The clamour for the separation of the ‘Office of the Attorney General of the Federation’ from that of the ‘Minister of Justice’ which is largely attributable, rightly or wrongly, to the perceived politicisation of the office of the AGF has been raging for quite some time. It, however, gained momentum based on the experiences of Nigerians in the 4th Republic. They question the fidelity of such an appointee of the president to the Constitution under a partisan system. Can he/she consciously discern that his/her functions of the AGF are not subject to the dictates of the President, unlike his/her functions of the Minister of Justice?
While the AGF is the Chief Law Officer of the Federation and is charged with protecting the public interest by ensuring the proper implementation of the laws, the Minister of Justice deals with the implementation of the policies of the government in the justice sector and is subject to the direction of the President in whom the Constitution vests all the executive powers of the federation. Nigerians who hold the view that the offices should be separated believe that one must be a saint to be able to navigate the delicate balance or the rather thin line that separates the appointee when acting as the Attorney General of the Federation from when he is discharging the duties of the Minister of Justice. Since we are all subject to human frailty, it would amount to burying one’s head in the sand to fail to acknowledge that such an appointee may sometimes consciously or unconsciously become susceptible to the political influence of the appointor (the President) or the political party. Where this happens, the appointee may lose the requisite objectivity required to discharge the functions of his/her office equitably, fairly and in accordance with the dictates of the law and conscience.
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Given Nigeria’s experience with the holders of the office under a partisan political system, there are palpable fears that an Attorney General who is lacking the requisite integrity, diligence and independence, will unwittingly become a tool in the hands of a powerful president enabling him/her to ride roughshod over the rights of the people. Thus, instead of insisting on his fidelity to the constitution and serving as a check on the excesses of executive power, the appointee may feel obligated to his/her appointer and may be moved to descend into the political arena and have his/her vision beclouded by the murky waters of politics to the detriment of the people.
In view of the foregoing, Nigerians have been vocal in their clamour that the two offices be separated and held by different persons. They want the Office of the Attorney General of the Federation to be insulated from politics through an appointment process and remuneration that guarantees its independence from the Minister of Justice. This view has found expression in the ongoing Constitution Review Exercise by the National Assembly which is considering proposals for the amendment of the constitution to separate the office. The practice around the world and some commonwealth jurisdictions supports separating the office. For instance, in the United Kingdon, the Office of the Attorney General is separate from the Minister of Justice. In India, Kenya and South Africa, to name a few jurisdictions, the offices are separate. This means that the concerns of well-meaning Nigerians advocating for such a separation to depoliticise the office are not misplaced.
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To achieve the objective of separating the office, views are divided as to whether a constitutional amendment is required. Reacting to these contending positions, my predecessor in office, Chief Michael Kaase Aondoakaa, SAN, recently opined that an amendment to the constitution was not necessary to achieve such an outcome. In his view, the provisions of section 150 of the constitution merely provide that there shall be an Attorney General of the Federation who shall be the Chief Law Officer of the Federation. He therefore contends that the president is, therefore, free to appoint a separate Minister of Justice in much the same way as he appoints other ministers not expressly mentioned in the Constitution without any consequential amendment of the constitution.
I am, however, of the respectful view that section 150 of the constitution goes beyond providing for the office of ‘Attorney General of the Federation’ and ‘Chief Law Officer.’ It adds a third ‘portfolio’ of a ‘Minister in the Government of the Federation’ to such an appointee thereby making it mandatory for the Attorney General of the Federation to be made a Minister in the Government of the Federation. For the avoidance of doubt. The section is hereby reproduced in ex tenso: “150 (1) 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” (emphasis supplied). I, therefore, humbly opine that there is need to amend section 150 of the Constitution by deleting “and a Minister of the Government of the Federation” to effectively separate the offices.
I am convinced that to achieve the objective of depoliticising the office, the Attorney General of the Federation should not be a Minister. This is because by virtue of section 148 of the Constitution, ministers are delegates who exercise executive powers of the president. They must therefore be subject to the direction and control of the president while exercising such powers. The Attorney General of the Federation should, therefore, head the Department of Justice akin to the offices of the Accountant General of the Federation, Auditor General of the Federation, and Surveyor General of the Federation, etc., and should be independent. The Attorney General of the Federation should be guided by the dictates of his/her conscience and the overriding public interest, and reporting on the activities of the office at least once in a year to the National Assembly.
Apart from the physical separation of the offices, care must be taken to address issues that are likely to impinge on the independence of the office holder. These include: the appointment process, qualification, tenure and remuneration. For instance, in the United States of America, the Attorney General is appointed by the President on the confirmation of the Senate while in the United Kingdom, the Attorney General is nominated by the Prime Minister and appointed by the Monarch (King) on the advice of the Prime Minister. Similarly, in Kenya, the Attorney General is nominated by the President with approval of the National Assembly and appointed by the President and reforms are being proposed to limit the tenure to 10 years. In India, the Attorney General is appointed by the President at the instance of the Union Cabinet. In South Africa, the Attorney General is appointed by the Minister of Justice and Constitutional Affairs after consultation with the Solicitor General and can be removed with the approval of both Houses of Parliament.
In addition to the appointing process, some jurisdictions prescribe qualifications, the most significant one being where the Attorney General is required to have the same qualification as the Chief Justice or Justice of the Supreme Court as is the case in Kenya and India respectively. In the United States, a Bar qualification will suffice while in the United Kingdom, qualification is not specified, but holders of the office have traditionally been Barristers who continue to practise with the Crown as their client. Also, the remuneration for the office is carefully considered to insulate the appointee from influences that may derail him or her. What is important is to ensure that the appointee is well compensated for the onerous duties he or she is discharging and to insulate him from financial pressures as has been done in some jurisdictions.
Given the peculiarities of Nigeria, care should be taken to ensure that the appointment process is clearly specified in the Constitution establishing the Office of Attorney General of the Federation and his counterparts at the state level. I submit that the Attorney General of the Federation should be appointed by the President subject to confirmation by the Senate. The appointee should have the same qualification as the Chief Justice of Nigeria and should be appointed for a fixed, non-renewable tenure of six years only. The appointee should not be removed except for misconduct, violation of the provisions of the enabling law, convictions or inability to discharge the functions of the office due to infirmity of the body or mind. The President should only remove the appointee upon an address supported by two-thirds of the Senate. The remuneration of the appointee should be stated in the Instrument of Appointment and should be reasonable enough to compensate the appointee and insulate him from monetary inducement. The remuneration so specified should be subject to yearly adjustments based on inflation to ensure that the salary is not eroded.
It is also necessary to clarify the duties of the Attorney General of the Federation as well as that of the Minister of Justice to avoid jurisdictional overlaps. The Attorney General, who must be a seasoned lawyer, should be appointed under section 150 of the Constitution to head the Department of Justice. He will be assisted by professional staff such as the Solicitor General, Director, Public Prosecutions, Director, Civil Litigation, Director, Legal Drafting, Director, Solicitors Dept, and Director of International Law. He will also superintend all the law officers and be responsible for posting them as pool officers to other ministries to deal with legal matters and proffer legal opinions on his behalf.
The Attorney General shall not be a Minister but shall attend the Federal Executive Council to render legal advice where required, attend Court as amicus curie even in a matter where the Government is not a Party and attend the National Assembly to render legal advice. The Attorney General shall also superintend the exercise of prosecutorial powers by prosecutorial agencies such as the Economic and Financial Crimes Commission (EFCC) the Independent Corrupt Practices and other related Offences Commission (ICPC), the National Agency for the Prohibition of Trafficking in Persons (NATIP) and the national Drug law Enforcement Agency (NDLEA). To be effective, all these Agencies as well as the Nigeria Police should report to the Department of Justice. For instance, In the United States of America, the Attorney General is assisted by Deputy Attorneys General, Associate Attorney General, the Solicitor General and heads of Litigating Divisions such as Criminal, Civil, Antitrust, Civil rights, Tax, National Security etc. The Enforcement Divisions include Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), US Marshals Service (USMS), and Interpol Washington.
On the other hand, the Minister of Justice need not be a lawyer and should be appointed under section 148 of the Constitution. However, care should be taken to appoint a person with knowledge of the justice sector. The Minister of Justice will be responsible for implementing Government policies in the justice sector. This will cover issues such as government policies on the administration of justice, access to justice, law reform, research, legal education, law reporting, etc. The Minister will be assisted by the bureaucracy comprising relevant professionals and technocrats such as the Permanent Secretary and relevant Directors. The Minister of Justice shall superintend over parastatals such as the Nigerian Law Reform Commission, Legal Aid Council of Nigeria, Nigerian Law School, Nigerian Institute of Advanced Legal Studies.
Finally, while the above proposals are designed to strengthen the hand of the appointee to do justice to all those who encounter the justice system, there is no guarantee that the separation alone is enough to insulate the office from politics. The occupants of the office must have the requisite moral fibre and strength of character to resist subtle pressures from the powers that be in the discharge of their onerous duties. The search for a suitable attorney general of the federation or his counterparts at the state level should go beyond mere knowledge of the law to x-raying the antecedents of appointees over a fairly long period to determine their suitability.
Mohammed Bello Adoke was Nigeria’s attorney general of the federation and minister of Justice from 2010 to 2015.
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