Nigeria: Why Nigeria's Office of the Attorney-General Should Be Separated From Minister of Justice - Adoke

12 September 2019

A former Minister of Justice and Attorney-General of the Federation (AGF), Mohammed Adoke, has called for the office to be split into two.

Writing in his new book, Burden of Service: Reminiscences of Nigeria's Former Attorney-General, Mr 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."

Mr Adoke, who occupied the seat between 2010 and 2015, said 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."

Mr Adoke said the AGF has to be a "saint in order not to be tainted by the views of his party under whose platform he was nominated or those of the president who appointed him, given the intrigues and underhand dealings that characterize partisan politics in Nigeria, coupled with the "absolute loyalty to the president' syndrome... "

Dual Role

The office of the AGF is unique because it has a dual role. It is the only ministerial office specifically mentioned in the Constitution with certain powers given to it.

"As Chief Law Officer, the responsibilities of the AGF is like no other in the Federal Executive Council (FEC)... the AGF has a special responsibility to be the guardian of the constitution. He has a special role in advising the government to ensure that the rule of law is maintained and that government action pass acid test of constitutionality", the former AGF wrote.

"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," he said, stressing the need for the offices to be divided with specified functions.

Conundrum of separation

Mr Adoke's stance resurrects arguments over the years for or against the bifurcation of the merged offices.

The calls for the separation of the offices are premised on the perceived influence of the executive on the occupier.

Nigeria's 1999 Constitution names the Attorney-General as also the Minister of Justice. It has been this way since independence.

The occupier of the office is the Chief Law Officer of the state as provided by the Constitution.

The Nigerian Senate in 2017 voted in support of altering sections 150, 174, 195, 211, 318 and the third schedule of the Constitution to separate the offices.

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.

Section 174 provides the AGF powers over criminal prosecutions and is perhaps one of the most publicly scrutinised aspects of his responsibility.

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.

Section 9 states 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.

Meanwhile, those against the separation of the offices argued that such would amount to jurisdictional questions they said will stall cases in the 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".

Adoke's Position

In his memoir being reviewed by PREMIUM TIMES since it became public, Mr Adoke insisted on the separation of the roles, noting that if the merger is not healthy in advanced democracies, how much more "ours?"

"Advanced democracies such as the UK, and some African countries like Kenya and South Africa have since recognised 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", he wrote.

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.

The former Nigerian justice minister said as one who previously held that position, "I am of the firm conviction that the time has come for Nigeria to follow suit (UK).

"Section 150 of the Constitution should be amended to allow for the appointment of the AGF as a professional to discharge purely professional duties of proffering legal advice to the government, prosecuting cases on behalf of the state and defending actions brought against the state."

He said suggested that such an appointment should have guaranteed non-renewable tenure of six years. "He should not be removed except for misconduct, and this must be supported by a two-thirds majority of the Senate."

Mr Adoke said the president should be allowed to appoint a minister of justice who "will be responsible for policy issues, such as justice sector reforms and liaison with the judiciary, and superintending over the justice sector institutions and parastatals of government".

Controversial Ministers of Justice/AGF

Calls for separation of the office of AGF from the justice ministry were precipitated on the performance of those holding the office which has been largely tainted with bias and corruption.

For Mr Adoke, who's book is under review, his five-year stint was especially tied with the infamous Malabu Scandal.

Nigeria's graft agency, EFCC has been on his trail over his alleged link with the $1.1billion oil scandal for which oil giants Shell and ENI are being prosecuted in multiple jurisdictions.

The former attorney general, who left the country shortly after he left office, has repeatedly denied any wrongdoing and a Nigerian court ruled last April that he cannot be held personally liable for his role in the controversial deal.

However, in April, a Nigerian High Court in Abuja issued an arrest warrant for Mr Adoke and four others for failing to appear at trial in connection with oil deal.

Meanwhile, Mr Adoke's successor, Abubakar Malami, appears to be outperforming him in this area. Mr Malami who was reappointed as AGF has over time reportedly justified President Muhammadu Buhari administration's disobedience of several court orders.

His controversial role in the contentious reinstatement of fugitive former pension boss, Abdulrasheed Maina, his questionable request for payment of $17 million to two lawyers for performing an already completed role in the return of $321 Abacha loot, as well as his controversial advice for the federal government to discontinue the trial of suspects in the $1.1 billion Malabu scandal are some instances where the current AGF appeared to be taking a different direction from that expected of a Justice Minister, a PREMIUM TIMES 2018 analysis revealed.

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