It is a sour state for Attorney-General to also be Justice Minister
IT was a former Attorney-General and Minister of Justice, Prince Bola Ajibola, (SAN,) who two weeks ago, against all expectations joined other well-meaning Nigerians, to call for the separation of the office of the Attorney- General of the Federation from that of the Minister of Justice, which he combined during his tenure.
As the debate rages on, Mr. Femi Falana, a human rights lawyer and President, West African Bar Association (WABA) has thrown his full support for the call. In his opinion, apart from the fact that it is belated, Nigeria now leads the other four countries out of the 15-member states of the Economic Community of West African States (ECOWAS) that are yet to separate the two offices.
In this interview with THE GUARDIAN'S ABIODUN FANORO, Mr. Falana says Nigeria will not record any appreciable progress in the fight against corruption if the two offices remain fused. Excerpts
DO you share the opinion for the office of the Attorney General of the Federation to operate separately from that of the Minister of Justice?
Well, really it is not a fresh debate. For close to seven years now, the Nigerian Bar Association (NBA) has maintained a position on the necessity for separating the office of Minister of Justice from the office of the Attorney-General. We had the opportunity to translate the demand to reality under the Chief Olusegun Obasanjo administration (1999-2007), but unfortunately, we lost that opportunity to the selfishness of Chief Bayo Ojo, a former NBA President, appointed by Obasanjo as Minister of Justice and Attorney-General of the Federation. Whereas, before he occupied that office, Bayo Ojo had championed the call on behalf of the NBA. But as soon he became the Attorney-General and Minister of Justice, he no longer supported the call. I remember on one occasion, I challenged him and he said, cynically, "Femi, everybody loves power." As far as Bayo Ojo was concerned, he enjoyed the office of the Minister of Justice and that of the Attorney-General. But beyond the individuality, beyond the personality of those who are appointed into that office, in the interest of the country, we can no longer afford to keep the two positions together.
Keeping the two offices together makes a mockery of the prosecution of criminal cases in the country, both at the federal and the state levels.
How does it make a mockery of the prosecution of criminal cases?
The general trend that has been noticed and which has now became the rule, rather than the exception is a situation where states' Attorney-General and Ministers of Justice enter nolle prosque in most matters in the court where governments have vested interest. And these are high-brow criminal cases, including murder, robbery, fraud and arson. Let me buttress this with my experience in Gombe State where I am handling a case for Alhaji Mohammed Hassan, who is also a senior lawyer, he petitioned the Inspector General of Police that between 2003 and this year, about 86 persons have disappeared in the state.
The Inspector-General of Police found the allegation very serious. He, therefore, dispatched a team of policemen to the state to investigate the allegation. In the course of the investigation, it was discovered by the Police that due to pressure from families of victims of such state-sponsored disappearances, many cases were filed in court by the police. However, because the state government was interested in covering up such heinous crimes, the Attorney-General of the state simply entered nolle proseque, and that marked the end of those cases. I have not less than five of such letters for the dis-continuance of criminal cases, of culpable homicide, armed robberies and the rest of them.
In the same vein, all those who have been arrested for electoral offences between 1999 and now, run into thousands of people. They have had their cases thrown out of court at the instance of attorney-generals of their respective states. This is because in most cases, the thugs or the elements that rigged elections or that committed electoral offences usually belonged to the ruling party in the state. Once the attorney-general is appointed, the first assignment is usually the discontinuance of those cases. Today, Nigeria's image, Nigeria's rating in the corruption index, has just gone dramatically up.
What has this got to do with the combination of the two offices?
What we have discovered is that the office of the Attorney-General of the federation has continuously frustrated the efforts of the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Miscellaneous Offences Commission (ICPC) as well as the Code of Conduct Bureau to bring to book, highly- placed criminal suspects. If you would recall, as soon as the Umaru Musa Yar'Adua's government was inaugurated in May 2007, the first request made by the Attorney-General and Minister of Justice was that all case files brought to him for endorsement before these agencies could file them in court.
Very strangely, the request was granted by the president. It was only when some of us cried out that that was no longer the position of our law as defined by the Supreme Court which stated that all governmental agencies clothed with prosecutorial power do not require the fiat of the Attorney-General to initiate criminal proceedings in the court, that was when the directive was dropped. You now have a situation in the country where serious criminal cases are aborted or frustrated or discontinued for political reasons. Whereas if the two office are separated, the Minister of Justice sits in council with the president or the governor whereas the attorney-general, a professional appointed like a judge, independent of all organs of government whose duty it is to prosecute all criminal offences, once there is a prima facie case.
You are the president of the West African Bar Association (WABA), does this obtain in most WABA member states?
This is the current practice all over the world. In Britain, where Nigeria inherited this tradition, today, the secretary of Justice is different from the attorney-general in England. The two offices have been separated. The West Africa region has 15 states, 10 of them as of today have separated the two offices. These countries included Benin, Togo, Mali, Niger, Cote d'Ivoire, Senegal, Guinea Bissau, Guinea Conakry and Cape-Verde. The eleventh one, which is Sierra-Leone, is currently working on the modalities for separating the two offices. Only four countries, Ghana, Nigeria, Gambia and Liberia are still combining the two offices.
Why does it appear that only Anglo-phone countries are still left in the combination of these two offices?
I t is a case of being more Catholic than the pope. Britain that colonised these countries has already separated the two positions. So, there could be no argument for the retention of the two positions under one umbrella.
In the case of Gani Fawehinmi versus the president decided in 2007 by the court, Justice Aboki of the Court of Appeal observed correctly that in the 47 (then) years of our independence on no occasion has the attorney-general of the federation had gone to court to sue the government as required by the law, in the public interest. This is because the doctrine of locus standi is premised on the assumption that the attorney-General of the country would be the defender of public interest who would be ready to go to court and challenge anybody regardless of whose horse is gored, whether it is the government in power or the opposition. But in our case, because the attorney-general is appointed by the president or the governor, he sits in council with him, most of the time is a member of the ruling political party, so he finds it difficult to turn around to prosecute members of the same government. This is why we have made a mockery of the administration of justice in countries like Nigeria, where the two positions are fused together.
But these two offices were under same office during the First and Second Republics, yet there wasn't this hues and cry?
It was not that there were no abuses during the First and Second Republics, but our recent experience in the country is un-equalled, it has gone to an un-imaginable level. I must confess to you that in the First and Second Republics, we never had the office of the attorney-general so polluted as it is the case, hence the demand for separation has become very urgent in the interest of the country.
But the recent renewal of the call, Prince Bola Ajibola, combined the two offices as minister?
Incidentally, I was at the Forum in Abeokuta, Ogun State where Prince Ajibola made the demand. I said at the forum that those of us in the human rights movement had thought then that Prince Ajibola was the worst attorney-general and minister of justice we could have, because, he served the military. But today, with the benefit of hind-sight now, especially going by our recent experience, he has turned out to be a saint. This is because that office has been seriously polluted by incompetence, greed and corruption. If we want to make progress, if we want to have democracy truly entrenched in our country, if we want to have the rule of law in the true sense of the world, enshrined in our democratic system, we have to separate the two offices. The Minister of Justice may be a carpenter or a journalist, but the attorney must be a professional appointed like a judge and is empowered by law to prosecute whoever falls foul at the law.
If this demand, as you said earlier pre-dates the Obasanjo Presidency, why is it now that it is being revived? Does it not suggest the NBA has been sleeping?
The NBA has never been sleeping on this matter. Separating these offices is in the interest of everybody. I really have not seen anybody who has come out to say that the two positions be fused.
If Femi Falana is appointed Minister of Justice and Attorney General tomorrow, will this position not change?
I would remain as constant as the northern star. How do I keep the position if I believe it is not in the public interest to do that? In fact, before I accept such an appointment, I would have to discuss with whoever is the president of the country, that I would only accept this position on the basis that he is ready to accept my condition,which of course, is in the public interest.
In fairness to President Yar'Adua, I was told that at a stage he agreed that the two offices be separated, but that he was misled that the two positions are fused by the constitution. There is no provision for the Minister of Justice in the constitution, but there is provision under Section 174 for the office at the attorney-general. It says: "There shall be the Attorney-General of the Federation." It is not stated there, that he shall also be the Minister of Justice.
What gives you the impression that the present attorney-general has not been acting in the interest of the public?
You are aware of the case that is pending in England today in which the Attorney-General of the Federation is working with the defence counsel. You are also away of a case where a judge granted perpetual injunction against the EFCC for prosecuting a former governor. The Attorney-General did not file any paper in case challenging the injunction, which he ought to do in the public interest. You are also aware of a situation where the EFCC was investigating a case and the Attorney-General wrote to ask them to stop the investigation, of some aliens allegedly involve in some criminal offence. Under the constitution, the Attorney-General has no power to interfere in the investigation of a case, it is only when the matter is being prosecuted. This is why you really cannot continue, in the interest of justice in the country to combine the two offices.
If the office were separated, would the occupier of that office not be subordinate to the Justice Minister?
The Minister of Justice is a member of the cabinet. Like it is done in other countries, his basic duties are to assist the president in terms of having the necessary tools to promote the administration of justice. This includes provision of adequate and standard courtrooms, book for justice etc. The attorney-general is not under the Minister of Justice. In fact he has a higher responsibility, if the Minister of Justice commits an offence, he will prosecute him. The attorney-general is a professional, who is under oath to prosecute all indictable offences, while the justice minister is a political appointee.
What about the argument that it would amount of the duplication of public office and a waste of taxpayers' funds?
It is not about duplicating offices. If we need 10 offices in the task of promoting the administration of justice in the country, it won't be money wasted. Right now we are wasting more resource combining the two in the light of the unprecedented corruption and stealing of public fund it brazenly promotes. We are causing more damage to the administration of justice in the country and her image. Where the attorney-general of a country can write to another country, asking why the country jailed someone who committed a great economic crime. An attorney-general does that in order to please a president or his friends.
What is the NBA doing to ensure a quick actualisation of this demand?
The NBA recently held a retreat on the review or amendment of the constitution and this is one of the key points being canvassed by the bar. Happily, a good number of legislators have also been the wisdom in separating the two offices, as it is the case in many modern states. I am very sure the members of the National Assembly, having noted that the embarrassment this is causing the county and the irreparable damage it is doing to its image, would support the separation without further delay.
If the attorney-general is going to be an appointee of the president, how independent could he be?
In the kind of reform we are talking about, the attorney-general like a judge is going to be based on about two or three names recommended by the National Judicial Council. It is from the names sent by the council that the president would appoint the attorney-general who would be confirmed b the National Assembly. Once his tenure is guaranteed, which of course he does not hold to the whims and caprices of the president, but only to the National Assembly, nothing would stop him from doing his job without any fear or favour.
This year, you did not apply to be considered for the status of Senior Advocate of Nigeria (SAN)?
I think I have heard enough of applying. I have moved on.
You are aware SAN like the rank of general in the Army, is what every lawyer strives to attain, why are you discouraged?
It's a privilege giving according to the wisdom of the Legal Practitioner Privileges Committee. If for political reasons some of us are not considered to merit it, why should I hit my head against the wall? Well without sounding arrogant, I am fulfilled as a lawyer in my own little way. So I don't want to join issue with anybody. That is why I am not part of the campaign whether to abolish it or to retain it.
Calls for the abolition of the title were deafening at the last NBA conference in Lagos, honestly what is your objective view about this call?
One noticeable development in the whole campaign is the recognition by all sides, that if it is to be retained there is the need for urgent and radical reform. As far as I am concerned, the relevance of the rank would be determined by the desire of the bar to retain it.
If you choose not to apply again and be conferred with the rank, are you not going to be denied some privileges in court?
For a long time, I never applied. I decided to do so at a point for a purpose. Since that purpose has been defeated, I have forgotten about it. As far as I am concerned, when we get to court, everybody knows his place. If I am made SAN tomorrow, that will not earn me any brief any longer. For this reason, I cannot complain. I won't miss any privilege that is constitutionally due to me in court. There is nothing like calling the case of a SAN in court before someone who is not a SAN, where the SAN's case is not listed before the other man. This is not provided for either in the constitution or any legally known court regulatory order. This is part of the general problem. I think this is where our colleagues are getting it wrong. What is happening is abuse of privileges, abuse of rights and abuse of the law? Section 6 of the legal practitioners' Act provides that "A senior Advocate of Nigeria shall mention his case, out of turn, if it is listed for mention." The law does not allow anybody to detain lawyers in court because a SAN wants to conduct a trial. The law does not allow this.
On a number of occasions, when this was to be done against me, I complained, and on each occasion, I won, because when I got to court, I am armed with a copy of the Legal Practitioners' Act. If somebody is going to disorganise the system of the court, you can draw the attention of the court to the provision of the law.
