By Sam Kargbo
An Attorney is a person designated to transact business for another – a legal agent with the authorization of a principal to do what the principal can lawfully do. The expression Attorney-General was originally used to refer to any person who holds a general power of attorney to represent a principal in all matters. In modern usage, Attorney-General refers to the Law Firm of the State. Its origin or basis is said to have been that, as the Sovereign – President, Prime Minister, Governor, et cetera, as the case may be – could not appear in person in his/her own courts to plead in a case in which he/she had an interest, an Attorney appeared on his/her behalf. The complexities and expansive nature of the functions of modern constitutional Sovereigns have not only widened the role and duties of the Attorney-General but have also made the office very burdensome and controversial. The scope of the office has since gone way beyond the maintenance of the interest of the Sovereign in the courts of the land and/or advising the Sovereign and all offices, institutions, agencies and departments, and authorities and persons exercising legislative, executive and judicial powers with a view to having them conform to, observe and apply the provisions of the Constitution. The Attorney-General’s Office is also responsible for the drafting of legislations initiated by the executive and vetting of all contracts or agreements of which the government is a party, including international agreements, treaties or conventions. In most modern democracies, the Attorney-General’s Office is made permanent by their constitutions or laws and, in some other cases, executive functions of a cabinet grade are added to the office.
In the case of Nigeria, the Constitution creates the Office of the Attorney-General who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation who must be qualified to practise as a legal practitioner in Nigeria and has been so qualified for not less than ten years. By virtue of the Constitution, the Attorney-General of the Federation (AGF) also serves as the Minister of Justice – concerned with questions of policy and their relationship to the justice system. According to Abubakar Malami, SAN, the current Attorney-General of the Federation and Minister of Justice, one of the major challenges militating against the effective administration of justice in Nigeria is the lack of a clear and coherent National Policy on Justice leading to absence of a mechanism for coordination and development of the sector. He declared that the Ministry has responded by initiating reforms and consensus building among justice sector institutions and practitioners for the purpose of collectively addressing the challenges hindering effective justice delivery in the country.
In order not to mistake the Federal Ministry of Justice for an appendage to the Attorney-General’s Office, a historical narrative to the ministry is expedient. I cannot do better than the following historical perspective by the late jurist, Niki Tobi, in an article titled “The Federal Ministry of Justice as Government’s Legal Adviser to the Ministry of External Affairs in Nigeria”, published in Dalhousie Law Journal, (1979) 5:1 DLJ 199:
Before the establishment of the Federal Ministry of Justice, there was in existence the Colonial Legal Department, which was headed by a Briton. He was the Registrar and Taxing Master of the then Supreme Court between 1863 and 1901. In addition to this duty, he functioned both as the Queen’s Advocate and the Queen’s Proctor.
The exact date in which the Office of the Attorney-General was created is not known, but there is evidence that it was created during the era of Lord Lugard. The first incumbent of the Office of the Attorney-General was Sir Donald Kingdon who was in office for almost twenty years. He vacated the office in 1943 to become the Chief Justice of Nigeria.
The Law Officers Act made provision for the Offices of the Attorney-General, Solicitor-General and Crown Counsel, who were designated as Law Officers of the Federal Government. The Attorney-General and other Crown Counsel had the right to practice ex-officio as ‘barristers, advocates and Solicitors’ of the Supreme Court of Nigeria. They also had the right to appear in court in all parts of the Country as Counsels.
The Federal Ministry of Justice was formally established on October 1, 1960, when Nigeria attained independence. The first incumbent of the office of the Attorney-General was Mr. Justice T.O. Elias.
The Ministry was then divided into three departments, viz: the Departments of the Solicitor-General; Administrator-General and the Director of Public Prosecutions. The developing economy of the country necessitated the expansion of the Ministry in the early sixties. In a reorganisation exercise, the Ministry was divided into five divisions. These are the Divisions of the Solicitor-General; Industrial and Mercantile Law; Research, Law Review and Law Reporting; International and Comparative Law; Constitutional and Administrative Law and Director of Public Prosecutions.
In April, 1968, following the creation of States, the Ministry lost to the Lagos State Ministry of Justice the Department of Administrator-General which dealt with the administration of estates of deceased persons within the former Federal Territory of Lagos.
In July, 1977, the Ministry was again reorganised.
The Attorney-General is the chief law officer of the Federation. The Attorney-General of the Federation is complemented by the Offices of the Solicitor General and Director of Public Prosecution (DPP). The prosecutorial powers of the Attorney-General may be exercised by him in person or through officers of his department or through private legal practitioners under his fiat. Although such prosecutorial powers are most times exercised by the Director of Public Prosecutions and staff, the Attorney-General maintains formal control, including the power to 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 an Act of the National Assembly, and can take over and continue such criminal proceedings and terminate public prosecutions. There are also certain offences that require the individual consent of the Attorney-General. This is generally said to be for offences whose illegality is of a somewhat controversial nature or where there is perceived to be a significant risk that prosecutions of a political nature may be embarked upon. The Attorney-General also has the power to issue a nolle prosequi with respect to a case which authoritatively determines that the state (in whose name prosecutions are brought) does not wish to prosecute the case, so preventing any person from doing so.
The English jurist and philosopher Sir Francis Bacon, known to be a master of the English tongue, once said that the Office of the Attorney-General was the “painfullest task in the realm.” Another English occupant of the Office, Sir Patrick Hastings, is recorded to have said that to be an Attorney-General is to be in hell. The Office is by its nature bound to be that onerous and challenging. It is the job of the Attorney-General to advise the Government on the constitutionality of policies and actions taken or embarked upon by the Government. It is his job to give or proffer justifications for the actions, policies and laws of the Government. It is the Attorney-General who, for instance, advises the President on whether proposed legislations by the National Assembly comply with the provisions of the constitution or treaties freely entered into by the Federal Government. The Attorney-General is Adviser to all Federal Executive Council Meetings and that invariably makes it imperative for the Office of the Attorney-General of the Federation to be abreast of all Memoranda slated for consideration at such meetings. As the legal adviser to each and every Department or Institution of Government, the Office has its reach and hands on every sector of the Government. Besides the highly technical job of drafting statutory instruments and conveyancing instruments concerning national and transnational businesses, the Attorney-General is the defender of the Government’s interests in all of such transactions.
Coordinating the personnel or legal officers across the length and breadth of all Federal departments and bodies, the Office of the Attorney-General is arguably the busiest and most engaging Office in the Federation. This may also explain why Nigeria has never had a popular Attorney-General.
Theoretically, the Attorney-General is not subject to any control while discharging his constitutional responsibilities. The Courts have laid the firm precedent that, as the Chief Law Officer in whom is vested the Constitutional responsibility for bringing and defending actions on behalf of the state, the Attorney-General is not subject to any control, and that no other functionary or institution of the state can exercise such powers without its authorization.
Who then is the Master of the Attorney-General and Minister of Justice?
If your eye is pure, there will be sunshine in your soul. But if your eye is clouded with evil thoughts and desires, you are in deep spiritual darkness. And oh, how deep that darkness can be! You cannot serve two masters: God and money. For you will hate one and love the other, or else the other way around (Matthew 6:22-24).
The relationship between the Government and the people is spelt out in the section of the Nigerian Constitution that provides that sovereignty belongs to the people of Nigeria from whom the government, through the constitution, derives all of its powers and authority. By that section, the people are the owners of the supreme power of the state and the government, and its officials are responsible and accountable to the people. The Government and all authorities and persons exercising legislative, executive or judicial powers are meant to conduct their public functions or businesses for the security and welfare of the people.
As has been illustrated, the role of the Attorney-General and Minister of Justice is beyond that of a lawyer, advisor and Minister. It includes administrative and investigative duties. It is the job of the Attorney-General and Minister of Justice to advise the Government and its officials to act and conduct their businesses within the limits of the powers allocated to them by the Constitution. It is, therefore, natural to blame the Attorney-General and Minister of Justice for acts of lawlessness or abuse of power by Government and/or public authorities and persons.
The Attorney-General and Minister of Justice also serves as a border guard or immigration officer to the boundaries and spheres of influence allocated to the three arms of Government under the principles of separation of powers. The office is also supposed to provide buffer zones not only between the people and public authorities/institutions but also between the people and the individual.The Attorney-General has the power to institute in any Court of competent jurisdiction any civil proceedings, with or without a relator, involving the rights and interests of the public which he deems necessary for the enforcement of Federal laws, the preservation of order and the prevention of public wrongs. In other words, when a corporation or public authority clothed with statutory powers exceeds them by some act which tends in its nature to interfere with public rights and so to injure the public, the Attorney-General has the power to intervene for the remediation of such an injury. In that respect, the Attorney General and Minister of Justice should not only a champion of the rule of law but also a maintainer and protector of the Fundamental Rights of the individual.
As the chief law officer of the nation, the Attorney General enables the President to fulfil his obligation to be faithful and bear true allegiance to the Federal Republic of Nigeria and to execute and maintain the constitution, all laws made by the National Assembly and in all matters with respect to which the National Assembly has the power to make laws. The President depends on the advice and opinions of the Attorney-Generalin the exercise of the executive powers vested in him in accordance with the Constitution and laws made by the National Assembly. It is the further unenviable job of the Attorney-General to ensure that the President exercises his powers in the spirit of that necessary balance prescribed by the Fundamental Objectives and Directive Principles of State Policy. It is, therefore, incumbent on the Attorney General to not only be knowledgeable in the law but must, as of necessity, be attuned with the policy direction of the Government. In sum, the Attorney-General is not only the chief law officer of the Government of the Federal Republic of Nigeria for law enforcement purposes; he is a member of the Cabinet and must be available to advise the President as a counsellor on matters involving policy as well as law. Whereas the laws are written and clear about their purposes, policy agendas on which a President is elected by the electorate are not. They are definable only within the overall purpose of attending to the security and welfare of the people.
Although there is no constitutional or statutory provision spelling it out in black and white, it is the job of the Attorney-General to vet bills that require the assent of the President, to ensure that such bills conform to – or are not in conflict with – the Constitution. This is an obvious area of friction between the Office of the Attorney-General and Minister of Justice and the National Assembly. The legislative powers of the Federal Republic of Nigeria are vested in the National Assembly and Section 58 of the Constitution of the Federal Republic of Nigeria, 1999, provides a very rigorous mode of exercising that power. It is, therefore, not a palatable duty to have the power to advise the President not to assent to a bill that has gone through such rigours. There may be moments when, because of their numerical strength and representative capacity, members of the National Assembly are tempted to be adventurous and go into overdrive with the powers to make laws. It is for the Attorney-General to set such adventurous bills or motions against the letter and spirit of the constitution and extant policies and advise the president accordingly. However, the Attorney-General be reminded of the fact that he is a political officer charged with legal and not political duties. His judgments in the form of pieces of advice and opinions must not be swayed by political considerations, but by the law and nothing but the law. The Attorney-General must bear in mind that his office is accountable to the National Assembly and that the National Assembly can clip its wings through its funding and oversight powers.
There are moments when conflicts arise between the presidency and another organ of government and the question will then be: to which of the two arms should the Attorney-General place his loyalty? The Office of the Attorney-General is as political as any of the cabinet offices created by the President. The President can, for instance, sack him at will. There is, therefore, no need to emphasize the point that the Attorney-General must, as a necessity, maintain the confidence of the President.
It has been argued that the Attorney-General’s duty of loyalty should be to the President, as the Attorney-General is the President’s lawyer, the conduit through which the President faithfully executes the law, a close political and legal advisor to the President and a Cabinet member. However, such loyalty should not undermine the constitution and laws made by the National Assembly. It is, therefore, better to say that in his capacity as the chief law officer, his ultimate duty demands fidelity to the Constitution and public interest. It is in this spirit that the point is made that the Attorney-General assumes a public trust for the government, overall and in each of its parts, and is responsible to the people in our democracy with its representative form of government. Each part of the government has the obligation of carrying out, in the public interest, its assigned responsibility in a manner consistent with the Constitution and the applicable laws.
The call for the depoliticisation of the Office of the Attorney-General is nothing more than a claim that by its nature, the office is incapable of rendering unbiased, objective and reasoned legal advice. Funny enough, such claims are also most times not founded on unbiased, objective and reasoned considerations. Many a time they are made upon the failure to influence the Attorney-General to abandon legal advocacy for political and moral advocacy.
Assessing Abubakar Malami, SAN, as Attorney-General and Minister of Justice
When he was first nominated to join President Muhammadu Buhari’s first cabinet, I remarked that Abubakar Malami, SAN, has always been with Mr. President and had been at the forefront of his judicial battles. No notable politician from his Kebbi home state would frown at his nomination. Although he had, between 2007 and 2015, vied for one political office or the other, what he has going for him most is humility and the ability to creep into people effortlessly. My back-of -the-envelope measurement was that he would make a good Attorney-General for his boss. I do not think that I have any reason to detract from that characterisation of his person and ability to do the job. He is still the humble gentleman with the smiling face. But his assessment as the holder of the influential Office of the Attorney-General must go beyond his personality and legal competence. It must include his ability to make – and coast on – that delicate balance of serving his appointor, the other arms of Government and the people for whom his appointor and all other public offices and organs act and function.
It would be taking on too much to try to assess Malami on the basis of his daily legal briefings to Mr President. It is easy to guess that he still retains the confidence and appreciation of his appointor.
It is in the area of policy formulation and drive that the Attorney-General and Minister of Justice serves the people directly. In that regard, one noticeable effort is the contribution of the office to the fight against corruption. Malami’s no-holds-barred policy has affected all sectors of the elite community and people from all walks of life, including members of the ruling party – All Progressives Congress (APC), judges and justices, not excluding the former Chief Justice of Nigeria – Walter Onnoghen, former first lady, top military officers, including retired service chiefs, former Governors, former Ministers and many politically exposed bigwigs. Ironically, the former acting Chairman of the Economic and Financial Crimes Commission (EFCC), charged with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria, was removed from office and is now facing a probe on allegations of corruption. The spate of high-profile convictions and recovery of looted funds and proceeds of corruption and money laundering by the EFCC and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) is attributable to the commitment of the Office of the Attorney-General and Minister of Justice, which supervises and superintends their activities. Malami could be forgotten tomorrow, but the firm precedents he has laid in the fight against corruption may not be forgotten.
—Kargbo is a Lawyer, Law Teacher, Newspaper columnist and Movie Producer based in Nigeria.