To be the Attorney General of the Federation at this point in time requires courage, single-mindedness, clear vision and uncompromising commitment to the fundamental objectives and directive principles of state policy. This stems from the fact that Nigeria is going through fundamental constitutional and electoral changes and challenges.
The Nigerian people and the international community are waiting, watching and following these changes with keen interest.
These changes are also taking place at a time that the Nigerian nation is preparing for the 2011 elections and these preparations are hazy and unsteady. The changes are taking place at a time that the National Assembly claims it has concluded work on the alteration of some provisions of the 1999 Constitution and have sent the 1st amendment to the Nigerian constitution for gazetting. The changes are taking place at a time that no one knows for sure how many gubernatorial elections will take place on the basis of the 1999 Constitution or the 1st amendment to the 1999 Constitution. The changes are taking place at a time that the National Assembly has almost concluded work on the amendments to the Electoral Act, 2006. The changes are taking place at a time that no one knows the number of political parties that will contest the 2011 elections and the type of ballot paper and ballot box that will be used to accommodate over 60 political parties.
These times are indeed tough times and to be the Attorney General of the Federation at this time is challenging. It is challenging because of the peculiar “do or die” electoral succession that takes place in Nigeria. It is challenging because of the skewed nature of political succession in Nigeria. It is challenging because a number of Nigerians allow the rule of law and due process to reign when it favours their own interest.
In other climes and jurisdictions, the Attorney General as the Chief Law Officer enjoys enormous powers and these powers are unfettered. The powers are independent of the government in power and the Parliament. Some Attorneys General go through the process of elections and are elected by popular votes and owe allegiance to the Constitution and the people.
Fidelity to the Constitution is therefore the watchword as abuse of office and inability to courageously discharge the functions of the office leads to political suicide.
In the United States, the Attorney General is nominated by the President and assumes office on confirmation by the Senate. He serves at the pleasure of the President and can be removed by the President. In the United States, “the Judiciary Act of 1789 created the Office of the Attorney General which evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government. The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested. In matters of exceptional gravity or importance the Attorney General appears in person before the Supreme Court.
Since the 1870 Act that established the Department of Justice as an executive department of the government of the United States, the Attorney General has guided the world's largest law office and the central agency for enforcement of federal laws”.
In Nigeria, the Attorney General is the Chief Law Officer and represents the Federal Government of Nigeria in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested. He also exercises the powers entrusted on him by virtue of the provisions of section 174 of the 1999 Constitution. The Attorney General has 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 or under any Act of the National Assembly. The Attorney General of the Federation is also vested with the power to take over and continue any such criminal proceedings that may have been instituted by other authority or person and to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
In exercising his powers under section 174 of the Constitution 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. The challenge before the Attorney General of the Federation in this times lies in working and operating within the compass of section 174(3) of the Constitution of the Federal Republic of Nigeria.
In the re up to the 2011 elections, will the beneficiaries of political power and those that regard power and its appurtenances as their trophy and birth right allow the Attorney General of the Federation to make a decision on contentious, sensitive and controversial legal and constitutional matters based on the public interest, the interest of justice and the need to prevent abuse of legal process? Will political opportunists respect the fact that the Attorney General of the Federation is the Chief Law Officer of the Nigerian nation and was not appointed to serve narrow, selfish, and individual and or groups interests?
Here lies the huge challenge before the Attorney General of the Federation. In our own circumstances, the Attorney General is appointment by the President and confirmed by the Senate. More often than not, the Attorney General is a member of the ruling party and the ruling party regards him as first and foremost a Party member and secondly as the Attorney General of the ruling party who must at all times protect the interest of the party and the government in power.
Some political stalwarts also believe that whatever advice the Attorney General gives to the government, its agencies and departments must be one that advances the interests of the party in power and not necessarily based on the Attorney Generals appreciation of the issues, the law and the constitution.
It will be stating the obvious that the Attorney General of the Federation will play a key role in the conduct and outcome of the 2011 elections and ultimately in the survival of constitutional democracy in Nigeria. This is hinged on the fact that sooner than later, the Independent National Electoral Commission will roll out its timeline for the conduct of the 2011 elections. Embedded in the timelines lies a dormant and yet explosive constitutional matter on how many Gubernatorial elections will take place in January 2011.
The case of Anambra State is settled and elections have been held in Anambra and the next election will take place in 2014. The case of Segun Oni of Ekiti is hanging in the balance and the cases of Nyako of Adamawa State, Ibrahim Idris of Kogi State, Aliyu Wamakko of Sokoto State, Liyel Imoke of Cross River State and Timipre Sylva of Bayelsa State are also not clear. The election petitions tribunals and the Court of Appeal annulled some gubernatorial election in some of the states and ordered a partial or full re-run of the elections. Does the second oath of office taken by some Governors whose election were partially or wholly nullified amount to a re-affirmation of the first oath of office or does it amount to a fresh oath of office activating section 180(2) (a) of the Constitution which states that the Governor shall vacate his office at the expiration of a period of four years commencing from the date when in the case of a person first elected as Governor he took the Oath of Allegiance and oath of office. The Attorney General of the Federation must in conjunction with the National Commissioners of the Independent National Electoral Commission make a decision on this sore point.
The Attorney General of the Federation must also decide as quickly as possible whether the 1st amendment to the 1999 Constitution requires presidential assent. The Attorney General says yes and the National Assembly says the Constitution is already in operation. The implication of the two positions is that only the judiciary will have the final say on the matter. There lies the predicament of the Nigerian people. If the Independent National Electoral Commission conducts the 2011 elections in January 2011 using the 1st amendment to the Constitution and later the Federal High Court or the Court of Appeal or the Supreme Court makes a pronouncement that the Constitution can only come into force after a presidential assent the elections conducted under the said constitution will be null and void and the Nigerian people’s money would have been wasted and democracy will be in jeopardy as nature abhors vacuum.
There is also the contentious issue of whether the National Assembly has the right and power to set the dates and prescribe the order of elections having regard to the third schedule to the 1999 Constitution which gives the Independent National Electoral Commission the power to organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation.
The Attorney General will also face a huge challenge on the issue of electoral malpractices and the prosecution of electoral offenders in the absence of the passage of the Electoral Offences Commission Bill. It is therefore in the enlightened self interest of the Attorney General of the Federation to push for the promulgation of the Electoral Offences Commission Bill.
The way out in all this is for the Attorney General of the Federation to pay close attention to his Oath of Office. Courageous adherence to the tenets of the Constitution and uncompromising fidelity to the public interest, the interest of justice and the need to prevent abuse of legal process will endear him to the Nigerian people.
Desperate politicians will insist that the law and the constitution must be bent and interpreted according to their own wishes. They will call him names and accuse him of sabotage and working for forces alien to the ruling party. They will attempt and insist on compromising him. They will use friends and relatives as bait to sway him to do what is not right in the eyes of the law and the constitution.
However, if Mohammed Bello Adoke (SAN), the current Attorney General of the Federation can withstand the pressure from known and strange political forces and insist that he is the Attorney General of the Federation and not that of the ruling party or the opposition, then the Nigerian people will remember and be grateful to him. With the few steps he has taken and some of his pronouncements and actions, he has give an indication that he has the courage and capacity to withstand pressure and is ready to serve the Nigerian people.
Barrister Festus Okoye
Constitutional Lawyer and member
Electoral Reform Committee
August 5, 2010