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.