It was Olusegun Obasanjo that first drew my attention to perhaps the single most troubling wart or disfiguration on the body of the rule of law in the post-military period that began in 1999. I am talking of course of the open and notorious defiance of court orders by the federal government of the federation. If I remember correctly, the casus belli was a serious disagreement over control of the local governments of the country, either by the government at the centre or the state governments, with particular reference to Lagos State, the prime disputant or litigant in the case. The Supreme Court ruled in favour of Bola Tinubu and Lagos State, but Obasanjo completely refused to obey the ruling of the highest court in the land, a bad omen for a nation that was just returning to civilian, democratic rule after the long reign of the military dictators.
I look back to that faceoff between OBJ and the Supreme Court and I must admit to a naivety on my part because I had thought then that Obasanjo could not get away with it. I confess now that I didn’t exactly know who was going to stop Obasanjo and how they were going to achieve that necessary task. All that was on my mind was the expectation, the hope that since we were no longer under military rule, since this was a president in mufti and not in battle fatigues, Obasanjo would be forced to obey the ruling of the highest court in the land. He wasn’t; and moreover, he got away with it, just as if we were still in the age of the all-powerful military autocrats.
Well, following last week’s column on the Buhari administration’s steadfast refusal of court orders granting Sambo Dasuki bail while being prosecuted for what is perhaps the worst case of mega-looting supervened by one man in our country, my mind went back to this whole issue of defiance of court orders by the federal government in what is supposed to be a post-military, democratic epoch. In my great unease about this matter, I spoke with and exchanged emails with many compatriots. It was in the process of these “conversations” that it occurred to me that there is actually a flip side, an underbelly to the impunity and notoriety of refusal of court orders and this is the unwillingness and ultimately refusal to prosecute protected criminals. This recognition came to me after someone reminded me of the cases of Babachir David Lawal, Abdulrasheed Maina and Ayo Oke all of whom, in spite of the enormity of their crimes, have never been prosecuted by the Buhari administration.
Dear readers, which is worse – refusal of court orders or an unwillingness amounting to refusal to prosecute protected criminals? Is it even productive to compare and weigh the scale of justice aborted and denied involved in each of them when in fact the two refusals are perpetrated by the same institutional agents? And speaking specifically of the refusal to prosecute, isn’t it probably the case that what we know, what we see is only the tip of an iceberg? For one politically exposed case like that of Babachir Lawal or Abdulrasheed Maina, how many hundreds – perhaps thousands – of unknown miscreants go unheralded and unknown? This is for me the bottom line: the refusal to prosecute proven criminals is the enabling foundation, the condition of possibility for the refusal of court orders that is much better known and more widely condemned simply because it ostensibly carries a much greater political punch against the Buhari administration.
If all I have so far been saying or arguing in this piece seems rather despondent, let me hasten to say that actually, despondency is not the emotion, the sentiment that I feel. And what is the basis of my optimism, you might ask? Well, simply this: following the “conversations” that ensued after the publication last week of my column on Sambo Dasuki, I went and downloaded a PDF copy of the Administration of Criminal Justice Act of 2015 and reread all the 48 Parts and 495 Sections of it, hoping to find something in it that could provide a way out of the dilemma. It was in the process of this probe into the provisions and intricacies of this exceptionally humanistic and idealistic law that is ACJA that I made a discovery that startled and enthused me. What is this discovery? This is it: whoever is the Attorney General of the Federation (AGF) has enormous powers to make the rule of law work in our country, the rule of law in its own right but also with regard to justice, fairness and equity to the downtrodden and the underprivileged in our country.
To give a sense of the philosophical and ethical bases of ACJA, I quote from the so-called “Explanatory Memorandum” that serves as a sort of preamble to the document:
This Act provides for the administration of criminal justice system which promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of society from crimes and protection of the rights and interest of the suspect, the defendant and the victims in Nigeria.
It is with this “preamble” in mind that one can appreciate the weight that the Parts and Sections dealing with the powers and responsibilities of the Attorney General of the Federation exert on us with their comprehensiveness, their thoroughness and their acuity. Relating this observation to the subject of this discussion, I propose the following reading of the text of ACJA that goes to the heart of the grave dereliction of duty behind the crime of refusal to prosecute protected criminals: it is the AGF not the President, it is Abubakar Malami and not Muhammadu Buhari that is responsible for prosecuting all known cases of criminals in Nigeria. As simple as that? Yes, as simple as that!
Dear readers and compatriots, many, many times we read or hear of complaints that Buhari it is who does not permit the prosecution of politically exposed criminals like Babachir Lawal and Lawal Daura. We read of powerful, heartrending protests about thousands of murder suspects in many areas of the country, some of them arrested, that are never prosecuted, with the protests directed at Buhari and not at the AGF. But please, go to the text of ACJA and you will find that the document is very clear, very specific as to where the responsibility lies – with the AGF and not the President. As a matter of fact, there is not a single mention of the post of the President in the text of ACJA!
Of course, there will be readers who will assert that I am merely quibbling here, that since the AGF is the appointee of the President, non-performance of crucial duties and obligations pertaining to life and death, crime and punishment by the AGF should, in the final analysis, be laid at the feet of the President. I am not quibbling here and neither am I being disingenuous. If ACJA so deliberately and extensively specifies on whose shoulder lies responsibility for justice, fairness and equity for all in the administration of the criminal justice system in Nigeria, why shouldn’t we make that high public and legal officer – the AGF – the primary object of our complaints and protests when justice is aborted and denied? To put this in very concrete terms, what indications do we have that AGF Malami has ever tried at all to have Babachir Lawal prosecuted and was only prevented from doing so by Buhari? None, no indications at all!
Right now, newspaper headlines and banners are rife with hints that Buhari is about to decide the fate of Lawal Daura. Well, let’s be clear about one thing, at least as far as the law is concerned: it is the AGF and not the President that should take the action necessary to prosecute Lawal Daura for the siege on the National Assembly. Yes, behind the scenes Buhari may direct his AGF not to have Daura prosecuted but in the first instance, calls for Daura’s prosecution should go to the AGF, not the President.
For those who may still be inclined to think that there really is no serious and consequential distinction to be made between Buhari and Malami on responsibility for the grave dereliction of duty that is behind the refusal to prosecute protected criminals, there is this unassailable aspect of ACJA: it actually stipulates, very extensively, that whoever is the AGF must be a person of great uprightness, conscience and compassion, especially in the interest of the oppressed and the downtrodden of our society. Please, compatriots, do not forget that ACJA came into being on the heels of the great injustice, unfairness and inefficiency that pervade the administration of criminal justice in our country.
And do not forget, compatriots, that, even now as we are debating these issues, ACJA 2015, in its full dimensions, is yet to be implemented by our law courts, which in effect means that ours is still one of the most unjust legal orders in the world. Think, compatriots, of the thousands killed and or maimed in the herdsmen’s attacks on farmers and their communities, in comparison with the paucity of those arrested for these murderous onslaughts, together with the even more rare instances of their prosecution. Think also, dear readers, of the other thousands murdered through political, militia and inter-communal rampages. These are the things people have in mind when they state that for most of its peoples, Nigeria is not only one of the toughest places on the planet in which to live, it is also one the most regrettable lands in the world in which to die. Also, these are the things that prompted those who drafted ACJA and saw it through from draft to legislation to make the AGF the one on whose shoulder lies its actualization.
Please do not get me wrong. In the final analysis, the buck stops with both the AGF and the President, with both Malami and Buhari. But only at the very last instance. In the first, second and third instances and up to even the thirty-seventh instance, the buck stops with the AGF and all the Attorney Generals of the 36 states of the federation. In ACJA, the AGF has the responsibility to coordinate the activities of all these other chief law officers of the country. This means that in reality, Abubakar Malami or whoever is the current incumbent of the post at any point in time is the one on whom lies the responsibility.
In conclusion compatriots, I have one very simple “solution” for this dilemma: push hard, very hard on Malami; insist that so far in his tenure, he has been a great misfit, an unconscionable obstacle to the execution of the obligations and responsibilities of his office; if Buhari stands by him – as I expect that he will – know only then, compatriots, that the buck has moved from the AGF to the President. Only then will we at last come to see that the refusal to obey court orders is nothing if not the other side of the refusal to prosecute protected criminals.
Biodun Jeyifo
bjeyifo@fas.harvard.edu
