Who becomes the next Minister of Justice and Attorney-General of the Federation? Whoever gets the job should be prepared to hit the ground running, say lawyers. Eric Ikhilae writes
Will the next Minister of Justice and Attorney-General of the Federation be different from his predecessors? Will he wage the war against corruption without fear or favour? How will the legal profession fare under him?
These are some of the questions being asked by watchers as the nation waits for President Muhammadu Buhari.
The Senate last week cleared 18 of his nominees, setting the stage for their swearing in anytime from now. More nominees may be screened and cleared this week.
In the past, some Attorney-Generals looked the other way as laws were broken. Arbitrariness was the order of the day. Public officials and institutions equated themselves with the state. Court judgments and orders were obeyed selectively; prosecution of corrupt state officials was haphazard. At times the trial of those close to the seat of power was discontinued while politically connected convicts were pardoned.
Impunity reached an embarrassing height under the last administration when a former Inspector-General of Police (IGP) withdrew the security aides of immediate past Speaker of the House of Representatives and refused to recognise him as such because he had defected to another party.
Even while the issue was in court former police chief, Suleiman Abba insisted that based on his interpretation of the constitution, the Speaker could no longer be so recognised, having defected to another party.
The then Attorney-General and Minister of Justice saw nothing wrong in the conduct of the IGP and offered no contrary opinion on the issue.
Many are expecting a departure from the confusion of the immediate past when this government, which came to power on the strength of its promise to effect change, appoints its chief law officer.
This is because of the power a Minister of Justice and Attorney-General of the Federation (AGF) wields, given that the society is founded on law and order.
Section 150 (1) of the Constitution states: “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 Constitution specifies the skill to be possessed by an AGF in Section 150(2): “A person shall not be qualified to hold or perform the functions of the office of the Attorney-General of the Federation unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.”
The Attorney-General, by virtue of Section 174 (1) of the Constitution, acts as the adviser to the Federal Government on legal issues, coordinates the activities of the prosecuting agencies, among others.
Section 174 (1) states: “The Attorney-General of the Federation shall have power –
(a) 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 or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
Sub-section 2 of Section 174 allows the AGF to delegate its responsibilities by providing that: “The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department. “
Unfortunately, these powers of the AGF are sometimes exercised in breach of sub-section 3 of Section 174 of the Constitution.
The section is as follows: “ In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
Under the immediate past administration, some cases against public office holders and major corporate organisations were discontinued with the AGF exercising his power to enter nolle prosequi with little consideration for the public interest.
During ex-President Olusegun Obasanjo’s administration, statutory allocations to local governments in Lagos State were illegally withheld despite the Supreme Court’s order for their release. The then AGF defended the illegal and unconstitutional action.
Also under the late President Umaru Musa Yar’Adua, the AGF argued that the Commander-in-Chief could rule from wherever he was, even when the president had been away for months without formally informing the National Assembly, as required by the constitution. This omission prevented the Vice President from acting in his place, while the president sought medical assistance abroad.
Observers have reasoned that in view of the present government’s pledge to break from this unenviable past, it should ensure the emergence of an AGF, who will recognise the importance of his office.
Such an AGF would deploy his constitutionally ascribed powers to creating a society founded on law and order, where citizens’ rights are safeguarded within an arrangement that guarantees social justice and the rule of law as against the rule of man.
They argue that the new AGF should tackle, among others, the embarrassing delay in criminal justice administration, prevail on the Executive to ensure proper funding for the Judiciary, and ensure the effective coordination of the activities of the various investigating and prosecuting agencies if the government will be successful in its anti-corruption efforts.
The new AGF should be able to eliminate the current discriminatory application of the prosecutory powers of the state. Today, it is the practice that cases involving indigent defendants, without the financial power to manipulate the trial process, are promptly decided, with the convict handed hefty jail terms, while those with money are able to either scuttle the trial or agree to a plea-bargain arrangement with the state.
Lawyers including Joseph Nwobike (SAN); Sebastine Hon (SAN); Mahmud Magaji (SAN); Abuja-based Abubakar Sani and rights activist, Ebun-Olu Adegboruwa, have recommended that whoever emerges as the new AGF, must hit the ground running in view of the current state of the nation’s affairs.
They suggested areas where he must direct his/her energy, include enhancing the capacity of the judiciary to function effectively, improved training for investigators and prosecutors, among others.
Nwobike said the new AGF should concentrate on building the capacity of prosecutors and investigators.
This, he added, is because the major obstacles to successful prosecution of cases, particularly those relating to economic crimes, include poor investigation and inadequate prosecution.
Hon advised the in-coming AGF to watch his steps and realise that he/she is serving in a government that has zero tolerance for corruption. He also urged the new AGF to avoid the mistakes of his/her predecessors.
“The person should also realise that the international community is now interested in how the justice ministry operates. The new AGF should not let us down by engaging in any act of corruption or stay aloof when acts of corruption are being perpetrated.
“I expect the new Attorney-General to also initiate legislations that will improve on the state of the nation’s criminal justice system, including tampering with some provisions of the constitution. I fully subscribe to the call for the establishment of special courts to try corruption cases because of the attendant unwarranted delays being experienced in regular courts.
“Such a specialised court will also aid specialisation among judges. Those with general knowledge of law will become specialists in this area of law if assigned to the specialised court. They will be able to handle most delay tactics by lawyers.
“I also expect a greater coordination in the activities of the investigating agencies. Currently, there is no synergy between the police and other investigating agencies. The in-coming AGF has the responsibility of ensuring that the activities of these agencies are centrally coordinated to allow for efficiency,” Hon said.
Magaji advised the new AGF to be concerned about how to ensure the effectiveness of the criminal justice system to ensure that criminal cases are heard and decided on time. He said all efforts should be made to reduce the delay currently associated with criminal trials.
“The issue of bail should be automatic so that cases are not delayed. As soon as somebody is arraigned, he should be granted bail so that he can prepare for trial. This will eliminate the time that is wasted on arguing bail applications.
“He/she should also ensure strict application of the newly introduced Administration of Criminal Justice Act (ACJA), which is directed at eliminating delay in the criminal trial process,” Magaji said.
Sani urged the in-coming AGF to work to eliminate contradictions in the Economic and Financial Crimes Commission (EFCC) Act, the Independent Corrupt Practices and other related offences Commission (ICPC) Act, the National Drug Law Enforcement Agency (NDLEA) Act and the Code of Conduct provisions of the constitution in relation to the fundamental rights provision of the constitution.
“Specifically, with regard to the Code of Conduct provision, anybody convicted by the Code of Conduct Tribunal (CCT) could also be subjected to criminal trial in the regular court. This negates the constitutional provision against discrimination. This provisions amounts to discriminating against public officers.
“So, this provision in the Code of Conduct Bureau and Tribunal Act, which allows further criminal trial for a public officer convicted by the CCT on the same issue, subjects such public officer to double jeopardy, which is generally unacceptable.
“The provisions in the EFCC Act, the ICPC Act and the NDLEA Act, which empowers the agencies to prosecute anyone that refuses to respond to their queries/questions, negates the right of an accused person to remain silent. Even during trial in a criminal court, an accused cannot be compelled to testify. You have a right to remain silent,” Sani said
Adegboruwa noted that the major task for the new AGF is to tackle the intolerable delay in the administration of criminal justice.
He said: “The long year spent on prosecuting cases from the High Court to the Supreme Court is an embarrassment to this nation.”
Adegboruwa added that another major task is for the AGF to prevail on the Executive to ensure that the Judiciary is well funded.
“Funding is critical to ensuring an efficient Judiciary. The needed change in the Judiciary cannot be realised through the enactment of legislations alone. There is need for more judges, introduction of technologies to court operations, and continuous training for judges and court employees on new ways of doing things.
“It is totally unacceptable for cases to be adjourned because of lack of electricity. It is unacceptable for you to have up to 50 cases in a court’s list for a day. This is because the number of judges is inadequate.
“The new AGF should also look at ways of harmonising the various existing civil procedures applicable in all the states. This will make practice easier. He/she should also work to harmonise the activities of all the investigating and prosecuting agencies if he/she wishes to ensure an efficient criminal justice system,” Adegboruwa said.