By Onikepo Braithwaite
There has been so much speculation about who will occupy the Ministerial and other positions, in the new Tinubu administration. Closer to home, we Lawyers are rather curious about who will be our next Attorney-General of the Federation and Minister of Justice (AGF), and rightfully so too, since there was nothing particularly spectacular or impressive about the performance of the immediate past AGF, consequently leaving the administration of justice sector in a worse condition than he met it. Sections 174 & 195 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) provide for the office of the AGF and State AGs respectively.
There is a great deal of work to be done, to bring our administration of justice sector up to par, in line with global best practices. Several names of legal practitioners have been mentioned, all Senior Advocates of Nigeria, for the position of AGF. Past President of the Nigerian Bar Association (NBA), Dr Olisa Agbakoba, SAN, in a recent interview with our Arise TV, even went as far as endorsing ‘the two Tundes’, Babatunde Kwame Ogala, SAN (Beekay), and H.E. Dr Babatunde Raji Fashola, SAN (BRF) (whom Dr Agbakoba referred to as “a big brain”) as his “Number 1 top assassins” for the position of AGF, stating that after ‘legal failure’, Nigeria requires a strong AGF to do strong work in legal development and law and order; and he believes that the two Tundes fit the bill. The names of all those whom we have heard (I will not bother to mention them, since people have just been speculating), are all eminently qualified for the position; they also already have their work cut out for them, and will certainly do a better job in administration of justice sector reform, than we have seen in the last eight years or more.
Office of the AGF: Expectations
One thing we can safely say is that, the office of the AGF is not about putting your relatives and cronies in principal agencies that complement the Justice Ministry, to use them as a tool for witch-hunting perceived enemies of Government or personal enemies, nor is it about using the position to amass wealth as a launching pad for higher political office. It is principally about keeping the Government on the right path constitutionally and legally, giving legal advice and opinions to the President and Government agencies, law and administration of justice sector reform, and defending the rights of the people.
1) A Good Team Player for Positive Development & Administration of Justice Sector Reform
Apart from being experienced, we require an AGF who can work hand in hand with the Chief Justice of Nigeria (CJN), to bring about the desired improvements in the administration of justice sector. First of all, discipline must be restored to the sector. The era of law enforcement agencies, indeed, any Government authority or agency, observing our laws in their breach or disobeying court orders, must come to an end. Rule of law, must be entrenched. The active involvement of the Inspector General of Police (IGP) in bringing about positive developments in the administration of justice sector, is also crucial. Last week, I gave a simple example of Police Prosecutors who are non-legal practitioners, still prosecuting cases at the Magistrate Courts, contrary to Section 106 of the Administration of Criminal Justice Act 2015 (ACJA) and Section 66(1) of the Police Act 2020 (PA). Thankfully, we have a new IGP. A strong cease and desist message should emanate from the CJN and AGF to the IGP and the Chief Judges of all States, that this unlawful practice should stop immediately, failing which there will be consequences for disobedience. For one, any Magistrate entertaining unqualified Police Prosecutors must face disciplinary action, including dismissal, while such erring Prosecutors should suffer the same fate of disciplinary action or even dismissal from the Police Force. Isn’t it ironical, that chronic lawbreakers should be the ones purporting to enforce the law against others?
2) An AGF that is bound by the Provisions of the Constitution
We require an AGF who will be bound by the provisions of the Constitution, be blind to ethnicity and religion, and therefore, adhere strictly to Sections 10 (religion not being a consideration in the public space) & 42 (no discrimination) thereof. The issue of allowing religion into our public space, has been detrimental to our unity and progress. In 2020, a Kano State Sharia Court sentenced a Musician, Yahaya Sharif Aminu to death by hanging by for blasphemy. This kind of behaviour, where courts act ultra vires their jurisdiction, must no longer be tolerated. Aside from the fact that the Holy Quran doesn’t prescribe death for a blasphemer, see Quran 33:49; 4:41, and even if it did, Sections 210 & 213 of the Penal Code (applicable in Northern Nigeria) and Section 204 of the Criminal Code (applicable in Southern Nigeria) are the laws that govern the offence of blasphemy in Nigeria, and they both do not prescribe more than a maximum of a two year imprisonment or a fine or both, for committing the offence of blasphemy/insult to religion. The Constitution does not give the Sharia and Customary Courts the power to exercise criminal jurisdiction, only civil jurisdiction – marriage, divorce, inheritance and the like – see Sections 262 & 282 of the Constitution; and, we require an AGF who is bold enough and willing to do the right thing, by insisting on the provisions of the Constitution in this regard. By virtue of Section 1(1) of the Constitution, it is supreme, and all persons and authorities in Nigeria are all bound by it, including the Sharia and Customary Courts, and the officers that man them. In a Muslim State like Saudi Arabia that applies Sharia Law, Sharia Law is supreme, while in a secular country like ours where the State has no religion, the Constitution is supreme.
3) A Fearless and Honest Legal Adviser to Government
An Attorney-General is not just a legal adviser to the President, Government and its agencies, proposes new laws while vetting old ones for constitutionality, repugnancy etc, he/she represents and protects the rights of the public as well. In the last few years, the AGFs Nigeria has had, seem to have limited themselves to the other roles pertaining to Government, with the President or Governor (in the case of State AGs) being their Number 1 Client, and not that of being the public’s representative in the true sense of the word. Had the immediate past AGF advised the Government properly, for instance, the incessant contravention of Section 38 of the Central Bank of Nigeria Act 2007, and the unlawful ways and means advances made to Government by the CBN, would not have been permitted; while the disastrous currency redesign policy which didn’t follow due process and unleashed so much suffering on Nigerians, contrary to Section 16 of the Constitution, would also not have been allowed.
4) Protection of the Rights of the People
While the past AGF wasn’t particularly exemplary even in his role of advising Government on constitutional and legal matters, and policy, there is so much injustice that has been perpetrated against the public, and the immediate past AGF did nothing to correct it. For example, in the case of the currency redesign policy which plunged Nigerians into so much hardship, if anything, the AGF supported this obnoxious policy, forgetting his role as the protector of the rights of the people. I recall that in 2021, the immediate past AG of Ekiti State, Olawale Fapohunda, SAN instituted an action against the IGP for the unlawful sack of Policewoman, Omolola Olajide for being unmarried and getting pregnant contrary to Section 127 of the Nigeria Police Regulations under Section 46 of the old Police Act 2004, a law that is obviously repugnant and contrary to Section 42(1)(a) of the Constitution; some people criticised Mr Fapohunda for instituting such an action against the IGP, wondering whose side he was on, forgetting that his role as Ekiti State AG was also to protect the rights of the people of Ekiti State, including that of Ms Olajide.
5) Enforcement of the Law
How active have AGFs been, for instance, in ensuring that judgements are executed in cases in which judgements have been delivered against the Police, either in damages being awarded against them, or that sentences against convicted Police Officers, are carried out in the interest of justice, especially to act as a deterrent to offenders? Apparently, the Nigeria Police Force is the biggest debtor, when it comes to payment of damages awarded against it. The Police almost never pays!
Lawyers are watching the trial of Police Officer, ACP Drambi Vandi, who is charged with the murder of our pregnant colleague on Christmas Day 2022, Mrs Bolanle Raheem. In Ekum v State (2022) LPELR-57683(SC) per Helen Moronkeji Ogunwumiju, JSC, the Supreme Court affirmed the judgement of the lower courts convicting and sentencing the Appellant, Police Constable Henry Ekum to death by hanging, for the offence of murder. Similarly, in Egheghe v State (2020) LPELR-50552(SC) per Uwani Musa Abba Aji, JSC, the Supreme upheld the conviction and death sentence on PC Matthew Egheghe for shooting one Emmanuel Victor to death. In this case, the deceased was a passenger on an ‘okada’ which was stopped at a checkpoint. The Policeman collected N50 bribe from the okada rider, and the deceased made a harmless remark about the Police not going to Church, not even on a Sunday (possibly meaning that even on Sundays, the day set aside by Christians for worship, they still collect bribe at the checkpoints). The Appellant slapped the deceased, and in order to avoid further beatings, the okada rider sought to run off. They were chased, the deceased pulled down and shot several times. Has Egheghe’s sentence been carried out? Probably not. And, it is the knowledge that, at the end of the day, not much will result from such convictions that gives out-of-control law enforcement agents the impetus to continue with their nonsense unabated. Death sentences must be appealed all the way to the Supreme Court, but, why waste the precious time of the Apex Court whose docket is already heavy, when its judgements will not be executed? Of what use is a judgement that is not executed? It’s like a toothless bulldog, one whose bark may be frightening, but cannot bite! We require an AGF who will ensure that the Police, and indeed, all Government agencies that have a penchant for disobeying court orders, don’t turn executory judgements into mere declarations.
An up and doing AGF, in protecting the rights of the people, will ensure that such sentences are carried out promptly. When the news filters throughout the Police that there’s zero tolerance for extra-judicial killing as sentences will be executed promptly, and those who may aid the escape of Police suspects will also be charged as accessories to the crime after the fact, like the suspects in the murder of the ‘Apo Six’ who escaped from the top floor of a Police building in Abuja and are still at large to date, the Police will sit up.
Some of the observations I have made about the qualities of a good AGF, are only the tip of the iceberg. Advising the Government properly about agreements that Nigeria enters into with other countries/commercial contracts with foreign entities, is also an important role of the AGF, and not just the recapture/redemption of stolen Nigerian funds in foreign accounts, for a consultancy fee, which seemed to be a focus of the immediate past AGF. We hope that unlike what we have seen in the past eight years, the Tinubu administration will get it right, in its choice of AGF.