Need to separate AGF from justice minister, legality of presidents as oil minister
AMEH OCHOJILA, in this report examines the argument about separating the offices of the Attorney General of the Federation (AGF) from that of the minister of justice, as well as the propriety of the President serving as the minister of petroleum.
The debates over the need to bifurcate the office of the Attorney General of the Federation (AGF) and that of the minister of Justice for efficiency and effectiveness have continued to rage, especially as a new administration comes on board, and ministers appointed. Also added in this argument by stakeholders is the legality of the President functioning as a minister, especially the minister of petroleum, which is considered Nigeria’s cash cow.
While the call for separation of the offices of the Minister of Justice and AGF is premised on the perceived influence that the executive arm of government bears on the Attorney General/Minister of Justice, that of the President’s taking over the petroleum ministry is considered an aberration.
Since the return of democracy in 1999, presidents have continued to run the affairs of the Petroleum ministry unchallenged.
For the Attorney General as the Minister of Justice, the general view is that the occupier of the office does the bidding of the executive at the expense of the citizenry, and has since independence, always taken sides with the government against the citizens.
This is premised on the fact that the occupier of the office is seen by the executive as the Chief Law Officer of the Federal Government as against his true office as the Chief Law Officer of the federation. In addition, the fellow is usually a politician or someone with political inclination, who is always willing to pander to the desires of the ruling party that appointed him.
In the book, ‘Burden of Service: Reminiscences of Nigeria’s Former Attorney-General’ a former Minister of Justice and AGF, Mohammed Adoke (SAN), called for the office to be split into two.
Adoke said: “This is because 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.”
Adoke, who occupied the office between 2010 and 2015, agreed that there is always a conflict of interest in being the AGF, “which has enormous responsibilities requiring independent thought, mind and direction” and also the Justice minister “who is an appointee of the president with the mandate to assist him in the discharge of his executive functions.”
The quest to separate the office could be said to have reached its apogee in April 2014, when the National Conference Standing Committee on Law, Judiciary and Human Rights made the recommendation for the separation during the National Conference.
The then Deputy Chairman of the committee, Prof Auwalu Yadudu, who made this known then, explained that the recommendation was to ensure the independence of the office of the Attorney-General from political influence.
The two offices, he emphasised, should not be occupied by the same individual to ensure justice. The recommendations of Yadudu’s committee have since remained in the archives, giving room for the status quo ante to remain as far as the office of the Minister of Justice and Attorney General of the Federation is concerned.
Although Section 150(1) of the 1999 Constitution 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, the exact wording of Section 150(1) of the 1999 Constitution leaves no doubt that whosoever is appointed under the Section would occupy two offices – he would serve as the Attorney General as well as the Minister of Justice.
As a minister in the government of the federation, he would be a member of the cabinet and consequently head a ministry, in this instance, the Ministry of Justice.
The Attorney General represents the government for and on behalf of the citizens. By implication, the office of the Attorney General is an office that represents the citizens at large using the instrument of the state. Little wonder that in criminal cases, the prosecutor is not the victim himself but the state, represented by the Attorney General.
The stakeholders who posited that the office of the Attorney-General of the Federation, and the Minister of Justice had not worked in the public interest and should therefore, be separated, hinged their arguments on instances where the office of the chief law officer is allegedly not in agreement with the citizen.
For instance, civil societies and non-governmental organisations have hit hard on some AGFs over their reluctance to obey court orders, which are against the Federal Government. The Socio-Economic Rights and Accountability Project (SERAP) had filed a contempt suit against the Federal Government and the then AGF, Abubakar Malami, “for failing to recover over N40 billion double pay and life pensions from former governors who are serving as lawmakers and ministers.”
Justice Oguntoyinbo of the Federal High Court, Lagos had in November 2019 ordered the Federal Government to “recover life pensions collected by former governors serving as ministers and members of the National Assembly.”
Justice Oguntoyinbo also directed Malami to “challenge the legality of states’ life pension laws permitting former governors and other ex-public officials to collect such pensions.”
However, the government of Muhammadu Buhari failed to implement the judgment. Justice Oguntoyinbo who last month retired from the bench expressed “regret” during a valedictory court session held in her honour that the judgment has not been implemented.
She stated: “I remember with pride my landmark judgment in SERAP vs. The Attorney-General. Regrettably, that order is yet to be obeyed. I find it very disappointing that court orders are often not obeyed. If there’s anything I wish to change, it is the impunity towards judicial decisions and the disrespect for the bench.”
SERAP moved further to enforce the judgment by filing Form 48 contempt suit at the Federal High Court, Lagos.
According to Silvanaus Maliki, a lawyer, the office should be separated into two. He said: “I am in strong support of the proposition that the office of the Attorney General of the Federation be separated from the office of Minister of Justice.”
The lawyer stressed that it shall have the effect of reducing the political nature of the occupant of the office of the minister of justice. “The minister of justice should be regulated and answerable to an independent body, unlike in recent times where the occupants of the two offices tender to be loyal to the chief executive and no one else,” he said.
For Emmanuel Ikwe, it is imperative for Nigeria as a democratic entity to separate the office of Minister of Justice and Attorney General of the Federation. According to him, it will ensure the independence of the office of the Attorney-General from political influence.
The lawyer said it is an aberration for the two offices to be conjoined in such a manner that only one individual holds it. Justice, he maintained, cannot be guaranteed under this kind of arrangement which negates the principle of separation of powers.
“The separation of the two offices would make whoever is appointed the AGF, to work for the people and not necessarily the government in power as a cabinet minister thereby ensuring access to justice by citizens, devoid of any external influence,” he argued.
Ikwe also argued that it is an aberration for the president to double as a minister of the federation, while still in office. He explained that section 147 (1) (2) of the constitution provides that there shall be such offices of ministers of the government of the federation as may be established by the President, which must be confirmed by the Senate. The implication of performing the function of a minister, he argued, is that the occupier must appear before the Senate for confirmation.
His words: “Any appointment to the office of minister of the government of the federation shall, if the nomination of any person to such office is confirmed by the Senate, be made by the President. If a president is to announce himself as Petroleum Minister, will he undergo senate confirmation as required by law? The answer is certainly in the negative!”
Also, Christian Oti, a lawyer, firmly believes that the Attorney General’s office should be separated from the ministry of justice. This, he said, is because the Attorney General’s office is primarily for the public.
According to him, the AGF is supposed to address the ills of the society and heed to the cries of the citizenry in the attainment of real justice. In contrast, he argued that the role of a minister in any government is geared towards the fulfillment of the policy of that government per time.
On the propriety of the president occupying the office of the Minister of Petroleum, he noted that judging by the provisions of the constitution; it is illegal for the President of Nigeria to double as minister of petroleum.
Specifically, Section 138 of the 1999 constitution (as amended), he said, states that the President shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever.
However, there are those who argue that there is nothing legally wrong with the President occupying the position since the constitution by Section 5 places all executive powers in him. For them, it means that the President is not mandated to share such powers with anyone, if he decides.
Get the latest news delivered straight to your inbox every day of the week. Stay informed with the Guardian’s leading coverage of Nigerian and world news, business, technology and sports.