By Kayode Ajulo
The Superfluous Pursuit of the Bifurcation of the Office of the Attorney General of the Federation & the Minister of Justice- Kayode Ajulo
There is no doubting that there is a pending bill before the House of Representative for the bifurcation of the office of the Minister of Justice and Attorney General of the Federation.
The call for separation is premised on the ‘perceived’ influence that the executive arm of government bears on the Attorney General/Minister of Justice. It has been argued in some quarters that the Attorney General as the Minister of Justice does the bidding of the executive at the expense of the citizenry. The occupier of the office is seen as the Chief Law Officer of the Federal Government as against his true office as the Chief Law Officer of the Federation.
While it is apposite to recall that this bill for the bifurcation of the two offices was in 2017 before the Senate of the National Assembly, these developments have generated hues and cries from different quarters and strata.
The Senate said the amendment will create an independent office of the Attorney-General by insulating it from partisanship. The office of the Commissioner for Justice will also be separated from that of an Attorney-General in the states.
This move by the Senate was backed by the House of Representatives which also voted in its favour. It, however, failed as it did not get the support of two-thirds (24) of the state Houses of Assembly as required by section 9 (2) and (3) of the Constitution which provides that before the National Assembly can pass an Act to amend the Constitution after the two-thirds majority of all the members of each chamber voted in support, at least 24 Houses of Assembly must give approval by a simple majority.
The renewed call for the separation of the office of the Attorney by the House of Representative which has gotten to the second reading has called for an alteration of Section 150 of the 1999 Constitution.
In order not to throw out the baby with the bath water, it is important to pensively consider the issues at hand viz-a-viz constitutional provisions.
Origin of the Office of the Attorney General of the Federation
In the Supreme Court decision in the case of Ezomo v AG Bendel State, the Apex Court enunciated the origin of the office of the Attorney General of the Federation as follows:
The office of the Attorney General was created in England, and the incumbent first called the Attorney General was created in England, and in the incumbent first called the Attorney General, the in year 1461 while the post of the Solicitor General dated from 1515. The Solicitor General is a subordinate of the Attorney General and in England he deputizes for the Attorney-General if the office becomes vacant or if the Attorney General is absent or is ill or is authorized by him to do so. (See: 6th Edition of Hood Phillip’s Constitutional and Administrative Law pp. 334-336).
Similarly, in the celebrated case of AG. Federation v. ANPP (2003) LPELR-630(SC), the Apex Court held inter alia per Lt. Justice Niki Tobi as follows:
“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.”
It would appear that the Attorney General is the only Minister specifically created in the Constitution. Section 147(1) of the Constitution ominously creates the office of Minister of the Government of the Federation.
In view of the fact that the office is created in the Constitution, and unless or until the office is abrogated, it will continue in perpetuity. And any suit by or against the Attorney General will in law be absorbed by the office, which never dies unless the Constitution abrogates it. Section 150(1) of the 1999 Constitution 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.
The exact wordings of Section 150(1) of the 1999 Constitution leaves no in doubt that whosoever is appointed under the Section would occupy two offices – he would serve as the Attorney General as well as the Minister of the Government of the Federation.
As a minister in the government of the federation, he would be a member of the cabinet and consequently head a ministry, in this instance, the Ministry of Justice. In his capacity as the Attorney General of the Federation, he would represent the government in all actions against the state.
Arguments in Support of the Bifurcation of the Office of the Attorney General of the Federation and Minister of Justice.
Proponents of the school of thoughts that the office of the Attorney General of the Federation and Minister of Justice should be bifurcated have advocated as follows:
i. The Attorney General when acting as Attorney-General, he is answerable to no one but his conscience and the interest of justice, but while in his capacity as minister, he must take directives from the president and do the President’s bidding who appointed him. Flowing from the above it would be difficult for the Attorney General to be non-partisan.
ii. The AGF routinely advises the president and the government on all matters connected with the interpretation of the constitution, legislative enactment and all matters of laws referred to him. He also advises heads of ministries and agencies of government often, these issues require the delicate balance of government actions with the dictates of the rule of law. The AGF is obliged to ensure that the rule of law is not compromised in any form. This is often a great task, given that government actions sometimes conflict with the interest of the citizenry.
iii. That in Advanced democracies such as the UK, and some African countries like Kenya and South Africa have since recognized the potential conflict of interest that could arise from one and the same person performing both functions and have since come to the reasoned decision to separate the offices. In the United Kingdom, the office of the AGF is separated from that of the justice minister. While the ministry of justice is headed by the Lord Chancellor and Secretary of State for Justice who is a member of the cabinet, the AGF is a non-cabinet minister who leads the AGF office.
Arguments Against the Separation of the Offices
Having stated that the focal point of the arguments in support of the bifurcation of the office of the Attorney General and the Minister of Justice is hinged on the need for the Attorney General not to be partisan, it is important to consider the arguments against such bifurcation with its succeeding difficulties.
i. Meanwhile, those against the separation of the offices argued that such would amount to jurisdictional questions. It would stall cases in court in seeking interpretations of whom between the Minister of Justice and the Attorney-General of the Federation has “jurisdiction to either institute an action or carry out one function or the other”.
ii. Further argued that true justice can only be achieved if both offices are combined. While there is no doubt that the Ministry of Justice, being one of the ministries of the government does the bidding of the government, the role of the prospective Attorney General after amendment has yet to be determined.
Having considered the issue of bifurcation of the duties and powers of the Attorney General and Minister of justice, the likely issues that will arise will include the insurmountable hurdle of how the Attorney General is to be appointed. Is he to be appointed by the government, the populace via popular election or by the Nigerian Bar Association?
If the Attorney General were to be appointed by the President, he is likely to suffer from the same likelihood of bias and deference to the executive arm of government that the present occupier is accused of. The idea of the Chief Law Officer, being popularly elected, strips the exalted office from its impartial stance in the muddled waters of politics. Leaving the occupier of the exalted office to be appointed or elected by the Nigerian Bar Association violates the concepts of popular representation.
The duplication of the office might also result in jurisdictional questions stalling up cases at the court seeking interpretations of whom between the Minister of Justice and the Attorney General of the Federation is the proper party to either institute an action or carry out one function or the other. The consequential duplication of functions which is likely to be the aftermath of its division leaves much to be desired.
While the reservation of the `separation` bloc is not unfounded, the way out of the tunnel is not in the division of the office but in the officer occupying the office himself.
He should remember that although he is a member of the executive arm of government appointed by the President, he is to serve as an independent umpire, balancing the welfare of the citizens against that of the State. He should thus not be scared to tilt the scale of justice to the side where a balance is found wanting. He should be a fearless minister in the temple of justice whose blindfold must not be used to perpetrate injustice. He should also not be afraid to resign his office if he believes that the state wants him to take a stance or implement a policy that runs contrary to the principle of the `benefit of the highest number.
Similarly, dichotomy of offices in Nigeria has not yielded a great deal of improvements. For instance the office of the Accountant General, the Minister of Finance and the Governor of Central Bank are battling with the issue of who performs what function and each not willing to be subservient to the other.
* Ajulo, Fellow of Chartered Institute of Arbitration (UK) is the Managing Partner, Castle of Law, Abuja.