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Office of Attorney General and Minister of Justice: Better together or not?

By Joseph Onyekwere, Godwin Dunia and Yetunde Ayobami Ojo
02 August 2016   |   3:15 am
A Lagos-based lawyer, Chief Robert Clarke (SAN), said it would not be out of place to divide the office into two. According to him, jurisdictions where Nigeria got the practice ...
Malami

Malami

Section 150 of the 1999 Constitution as amended provides for the office of the Attorney General of the Federation, who shall be the Chief Law Officer and a Minister of the Federation as well as the prerequisite qualifications. By this provision, anyone appointed into the office plays the role of a Chief Law Officer and that of a Minister. Following the complaint of executive influence on the occupiers of the office, there have been renewed agitation for the separation of the office of the chief law officer (Attorney General) from that of the Minister of Justice. This agitation re-echoed last week when, while on a facility tour of the ongoing Nigeria Bar Association Secretariat in Abuja, Deputy President of the Senate, Ike Ekweremadu, called for the separation of the Office of the Attorney General from that of the Minister of Justice. Ekweremadu stressed that the move will give room for the office to work for the people and not essentially for the government, apparently out of a hindsight. In this report, JOSEPH ONYEKWERE, GODWIN DUNIA AND YETUNDE AYOBAMI OJO present the view of senior lawyers on the issue.

A Lagos-based lawyer, Chief Robert Clarke (SAN), said it would not be out of place to divide the office into two. According to him, jurisdictions where Nigeria got the practice are now changing. His said: “Before we got our independence, we were operating under the judicial system of the Colonial Masters – that is the Great Britain, who joined the post of the Attorney General with that of the minister of justice.

“However, about six or seven years ago, they decided to divide those two into two ministries. The Attorney General simply means everything partaining to the law, he is the Justice. And then the minister of justice is in charge of the ministry. It has nothing to do with the operation of the dispensation of justice. Therefore, if Britain where there is apparent opposition to clear corruption can jettison the system and divide it into two, why should Nigeria not do so?”

He stated that events have shown that where you have an Attorney General, who is the chief law officer and he is also a politician, there is danger. “And that is why, most prosecutions that are being done recently are being looked by the opposition as being bias and tainted against the Peoples Democratic Party (PDP). So, I’m of the view that trends have changed all over the world and Nigeria should follow that trend and divide the office of the Attorney General, who is the Chief law officer of the country from that of the minister of justice, who is an administrative officer of the ministry of justice,” he declared.

On his part, Chief Niyi Akintola (SAN) believes it is long overdue. “I was one of those who recommended that at the National Conference. That was our recommendation. Aside from that, the NBA had made that recommendation as at 2012/2013 in our draft to the National Assembly for Constitutional amendment. We went further to recommend the establishment of office of independent prosecutors, who will not be under the control of the Attorney general,” he said, adding that he has been in the vanguard for such separation.

Similarly, another senior advocate of Nigeria, Dr. Paul Ananaba, said if the office is separated, it would be in the best interest of the law and the judicial system in general. He also said it would help foster independency in a manner that the Attorney General will not be pre-occupied with political matters. The senior advocate noted further that such separation would also be better for the administration of justice.

Mr. Seth Amaefule, also a lawyer, believes that the work of the minister of justice is purely political in nature, while the Attorney General performs more of legal functions that has to do with administration of justice. To him, it will be a good development if the two offices are separated so that when a decision of  government violates the right of an individual, the AG could challenge such in the court of law. “This point to the fact that it is much better to have the two offices separated because you cannot be part of a policy-making and at the same time litigating against such policy”, he argued.

Also, throwing his weight in favour of the argument, Mr. Ikechukwu Ikeji said it is imperative separate the two positions given the peculiarity of Nigerian politics. “The Minister may be a political appointee, but let the Attorney General be a career civil servant, who cannot be removed by the whims and caprices of the President or Governor. The Attorney General should have a secured tenure and should be insulated from the control of any arm of government”, he stated.

However, the former President of the Nigeria Bar Association (NBA), Chief Wole Olanipekun (SAN) thinks, differently. He said it does not make any difference whether you separate the office of the Attorney General from that of the Minister of Justice. According to him, what the country need is to create and nurture institutions.

He said: “Attorney General will always be Attorney General. It is a constitutionally created institution. So, whether you separate the Attorney General from the Minister of Justice, there will still be Attorney General who shall be the chief law officer of the state. My own worry in this country is that we try as much as possible, whether advertently or inadvertently, to rubbish institutions.

“The position of the Attorney General should be apolitical. It is a position that should not be politicised. It is a position that the occupier should see himself as the chief law officer of the Nation. Once he is appointed, he does not belong to any political party. Therefore, whoever that is appointed should not see himself as a card-carrying member of any political party but see himself first and foremost as the foremost law officer of the nation.”

He maintained that once we key into that, the argument about separating the office of Attorney General from that of the minister of justice will go into oblivion. “Assuming we separate, the Constitution will still recognise the position of the Attorney General both at the Federal and State levels. It will still create and make minimum qualification at the State and Federal levels; it will make him a member of prerogative of mercy both at the State and Federal levels and actions will still be instituted in the name of the Attorney General at both State and federal levels.

“So why are we talking about difference without distinction and distinction without a difference? Why are we wasting out time in this pastimes, which do not pay us. It is just like some people saying we should create special courts for the trial of corrupt cases, what is so special in corruption cases? Are corruption cases more special than murder cases, assassination cases land matters and commercial transaction cases?”he queried.

Chief Olanipekun is not alone in this line of thought. Mr. Beluolisa Nwofor (SAN) said the separation cannot work.

“The AG is not supposed to be a party loyalist, but an AG for all. Even though he is appointed by a particular president, he is loyal only to the Constitution and the rule of law. So, in that capacity, if the president does something wrong, the AG has to call him to order. The same applies to the Chief Justice. If he does something wrong, the AG has the right to tell him he has extended the bounds of the law because no one is above the law.

“The AG is somebody who is independent of the executive and the legislature. He supposed not to be partisan. Not because he is appointed by a particular political party, therefore he is their agent, not at all! The office of the minister of justice is part of the federal executive. He is one of the ministers who is expected to be part of the federal executive council”, he stated.

According to him, all lawyers are ministers in the temple of justice. His words: “Once you are called to the Bar as a Barrister and Solicitor, there’s one more thing you are that is not very known to the public, which is that you are a minister in the temple of justice. Some suggest that there should be a separation, it cannot work because the AG is also a lawyer and therefore a minister in the temple of justice. Remember that the official title is minister of justice? Now all lawyers are ministers of justice. So even though we cannot all occupy the office, we are all ministers in the temple of justice.”

He stressed that it is not about separating the office but about the awareness of the role the AG is expected to play. “If we separate the two, who will appoint the AG? The problem is about excessive loyalty to the appointee. Even if you separate them and both are appointed by two different entities and they are not sticking to the principles that govern their offices, there will still be complaints?

“If the present AG sticks to principles, nobody will clamour for separation of the offices. It is the deviation from principles by being partisan that brings agitation for separation. It is not because one person cannot do the job, but there is always a clear demonstration of partisanship when an appointee comes on board. That is what is leading to the growing agitation that the office should be split.

“And if you split it and the occupiers do not adhere to principles, it will still lead to another agitation – may be now that the offices should be abolished or be situated under the National Judicial Council or under the Civil Service structure”, he declared.

For Mr. Oluwole Kehinde, such separation will not do any magic. Performance, he said, is a function of the character of the actors and the political environment, dictated by the legal regime as well as the executive.

“If the actor is professional and the political environment is enabling, merging the two offices may produce even a better result than separating the offices, and conversely.