UnderTow

There are suggestions that Abubakar Malami, Justice minister and Attorney General of the Federation (AGF), may be coveting the Kebbi State governorship in 2023. The soothsayers who claim to perceive his ambition insist Mr Malami is such an open book that he is easy to read. He has so far comported himself in a manner that even if that book is open, the text is nevertheless tiny. What is neither tiny nor indistinguishable, however, is that since he became AGF, he has not stopped playing politics in such an open and affronting manner that a Nigerian would be blind not to see either his governorship interest or his passion for hegemonic politics. In whatever way he carries himself, Mr Malami is first and foremost a politician, then secondarily a lawyer, and finally, but only as an afterthought, the nation’s chief law officer. It presents the nation a worrisome and curious window into his mind that he has not played any of the three roles with the astuteness, ethicalness and candidness his qualification and office demand of him.

For a moment, ignore his politics. He will continue to play politics till his dying day. Today, instead, consider his office as the nation’s chief law officer, to which he has brought his qualification as a lawyer. Whether he becomes governor of Kebbi or not as many Nigerians have read into his life, it is already established that he is AGF, and will remain so to the end of the Muhammadu Buhari administration. Since the president does not have an eye for competence and skillfulness, and is chary of sacking any of his aides or ministers, including the worst performers ever, it can be presumed that Mr Malami’s position is safe till 2023. What cannot be presumed, however, is whether he will leave a great legacy behind, in the manner of other great Nigerian chief law officers. Indeed, there is no proof, his qualification notwithstanding, that Mr Malami is substantially bothered about any legacy other than his preoccupation with his personal and probably group interests.

The AGF has not betrayed any suspicion that he knows the juristic contempt he is held by his contemporaries and Nigerians at large. But by nearly universal consensus, Nigerians have very low opinion of Mr Malami as the nation’s chief law officer. In fact they think he disgraces that position, has actively undermined the rule of law, which triggered a short-lived campaign to derobe him, has no mastery of law nor is he interested, and thinks little about the future of law as an indispensable principle of both justice and democracy. Rarely does Mr Malami intervene in matters of law strictly defined and interpreted. If political advantages cannot be derived from the legal issues he has made controversial, the AGF can hardly be bothered beyond his official duty. But when politics is involved, especially when that politics touches on his private and group interests, Mr Malami can be trusted to muscle in uninvited, and offer so-called expert opinion, even if far-fetched.

Such was his enthusiasm in 2015, only a few months after he assumed office, that he waded into a political controversy brewing in Kogi State at the death of the All Progressives Congress (APC) candidate moments before the governorship election of that year was called. Prince Abubakar Audu, the candidate, had just died before the electoral umpire, INEC, declared the result. A few polling units were slated for a rerun, but even if the opposition won the rerun 100 percent, it was not enough to alter the outcome from the unassailable lead the APC had achieved. As the body saddled with the responsibility of organizing the election, INEC was still contemplating how to interpret the Electoral Act when Mr Malami barged in and offered his unsolicited view. That view scandalously suggested that Yahaya Bello, who came a distant second in the APC primary and actively worked against Prince Audu’s election, should inherit the party’s votes instead of the running mate, Abiodun Faleke. INEC welcomed the AGF’s needless intervention and concurred with its conclusions, thus indicating that rather than adhere to a strict interpretation and application of the law, a conspiracy was involved and preferred.

Here is how Mr Malami framed his intervention: “The issue is very straightforward. Fundamentally, Section 33 of the Electoral Act is very clear that in case of death, the right for substitution by a political party is sustained by the provisions of Section 33 of the Electoral Act. And if you have a community reading of that section with Section 221 of the constitution it clearly indicates that the right to vote is the right of a political party and the party, in this case, the APC has participated in the conduct of the election. It is, therefore, apparent that the combined community reading of the two provisions does not leave any room for conjecture. APC as a party is entitled to substitution by the clear provisions of Section 33 of the Electoral Act. Also, Section 221 of the Constitution is clear that the votes cast were cast in favour of the APC. Arising from that deduction, it does not require any legal interpretation. The interpretation is clear, APC will substitute, which right has been sustained by Section 33 of the Electoral Act. So be it. The supplementary election has to be conducted along the line.”

The AGF was not INEC’s legal officer, but that did not matter. Nor did he say anything about why Mr Faleke, who was already on the ticket, did not merit being adopted by the party, even going by the community reading of the relevant provisions of the Electoral Act. Worse, it did not matter to Mr Malami that Mr Bello, whom his convoluted interpretation of the constitution and the Electoral Act benefited, was not registered to vote in Kogi State as at the time of the 2015 election. The number of those qualified to vote in the rerun election was also less than the difference between the votes cast for the Audu/Faleke ticket and the votes of the nearest challenger, the Peoples Democratic Party (PDP). Mr Malami simply glossed over this and rushed headlong into his partisan conclusions. Perhaps he truly forgets the weight of his office, or the huge and sacred responsibility which that office thrusts upon his sagging shoulders.

In June, justifying his deep involvement in the affairs of the APC, particularly why he presided over the swearing in of the controversial Governor Mai Mala Buni-led caretaker convention committee, Mr Malami offered this extraordinary argument: “Entrenchment of democracy and democratic culture is not only a desirable responsibility, but a constitutional one regardless of being added to the constitutional provisions and the demand for sustenance of democracy in the country. The office of the attorney general exercises dual functions inclusive of that of minister of justice which is a political and advisory function. Administration of justice is one of such functions. A federation is an embodiment of the governance inclusive of the executive, legislature, and Judiciary with a possible expansion to accommodate private, corporate and associated entities. Within that context, it will not be out of place for an attorney general of the federation to administer an oath on any one inclusive of leadership of any political party whether he belongs to it or not.” In the eyes of Mr Malami, nothing is off limit; absolutely nothing. For him, there is nothing and no involvement that cannot be justified.

Apart from swearing in anyone and anything, a task very menial compared with the far more onerous job of justifying tyranny, the AGF seized upon a 2006 judgement by the Supreme Court in the treason trial of Asari Dokubo to declaim upon the highly vexed issue of how to balance national security and individual rights. The court had ruled that “Where national security is threatened or there is the real likelihood of it being threatened, human rights or the individual right of those responsible take second place; human rights or individual rights must be suspended until the national security can be protected or well taken care of.” A more astute AGF would have seen the pitfalls in the apex court making an obviously political statement destitute of legal principles, but Mr Malami hungered for excuses to underscore his unsavoury pursuits.

He was in fact believed to have inspired the address read by President Buhari at the annual Nigerian Bar Association (NBA) conference in August 2018, an address drawing inspiration from the Supreme Court judgement in the Asari Dokubo case. Said the president two years ago: “The Rule of Law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that where national security and public interest are threatened, or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society.” Mr Malami echoed this sentiment in 2019 during his Senate screening in July. According to him, “The Minister of Justice and Attorney General, as stipulated by sections 36, 37 and 39 of the constitution, is supposed to protect the rights of any citizen from being violated even by the state, but where such rights conflict with the public interest, the latter overrides the former.” The devil is of course in the detail as to what the AGF really meant, and what he is prepared to do when the state, to which he is subservient, clashes with the individual’s rights for which he demonstrates considerable loathing.

It was not surprising, therefore, that when Mr Malami waded into the so-called December 1 House of Representatives ‘summon’ of the president on insecurity, he seemed to have overridden the president’s initial preparedness to honour the invitation. Here is his controversial argument: “The confidentiality of strategies employed by the President as the commander in Chief of the Armed Forces of the Federal Republic of Nigeria is not open for public exposure in view of security implications in probable undermining of the war against terror…The National Assembly has no Constitutional Power to envisage or contemplate a situation where the President would be summoned by the National Assembly on operational use of the Armed Forces. The right of the President to engage the National Assembly and appear before it is inherently discretionary in the President and not at the behest of the National Assembly…The management and control of the security sector is exclusively vested in the President by Section 218 (1) of the Constitution as the Commander in Chief of the Armed Forces including the power to determine the operational use of the Armed Forces. An invitation that seeks to put the operational use of the Armed Forces to a public interrogation is indeed taking the constitutional rights of law making beyond bounds. As the Commander in Chief, the President has exclusivity on security and has confidentiality over security. These powers and rights he does not share. So, by summoning the President on National Security operational Matters, the House of Representative operated outside constitutional bounds. President’s exclusivity of constitutional confidentiality investiture within the context of the constitution remains sacrosanct.”

Mr Malami is of course talking gibberish. Even if the legislature cannot summon the president, given public apprehensions, should the president not take the initiative to address the nation on insecurity, speak to the legislature, engage all stakeholders, and do much more? In the end, the president came across as lackadaisical, Mr Malami as partisan and meddlesome, and the administration as incompetent. Regardless of what anybody says, Mr Malami will not concern himself with the law when it conflicts with politics, and will rarely mind the delicate issue of legacy as the nation’s chief law officer. It is not because he cannot tell the difference when a distinction is drawn before him; it is simply because he is naturally incapable of the discipline needed to do anything noble and different. He will remain partisan to the very end, law and legacy be damned.

Undertow

In February 2015, ex-president Goodluck Jonathan postponed the presidential election for six weeks. The delay, which lasted till March 28, was thought to be a gambit to stave off electoral defeat and assure victory for the then ruling party, the Peoples Democratic Party (PDP). In reality, however, the delay allowed the newly hired defence contractors from South Africa and Ukraine, aka mercenaries, to battle surging Boko Haram militants, liberate nearly all the local government areas occupied by the insurgents, and make it possible for the state to participate in that year’s elections. In rapid succession, the mercenaries reclaimed 10 local governments from the insurgents, and the state went on to participate in the elections, which the opposition paradoxically won. But with the inauguration of the Muhammadu Buhari presidency in May 2015, the mercenaries, whose presence was never really officially acknowledged, were repudiated.

Barely five years later, after substantial progress had been made by the Nigerian Army to, as officials put it optimistically, degrade and technically defeat the insurgents, calls for the reintroduction of mercenaries have begun to be heard in high places. After a particularly bloody week of Boko Haram terror that led to the death two Saturdays ago of nearly 80 rice farmers near Zabarmari in Jere local government area of Borno State, all of whom were slaughtered like animals, Borno governor Babagana Zulum, a professor, advocated a number of measures to put an end to the insurgency. One of the measures was the hiring of mercenaries, widely believed to have been effective in 2015. In particular, the governor’s call followed the allegation by some of the victims of the massacre in Zabarmari that military authorities, contrary to what federal officials said, were tipped off about the congregation of Boko Haram insurgents in the area.

Borno officials surmise that the Nigerian military’s inability to do anything about the warning was largely because they had been overstretched or/and poorly armed. In contrast, mercenaries are unlikely to go into battle without the requisite arms, as they demonstrated in 2015 to devastating effect and grudging applause. In his submission before a federal delegation that visited him to condole with the people of Borno, Prof Zulum had suggested the following: “One of our recommendations as possible solutions to end the insurgency is the immediate recruitment of our youths into military and paramilitary services to complement the efforts of the Nigerian forces. Our second recommendation is to engage the services of our immediate neighbours, especially the government of Chad, Cameroon and Niger Republic, in clearing the remnants of Boko Haram hiding in the shores of the Lake Chad. Our third recommendation is for the President to engage the services of mercenaries to clear the entire Sambisa forest. Our fourth recommendation is for him to provide the police and the military, with armoured personnel carriers and other related equipment.”

Of all his suggestions, the mercenaries option was the most celebrated and controversial. This was expected. In 2015, when the administration of Dr Jonathan hired the foreign defence contractors, it was not without its share of controversy. The military found it unflattering that mercenaries took over their responsibilities and made them look ineffective. There was thus some resistance. This resistance snowballed into persecution when, after the inauguration of the Buhari presidency, some of the military and intelligence officers who cooperated with the mercenaries were allegedly eased out of the military. Though the present leadership of the military has been careful not to be embroiled in any controversy about the propriety of inviting mercenaries into the bloody fray in the Northeast, they have suggested that it is not a decision for the military to make. Given the passion with which Prof Zulum approaches state matters, his mercenaries suggestion is nothing but a reflection of his desperation to get a quick solution to the bloodletting draining his state. He has condoled with too many communities and towns in his state to be finicky about where the solution comes from. He is simply tired of the bloodshed.

Hiring mercenaries may cast the Nigerian military in bad light, but in view of the elongation of the insurgency bleeding the Northeast, not to say the admission by the Army Chief of Staff, Lt.-Gen. Tukur Buratai, that the crisis might last for another 20 years, it is increasingly difficult for solution seekers not to think outside the box. If mercenaries could be effective in 2015, as many officials reluctantly admitted to the chagrin of the military, there is little to suggest they could not be similarly effective in 2020 or 2021 against a shrinking band of insurgents whose tactics have not significantly changed in the past five or so years since they embarked on asymmetric warfare. Indeed, with the wary but self-denigrating admission of the Buhari administration that it had given the military all they requested, there is little sense in sticking to the ineffectiveness of the past few years, notwithstanding the announcement by presidency spokesmen that Boko Haram had been technically defeated or significantly degraded. Even though the Buhari administration is openly wary of anything remotely connected with the insurgency, including the insurgents’ obsession with soft targets, officials have been unable to hide both their frustrations and their seeming resignation to fate.

More than how they resisted the presence of mercenaries in 2015, military officers today, and the presidency that was all the time hostile to the defence contractors, are likely to find Prof Zulum’s suggestion repugnant. It is also unlikely that the governor himself seriously believed the federal government would be amenable to his radical suggestions. His other suggestions may not be as explosive as the mercenaries option, but what the governor was in fact wary of advocating, which the National Assembly and other well-meaning Nigerians have repeatedly voiced, is the replacement of the top leadership of the military, all of whom have since reached retirement age. There is nothing in military service guidelines to suggest that the president had the leeway to defy service rules and keep service chiefs in office.

Indeed the only option left to be tried by President Buhari in the fight against Boko Haram is the replacement of his service chiefs. His predecessor had tried mercenaries, which worked guardedly well in the circumstance. President Buhari himself had in 2018 violated the constitution by unilaterally dipping his hands into the country’s excess crude reserves to spend $496m on military procurement without appropriation. In short, everything else but the replacement of service chiefs had been tried to no avail. Probably the only option left is the appointment of new service chiefs. Why the president is reluctant to try this option is hard to say. Some commentators have speculated that the president appears more interested in regime security than in national security; and others believe that since he is too cautious in making appointments, he would find it tiresome if not truly vexatious to have to look for new service chiefs.

Whatever the case, it is clear that the president’s wish is at variance with the wish of nearly the rest of the country. Borno State, the epicenter of the insurgency, is tired of the bloodletting. The state’s governor is sick and tired of paying condolence visits to victims of the insurgency and the constant and wasteful rebuilding of destroyed infrastructure. Nigerians themselves, despite being far from the war theatre, have had it up to their necks with unending news of attacks and killings, much of it now compounded by banditry overwhelming the rest of the country. And the global community appears also sick to their tummies of the gory news that relentlessly flows from Nigeria. It is remarkable that the Buhari administration does not feel the urgency of considering all available options, and in fact seems inexplicably inured to the anguish suffered by victims of insurgency and banditry. What else can the country do to coax the president to reconstitute his security team which has clearly become so ineffective or has become just plain tired?

Whatever anyone says, the Buhari administration is unlikely to opt for mercenaries. He will more likely and readily seek increased funding for the military, even though commanders continue to decry the lack of adequate and serviceable military hardware. And he will also mouth more platitudes about how competent the military and security agencies can be, perhaps given more time and arms. But it is precisely this extra time that the country does not have, as everyone but the presidency has admitted. No one seems to know what else to do or say to nudge the president to make drastic personnel changes. Indeed, no one is even sure, whether, left to him, he sees the need to make any significant changes. Nigerians can only hope that their president would not fiddle while Rome burns, or that when he eventually stirs himself, it would not be too late. Given his well-known biases, they are not certain that he would ever countenance the thought of bringing in mercenaries; but as he dithers, even that option appears to have become unavailable. The mercenaries recruited by the Jonathan administration in 2015 have sworn not to return to Nigeria should they be enticed. They make reference to how badly they were treated the first time. Their refusal, as reassuring as it may seem to the military, may in fact be a metaphor for the foreclosing of all and every option imaginable, perhaps including the replacement of service chiefs.