In this interview conducted by Emmanuel Ado, host of Let’s Talk, a current affairs programme that airs on Liberty Radio/ TV, Kaduna, the Attorney – General of the Federation and Minister of Justice, Alhaji Abubakar Malami (SAN) spoke on the war against corruption, the Kogi State governorship election, the current crisis in the Kogi State House of Assembly, the MTN/NCC issue and other issues. Excerpts
The Buhari -led administration of the All Progressives Congress (APC) government has just celebrated one year in office; as the Attorney-General of the Federation and Minister of Justice, do rate your ministry?
As you rightly stated, this administration has just clocked one year. I think substantially by way of assessment of the role of the Federal Ministry of Justice – which by the way is fundamentally centred on enforcement of laws, legislations and ensuring that necessary framework is put in place for effective implementation of the policies of government, the Federal Ministry of Justice has been effective in providing all the necessary support for the fight against corruption of which several legislations have been put in place and transmitted to the executive for the purpose of passage into law…among them is the Money Laundry ( prevention and prohibition) Law, Whistle Blower Protection Law, Mutual Legal Assistant Criminal Matters Bill, bills for the Domestication of Agreements for Avoidance of Double Taxation, the Forfeiture of Assets Law, the Criminal Justice Administration Act, the Prison Act, aimed at the de-congestation of the prisons, ensuring that high profile cases are pursued with vigour and then above all, the international and bilateral agreements with countries where proceeds of crimes, looted funds, have been invested in ….are areas which in the last one year the Federal Ministry of Justice has indeed provided the required support to see that the policies of government are implemented. We have not also allowed ourselves to be derailed by the status of individuals concerned. We maintained a course of being just and fair, regardless of the personalities involved.
Are the problems you seem to have as a result of your actions or that of some people who before now thought some other persons should be the Attorney – General of the Federation and Minister of Justice? I know in the Buhari administration for a fact that you have eleven lawyers in that cabinet, what’s your response to this?
We’re operating in a political landscape which naturally accommodates or has the potentials to accommodate diverse interests. And we’re living in a world where mostly empty vessels kind of provide greater sounds contrary to the reality on ground. But the truth of the matter is that first and foremost, whatever you are doing, you need a clear conscience. What I will appreciate is for people to judge us based on the laws that the ministry usually relies upon in canvasing legal positions. Laws are by their nature regulated in terms of providing a roadmap. So, if you want to do justice to whatever issue that is at stake, your major consideration should always be the basis of our action and it has to be the laws associated inter alia with the issues. Now, that brings me down to the issue of Kogi.
As the chief law officer, can you explain your actions in the confusion in Kogi State?
There are two issues in Kogi: the death of Audu and the issue in the House of Assembly between the G5 and the G15. The constitution, the provisions of the Electoral Act and the judicial interpretation that has been handed down over the years, particularly by the courts, guided our constitution. That was our roadmap. We didn’t act in a vacuum. In the case of Amaechi versus INEC, it was made abundantly clear and again by the interpretation of Section 112 of the constitution that votes are cast for political parties….that’s one. Arising from the issue of Amaechi was that votes cast are for the party. And then secondly, the issue arose as to whether there should be substitution on account of death. The Electoral Act is very clear that there should be substitution on account of death among other considerations which include voluntary withdrawal. So, you can equally not take out the right of substitution having been sustained by the Electoral Act. Arising from these two provisions, Audu died and the issue arose as to succession or substitution. Now, I think the area over which controversy – needless I must say – set in was, the idea as to whether there should be fresh primaries for filling in the vacant seat or not? Whether we like it or not, the process was inconclusive, arising from the position taken by INEC.
So, if you look at it from the point of who should become the candidate, the Electoral Act is very clear that the only process through which a candidate of a political party can emerge is through the process of primaries. And then, we had primaries in place and you should equally note for interest that primaries are regulated by laws by the powers vested in INEC to fix timetable for the conduct of primaries which timetable was put in place by INEC. The primaries had taken place in compliance with the timetable that was put in place. Now I know there exists no provision either in the Constitution or Electoral Act that contemplates a situation of extension of time for the conduct of subsequent primaries that would have allowed for the conduct of new primaries in the circumstances recorded. It is only logical that since you have a valid primary that had never been subjected to petition or contention, the option is to revisit it and then if you want to be just and fair, you look for the second candidate in that process that has been legitimately and lawfully conducted by INEC. Now just for the purpose of logic, let us look at it from this perspective; if APC as a party conducted fresh primaries, where is the law that allows for that extension? It couldn’t because the law did not contemplate that scenario or much less accord the electoral commission the opportunity for extension of time to conduct new primaries. In the absence of such a law and you now conduct new primaries and then an issue of determination arises as to which of the two primaries is valid. Naturally the idea of priority of time will equally come into play. An issue that is presumed regular cannot be presumed irregular until upon being set aside by judicial pronouncement. The earlier primary election was never a subject of litigation or legal determination. And then if you’re talking of priority of time, an action that has taken place first is always presumed to be regular as against the subsequent one. So, it is only logical that the first primaries should be accorded recognition as any new one would have been out of time. So the first primary which was conducted in line with the Electoral Act which INEC conducted within the timeframe is, in my view, the right decision.
Sorry for drawing you back; I have examples to buttress what we are saying. Goodluck Jonathan was the governorship candidate of the PDP in 2007; he had won the election and then he was chosen as the Vice President. Timi Sylvia contested and got eight (8) votes; he came second. So, PDP substituted Goodluck Jonathan with Sylvia. You want to recall that Timi Alibe didn’t contest. So you see, as I’ve stated earlier that arising from the Electoral Act, the only process through which someone can be a candidate of a party is through the conduct of the primary. So, that buttresses what we’re saying that someone that has not participated in the primaries can definitely not benefit from the process of election. But the circumstances and peculiarities could be different where there exists a declaration of result. If supposing INEC had even declared Audu before his unfortunate death as the winner of the election and he was sworn-in and then thereafter he died, it would be automatic that the deputy governor will step in. Again, the election in its own right was declared inconclusive by INEC. So, again note that it is the declaration of an election that creates a mandate; if results are not declared, where will you get the mandate from? Luckily, the situation is subject to judicial interpretation of the court. Honestly, I’m proffering this opinion without prejudice to the position of the court. I am doing this out of an obligation to put across to Nigerians the basis for my actions.
But it seems the PDP would have been happy if the APC had conducted fresh primaries. Was that not what some of your party members wanted, they challenged your decision?
Well, my decision was not based on political considerations. I acted as the Chief Law Officer of the Federation
On the confusion in the State House of Assembly; yes, I have to take you through the antecedents that led to the request for legal opinion, but then fundamentally that legal opinion emanated from the office of the Inspector-General of Police and exclusively the request was based on S. (11), Subsection (4) of the Constitution of the Federal Republic of Nigeria. It’s obvious the Inspector-General of Police, requested a legal position as to whether the State House of Assembly and coalition were accorded security cover to workers in the State House of Assembly against the background of the context of securing. I think maybe I may have to quote the Constitution for that copiously for your understanding which obviously forms the basis of my decision.
For the purpose of Nigeria’s consumption, S. (11), Subsection (4) of the Constitution of the Federal Republic of Nigeria provides as follows: “Any time when any House of Assembly of a state is unable to perform its functions by reason of a situation prevailing in that state, the National Assembly may make such laws for the peace, order and good government of that state with respect to matters on which the House of Assembly may make laws as may appear to the National Assembly to the necessary or expedient until such time the House of Assembly is able to resume its functions. And any such laws enacted by the National Assembly pursuant to this section shall have effects as if they were laws enacted by the House of Assembly of the State.”
Now arising from the provision, my appreciation of the law is that the inability of the State House of Assembly to perform its functions must be by the reason of a situation prevailing in that state. I want to emphasise that the situation that’s envisaged by the provision of the Constitution is a situation prevailing in that state. We operate a system of government, that is, a three arms of government with separation of power. My argument is; if the intention of the framers of the Constitution is a situation prevailing in the State House of Assembly, the Constitution could have categorically stated the House of Assembly. But the Constitution states – situation prevailing in that state. So my contention arising from this is what is the basis for the National Assembly to take over the law making functions for the state? Is the situation prevailing in the whole state? So, my contention is that it must be circumstances that are extraneous to the House of Assembly, the whole state as a unit comprising the executive, legislative and judiciary. There must be breakdown of law and order prevailing in the state. If you’re talking of breakdown of law and order by way of analogy, anyway, I’m not certain of a State House of Assembly in respect of which we do not have one breakdown of law and order.
Currently we have an incident in Edo State, same situation as the situation prevailing in Kogi State House of Assembly, but not in the whole state. I think my reaction to both Houses have been informed from that perspective. Allow me to ask, in the event of a breakdown of law and order in the National Assembly, who takes over? It is a possibility? So, in my submission, arising from that is that what is contemplated by the Constitution is a situation prevailing in the State and not the House of Assembly. And then my second submission that emanated from that has to do with whether a resolution which was passed by a chamber of the National Assembly is enough to take over the functions of the Kogi State House of Assembly, whether it is right and proper to take over functions of a House of Assembly by a single resolution or a concurrent resolution? And then my assessment arising from this is that it is clear that the National Assembly may make such laws for the peace, order and good government of a state but the operating requirement of the Constitution for the National Assembly to act should be by way of a law and not by way of a resolution. A single resolution passed by the House of Representatives is not a law as far as our democratic dispensation is concerned.
There are three types of resolutions; a single resolution which is resolution that can be unilaterally passed by either the House of Representatives or the Senate; Concurrent resolution by both houses, a resolution passed either by the Senate or the House of Representatives and then agreed upon and ratified by the other House; and then a Joint resolution which is a resolution whereby the two Houses come together, sit together and then take a position by way of a resolution. So, my contention is that a single resolution or concurrent resolutions do not have a force of law. They are persuasive in nature, and can’t be a basis of having the force of law which is the requirement of the constitution that says the National Assembly may make such laws for the peace, order and good government of that state. If you have to take over the functions of a State House of Assembly, it has to be by law and not by way of a single resolution.
No doubt, we have not heard the last on this because the House met and they have restated their resolution and in fact, they’re saying you should be indicted. So, will somebody go to court and get this trashed out?
I’ve been served with a process of court by the Kogi State Government, through the Attorney-General of Kogi State. And I think the office of the Attorney-General of the Federation and the National Assembly are parties …
So, finally you’re going to get a pronouncement on the issue?
The matter is pending, but that is the way it’s going.
There is fear that this government is becoming…
One thing I want to make clear to Nigerians is that unjustified intimidation will never be the hallmark of this government. This is a government that came to power on the basis of integrity; that things would be done differently in accordance with the laid down articles of law. But that doesn’t mean, wherever there exists the need for an investigation, simply because of the fear that people will now attach all unnecessary interpretations that the government will refuse to act. We cannot refuse to act because people want to read meaning into every action of government. I think the basis should be whether it’s just, fair and indeed justifiable for investigations to take place regardless of who is involved. We’re not looking at institutions as far as enforcement of law and necessary investigations are concerned. But then, we’re looking at personal cases. We have no particular people in mind, no particular member of the executive or legislature in mind. When there are reasonable suspicion, suspicion of commission of an offense, definitely it has to be investigated regardless of who is involved. No arm of government is under investigation, but individuals associated with the three arms are being investigated.
It is very important you clarify the MTN/NCC issue. The major allegation against you is that you didn’t carry the Communications Minister along and that the N50billion was paid into the Federal Government’s Assets Recovery Account and not the Consolidated Revenue. Is it true that the Minister of Finance opened this account? So, why are you carrying the can? Also, why did you not carry the Minister of Communication along or did you feel he had no role to play?
Well, let me start by saying I give glory to God that has spared our lives to be part of this government of President Muhammudu Buhari. It is good that for once, the issue is not that government money has been stolen, but that it has been paid into a special account. Before now, the major contention in cases of this nature will be the whereabouts of the money. People will be shouting that the money recovered is nowhere to be found. But then, God in His infinite mercy has cleared me because what we’re talking about is why the money was paid into a special account and not the Consolidated Revenue Account? And I want to give further glory to God that neither MTN nor any other agent of government is alleging corrupt practices to me arising from my role over the MTN issue.
Now coming to the main issue as to whether the minister was carried along or not, I have to start from the onset, which was that MTN took the Federal Government to court. It instituted an action in the court against the Federal Government. Among the parties in that case as defendants is the office of the Attorney- General of the Federal and NCC. These are the two fundamental parties that were defendants in this case. The office of the Attorney General of the Federal Government has the constitutional role to defend the government and its agencies. Now the court sanctioned an out of court settlement. It wasn’t an idea initiated by the office of the Attorney-General. In fact, the office of the Attorney-General had taken steps to defend the government. Now, arising from that, MTN made a request for negotiations out of court; that’s how the whole issue of negotiation came up. But then, the office of the Attorney General of the Federation insisted that there will be no negotiations, until MTN demonstrates good faith, not even an audience. And then arising from the position of the ministry, MTN now offered to demonstrate good faith and as a result MTN offered to pay N50billion, without prejudice to the eventualities of negotiations and we insisted that if they were serious that they must equally withdraw the case and that that would be the basis.
That means you gave the MTN two conditions?
Yes, MTN eventually agreed. I’m talking of audience and not negotiations. MTN eventually agreed to those conditions and requested for an account to make the payment into for the N50billion while we worked on the resolution of the case. Well, it is only natural that Federal Ministry of Finance as the ministry responsible for keeping and opening of Federal Government accounts will provide the details. So accordingly, I wrote to the Minister of Finance asking for an account to which MTN will make the payment. Let me state categorically that the Attorney General of the Federation is not a signatory to that account. The account is not maintained by the Ministry of Justice. The account is in the name of the Federal Government and it was the Ministry of Finance that provided the account to me to forward to MTN to pay into and accordingly MTN was provided with the details of the account.
The other issue is George Uboh. At what point did you become aware that he was a convict and what exactly happened that made you to terminate his contract?
There are certain antecedents arising from my engagement with George Uboh, some of them may not be important now but I want to state that right from my days in active legal practice, George Uboh approached me, knowing as a fact that I had some relationship with Mr. President; that he wanted to be part of the conduct of election cases of Mr. President and solicited for my support. He approached me through one Modibbo from Adamawa State and took me through certain documents which looked sincere and said he had the capacity to recover more than N1trillion for Nigeria and solicited for my intercession for Mr. President to consider him. I was then made a member of the TransitionCommittee and he wanted me to introduce him to Mr. President, but I made it clear I didn’t want to unnecessarily over reach my relationship with Mr. President. Then the Assets Verification Committees my office was expected to spearhead and coordinate. I equally considered Mr. Uboh to act as a secretary for one of those Assets Verification Committees; but along the line, I didn’t, so that created a little bit of moral burden on me considering that he claimed he had information that will assist the nation and it is against this background that I acted. In fact, he wanted me to lobby Mr. President to appoint him as his Special Adviser on anti-corruption, that didn’t work. Then I offered him the task of recovery of funds, arising from what he claimed to have the capacity to deliver. He listed some items I’m not certain … I think about seven or so. And then I decided to taste his recovery skills. I limited my instructions by a formal letter, I specifically limited his activities to the 13 banks. Let me state this, he said he is aware of the existence of these funds, where they are hidden and that he can bring them to the Federal Government and not that he was going to fish for information on these funds. I gave him specific instructions to 13 banks. They were specific. But after giving him the necessary instructions; I was inundated with series of requests for confirmation by agencies of government, departments, ministries and individuals. He designed a letter headed paper with the Coat of Arms, thus giving the impression he was working for the Federal Government and he started issuing out letters to ministers, departments and if I am not mistaken over fifty ministries, departments and individuals sent letters to me asking questions. As against the 13 banks over which my instructions were restricted, he virtually ran riot. So, it became a source of concern. It was at that point that I decided to run a check on his personality and then I requested for his dossier. Well, arising from his dossier, I found out that he was a convict in the U.S over an issue that has to do with credit card fraud and for which he served some years. What provoked my interest to run this check on him was the fact that in all the 13 banks he claimed were holding government funds, he was particularly interested in accessing their data, their books. So when eventually it became clear to me that he was convicted for credit card fraud and was indeed fishing for information I had to act. And I have no regret taking that decision. My mind was agitated that the reason why he was so particular about accessing the data of the banks and looking into their books was that he wanted to use the instructions perhaps to perpetrate fraud. Mark my words …I said perhaps.