Nigeria’s 1999 Constitution names the Attorney-General as also the Minister of Justice. It has been this way since independence.
The occupier of the office is the Chief Law Officer of the state as provided by the Constitution.
However in 2017, the Nigerian Senate voted in support of altering sections 150, 174, 195, 211, 318 and the third schedule of the Constitution to separate the offices.
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.
Section 174 gives the AGF powers over criminal prosecutions and is perhaps one of the most publicly scrutinized aspects of his responsibilities.
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.
Section 9 states 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.
“Section 150 of the Constitution should be amended to allow for the appointment of the AGF as a professional to discharge purely professional duties of proffering legal advice to the government, prosecuting cases on behalf of the state and defending actions brought against the state
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Those against the separation of the offices argued that such would amount to jurisdictional questions they said will stall cases in the 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.
The recent allegations that some senior officials of the Ministry of Justice have been quizzed by the Economic and Financial Crimes Commission for suspicion of corruption in the compilation of presidential pardon list resurrects the arguments over the years for the separation of the merged offices.
President Muhammadu Buhari had controversially pardoned Joshua Dariye and Jolly Nyame, two former governors currently serving jail terms for corruption, after getting the nod of the Council of State on April 15.
The Council is made up of the president, vice-president, former heads of state, former chief justices, senate president, speaker, governors and the attorney-general of the federation.
Based on the recommendation of the presidential prerogative of mercy committee, Buhari submitted names of 162 persons to the Council for advice.
All, except Francis Atuche, former managing director of Bank PHB, and two others, were approved.
There has been widespread criticism of the pardon and the full list of those pardoned is still being kept under wraps, although it was learnt that many convicted coup plotters made it.
Dariye and Nyame are yet to be released from prison weeks after the pardon, reportedly because of bureaucratic bottlenecks.
Media reports had it that several aides of Abubakar Malami, the AGF, who were responsible for the processing of the list are currently being investigated by the anti-graft agency.
“Of particular surprise is the inclusion of Atuche on the list that was submitted to the Council of State. There are several names that raised suspicion and the EFCC had to be called in to investigate what went down,” an official of the ministry was quoted as saying.
Atuche was, in June 2021, convicted of N25.7 billion fraud and sentenced to 12 years imprisonment to run concurrently for six years.
When the name was presented to the Council, it was rejected, supposedly because he had just been convicted and was yet to serve one full year.
This shocking allegation has again brought to the fore, the call for the office to be split into two.
This is because 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.
There is always a conflict of interest in being the AGF, which has enormous responsibilities requiring independent thought, mind and direction and also the Justice Minister who is an appointee of the president with the mandate to assist him in the discharge of his executive functions.
The AGF has to be a saint in order not to be tainted by the views of his party under whose platform he was nominated or those of the president who appointed him, given the intrigues and underhand dealings that characterize partisan politics in Nigeria, coupled with the absolute loyalty to the president’ syndrome.
The office of the AGF is unique because it has a dual role. It is the only ministerial office specifically mentioned in the Constitution with certain powers given to it.
As Chief Law Officer, the responsibilities of the AGF are like no other in the Federal Executive Council. The AGF has a special responsibility to be the guardian of the constitution. He has a special role in advising the government to ensure that the rule of law is maintained and that government actions pass the acid test of constitutionality.
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.
Advanced democracies such as the United Kingdom and some African countries like Kenya and South Africa have since recognised 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.
We are of the firm conviction that the time has come for Nigeria to follow the UK example.
Section 150 of the Constitution should be amended to allow for the appointment of the AGF as a professional to discharge purely professional duties of proffering legal advice to the government, prosecuting cases on behalf of the state and defending actions brought against the state.
The president should be allowed to appoint a Minister of Justice who will be responsible for policy issues, such as justice sector reforms and liaison with the judiciary, and superintending over the justice sector institutions and parastatals of government.
