Between attorney general and justice minister
There is no doubting that there is a pending bill before the House of Representative for the bifurcation of the office of the Minister of Justice and Attorney General of the Federation.
The call for separation is premised on the ‘perceived’ influence that the executive arm of government bears on the Attorney General/Minister of Justice. It has been argued in some quarters that the Attorney General as the Minister of Justice does the bidding of the executive at the expense of the citizenry. The occupier of the office is seen as the Chief Law Officer of the Federal Government as against his true office as the Chief Law Officer of the Federation.
While it is apposite to recall that this bill for the bifurcation of the two offices was in 2017 before the Senate of the National Assembly, these developments have generated hues and cries from different quarters and strata. The Senate said the amendment will create an independent office of the Attorney-General by insulating it from partisanship. The office of the Commissioner for Justice will also be separated from that of an Attorney-General in the states.
This move by the Senate was backed by the House of Representatives which also voted in its favour. It, however, failed as it did not get the support of two-thirds (24) of the state Houses of Assembly as required by section 9 (2) and (3) of the Constitution which provides that before the National Assembly can pass an Act to amend the Constitution after the two-thirds majority of all the members of each chamber voted in support, at least 24 Houses of Assembly must give approval by a simple majority.
The renewed call for the separation of the office of the Attorney by the House of Representative which has gotten to the second reading has called for an alteration of Section 150 of the 1999 Constitution. In order not to throw out the baby with the bath water, it is important to pensively consider the issues at hand viz-a-viz constitutional provisions.
Origin of the office of the Attorney General of the Federation
In the Supreme Court decision in the case of Ezomo v AG Bendel State, the Apex Court enunciated the origin of the office of the Attorney General of the Federation as follows:
The office of the Attorney General was created in England, and the incumbent first called the Attorney General was created in England, and in the incumbent first called the Attorney General, in the year 1461 while the post of the Solicitor General dated from 1515. The Solicitor General is a subordinate of the Attorney General and in England he deputizes for the Attorney-General if the office becomes vacant or if the Attorney General is absent or is ill or is authorized by him to do so. (See: 6th Edition of Hood Phillip’s Constitutional and Administrative Law pp. 334-336).
Similarly, in the celebrated case of AG. Federation v. ANPP (2003) LPELR-630(SC), the Apex Court held inter alia per Lt. Justice Niki Tobi as follows:
“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.”
It would appear that the Attorney General is the only Minister specifically created in the Constitution. Section 147(1) of the Constitution ominously creates the office of Minister of the Government of the Federation.
In view of the fact that the office is created in the Constitution, and unless or until the office is abrogated, it will continue in perpetuity. And any suit by or against the Attorney General will in law be absorbed by the office, which never dies unless the Constitution abrogates it. 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 wordings of Section 150(1) of the 1999 Constitution leaves no one in 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 the Government of the Federation. 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. In his capacity as the Attorney General of the Federation, he would represent the government in all actions against the state.
Arguments in support of the Bifurcation of the office of the Attorney General of the Federation and Minister of Justice
Proponents of the school of thoughts that the office of the Attorney General of the Federation and Minister of Justice should be bifurcated have advocated as follows:
i.The Attorney General 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 who appointed him. Flowing from the above it would be difficult for the Attorney General to be non-partisan.
To be continued tomorrow
Ajulo, fellow of Chartered Institute of Arbitration (UK), is the managing partner, Castle of Law, Abuja.