The Constitution in section 150(1) creates the office of the Attorney General of the Federation and states that the Attorney General shall be the ‘Chief Law Officer of the Federation’ and a Minister of the Government of the Federation. Though the Constitution is silent on the express meaning of the phrase the ‘Chief Law Officer of the Federation,’ the phrase bears a whole lot of legal responsibilities and consequence.
As the Chief Law Officer, the Attorney General is the principal legal adviser to the federal government (the legislature, executive and judiciary). It is the duty of the Attorney General to ensure that all the laws of the Federation are faithfully executed, followed, obeyed or observed by government officials, departments, agencies, including the decisions and orders of court which operate as laws. The phrase the ‘Chief Law Officer’ extends the responsibilities of the Attorney General to being a law enforcer. In this vein, the Attorney General has the power to call on the heads of armed forces and other security agencies and their officials to order where their actions run afoul of the Constitution or any other law of the land. The Attorney General has the primary duty of preserving, protecting and defending the Constitution.
The court has held that as the Chief Law Officer, the Attorney General is responsible for the actions and inactions of the government. It follows that the Attorney General may be held culpable where government decisions and policies do not pass the threshold of legality. Unlike the United States where the Secretary of State is highest-ranking member of the cabinet, in Nigeria, the Attorney General may be viewed as the highest-ranking member of the cabinet and third-highest official of the executive branch of the federal government of Nigeria after the President and Vice President. This reasoning is informed by the fact that the Attorney General is the only ministerial office specially created by the Nigerian Constitution with enormous powers and responsibilities, and clearly outlined criteria for the occupation of the office.
The basis for this entire analysis is to underscore the importance and influence of the Office of the Attorney General in our constitutional democracy and its role in safeguarding the Constitution.
Abubakar Malami, SAN, the present Attorney of the Federation has conducted himself contrary to the dictates and expectations of his office. Ironically, Mr. Malami, the supposed Chief Law Officer of the Federation has become the Chief Law Breaker of the Federation. He has severally participated, directly or indirectly, in a vigorous assault against the Constitution, rule of law and the judiciary.
Mr. Malami participated in the night raid of private residences of the Supreme Court Justices and judges of federal and state high courts. In an interview granted after the raid, Mr. Malami confessed to having sanctioned the raid. The raid carried out by some masked agents of the State Security Service (SSS) stands out as one of the greatest assaults on the independence of the judiciary and was roundly condemned by many Nigerians. Some of the judges whose residences were raided had since been discharged and acquitted while some, like Justice Inyang Okoro, could not be prosecuted because there was no evidence of wrongdoing against him. However, these judges were paraded at night as criminals and exposed to public odium. Despite their acquittal or clearance, no apology has been tendered by the federal government or Mr. Malami that sanctioned the raid.
Under the watch of Mr. Malami as the Chief Law Officer of the Federation, Justice Onnoghen, former Chief of Justice of Nigeria, was controversially removed from office by an ex parte order surreptitiously obtained from the Code of Conduct Tribunal, an action which the Court of Appeal later declared as unlawful.
Mr Malami has constituted himself as a court of law and has pronounced the rule of law to be subservient to national security. This view championed by Mr. Malami was the basis upon which the federal government detained Col. Dazuki, the former National Security Adviser, despite several court orders granting him bail. The view, which has become almost like a policy statement of government, has emboldened security agencies to detain citizens against orders of court granting them bail.
The assertion that the rule of law is subservient to national security is not only dangerous but unconstitutional. National security cannot supersede the rule of law because national security is a creation of rule of law and a product of a creator cannot be more powerful than its creator. In a democracy like ours, it is the rule of law that sets the parameters for the operation of national security. Furthermore, it does not lie in the mouth of Mr. Malami to decide the place of national security vis-à-vis the rule of law when especially the court had made such consideration before granting the defendant bail.
Similarly, Mr. Malami has made himself superior to the court of law. He selects the court decisions to obey and not to obey. In his December’s letter to the SSS for the release of Col. Dazuki and Mr. Sowore, his disdain for the authority of the court was made manifest. He wrote, “…my office has chosen to comply with the court orders…” From the statement, Mr. Malami has made it abundantly clear that obedience to court orders is a matter of choice and selection, and the decision whether to obey or not obey court orders is at his discretion.
It is worrisome where Mr. Malami derives the prerogative to decide which court order to obey. Court orders, when not stayed or its execution not postponed to a later date by the court itself, are binding on all persons and authorities and they take immediate effect; they do not leave anybody with discretion over obedience. A mere appeal against an order of the court is not enough to warrant its disobedience.
Mr. Malami has further arrogated to himself the judicial power of declaration. Recently, he declared ‘Ametokun’ illegal without recourse to a court of law. His declaration has heated up the polity and may set Nigeria on a collision course.
Mr. Malami has failed to keep to his general responsibility as a lawyer which is to uphold and observe the rule of law. He is driving the country to a lawless state where the authority of the court is impugned and disregarded. Security agencies now invade courts without sanction because the Chief Law Officer of the Federation has not lived up to expectations.
Going by judicial holding that Attorney General is responsible for the actions and inactions of the government, Mr. Malami is to be blamed for all the illegal actions and inactions of the present government. The Nigerian Bar Association (NBA) must rise to the occasion and hold Mr. Malami accountable to the oath he took as a lawyer before things get out of hand. His occupation of the office of the Attorney General is dependent on his status as a lawyer. Where he is disciplined, he cannot continue to occupy the office anymore. In the meantime, Mr. Malami should sit back and think of how he would want to be remembered by drawing lessons from one of his predecessors, Michael Aondoakaa. So much trust is placed on Mr. Malami by the Constitution, hence he should at all times exercise the functions of his office faithfully and conscientiously.
Toyo Jimmy is a lawyer and bears the conscience of a Liberal, he writes in from Abuja. firstname.lastname@example.org.