Recent experiences with Attorney General of the ‘President’ and not of the Federation have welled up calls for the separation of powers between the AGF and Minister of Justice, Bridget Chiedu Onochie reports.

As Nigerians await the ministerial list of President Bola Ahmed Tinubu, there have been renewed calls for separation of the offices of Attorney General of the Federation (AGF) and the Minister of Justice, which are currently occupied by one person.

 
Before now, pressure was mounted on former President, Goodluck Jonathan, to split the offices, but he eventually failed to assent to the amendment bill presented to him by the seventh Senate.
 
Although some are of the opinion that the office of the Attorney General should simply be strengthened to allow for different departments handling distinct operations or issues of justice and law, others insist on the separation of the office into independent entities.
   
The 1999 Constitution named the Attorney General of the Federation as the Chief Law Officer of the state, who equally doubles as the Minister of Justice.  
  
Section 150 (1) provides: “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, while Section 174 empowers the AGF with powers to carry out criminal prosecutions.
 
At the state level, Sections 195 provides for the office of an Attorney General for each state, who shall be the Chief Law Officer of the state and Commissioner of Justice of the government of that state; while Section 211 (1) stipulates that the Attorney General of a state shall have power to: (a) 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 law of the House of Assembly; (b) take over and continue any such criminal proceedings that may have been instituted by any other authority or person and (c) discontinue at any stage before judgment is delivered, any such criminal proceedings instituted or undertaken by him or any other authority or person.”
 
The lingering call for the separation of the offices of Attorney General from that of the Minister of Justice is based on the perceived influence or interference of the executive on the occupier of the office.
 
Considering the sensitive nature of the office of the AGF, it should be devoid of bias. However, the mode of appointment leaves room for partisanship, and this does not go well with the administration of justice in the country.
 
In view of this, the Senate in 2017, voted in support of amendment of Sections 150, 174, 195 and 211. Although the House of Representatives supported this move, it failed to get the support of two-thirds (24) of the State Houses of Assembly as required by Section 9 (2) and (3) of the Constitution.
  
Despite the call for the separation of the two offices by stakeholders, there are those who prefer the status quo remains. Former Presidential candidate of the African Democratic Congress (ADC), Mr Dumebi Kachikwu, is one of them.
 
He argued that separating the offices might not guarantee the efficiency of either the AGF or the Minister of Justice. To him, the challenge is that those, who have manned the offices in the past, lacked knowledge of their roles and responsibilities. He said: “Consequently, they go there and think that all they need to do is engage in personal benefits. That is the reason they don’t seem to represent Nigerian people.
 
“They should first, get the right people to man the office. When that is done, then, people should look out for any likely inefficiency in the office. Until we do that, we are getting it wrong by assuming that separating the offices is the right action to take.” 
 
Similarly, the National Coordinator, Human Rights Writers Association of Nigeria (HURIWA), Emmanuel Onwubiko, said he was not in support of separation of the two offices.
 
Rather, he stood in support of a constitutional reform that will confer some levels of independence on the AGF. According to him, the constitution should go a step further to define the characteristics of who should occupy the office of the AGF rather than a junior lawyer with less than 10 years of practical experience.
 
He said: “It should define the issue of competence and the level of professional accomplishment. For instance, no President can dictate to accomplished lawyers such as Olisa Agbakoba (SAN), the late Rotimi Williams (SAN), Kanu Agabi (SAN) or Femi Falana (SAN).
 
“With the stature these lawyers have attained in life, it would be difficult for the President, irrespective of who he is, to dictate to them like little boys.
   
“When you separate the offices, you create more windows for special assistants and personnel, and incur additional expenses for the country. We don’t have the money. People are dying due to lack of medications in the hospital, lack of good roads and insecurity everywhere; creating a separate office for a minister can only amount to wasteful expenditure.”
 
Rather than create more ministries he suggested that the number of ministers be pruned. Pointing out that the Constitution allows for each state to nominate a minister, he wondered what the 36 ministers have contributed to the development of the country.
 
According to him, some countries in Europe do not have more than 15 ministers. Even though we are resource rich, the wealth is stolen, making individuals richer than the country, he pointed out, adding that they don’t work for Nigeria, but rather steal from Nigeria.
 
“So, we don’t need the separation of the offices of the AGF from that of the Minister of Justice. All we need to do is to strengthen the Constitution to spell out who the occupier of the office of AGF and Minister of Justice should be.
 
“The government should look at the level of lawyers, not those still looking for money for frivolities. We need accomplished, independent-minded lawyers as AGF and Minister of Justice.
 
“All these characteristics should be stated in the Constitution and when you see a lawyer with such qualities, you don’t need rocket science to tell you that this personality cannot be dictated to, else, he leaves the job.”
   
He added: “But if you appoint a hungry lawyer, he should be willing to do whatever the President asks him to do,” stressing that if a hungry man is appointed as an AGF and another hungry man as a minister, it would amount to the same thing.
  
The Executive Director, Civil Society Legislative Advocacy Centre (CISLAC) and Country Director, Transparency International, Auwal Rafsanjani, believes that merging the two offices has not helped justice delivery in the country.
 
He said: “Therefore, it is absolutely important that we take necessary steps to separate them. While one is political, the other is technical and professional. We should separate them to allow for proper administration of justice because if we continue to allow the status quo to remain, we would be undermining justice in the country.
 
“Politics will prevail over justice and this is not good. It is important that when appointing the Minister of Justice, President Tinubu should set the process in place to separate the two offices. It will be good for the administration of justice. It will help probity and professionalism in the administration of justice. Even the fight against corruption will have better efforts and implementation.”
 
However, considering that separating the two offices comes with legal procedures and implications such as amendment of relevant sections of the Constitution, Rafsanjani said it would require determination to ensure that the country functions properly.
 
He said: “I believe that even though there are some constitutional issues, the National Assembly will not undermine such a bill coming as an Executive Bill. If it goes to state Assemblies, with the All Progressives Congress (APC) having majority representatives, it will also not be a challenge. Within the shortest period, it will be done.”
 
The CISLAC boss noted that the call for the separation of the offices has been one topic in public discussion for a while. He recalled that many Nigerians have been advocating it because it was considered one of the paths towards promoting the independence of the judiciary.
 
“The Attorney General defends the constitutionality of bills, referred to the Supreme Court under Article 26 of the Constitution. He has a special role in advising the government to ensure the rule of law is maintained and the Constitution respected. “He is answerable to no one but his conscience and the interest of justice. But a minister must take directives from the President and do the President’s bidding.
 
“There is a conflict of interest in these two offices because government actions sometimes conflict with the interest of the citizenry. There is a need for both offices to be separated because of the perceived influence of the executive on the occupier,” he declared.