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Office of attorney general should be separated from minister of justice, says Olatunji


Mr. Abiodun Olatunji

Recently, the attorney general and minister of Justice, Mr. Abubakar Malami (SAN) was criticised for administering oath of office to the All Progressives Congress (APC) interim executives. His action has revived the argument about the separation of the office of the attorney general from that of the minister of justice. Mr. Abiodun Olatunji (SAN) in this interview with JOSEPH ONYEKWERE declares that the only solution to such conflict of interest is the separation of the two offices, among other views he expressed on topical matters

Do you share the view that the president violated his oath of office by using the Federal Executive Council (FEC) chambers to conduct the affairs of his party, the All Progressives Congress (APC)?
I have taken a cursory look at the oath of office of President as contained in the seventh schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended) but I have not been able to see how the president’s use of the Federal Executive Council Chambers to host a meeting of the NEC of his party, the APC, constitute a breach of his oath of office. I am not aware of any law that bars a sitting president who by virtue of his election and oath of office is the legal occupant of the seat of power, from making use of the various facilities in the villa in furtherance of his commitment to the service and well-being of the people of Nigeria. I think the whole noise about this issue is unnecessary and more of a distraction for the president. Politicians are adept at making mountain of a molehill. We should leave the politics of this issue to the politicians while as lawyers we should be concerned about what the law stipulates in the circumstance and our discourse of the issue should only reflect the correct position of the law and that for me remains that the president did not violate the oath of his office. 

Many have also said the Attorney General of the Federation (AGF), violated the 1999 Constitution by functioning as a notary public to a political party and using official facilities of FEC chamber to administer oath of office to a functionary of a political party. Do you agree?
The Attorney General of the Federation is also a minister of the government of the federation. Section 150 of the 1999 Constitution (as amended) 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. What you have under section 150 of the Constitution is a fusion of the office of the Attorney General of the federation and office of the minister of Justice. As a minister, the Attorney General cannot be insulated from partisan politics, his appointment in the first place even if conceded that it is at the absolute discretion of the president, is still rooted in political considerations. As Attorney General, the Constitution clearly states that the occupant of the office shall be the chief law officer of the federation.


The holder of the office thus has a duty to ensure the faithful execution of the laws of the federation at all times. Can the same be said of the holder of the office when he acts or functions as a minister of the government of the federation in which case his actions or decisions may and most often are driven by political consideration and permutations? This conflict of interest will remain for as long as the office of the Attorney General and minister of justice remain fused in one person. To remedy the situation, it has long been suggested that the two offices be separated and two different persons appointed to occupy them. I think that is the way to go. Amend section 150 of the constitution. It is therefore difficult to see how the Attorney General had violated the Constitution in the circumstances.     

Outrage has continued to grow over incessant cases of rape. Many have said the handling of rape by the criminal justice system is responsible for this. What is your view on it?
An accused person is presumed innocent until his guilt is established by the prosecution beyond reasonable doubt. This is a constitutional right of any person charged with any criminal infraction of which rape is one. The burden is on the state to establish the guilt of an accuse person on the basis of credible evidence. The accused person has no burden to prove his innocence. Most often, it is the state that fails to present watertight case against those charged with criminal infractions. Investigations are poorly done, evidence poorly gathered and poorly presented in court. On rape, it is rather unfortunate that we have continued to witness an uptick in the incidence of this heinous crime. The major problem with successful prosecution of rape cases in Nigeria is the lack of willingness on the part of victims to come forward to report and give evidence against the perpetrators. It is a cultural problem. Victims are often stigmatised and most times rejected by the society when they come forward to report the abuse. Essential ingredients of the offence of rape are penetration and lack of consent. How will the state establish these two ingredients when the victim declines to come forward to testify? A court only acts based on the evidence before it. In Lagos State, the Judiciary has taken a very bold step to deal with this evil malaise by setting up the sexual offences court, which deals exclusively with all sexual offences. These courts are manned by some of the finest and brave judges in the Lagos State Judiciary and they are not afraid to impose the maximum penalty prescribed by law where the evidence so establish. 


Sections 231, 232 and 233 of the Administration of Criminal Justice Act 2015 have made it difficult for sexual offenders to go scot-free. Under section 231 an accused person on a trial for rape, defilement, incest, unnatural or indecent offences against a person may be convicted and punished for the offence of indecent assault where the facts proved in evidence can ground such conviction although the facts proved in evidence may not ground conviction of the offences charged in the charge sheet. Similarly, under section 233 where an accuse person is on trial for an offence of defilement and the facts proved in evidence warrants a conviction for an indecent assault, the accused person may be so convicted even though the accused was not charged with the offence of indecent assault. Section 232 has been specifically enacted to protect victims of rape and to encourage them to report the cases and give evidence in court. 

Would you support capital punishment in offences such as rape, murder, kidnapping?
I do not wish to be subjective. It is the sanction that the law prescribed that should be applied to all cases of criminal infractions, be it rape, murder or kidnapping. Laws are enacted to regulate people’s conduct and relationship in a society and to achieve a just, peaceful and orderly co-existence. In the absence of law and order, there will be anarchy and a state of nature, which is nasty and brutish, will result. To avoid such state of nature is the reason we have laws in this country, which make it a criminal offence to rape another person, kill or kidnap another person and also prescribed stiff penalties including the maximum penalty for such offences. Whoever does choose to indulge in these criminal activities must be prepared to accept the consequences of their criminal acts including the ultimate penalty, which is death. The criminal code and the penal code before the enactment of the Administration of Criminal Justice Act, 2015, both prescribed the death penalty for the offence of murder. The Senate only recently passed a bill for an Act to amend the Criminal Code Act CAP. C.38, Laws of the Federal Republic of Nigeria 2004 popularly known as the Anti Kidnapping Bill into law and it prescribes life imprisonment for any one found guilty of kidnapping.  I think the penalty should have been death to send a clear message to whoever indulges in the criminal act. In Lagos State, the Kidnapping (Prohibition) Law of 2017 also prescribes the death penalty for kidnappers whose victims died in their custody while it prescribes life imprisonment for those whose victims do not die in their custody. At the last count, more than 15 states in Nigeria have made kidnapping a capital offence. No doubt, rape, murder and kidnapping are grievous crime that must be met with the harshest form of punishment to deter offenders. The passage of the Sexual Offences Bill by both Chambers of the National Assembly is a good development, once the president assents to it, it becomes an Act enforceable across the federation.


The Chief Judge of the Federal High Court (FHC) Justice John Tsoho has advised all the courts judges to desist from granting ex-parte orders in political matters. Justice Tsoho further advised the justices not to entertain matters whose substance arose from outside their judicial divisions. How do you see this directive? 
Some legislations and all rules of court empower the court to grant ex-parte orders. In-fact by law certain applications can only be made ex-parte. The major problem with ex-parte applications is that it is inherently susceptible to abuse. And the politicians have found ways to abuse it to the embarrassment of the judiciary. Most of the times, the applicant suppresses material facts which if available to the court would have persuaded the court to refuse such application. The directive of the Honourable Chief Judge of the Federal high court is timely and well thought out. Where an ex-parte application is filed, the court before whom such an application is pending should order that the other party be put on notice and order accelerated hearing of the motion on notice. As the political class position themselves for 2023, our courts and the Judges must be on the alert and watch out for politicians who might want to use the judiciary to heat up the polity unnecessarily through ex-parte orders. I also agree with the Chief Judge that Judges should refrain from handling cases the substance of which arose from outside their judicial divisions. Such situation if not discouraged will give the impression that Justice can be purchased where one can influence it. That is not good for the image of the judiciary.

What is your view on the COVID-19 Practice Direction issued by the various Heads of Courts? 
The Constitution of the Federal Republic of Nigeria and the High Court Establishment Acts of the 36 states of the Federation empower the heads of the different levels of courts to make rules and practice directions for the smooth administration of justice and where necessary to meet and adapt to emerging situations. The COVID-19 pandemic was an emergency thrust on the global community. The world was not prepared for it, ditto for the judiciary in Nigeria. The practice directions were issued to ensure that the judiciary continues to function and that the administration of Justice is not derailed while at the same time ensuring that the judges of the High Courts and Justices of the appellate courts who adjudicate on disputes between parties are not needlessly exposed to the pandemic.


However, some of the provisions of the practice directions need to be given judicial interpretation for their application to be settled. For instance, does a litigant require the leave of the court to serve an originating process by email under the COVID-19 practice direction or the practice direction is self-executing as have been argued by some learned senior advocates? It is still evolving. One major positive of the COVID-19 pandemic is that it has helped accelerate the deployment of technology in the administration of justice in Nigeria. We now have remote or virtual hearing and filing of processes. This new normal will ultimately be the norm.

The Independent National Electoral Commission has decried various conflicting rulings emanating from the courts as regard the Edo and Ondo states governorship election. How do you view this menace on the administration of justice?
It is rather bad for the image of the judiciary and does not make for certainty of our laws. Courts of co-ordinate jurisdiction giving conflicting rulings on the same issue can only be a recipe for confusion and chaos. INEC must only give effect to the order of court of competent jurisdiction validly given. Where there are conflicting rulings and orders, INEC must await the resolution of such conflicting rulings by an appellate court. The Edo and Ondo States governorship election will test the state of preparedness of INEC for the 2023 general elections.

As the race for the presidency of the Nigerian Bar Association (NBA) heats up, do you agree with the submission of Chief Adegboyega Awomolo (SAN) that the position be restricted within the rank of senior advocates?
The learned Senior Advocate of Nigeria, Chief Adegboyega Awomolo expressed an opinion that I believe was borne out of genuine fear for the future stability and relevance of the NBA having regard to the recent history of the association. While I agree that it is the inalienable right of every lawyer properly called and who is qualified to aspire to any leadership position in the NBA, it is however important that we must be careful to elect only those who are out to better the lots of thousands of our professional colleagues, restore the lost glory of the NBA, resolve the leadership crisis in the NBA and position the NBA for better performance as the conscience of the nation.   


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