Joseph JIBUEZE
ATTORNEY-GENERAL of the Federation and Minister of Justice, Abubakar Malami (SAN), came under fire recently when he appeared before the Senate for his screening ahead of his re-appointment by President Muhammadu Buhari.
He told the lawmakers that he deliberately disobeyed some court orders because it was in the interest of the public to do so.
Malami said this while responding to a question by the Senate Minority Leader, Eyinnaya Abaribe.
The senator asked him why he disobeyed court orders by refusing to release persons granted bail.
Malami said his duty to protect the overall rights of Nigerians overrode the need to respect individual liberties.
According to him, Sections 36, 37 and 39 of the 1999 Constitution demand respect for individual liberties but he argued that such rights were not absolute.
He cited a Supreme Court ruling on the Federal Republic of Nigeria VS Asari Dokubo.
Malami said: “I concede that I have a responsibility as AGF to protect individual rights but looking at the provisions of Section 174 of the Constitution, I want to state further that the Office of the AGF is meant to protect the public interest.
“Where the individual interests conflict with the public interest of 180 million Nigerians that are interested in having this country integrated, public interest must naturally prevail.”
Malami’s response, however, did not go down well with some senators, who insisted that the Constitution remains supreme.
Malami echoed the President’s statement at the Nigerian Bar Association (NBA) 2018 annual general conference. The President had said: “Rule of law must be subject to the supremacy of the nation’s security and national interest.”
Prominent lawyers had faulted President Buhari for the statement, just as Malami was criticised.
The NBA said of Buhari’s statement: “The association completely rejects the presidential statement subordinating the rule of law to national security.
“The NBA restates that the rule of law is central to democracy. Any national security concerns by the government must be managed within the perimeters and parameters of the rule of law.”
NBA also frowned at the “growing trend whereby government decides on which court orders to obey”.
Before his release after four years in detention, former National Security Adviser (NSA), Col. Sambo Dasuki (rtd), was granted bail by several courts, including the ECOWAS Court, but the Federal Government defied them all.
Publisher/politician, Omoyele Sowore, was re-arrested in court a day after he was granted bail, which drew national and international condemnation, including by United States senators.
Prominent Shi’a Muslim leader, Ibrahim El-Zakzaky, is still in detention, with Malami saying only the Kaduna State government could determine his fate.
The increasing disregard for judicial authorities and rule of law was apparent in the manner the former Chief Justice Walter Onnoghen was forced out of office, despite his pending cases.
United Nations Special Rapporteur on the independence of judges and lawyers, Diego Garcia-Sayán, said Onnoghen’s removal may constitute a grave attack on judicial independence.
“Any decision to suspend or remove a judge from office should be fair and should be taken by an independent authority, such as a judicial council or a court,” he said.
The AGF came under serious rebuke by several rights groups both locally and internationally for his failure to obey court orders.
It took intense pressure for the Federal Government, through Malami, to order the release of Dasuki and Sowore. It happened days after Malami said he could not direct the DSS to release Sowore.
Malami, through his spokesman, Dr Umar Gwandu, had said: “When parties submit their issues for determination to a court of law, they lack exclusivity of decision over such issues without recourse to the court.
“We remain guided by the established tradition and will not take a unilateral decision without recourse to the rule of law.”
Malami then appeared to contradict himself when he directed the release of Dasuki and Sowore.
Malami said: “Whilst the Federal High Court has exercised its discretion in granting bail to the defendants in respect of the charges against them, I am also not unmindful of the right of the complainant/prosecution to appeal or further challenge the grant of bail by the court having regards to extant legal provisions, particularly Section 169 of the Administration of Criminal Justice Act, 2015.
“However, my office has chosen to comply with the court orders while considering the pursuit of its rights of appeal and/or review of the order relating to the bail as granted or varied by the courts.”
His use of the expression “my office has chosen to comply with the court orders” underscored Malami’s and the Federal Government’s penchant for picking and choosing which orders to obey.
Malami’s other perceived failures, according to his critics, include the glaring lack of coordination, direction and strategic approach to the operations of the relevant government agencies involved in the fight against corruption.
In this regard, critics were quick to point to the conflicting roles of the Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices and other related offences Commission (ICPC), the Special Presidential Investigation Panel for Recovery of Public Property (SPIP), and the DSS.
Such conflict was seen when the DSS raided the homes of judges without carrying the EFCC along.
Malami has also been criticised for his controversial handling of the case involving Abdulrasheed Maina, who was accused of diverting huge Police Pension funds, declared wanted, but was later elevated and surreptitiously reinstated.
According to Malami’s critics, he ought to be at the forefront of the prosecution of high profile suspects to show the government’s seriousness in this regard.
A former Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, once drew Malami’s attention to the flaw in his approach and asked him to lead by example.
In 2017, Malami disagreed with the Acting EFCC Chairman, Ibrahim Magu, accusing him and the commission of frustrating the anti-corruption war.
In a statement issued on August 23, 2018, Malami alleged that Magu and the EFCC leadership have “manipulated and misused intelligence to the detriment of the fight against corruption and financial crimes in Nigeria.”
He also accused them of working to prevent the lifting of the country’s suspension by the global financial intelligence gathering body – Egmont Group of Financial Intelligence Units (Egmont Group) and ensure the country’s formal expulsion.
To observers, Malami should exercise better control of agencies under him and ensure they comply with the rule of law.
Analysts say the rule of law record of the Federal Government, with Malami as the chief law officer, has been poor.
Read Also: AGF Malami’s legal and political subterfuges
Going forward, they say in 2020, he must ensure that the Buhari administration sheds the toga of impunity with regards to the rule of law and disrespect for court orders.
Catholic Archbishop of Lagos, Most Rev. Alfred Adewale Martins, urged the Federal Government to respect the rule of law in the new year.
He said: “We thank God that after so much pressure, the Attorney-General finally directed the DSS to release Omoyele Sowore and Sambo Dasuki.
That is the way to go! We are aware that there are some people, including Sheik El Zakzaky, who are still being detained even after they have been granted bail by the courts.
“In the spirit of the New Year, which I believe should usher in attitudes of reconciliation, harmony and peace, we appeal to the government of President Muhammadu Buhari to once again take the bold step of instructing the release of all of them.
“By so doing, the government would be sending a strong signal to all and sundry that it is truly committed to the rule of law.”
On the need for the Federal Government to abide by the rule of law, activist-lawyer Chief Mike Ozekhome (SAN) said: “The rule of law predominates over national interest.
“Without the rule of law, there can be no nation-state. Without a nation-state, there can be no national interest. The rule of law is the father of national interest.
“As proposed by Professor A.V. Dicey, it means equality before the law by all persons, observance of all laws by persons and authorities and, of course, obedience to court orders made by competent courts of law.
“Once a court of law has made an order for the release of a citizen on bail, the president, government and all authorities must obey the order of the court.
“It is not for the government to pick and choose which order to obey and which not to obey in the so-called name of ‘national interest.’
“This is because in arriving at a decision to release an individual on bail, the court must have first heard the facts and argument of the case of both the government and the citizen.”
Human rights lawyer/Access to Justice Convener, Mr Joseph Otteh, said: “Even in war situations, the rule of law can still prevail, even if some rights are denied individuals for strategic reasons.
“But not in peacetime, not when a country is not facing a national emergency or crisis. It is unattainable completely to say that you want to sideline the rule of law to what some people in power refer to as national security (or national interest).”
Leave a Reply