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Between attorney general and justice minister – Part 2

By Kayode Ajulo
12 November 2021   |   3:35 am
The AGF routinely advises the president and the government on all matters connected with the interpretation of the constitution, legislative enactment and all matters of laws referred to him.

Abubakar Malami, AGF

The AGF routinely advises the president and the government on all matters connected with the interpretation of the constitution, legislative enactment and all matters of laws referred to him. He also advises heads of ministries and agencies of government often; these issues require the delicate balance of government actions with the dictates of the rule of law. The AGF is obliged to ensure that the rule of law is not compromised in any form. This is often a great task, given that government actions sometimes conflict with the interest of the citizenry.

iii. That Advanced democracies such as the UK, and some African countries like Kenya and South Africa have since recognized the potential conflict of interest that could arise from one and the same person performing both functions and have since come to the reasoned decision to separate the offices. In the United Kingdom, the office of the AGF is separated from that of the justice minister. While the ministry of justice is headed by the Lord Chancellor and Secretary of State for Justice who is a member of the cabinet; the AGF is a non-cabinet minister who leads the AGF office.

Having stated that the focal point of the arguments in support of the bifurcation of the office of the Attorney General and the Minister of Justice is hinged on the need for the Attorney General not to be partisan, it is important to consider the arguments against such bifurcation with its succeeding difficulties.

i. Meanwhile, those against the separation of the offices argued that such would amount to jurisdictional questions. It would stall cases in court in seeking interpretations of whom between the Minister of Justice and the Attorney-General of the Federation has “jurisdiction to either institute an action or carry out one function or the other”.

ii. Further argued that true justice can only be achieved if both offices are combined. While there is no doubt that the Ministry of Justice, being one of the ministries of the government does the bidding of the government, the role of the prospective Attorney General after amendment has yet to be determined.

Inhibiting factors
Having considered the issue of bifurcation of the duties and powers of the Attorney General and Minister of justice, the likely issues that will arise will include the insurmountable hurdle of how the Attorney General is to be appointed. Is he to be appointed by the government, the populace via popular election or by the Nigerian Bar Association?

If the Attorney General were to be appointed by the President, he is likely to suffer from the same likelihood of bias and deference to the executive arm of government that the present occupier is accused of. The idea of the Chief Law Officer, being popularly elected, strips the exalted office from its impartial stance in the muddled waters of politics. Leaving the occupier of the exalted office to be appointed or elected by the Nigerian Bar Association violates the concepts of popular representation.

The duplication of the office might also result in jurisdictional questions stalling up cases at the court seeking interpretations of whom between the Minister of Justice and the Attorney General of the Federation is the proper party to either institute an action or carry out one function or the other. The consequential duplication of functions which is likely to be the aftermath of its division leaves much to be desired.

While the reservation of the `separation` bloc is not unfounded, the way out of the tunnel is not in the division of the office but in the officer occupying the office himself.

He should remember that although he is a member of the executive arm of government appointed by the President, he is to serve as an independent umpire, balancing the welfare of the citizens against that of the State. He should thus not be scared to tilt the scale of justice to the side where a balance is found wanting. He should be a fearless minister in the temple of justice whose blindfold must not be used to perpetrate injustice. He should also not be afraid to resign his office if he believes that the state wants him to take a stance or implement a policy that runs contrary to the principle of the `benefit of the highest number.

Similarly, dichotomy of offices in Nigeria has not yielded a great deal of improvements. For instance the office of the Accountant General, the Minister of Finance and the Governor of Central Bank are battling with the issue of who performs what function and each not willing to be subservient to the other.

Concluded

Ajulo, fellow of Chartered Institute of Arbitration (UK) is the managing partner, Castle of Law, Abuja.