the agitation had begun to gather momentum. However, by the time the report is adopted by the Senate and concurred to by the House of Representatives and also approved by at least 24 out of the 36 state Houses of Assembly, the present AGF and Minister of Justice, Mohammed Bello Adoke and subsequent ones after him, will automatically lose the status of the AGF and will only handle the Justice ministry. The implication of the separation is that the AGF will concentrate on directing the prosecution of the federal government cases. He will probably be a non-cabinet public official with tenure regardless of what political party is in power. But the minister of justice will serve as an adviser on legal matters to the federal government. He will facilitate an enabling environment for judges and judicial workers. Of course, he will be a member of the Federal Executive Council (FEC) who can be fired by the president should he perform below expectation. It is believed that this arrangement would instill sanity in the justice system in the country and prevent a situation where the AGF is a man who continues to carry out the agenda of the ruling party even if the agenda is not in the interest of the country. The office of the Attorney-General is derived in Section 150 (1) of the 1999 Constitution as amended which provides that “There shall be an Attorney- General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.” Pursuant to this provision, the AGF is appointed by the President while the governor appoints the Attorney-General of the State. Sections 174 and 211 of the 1999 Constitution respectively provide for the powers of the AGF and Attorneys-General of the states. The provisions specifically empower the AG to, among other things, initiate or discontinue any proceedings before any court of law in Nigeria. The scope and latitude of these powers has over the years been a subject of numerous judicial pronouncements. For example, in the case of Ibrahim & Anor V. State, the late Justice Kayode Eso, pronounced thus: “It is plain to me that the Attorney-General, who, as this court has said in the State v. S.O Ilori to be the law and master unto himself, law unto himself and against the only sanction where he abuses his almost unfettered discretion is the reaction of his appointor or the adverse public opinion which may force him to resign…” This same position was reached by the late Justice Ignatius Pats -Acholonu of the Court of Appeal (as he then was) in the case of The Guardian Newspapers Ltd V. Attorney-General of Federation. He said: “Both at common law and by virtue of our constitution, the Federal Attorney-General is the Chief Law Officer of the Republic and at the common law is the conscience of the people. “The AG represents the state in all actions against the state. He can do this in person or through the other law officers of the state below him. The office of the Attorney- General in the scheme of affairs of the state is as old I dare say as the common law. In the exercise of his functions as the Chief Law Officer of the state, he cannot even take a dictation from the head of state as his position is unique.” The above judgments represent the latitude of the powers constitutionally bestowed on the occupier of the office of the Attorney-General. It is also for this reason that many pundits reckon that the combination of the office with that of government’s Minister of Justice would usually lead to abuse. Even Section 174 subsection 1, 2 and 3 of the Constitution vests enormous powers in the office of the AGF. The section stipulates: “The Attorney- General of the Federation shall have power 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; to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and to discontinue at any stage before judgment is delivered in any such criminal proceedings instituted or undertaken by him or any other authority or person.” As a check, the constitution provides in subsection 2 and 3 that in exercising his powers, the AGF shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.” But many pundits would readily say that most of the actions of the AGF are a far cry from “public interest, the interest of justice and the need to prevent abuse of legal process” as spelt out in the constitution. Pundits contended that the office of the AGF has become the bastion of corruption and a clog in the wheel of the fight against corruption. A former judge of the World Court at The Hague, Prince Bola Ajibola, is one of the senior lawyers calling for the separation of the office of the AGF from that of the Minister of Justice. Ajibola’s argument was that the powers of the two offices vested in one person were both confusing and incongruous. The eminent jurist who himself was once an AGF and Minister of Justice said that the protection of human rights could not be fully guaranteed, adding that when an individual is both an AGF and Justice Minister, “this situation is akin to serving God and human.” Speaking further, Ajibola stated: “The position of the AGF is like that of an ombudsman, a man that cares for the welfare of the people in the society. We need an ombudsman that will be there for the people. The minister of justice will be there to serve the government and its institutions, while the AGF will serve the people as ombudsman as well as a watchdog against those perpetrating injustice. So no AGF should be made the minister of justice. It is a confusing situation of which it is difficult to serve two posts together. It is like serving God and humanity.” Citing the Scandinavian countries, Ajibola said the two offices are naturally separated. He urged, therefore, that urgent steps be taken to rectify the anomaly. “That must be done quickly; we need not allow it to continue because having the two positions in one person is an incongruous situation,” he added. On his part, Lagos lawyer, Mr. Femi Falana (SAN), also supported the position of Ajibola. He lamented that AGFs no longer go to courts and the office is now becoming synonymous with corruption. “These days, it is embarrassing that the office is being mentioned in connection with corruption. AGFs don’t go to court any longer, unlike people like Ajibola and that is why, though we fought him from all sides during his time, we still have great respect for him,” Falana said, noting that the office has been “polluted by incompetent people tainted with corruption.” Even though a cross section of senior lawyers is divided over the splitting of the office, the incumbent AGF and Minister of Justice, Mohammed Bello Adoke, is surprisingly in support of the separation. Adoke who most Nigerians thought would defend the office he occupies, has demonstrated that there is nothing to lose if the office is split into two. In a paper he delivered as a guest lecturer at the 13 convocation of the Benue State University, Makurdi, in December 2012, Adoke, who called for the amendment of Section 150 of the Constitution, said he was convinced that time had come for Nigeria to follow suit in the splitting of the office given its experience as a nation and the resolve to strengthen public institutions. He said if the section was amended, the AGF should be a professional who would discharge purely professional duties of proffering legal advice to government, prosecuting cases on behalf of the state and defending actions brought against the state. Adoke canvassed that the AGF so appointed should even outlive the administration that appointed him into office in order to provide the requisite advice for the incoming government. He advised that whoever will be appointed should be for a non-renewable tenure of six years to ensure that he does not pander to the whims of his appointer in the hope that his tenure would be renewed. “Given our collective experience as a nation and the resolve to strengthen our public institutions, I am convinced that time has come for Nigeria to follow suit. Section 150 of the Constitution should therefore be amended to allow for the appointment of the Attorney General of the Federation who shall be a professional to discharge purely professional duties of proffering legal advice to government, prosecuting cases on behalf of the state and defending actions brought against the state. But another Senior Advocate of Nigeria, Mallam Yusuf Ali, differed. “I have never supported and will never support splitting of the office of Attorney- General and Minister of Justice. As far as I am concerned, you are creating more bureaucracy and spending unnecessarily. “You are also promoting in-fighting between both offices; you will eventually discover that both offices will clash with respect to responsibilities. In most commonwealth countries, both offices are often taken together by one person. The truth is that we have too many ministries already and with them so many ministers. They have to be reduced. These political appointments are just unnecessarily contributing to our national expenses. Splitting both offices does not make sense politically, legally and economically. So, I believe the office should be left intact.” Following Ali’s line of argument, Chief Wole Olanipekun (SAN), was of the view that it was not necessary to separate the two offices. “It’s not necessary. The AGF is the chief law officer of Nigeria and also the head of the Justice ministry. Minister of justice can’t be the head of the ministry of justice. It is abnormal. All we have to do is to separate the holder of the office of AGF from politics and ensure compliance with strict professional standards and competence in his appointment.”
Posted on: Tue, 27 Aug 2013 21:12:21 +0000
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