AFTER THE OIL WHAT NEXT?

AFTER THE OIL WHAT NEXT?
It is no figment of imagination that Nigeria is one among many countries naturally blessed with an abundance of resources, crude oil inclusive. What is ironical however is that quite a large percentage of its teaming population live below poverty line. One may attribute this to mismanagement by the leaders who at various times have been deficient in their abilities to harness such resources to the optimal advantage of Nigerians. While other resources have been completely abandoned for crude oil which incidentally is today the mainstay of the nation's economy, one is more disturbed by the ugly fact that the technical expertise required for exploration and exploitation of the resources largely depends on foreigners. What is also certain is that this resource will not last forever; it is not perennial, it surely will get dried up someday.

According to views of Experts, the Nigerian crude oil reserve is put at 35.3 billion barrels. If production continues at the current rate, of 2.35 million bbl/day the oil will not last more than four (4) decades, which is a matter of roughly forty years before it gets dried up. Saudi Arabia, the country with the largest crude oil reserve of 261.9 billion barrels has 66 years with which to get exhausted. Also Iraq with a reserve quantity of 115 billions of barrels still has about 100 years of life span. Kuwait with 101.5 billions of barrels has 100 years of sustenance. In the case of the United Arab Emirate (UAE) having 97.8 billion barrels in its reserve, can only carry on in about 97 years time. Iran’s oil reserve is put at 125.8 billion barrels and would cease to flow in about 93 year’s time.

Nigeria should have more cause to worry because it ranks lowest in terms of quantity and production life span. The question as to what happens to its economy forty (40) years after inspires a bleak future especially as there will be no more crude oil to rely on thereafter; the present generation of Nigerians and Nigerian governments need to begin a redirection of their focus away from the crude oil to renewable resources which are more environmental friendly such as Wind, Solar and Hydro energy which are in abundant supply in Nigeria; they could be harnessed and developed to replace the post-oil-age era after forty years, but by which institutions or machinery would it be realized?

Over the past few decades, Nigeria has emerged as one of the key political leaders in Africa. Despite a long history of under-performance, driven primarily by leadership and visioning problems, it remains a key global strategic energy partner. It has crude oil and thus the capacity to influence the dynamics of global commerce and industry. But when our oil reserve gets exhausted, we will witness dramatic national transformations with enormous consequences. Oil has been the driving force of Nigeria's economic wellbeing. Oil dominates our foreign earnings. The progress we made in agriculture before the dawn of petroleum has been left behind.
However, the challenge for Nigeria is not necessarily what happens now, but what happens when the oil wells dry up. In others words, what would be the position of Nigeria, politically and economically, when the country can no longer generate foreign exchange from the sale of oil.

Our nation remains governed in a political system of extreme stagnation and avalanche partisanship. A system that breeds venoms with capacity to destroy the heartbeat that keeps the nation moving forward. It has created a syndrome that continues to prevent the nation from utilizing the gains of oil sales to advance the citizens, the infrastructure and give Nigeria a needed clout in the global arena.
The nation has failed in many areas because our past leaders are entangled in managing government processes and political pandering instead of being servant leaders, by serving the interests of the masses. However, a look into Nigeria's future without oil will be challenging. At least, the nation will come to reality after years of poor judgments and mismanagements which have caused deep pains on the citizens.

There will be serious challenges in various sectors of the Nigerian Economy as government loses its capability and propensity to spend. Economic crisis of unmitigated proportions crystallizing in collapsed economic sectors, governmental and societal institutions will be prevalent. The banking and finance sector of the economy will witness great upheavals as government’s patronage dwindle. Currently, Nigeria depends heavily on fossil fuel for her energy needs, despite the best efforts of government to generate electricity, Nigerians are perpetually in darkness, the post oil and gas era will no doubt witness severe energy crisis. Sadly Nigeria is currently not doing anything realistic in harnessing alternative energy sources apart from fossil fuel.

The first challenge however, will be cleaning the empty oil wells. It is unfortunate that the oil companies, who despite knowing the public health and the environmental impacts of gas flaring, continue to flare gas recklessly in Nigeria. We hope they will have the morality to clean those wells and restore them to pre-drilling ecological landscapes before they depart. Within Africa, Nigeria's influence will be tested. Since our nation has not developed any creative technology that will sustain the economy, some African nations may dominate us. South Africa could become like a hegemonic empire in Africa with extreme power. That nation continues to invest massively in education, giving Africa its best universities, and attracting the best African brains.

On the international scene as Nigeria lose her ability to influence matters in the continent, South Africa would become unrivalled and could rule Africa. As the economies and political power of other African nations such as Ghana, Libya (which continues to deport Nigerians in hundreds) and Egypt grow; the capacity of Nigeria to define and influence the African Union will shrink despite enormous opportunities for new Africa leadership to position the continent competitively. As South Africa takes the central role, there will be broad impacts across the Economic Community of West African States (ECOWAS) region. A post-petroleum era will produce massive complications and fundamental dislocations in Nigeria's capacity to influence the region as South Africa becomes more prosperous owing to a highly diversifying economy. As it buys into more African markets, its abilities to influence governments will become more pervasive and that will dwarf Nigeria's influence. Also, there will be tendencies for more educated Nigerians to move abroad with potential strangulation on the economy.

Politically, Nigeria could emerge as a true federal system from its present quasi-federal structure. While the Nigerian union will be continuously morphed to remain strong, the states will be expected to go back to fundamentals to develop ways to function because central funding will diminish. Without crude, assessing external (international) loan will be difficult and many Nigerian states will be challenged to be accountable and innovative with their resources. They will establish structures and institutions to create wealth and inter-states competitions will emerge. This will be followed by effective tax and revenue collection techniques. From federal parliament to state assemblies, the political system will be revamped. The present system which is extremely expensive and supported by the largesse of the crude oil will be transformed. Some states will become creative in representative system in order to save cost. I see a scenario where some states will sponsor representatives on part-time with the number of positions reduced by half. Yes, new politics will evolve and the democratic system will be seriously tested.

One cannot imagine what will happen to education in Nigeria if it cannot be funded properly with the enormous oil revenue. In the post-petroleum era, the present model of higher education in Nigeria will collapse and government will request schools to fund themselves with minimal central supports. Schools will have to become very competitive and innovative to attract grants and revenues to survive and grow. Unfortunately, it must still overcome the present lost years of decay perpetuated by poor funding and outdated model.

SOLUTIONS:
The challenges that will confront the Nigerian economy in a post oil and gas dispensation would be diverse and enormous. The unacceptable state of Nigeria's over-dependence on an oil based economy is most galling given Nigeria's enormous endowments of natural and human resources. This is more so given the fact that Asian countries, such as Singapore and Malaysia, with similar colonial heritage and attributes attendant thereto, and similar natural resource endowments, have recorded significant successes in the development of their economies since 1965 when they were at par or even behind Nigeria. Singapore, some 30 years later had a per capita income of US$10,000; whilst that of Nigeria was US$300.

Nigeria's economic decline, especially during the last 20 years is illustrated by the fact that per capita income, which was US$1,000 in 1965 had declined to US $300 by 1998. Within 18 years, Nigeria had declined from being a low middle income country and amongst the fifty richest countries in the world, to one of the 30 poorest. This is unacceptable, it is time to plan ahead for the post-oil-age by investing on healthy and viable programmes that will enhance the living condition of people. In the contemporary context, this is the time to think ahead to generate ideas that would sustain the next generation because when they are left in this state of inertia, the concomitant effect could be too devastating.

Human Capital Development:
The nation still has time to prepare for the post-petroleum era. It has to invest in education. This include diversification of Ideas I hope you note from what we are saying that the problem could not always have been just implementation, as is popularly asserted. There is need to open our minds and diversify our ideas and our thinking as well. There are many wrong ideas in high places in both the public and the private sectors. This is important as education remains one of the best ways to sustain any economy. It is an organic engine for national political and economic succession and catalyst for national prosperity. investment in human capital will become the major at element of capital formation. Brain power is already emerging as the major engine of economic growth world-wide. This is true of both developing and developed countries. Production will increasingly be knowledge based and an increasing proportion of the knowledge will be privately owned and protected by various forms of intellectual property rights.

Investment in ICT:
Information technology will become the main engine of economic growth. It will displace oil, just as oil displaced steel in the second half of the last century, as the main engine of economic growth. Increasing advances in information technology, especially in the telecommunications sectors, will quicken the pace of globalisation of finance and trade. The government must recognise that Nigeria's efforts to survive and grow her economy in a post oil dispensation must be effected within the context of a world economy dominated by globalisation, liberalisation and technology; especially information technology.

In India, for instance, the export of computer software as of 1999 was already in excess of U.S. $2 billion and is set to become India's largest export industry before the end of the first decade of the 21st Century. The impact of the information technology industry on the domestic economy of India is very impressive and is responsible for creating new investment and employment opportunities in India. Nigeria has those attributes which have attracted IT companies, such as Microsoft, to invest in the IT industry in India: large domestic market, skilled labour and extensive use and knowledge of the English language.
Furthermore, through a combination of investment in the application of biological, mechanical and information technology (IT), production in the agro allied sector can also be enhanced.
Solid Minerals Development:
Nothing re-affirms Nigeria’s endowment of abundant material resources more than the country’s vast solid minerals deposits, spread out across all states of the federation. Before the advent of petroleum, agriculture and solid minerals sustained our economy. In fact revenue from these sectors were initially used to develop our oil. But the lure of oil resources made us to abandon these sectors to our obvious detriment. Even when data on our minerals deposits is still being computed thirty (34) solid minerals types have so far been identified in different locations of Nigeria. Out of this thirteen (13) are actually being mined, processed and marketed. The remaining twenty one (21) mineral types although in high demand in the international market are untapped.

There is no denying the fact that solid minerals mining is strategic to the economic stability of Nigeria in a post oil and gas dispensation. For instance statistics indicate that coal alone has an export potential of 15 million tonnes per annum valued at One Billion USD. Other minerals with an equally high export potential include Barite, bitumen, Iron-ore, Gold, Limestone, and lead zinc. These 7 strategic minerals which development needs to be urgently prioritized by government, have an estimated total export potential that clearly surpasses our current oil earnings. Legislations such as the Minerals and Mining Act 2007, the Nigerian Extractive Industry Transparency Initiative Act (NEITI Act) and the Environmental Impact Assessment Act (EIA) all recently passed by the National Assembly are right steps in the right direction which needs to be sustained for economic well being of the country in a post oil and gas dispensation

Alternative Energy Sources:
Already developed countries are channelling huge resources into research and development of alternative and renewable energy sources that would enable the transition away from fossil fuels, signalling their resolve to transit away from the fossil fuel economy. Likewise, government policies and regulations are providing incentives to the private sector to expedite this shift. For instance, Denmark put in place an energy tax levies aimed at restructuring the power markets by raising a levy on conventional energy supplies, and refunding it to renewable energy power producers in the private sector (EWEA, 1991). Street and Miles (1996) also reports that prior to 1989, private developers in Denmark received a capital subsidy of up to 30% for each wind turbine erected in place of the conventional fossil fuel-based power generation facility.
Likewise in Netherlands, under the subsidized market introduction programme (IPW) introduced in 1986, investment costs for wind power were subsidized by up to 40% and this translated into an increase in capacity to 120 MW of installed wind power in 1996 (Street and Miles, 1996). In the UK, the non-fossil fuel obligation (NFFO) requires regional electricity companies in England and Wales to secure specified amounts of electricity from renewable energy sources (Street and Miles, 1996). This demonstrates that actions are already being taken to curb the use of fossil fuels in developed countries. Nigeria likewise must join this train if she must survive in a post oil dispensation.

Agriculture:
Nigeria’s decline in agriculture is pathetic, in the 60s, agriculture was the mainstay of the Nigerian economy, a major source of employment and the country's main foreign exchange earner. The country not only produced enough to feed itself, it was the major food basket for the West African sub-region. We had cocoa in the West, rubber in the Mid-West, agricultural produce and palm oil in the East and South-South, food crops in the Middle Belt and the North. Nigeria's soil spewed forth cocoa, groundnut, tomatoes, yam tubers, cassava, maize and so on. Livestock was just as abundant. The need to diversify the economy can never be overemphasized. Our over dependence on oil based resources is a time bomb waiting to explode. We need to make concerted efforts to redirect and intensify investments in the agricultural sector in order to further expand the economy for Nigeria to survive in a post oil and gas dispensation.


Fight Against Corruption:
Transparency International in their Corruption Perception Index in early 2002, pronounced Nigeria as one of the most corrupt nations in the world. This is in spite of the fact that democratic institutions had been introduced and the Anti - Corruption Commission set up. Even as at today, Nigeria occupies the 130th Position down the ladder among nations adjudged to be corrupt by Transparency International Corruption Perception Index. Again, according to a recent report by the EFCC, official corruption and fraud have cost this country about US$400 billion during the last four decades of the 20th century.
This amount is about equal to all the aid given to Africa by Western donors during the same period. Think of the infrastructure this amount of money could provide, at least it could fix our power sector which needs about US$60 billion to revamp. Think of the multiplier effect this will produce in the economy. Regrettably, more funds are still being lost by the day as Nigeria have not yet come to terms with this worrying and embarrassing phenomenon. For Nigeria to remain afloat in a post oil and gas dispensation, the fight against corruption must be strengthened and sustained, all it takes is for the government to have the political will to fight corruption, every other thing is supplementary.
Effective Tax Drive:
By official estimates, defaults in tax remittances by companies, institutions, ministries, departments and agencies annually amount to over N260 billion debt for the Federal Government. The defaults come from Withholding Tax (WHT), Pay As You Earn Tax (PAYE) and Value Added Tax (VAT). The story of taxation in Nigeria is a litany of woes, tax evasions by prominent Nigerian Companies foreigners and individuals deny the government of much needed revenue to improve the economy, a few instances will drive home this point. In a recent report by Thisday Newspapers of 15th September 2009, the Economic and Financial Crimes Commission (EFCC) said it will commence prosecuting 30 prominent companies for alleged tax evasion and tax related offences with effect from January 2010. EFCC Chairperson, Mrs. Farida Waziri, made this disclosure in Lagos at the investiture of ninth President of the Chartered Institute of Taxation of Nigeria (CITN).

The premises of Peugeot Automobile of Nigeria (PAN) were on 27th August 2009 sealed off by officials of the Federal Inland Revenue Service (FIRS) over non-payment of accumulated tax of about N1.291 billion which is from 2005 to 2008. Also in a recent development the Akwa Ibom State Government commenced legal proceedings against Mobil Producing Nigeria Unlimited and five of its executive directors over tax evasion. Mobil was accused of withholding from the state government income tax from 1998 to 2003. For Nigeria to survive economically in a post oil and gas dispensation dislocations in our tax legislations has to be corrected. There is much work to be done on Nigerian tax law and in particular in the areas of tax evasion and avoidance. Similarly our tax authorities must put in place strategies for efficient and effective tax collection as at when due. Why should the tax authorities allow PAN to accumulate tax from 2005 to 2008 or Mobil from 1998 to 2003. These anomalies needs to be corrected if Nigeria is to survive economically in a post oil and gas era.

Diversification of the Economy:
What other nations, that have done better than us, have done therefore, is to take some resources from oil and invest in other areas to yield revenues not subject to the same risks as the dominant source of revenues. Again the Government must also appreciate the imperative for Nigeria, within the shortest possible time, to become integrated into the emerging 21st Century global economy. In this regard, the government must exert concerted efforts to attract investments both local and foreign, to the Nigerian Economy.



Conclusion:
The imperatives for success are the political will and the resolute commitment of the leadership, the continuous striving for excellence and to meet international standards; persistence - staying the course for as long as it takes to succeed, patience and, of course, doing every thing consistently to carry all stakeholders along. No doubt, given the disappointments and degradation of the past, the goals and the required discipline may appear very ambitious, and the odds may appear daunting especially in the much harsher and more difficult world we are about to enter in the next millennium. However, our own achievements in the 50s, 60s and 70s, and the recent Asian success stories demonstrate that those goals are achievable with our enormous resources.

ESTABLISHMENT OF THE INDEPENDENT OFFICE OF THE ATTORNEY-GENERAL

POSITION PAPER ON THE NEED TO SEPARATE THE OFFICE OF THE ATTORNEY-GENERAL FROM THAT OF THE MINISTER OF JUSTICE.

INTRODUCTION:

The conflict between the various functions of the Attorney-General being a Minister and a member of the Government, and being an independent guardian of public interest and performing superintendence functions has given rise to the argument for the separation of the office of the Attorney General from that of the Minister of justice. This is because as a government appointee and a member of the President’s cabinet, he is subject to the President’s directions, whims and caprices. He cannot flout the President’s directions without risking his removal from office. The wide powers granted to him by section 174 of the Constitution are inadvertently subsumed in that of the President.

This clearly cannot be the intendment of section 174 of the Constitution that granted the Attorney-General such wide powers in the first instance. I will therefore briefly trace the origin of the office of the Attorney-General for a better appreciation of the traditional functions of the office, vis- a-vis my postulations on what should constitute the current function of the Attorney-General in a society which its moral fabric and integrity is fast eroding due to unmitigated corruption and reckless disregard for the rule of law.

HISTORICAL ORIGIN OF THE OFFICE OF THE ATTORNEY GENERAL:

The origins of the office of the Attorney-General can be traced back to England in the thirteenth century and the early beginnings of the legal profession itself. The sovereign was unable to appear in person in his own courts to plead in any case affecting his interests. It was therefore necessary for an Attorney to plead the sovereign’s case. It was the responsibility of the King’s Attorney to maintain the interests of the sovereign before the royal courts. The first written record of a professional attorney appearing on behalf of the sovereign is of Lawrence del Brok in 1243. The sort of work that Lawrence del Brok was engaged in as could be gleaned from the court records included initiating actions to recover rents and lands, proceeding against those who pronounced a sentence of excommunication against a royal servant, investigating homicides to hear and determine what pertained to the Crown.

In 1461, the first record of the title of “Attorney-General appeared when the King’s Attorney John Herbert was described as the “Attorney-General of England” in the patent of his appointment. Herbert was summoned, along with other judges to the House of Lords to advice on legal matters. By the beginning of the sixteenth century it was the Attorney-General who was consulted by the Government regarding points of law and who had the conduct of important State trials. Notably the political duties currently attached to the office of the Attorney-General were not present in this early period of the office’s history. However as the functions of sovereignty became more complex and extensive and acquired a more public character, it was natural that the functions of the King’s Attorney should become wider. The responsibility of the Attorney-General steadily expanded to include the representation of the sovereign in his courts for the protection of his rights and interests whenever that was necessary and the discharge of the sovereign’s responsibilities for the prosecution of crime.

The office of the Attorney-General was transplanted to the Nigerian colonies with the reception of English law. The first set of Attorneys-General in Nigeria was drawn from the English Bar. They were appointed by the UK government as ex-officio members of the Executive and Legislative Councils and played a substantial role in the Executive and has often been key members of Cabinet, their position, functions powers and duties have been given Constitutional backing in Nigeria.

FUNCTIONS, POWERS AND DUTIES OF THE ATTORNEY-GENERAL.
The office of the Attorney-General has developed far beyond its historical antecedents, the current position could be found in section 174 of the 1999 Constitution and the powerful pronouncements of the Court in The State V. Ilori and Godwin Odumu Obla V. Federal Republic Nigeria line of judicial authorities. The Office of the Attorney-General is established by section 150 of the 1999 Constitution which provides that “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”.
However, section 174 of the 1999 Constitution sets out in details the powers of the Attorney-General of the Federation as follows:-
(1) 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.
(2) 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.
(3) 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.
The current world trend of modern democracies is that the Attorney General in carrying out his functions especially with regards to criminal prosecutions should have ultimate independence. This trend fortunately is captured by section 174 of the 1999 Constitution. The locus classicus of the nature and extent of the exercise of the powers of the Attorney-General under section 174 of the 1999 Constitution (section 191 of the 1979 Constitution) is the case of The State V. Ilori. The Supreme Court said that the Attorney General in the exercise of his powers is subject only to the ultimate control of public opinion and that of the legislature, he is a master unto himself, law unto himself, and under no control whatsoever, judicial or otherwise in relation to his powers of instituting or discontinuing criminal proceedings by entering a nolle prosequi whether such criminal proceedings are by the State or any other person or authority. The powers are exercised according to his discretion and judgment which gives him a pre-eminent position with respect to criminal proceedings in our Constitution.
The Court of Appeal in Godwin Odumu Obla V. Federal Republic of Nigeria emphasized that in the exercise of his instituting criminal proceedings, the Attorney-General has wide powers which the Court cannot curtail as the function of the Attorney General touch on the very conscience of the society.
However, the greatest contradiction to these authoritative pronouncements by the Court is found in the second leg of the very section 150 of the 1999 Constitution which established the office of the Attorney-General. This is evident in the provision that the Attorney-General shall also be “a Minister of the Government of the Federation”, thereby fusing two separate and distinct offices, with the concomitant hamstringing of the duties of the Attorney-General with regards to his responsibility to the protection of public interest, the Constitution and the laws of the federation.
THE IMPLICATIONS OF THE FUSION OF THE OFFICE OF THE ATTORNEY-GENERAL AND THE MINISTER OF JUSTICE
Efforts over the years to uproot official corruption have not yielded the intended results; at best only minimal success was recorded by the Economic and Financial Crimes Commission (EFCC) and to a lesser extent by the Independent Corrupt Practices Commission (ICPC). It is settled law that the Attorney-General has unfettered discretion to commence and discontinue criminal prosecutions. Sadly though an Attorney-General who is also a Minister of Justice feels reluctant to prosecute his fellow Minister or a “friend of the Government” even in the face of incontrovertible evidence.
Even where the Attorney-General finds the courage to so do, he may be seriously hamstrung by the Government that appointed him. Instances of this abounds. Several high profile Ministers and friends of the former President Olusegun Obasanjo could not be prosecuted by the Attorney-General when there were overwhelming evidence of their complicity in unexplained looting of the treasuries of countless Federal Government establishments. Currently, the prosecution of several Governors indicted by the EFCC has been stalled and the EFCC former Chairman dispensed with and disgraced by forces far beyond his contemplation.
Professor Ben Nwabueze in his defense of Immunity Clause in our Constitution argues that the President or Governor can direct the Attorney-General not to prosecute or to discontinue prosecution instituted by the police or any authority or person or to refuse to grant fiat authorizing a private body or person to institute prosecution. An Attorney-General can refuse to carry out such direction only at the risk of being removed from office since it is inconsistent with his current position as an appointee of government and a subordinate member of the President’s or Governor’s cabinet.
Professor Nwabueze further argues that the President or Governor can even withhold or interfere with the evidence necessary for the effectiveness or success of a criminal prosecution by directing the Attorney-General accordingly. The power of the President or Governor as the chief executive to direct the withholding of evidence in criminal proceedings is acknowledged by the United States Supreme Court in the celebrated case of United States V Nixon where the Court upheld President Nixon’s decision to withhold certain evidence pertaining to the Watergate investigation. The Court held that the Special Prosecutor’s demand for the evidence being a matter committed to the executive branch raised no controversy justifying judicial intervention.
We cannot but agree completely with the learned Professor of Constitutional law as his arguments reflect sound legal reasoning. It is equally doubtful if our Supreme Court would have ruled otherwise given the same scenario in United States V Nixon, since the Court cannot interfere with a State Prosecutor’s discretion as to how to conduct a prosecution or what evidence to adduce in court proceedings to prove his case, being a matter within the exclusive competence of the executive branch, which the Court under the doctrine of separation of powers cannot interfere.
Consequently, corruption in high and low places and the lack of political will to fight it has undermined public confidence in government and cost the nation billions of Naira through fraudulent practices in government procurement and government projects. Today public officials and their relatives acquire properties far in excess of their known income. Key sections of the bureaucracy such as the Ministries, Departments and Agencies of Government, even the Police and of late the Judiciary are mired in corruption. This further undermines government and impedes development.
As noted earlier, these conflicts are somehow reflected in the Constitution that married two independent positions into one. Therefore there is a problem in trying to do justice to both positions at the same time. An Attorney-General has his duties obligations and responsibilities within the Constitution and in law. Equally a Minister of Justice has a role to play within his service to government. But there is a serious conflict in the two services. Whereas the Minister of Justice is to serve the Government, the Attorney-General is for the Federation, he is like an ombudsman, he has the overall obligation to be fair and just and serve the entire nation equitably, fairly, justly and ensure the prevalence of the rule of law. So the job of the Attorney-General is in conflict with the assignment of the minister of justice who is simply a political appointee to serve the interest of that given government of the day that appointed him.
A critical look at sections 150 and 174 of the 1999 Constitution will further buttress the point that whereas the Minister of justice is there to serve the interest of the Federal Government, the Attorney-General is there to serve the entire federation. Obviously the fusion of the two offices could be traceable to our colonial heritage as adumbrated above.
Currently, the Attorney-General is playing more of the traditional or medieval role of an Attorney-General; a government hireling, to do the sovereign’s bidding, than that of the modern day Attorney-General; a protector of public interest, the ombudsman, defender of the Constitution and laws of the federation. For the rule of law to be enshrined in our society, there is urgent need for the Constitution Review Committee to seriously consider the splitting and separation of the office of the Attorney-General from that of the minister of justice. If we have an Attorney-General with such powers and independence as pronounced by the Court in The State V. Ilori the and Godwin O. Obla V. Federal Republic of Nigeria, supra, with sufficient powers and functions to deal effectively with justice for everyone and his position secured to stand over and above all prejudices whether political, social or economic considerations then the fight against corruption and the institution of the rule of law will be guaranteed.
The Attorney-General should be the one in charge of the EFCC, ICPC as well as the Police. In the words of the Former Attorney-General and Minister for Justice, Prince Bola Ajibola in an interview with the Sun of Sunday, March 16, 2008, the Office of the Attorney-General “… Should be so powerful and the function must be so heavy that he could say you must do this….The kind of pseudo-judicial service…., that he should be dispensing it fearlessly, justly at all time. We need such Attorney-General, not the type we have now that merged the two together”
WORLD TRENDS ON THE SEPARATION OF THE OFFICE OF THE ATTORNEY-GENERAL FROM THE MINISTRY OF JUSTICE.

Several eminent Nigerian Jurists including Kayode Eso JSC, Prince Bola Ajibola; former Attorney-General and Minister of Justice, have been calling for a complete separation of the office of the Attorney General from that of the Minister of Justice, this is equally in tandem with world trend of modern democracies.

The UK Attorney-General is usually a member of the House of Commons; they are not included in Cabinet. The UK Attorney-General does not have ministerial responsibility for a government department. Ministerial responsibility for the administration of Justice rests with the Lord Chancellor and to a certain extent, the Home Secretary who are both members of Cabinet. The UK Attorney General operates under what is known as the “Shawcross principle”. The Principle was endorsed in a famous speech in 1951 by the Attorney-General of the time, Sir Hartley Shawcross to the House of Commons. The principle is that the Attorney-General’s decision to prosecute should be made by the Attorney-General alone independent of political considerations.

The Shawcross principle is the modern exposition of the constitutional position of the Attorney-General. In Australia, a dramatic application of the Shawcross principle occurred in 1977 when the then Attorney-General, Robert Ellicott, resigned over what he regarded as an attempt by Cabinet to direct exercise of his discretion in relation to criminal prosecutions.

In the United States of America, the US Department of Justice is headed by the Attorney General. Under the Office of the Attorney-General are such Agencies and Bureaus as the Federal Bureau of Investigation (FBI), Office Of the Inspector General, Federal Bureau of Prisons, Tax Division, Drug Enforcement Administration and a plethora of agencies and departments that makes the administration of justice far outside the direct control of the Government of the day. However the government remains in charge of policy thrust and political matters affecting the administration of justice.

In Sierra Leone, according to the Sierra Herald of March 3, 2008, the new APC Government of Ernest Bai Koroma promised Parliament in his maiden speech that “Modern Democracy is underpinned by adherence to and enforcement of the rule of law. This is why judicial reforms is critical to my government’s effort to ensure the independence and integrity of the Judiciary. In line with my desire to ensure an independent, fair, and expeditious justice system, my government will separate the Office of the Attorney-General from that of the Minister of Justice”.

In Ghana, according to the Public Agenda (Accra) of 22nd August 2008 posted on the AllAfrica.com website on Wednesday 22nd August 2008, both the Peoples National Convention (PNC) and Convention People’s Party (CPP) claim that they have found the legal hammer to break the jinx of official corruption and defeat graft in their country and that is the need to separate the Attorney-General’s department from the Ministry of Justice. The publication says that in the event that they assume power, they will definitely amend the Ghanaian Constitution to reflect this trend.

In Israel, according to The Jerusalem Post, of Friday 19th September 2008, Justice Minister, Daniel Friedmann on Thursday revealed his bill to divide the authorities of the Attorney-General into two positions; the legal adviser to the government and the Attorney-General. According to Friedmann there was a built-in contradiction between the Attorney-General’s current function as legal adviser to the government and his role as chief prosecutor.

Back home in Nigeria the National Political Conference Report on the Separation of the Office of the Attorney-General and Minister of Justice reports on paragraph 1.7.12 at page 128 that “Recognizing that independence is too much to expect, and as the Attorney-General, by nature of his duty appears before judges in Court, it is neater that he should have nothing to do with their appointments and any other affair concerning them. Consequently and in line with previous recommendations, particularly, the Judicial Panel on the Reform/Reorganization of the Judiciary (Kayode Eso Panel) there should be a complete separation of the offices of Attorney General and Minister of Justice”.

THE WAY FORWARD
We have seen from the following x-ray of the functions of the Attorney-General that constitutionally and jurisprudentially that the Attorney General ought to have unfettered discretion in prosecuting against infractions of the constitution and the law as well as the protection of public interest. The Attorney General must not be influenced by political constraints or hamstrung by the executive. The question then is how could this be achieved? The following suggestions therefore are intended to guide the Committee in their deliberations on how to achieve a virile and independent Office of the Attorney General for effective administration of justice:

Establishment:
Section 150 of the Constitution that provides for the Attorney-General to be a Minister of the Government of the Federation should be amended to remove the provision to allow the Attorney-General’s office exist as an independent and autonomous office. The State Offices of the Attorney-General shall be extensions of the Attorney-General’s Office to ensure uniformity and effective coordination. The Ministry of Justice will be responsible for political decisions and policies of government of the day but shall not in any way give directions to the Attorney-General whatsoever.
Functions/Powers:
Section 174 of the Constitution should be retained as it contains provisions that guarantee the independence of the office of the Attorney-General and the wide powers attached to the office. Nevertheless the Constitution should be amended to contain a new provision describing the Office of the Attorney-General as an autonomous and independent judicial body authorized and responsible to proceed against the perpetrators of criminal offences and other punishable acts, undertake legal actions for the purpose of the protection of property of the Republic of Nigeria and file legal remedies for the protection of the Constitution and laws of the Federation.
There should also be provisions in the Constitution placing all governmental bodies with investigative and prosecutorial functions and the entire criminal justice system under the office of the Attorney-General, this will include the Police, the ICPC, The EFCC, the Nigerian Customs, Immigration, Tax Offices, Prisons, Quarantine, NAFDAC, etc. The Attorney-General is to ensure that these Agencies carry out their functions in accordance with the law establishing them and also assist in the prosecution of offenders. This is to avoid overlap of functions and lack of focus in our justice system.
For purely civil cases, it is suggested that ministries and all other Government organizations should have their own legal departments to handle their cases in order not to unduly inundate the office of the Attorney-General with cases. The population has increased, portfolios of ministries have widened, people have become more rights conscious, the Attorney-General must be left alone to deal with matters that impinge on the public and national interests, promote the fight against corruption and the protection of the rule of law.
Independence:
The provisions of the Constitution must guarantee the independence of the justice system and prohibit any interference in the independent functioning of the justice system as well as prohibit the use of public powers for oppression of the citizenry.
Following the pronouncement of the Court in Ilori V. State, that the Attorney-General is subject only to the ultimate control of public opinion and that of the legislature therefore, the Attorney-General shall report directly to the National Assembly and not to the president or any member of his cabinet.
Appointment/Tenure/Removal:
To ensure that the loyalty of the Attorney-General lies with the people, the appointment of the Attorney-General shall be by majority votes of the Senate confirming the appointment upon recommendation by the National Judicial Council.
The tenure of office of the Attorney-General shall be guaranteed by the Constitution and shall not be less than five years with an option for a further re-appointment for five years and no more. This is to ensure continuity and stability in the administration of justice system and to remove all vestiges of political colouration.
The removal of the Attorney-General shall be by motion alleging gross misconduct, negligence of duty, incapacitation or incompetence, supported by 2/3 majority votes of members of the House of Representatives to investigate the allegations leveled against the Attorney-General. The House shall then carry out an investigative hearing to determine the culpability or otherwise of the Attorney-General. The final report of the investigative hearing shall be approved by a simple majority of the House; provided always that the Attorney-General shall have the right to defend himself in person or a legal practitioner of his choice to the allegations leveled against him. The decision of the House shall be final.
Funds/Audit:
In order to ensure that the office of the Attorney-General is not starved of funds by the executive or indirectly crippled, the Budget of the Office of the Attorney- General should be made a first line charge on the Federation Account and paid lump sum upon approval by the National Assembly.
The accounts of the Attorney-General’s Office shall be audited by the Auditor-General of the Federation and the report laid before the National Assembly. Any financial impropriety discovered in the accounts of the office of the Attorney-General shall amount to gross misconduct for which the Attorney-General may be removed from office. This is to serve as a check on the office of the Attorney-General against graft and official corruption.
Qualification:
The Attorney-General shall be a person of integrity without any known political affiliations and must be a distinguished member of the Legal profession with not less than 15 years practical experience with knowledge of the working of the criminal justice system. Simply put his appointment must be based on career consideration, distinction, merit and experience and not on political considerations.

CONCLUSION:
To use the words of President Ernest Bai Koroma of Sierra Leone, “Modern democracy is underpinned by adherence to and enforcement of the rule of law.” This is why amendment of the Constitution to ensure the independence and integrity of the justice system is critical to good governance and for expeditious and fair delivery of justice. Again, according to Goodhart; Professor of Legal Science, University of Melbourne. “A society in which the observance of law is not assured, nor the separation of powers defined has no constitution at all”. These two quotations are apt to describe the entire analysis and postulations of this position paper.

I am a firm believer in the rule of law and constitutional supremacy. In Nigeria today we have adequate laws that address virtually every segment of our national life but the greatest impediment to the enforcement of these laws is that there is almost no body doing the job of the Attorney-General, which is protection of the Constitution and the laws of the federation as the office has been subsumed in the Office of the Minister of justice who is more or less a government appointee, lacking the necessary independence to fearlessly defend the provisions of the Constitution and of the laws.

This state of affairs has made it difficult for the rule of law and constitutional supremacy to take roots in our polity. Government officials and high profile individuals flout the provisions of our statutes with impunity and get away with it because the officer charged with the protection of the Constitution and the prosecution of infractions thereto have been suffocated by officialdom and emasculated by the process of his appointment and job definition.

This position paper therefore is my contribution to nation building and a better Nigerian society. I sincerely believe that if the suggestions are incorporated into the Constitution we might at last have a modicum of sane and vibrant society where the rule of law reigns supreme.

THE NATIONAL ASSEMBLY

The Powers and functions of the National Assembly are set out in sections 4 and 5 of the Constitution of the Federal Republic of Nigeria 1999 as follows:

4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.

(2) The National Assembly shall have power to make laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.

(4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say: -
(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
5. If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.

Moreover Section 47 of the 1999 Constitution further provides that:
“There shall be a National Assembly for the Federation which shall consist of a Senate and a House of Representatives”.
Whereas section 47 of the Constitution established the National Assembly , it is actually section 4 of the Constitution that imbued the National Assembly with legislative powers to make laws. Section 4 of our Constitution is very similar to Article I, Section 1, of the United States Constitution -which system of government our democracy is modelled after-, the said Article 1 Section 1 of the US Constitution provides that:
“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”.
The Senate:
The Senate of the Federal Republic of Nigeria is composed of 109 Members- three members from each state of the thirty six states of the Federation and one from the Federal Capital Territory regardless of population or area—elected by the people in accordance with sections 48, 71 and 72 of the 1999 Constitution. Section 65 of the 1999 Constitution provides that a Senator must be a Nigerian citizen and at least 35 years of age, and must be educated up to at least School Certificate level or its equivalent. According to Section 318 of the Constitution a Senator must be literate enough to read, write, understand and communicate in English language to the satisfaction of Independent National Electoral Commission, thus strictly speaking, it is not a requirement of the Constitution that a Senator must possess any certificate; ability to communicate in simple English language suffices.
The term of office of a Senator is 4 years and unlike the President and a Governor, a Senator may be elected to the National Assembly for as many times as his constituents returns him to the National Assembly. Unlike in the United States of America where they have “Junior” and “Senior” Senators and election to their Senate is staggered i.e. they do not terminate at the same time, all Nigerian Senators are of equal status and start and end their terms of office at the same time. Another set of senators are therefore elected every four years upon the expiration of the tenures of their predecessors. If a Senator dies or resigns during his term, the Independent National Electoral Commission quickly and as soon as practicable conducts an election to fill the vacancy for the balance of the term of the deceased Senator. Each Senator has one vote.
The House of Representatives:
By the provisions of Section 49 of the 1999 Constitution the House of Representatives is composed of 360 Members elected every fours years from 360 federal constituencies of nearly equal population as far as possible, provided no constituency falls within more than one State. A Representative must be at least 30 years of age, must be a citizen of Nigeria in accordance with the Constitution.
Under the provisions of Section 64(3) of the 1999 Constitution, the President has the Constitutional responsibility of issuing proclamation for the holding of the first session of the National Assembly and has power also to declare the dissolution of the National Assembly. Subsection 1 of section 64 provides that the National Assembly shall stand dissolved at the expiration of four years commencing from the date of the first sitting of the Assembly. The National Assembly upon proclamation shall sit for a period of not less than one hundred and eighty one (181) days in a year. The life of each National Assembly is divided into four sessions. Section 60 of the Constitution authorizes each House to determine the rules of its proceedings. Pursuant to that authority, the Standing Orders of the Senate and House of Representatives were made. These Standing Orders and their subordinate Rules are subject to amendments from time to time by each House of the National Assembly.
Both the Senate and the House of Representatives have equal legislative functions and powers with certain exceptions. For example, the Constitution in Section 147(2) and 154(1) provides that the confirmation of ministerial appointees and Chairmen and members of Certain Executive Bodies shall be done only by the Senate. Under Section 157 (1) removal of Chairmen and Members of the said Executive Bodies shall only be made by the President after an address supported by 2/3 majority of the Senate praying the President to remove the affected member or Chairman. Again under Section 53(2)(a), in a joint sitting of the Senate and House of Representatives, the President of the Senate shall preside. Despite these and other exceptions both bodies have equal legislative powers. Section 58 of the Constitution is very clear on this; it provides that:
“The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives...”
More so, overriding the President’s veto under subsection 5 of Section 58 requires the two-third majority of each House of the National Assembly. Consequently, the designation of one chamber of the National Assembly as the ‘‘upper’’ House and the other as the ‘‘lower’’ House is merely for administrative convenience and does not presuppose that one is superior or inferior to the other.
Furthermore, without prejudice to certain administrative exclusivity enjoyed by the Senate as adumbrated above, the chief function of the National Assembly is the making of laws, therefore as a counterbalance to the administrative exclusivity enjoyed by the Senate, the House of Representatives equally enjoys a certain level of numerical dominance which the House may deploy to overwhelm any stance taken by the Senate, however the House of Representatives rarely employs this advantage in deference to the seniority and primacy of members of the Senate. For instance during joint sittings and in certain matters like the consideration of appropriation or money bills under section 59 of the Constitution, the Senate must contend with the numerical strength of the House of Representatives especially where there is a disagreement and the Joint Finance Committee of both Houses were not able to resolve the disagreement. However this subtle dominance of the House of Representatives is delicately managed in order not to impede the smooth running of the National Assembly.
The Constitution further provides for the following features of the National Assembly:

Bicameral Sittings
The Senate and the House of Representatives sit separately. The Senate is presided over by the Senate President who is assisted by the Deputy Senate President. Members of the Senate elect them separately. The Senate sits separately. The House of Representatives on the other hand is presided over by the Speaker of the House. He is assisted of the Deputy Speaker. The two Houses hold joint sittings when need arises.

Committees:
All members of the Senate and House of Representative are members of at least a number of Committees. Most of the detailed work of legislation is undertaken by the Committees, which embark on investigative or fact finding tours, public Hearings among others. We shall examine committees in greater details in Chapter 3 of this book as they are very central and important in the passage of a bill into law.

The Constitutions of the Federal Republic of Nigeria (1979 and 1999) gave the National Assembly almost absolute powers over the National treasury and matters of prosecution of war with another country. As a matter of fact, the National Assembly regulates how the President functions as Commander-In-Chief. This indeed is the essence of democracy, which, as we all know, is defined as government of the people, by the people, and for the people. The people, at regular intervals, in our case, every four years, through adult suffrage choose new leaders. The leaders are expected to work for the good of the people.

This is why in our system, as with the system in the United States of America, it is only the legislature that can impose sanctions on holders of offices. For, instance only the legislature can remove a member of the legislative house from office; or the law courts, if a case, of criminal nature or any dispute arises. The only other way to remove a legislator is through a referendum to recall.

While the legislature can impeach (remove from office) the President, no matter how dissatisfied the President is with the legislature, he cannot dissolve it, even though he has constitutional powers to so do under section 64(3) of the 1999 Constitution, those powers are merely ceremonial and limited to the issuance of proclamation as the said section 64(3) is subject to section 64(1) which says that the National Assembly shall stand dissolved at the expiration of a period of four years. Indeed, where the executive disagrees with the legislature, and the President vetoes any bill, the National Assembly can brush aside (over ride) such a veto. This can only be done through two-thirds majority vote in both chambers. For any institution or organization to be regarded as independent it must be reporting to the National Assembly the same way as the Auditor general reports to the National Assembly.