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By Ise-Oluwa Ige
Dr. Kayode Ajulo is the Founder & Managing Partner of Castle of Law. He is a practising lawyer and a 2017 PhD holder in Workers’ Rights and Corporate Social Responsibility.
He spoke with Saturday Vanguard on issues surrounding the Office of Attorney-General of the Federation and Minister of Justice. He counsels the incoming Attorney General of the Federation and his colleagues at the state level on the discharge of their duties of office to avoid running into any problem. Excerpts
Dr Kayode Ajulo is the Founder & Managing Partner of Castle of Law.
He is a practising lawyer and 2017 PhD holder in Workers Rights and Corporate Social Responsibility. He spoke with Saturday Vanguard on issues surrounding the Office of Attorney General of the Federation and Minister of Justice. He counsels the incoming Attorney General of the Federation and his colleagues at the state level on the discharge of their duties of office to avoid running into any problem. Excepts
How will you assess the tenure of the immediate past Attorney-General of the Federation vis-avis the duties of his office?
In as much as I would like to assess his tenure, one thing that is so clear is that Mr Abubakar Malami is a Senior Advocate of Nigeria. He is my senior, he carries the pride, the nobility of the profession. It doesn’t lie in me to assess him publicly in the circumstance. It would be better for his seniors and contemporaries to do that.
The Office of the Attorney-General of the Federation is a special one for more reasons than one including its recognition by the constitution.
What, in clear terms, are the duties assigned the AGF in the 1999 constitution?
I have just said that the Attorney-General of the Federation is the Chief Law Officer of the Federation and a Minister of the Government of the Federation. He is the lawyer to advise the government on legal matters and his position is very special.
That is why the AGF is the only ministerial position created by the constitution with his duties of office clearly spelt out. No other ministerial office is so created by the constitution. Unlike all other portfolios, you can be a minister of health without necessarily being a medical doctor or health officer. You don’t need to be an engineer or petroleum expert before you can become a minister of petroleum.
But when it comes to the Attorney-General of the Federation, you must be a lawyer. Permit me to say that the Attorney-General of the Federation is the first among equals. His position is different. Now, talking about the special duties assigned to him by the Constitution, section 174 (1) of the 1999 Constitution of the Federal Republic of Nigeria provides answers to that.
Specifically, Section 174 (1) provides that 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.
However, Section 174 (2) and (3) explain how the special functions of his office should be exercised.
Section 174 (2) of the 1999 Constitution provides that 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, section 174 (3) provides that 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.
For some time now, there have been clamours for the separation of the Office of the Attorney General of the Federation from the Office of the Minister of Justice. Where do you stand?
Well, I have been following the discussion on the issue. And I can tell you that I am not standing on the fence. But before I make my position known, let me register the fact that there are three sides to the argument. One is advocating the bifurcation of the Office of the Attorney-General of the Federation and Minister of Justice. Another is against the bifurcation of the office.
The third group is indifferent. For the proponents of the school of thoughts that the office of the Attorney General of the Federation and Minister of Justice should be bifurcated, they have advocated as follows:
i. The Attorney General when acting as Attorney-General, he is answerable to no one but his conscience and the interest of justice, but while in his capacity as minister, he must take directives from the president and do the President’s bidding who appointed him. Flowing from the above, it would be difficult for the Attorney General to be non-partisan.
ii. The AGF routinely advises the president and the government on all matters connected with the interpretation of the constitution, legislative enactment and all matters of laws referred to him.
He also advises heads of ministries and agencies of government often, these issues require the delicate balance of government actions with the dictates of the rule of law.
The AGF is obliged to ensure that the rule of law is not compromised in any form. This is often a great task, given that government actions sometimes conflict with the interest of the citizenry.
iii. That in Advanced democracies such as the UK, and some African countries like Kenya and South Africa, have since recognized the potential conflict of interest that could arise from one and the same person performing both functions and have since come to the reasoned decision to separate the offices.
In the United Kingdom, the office of the AGF is separated from that of the justice minister. While the ministry of justice is headed by the Lord Chancellor and Secretary of State for Justice who is a member of the cabinet, the AGF is a noncabinet minister who leads the AGF office.
Arguments Against the Separation of the Offices On the other hand, another group is of the view that the office should be left as it is on the account that separating the office might create more problems. They argued that it would create jurisdictional issue in the following ways:
*It would stall cases in court in seeking interpretations of who between the Minister of Justice and the Attorney-General of the Federation has “jurisdiction to either institute an action or carry out one function or the other”.
*True justice can only be achieved if both offices are combined. While there is no doubt that the Ministry of Justice, being one of the ministries of the government does the bidding of the government, the role of the prospective Attorney General after amendment has yet to be determined.
Having considered the issue of bifurcation of the duties and powers of the Attorney General and Minister of justice, the likely issues that will arise will include the insurmountable hurdle of how the Attorney General is to be appointed. Is he to be appointed by the government, the populace via popular election or by the Nigerian Bar Association?
If the Attorney General were to be appointed by the President, he is likely to suffer from the same likelihood of bias and deference to the executive arm of government that the present occupier is accused of. The idea of the Chief Law Officer, being popularly elected, strips the exalted office from its impartial stance in the muddled waters of politics.
Leaving the occupier of the exalted office to be appointed or elected by the Nigerian Bar Association violates the concepts of popular representation.
The duplication of the office might also result in jurisdictional questions stalling up cases at the court seeking interpretations of who between the Minister of Justice and the Attorney General of the Federation is the proper party to either institute an action or carry out one function or the other.
The consequential duplication of functions which is likely to be the aftermath of its division will leave much to be desired. While the reservation of the ‘separation‘ bloc is not unfounded, I am of the view that the way out of the tunnel is not in the division of the office but in the officer occupying the office himself. He should remember that although he is a member of the executive arm of government appointed by the President, he is to serve as an independent umpire, balancing the welfare of the citizens against that of the State.
He should thus not be scared to tilt the scale of justice to the side where a balance is found wanting. He should be a fearless minister in the temple of justice whose blindfold must not be used to perpetrate injustice. He should also not be afraid to resign his office if he believes that the state wants him to take a stance or implement a policy that runs contrary to the principle of the ‘benefit of the highest number.
Similarly, the dichotomy of offices in Nigeria has not yielded a great deal of improvements. For instance the office of the Accountant General, the Minister of Finance and the Governor of Central Bank are battling with the issue of who performs what function and each not willing to be subservient to the other.
What are your expectations for the new AGF?
My expectations of the new Attorney General of the Federation are so clear. They are as set out first by the provisions of the 1999 Constitution and every other enabling laws, ethics of the profession, the rules, Legal Practitioners Act and the rest.
The Attorney General of the Federation is the automatic leader of the bar. His position is enamoured both in the bar and the bench. What matters most is that he is to ensure, defend and promote the rule of law as against the rules of the thumb, the whims and caprices of people.
But when the Attorney-General of the Federation or the state decides to do otherwise, when he decides to turn himself into a politician, he runs into a big problem. And it must be so because politics is about policy and sentiments. But laws are not about sentiments. They are the set of codes that the people have given to themselves. They must be followed. The functions of the AGF are to promote, uphold and to defend every tenet of law as it is without any fear or favour or without even thinking of political sentiment.
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