Rethinking the Appointment of the Office of the Attorney General of State and Federation to Enhance the Rule of Law and Justice in Nigeria.
Chudi Ojukwu[1]
Abstract:
The office of the Honourable Attorney General and Minister/Commissioner of Justice of State and Federal are both amongst the most valuable, powerful, and sensitive positions established by the Nigerian constitution. These whole adjectives used in qualifying this office are explicitly seen in the overwhelming functions/powers of the Attorney General. While these functions will be thoroughly inundated in this article, the office is filled with challenges that are crippling the Nigerian society in the Criminal, Civil Justice, and Administrative system of Nigeria. The office is badly fettered by the Executive Arm of Government. Hence, this article will deal with the need to rethink the appointment of the Attorney General of the State and Federation to enhance the rule of law and the Justice system in Nigeria to be in line with the spirit of the people and the provisions of the constitution. This article will have its contents as follows a brief introduction and description of the office of the Attorney General, then followed by the history of the Attorney General, the explanation of the powers of the Attorney, the comparison between in different jurisdictions, the challenges faced by the office, and lastly the recommendations.
1.0 Introduction
The writer believes that the Constitution did not provide for the appointment and function of any office, ministry, or agency like that of the Attorney General. The Constitution[2], which is the highest law of the land, provides for the offices of the Attorney General of the Federation and Attorney General of State respectively[3]. They are regarded as the Chief Legal Officers of both the Federal and State level as well as both the Minister and Commissioner of Justice of Federal and State Government(s). The office is prevalent in almost all the countries in which their legal system derived its origin from the British legal system. It must be mentioned that the office of the Attorney General dates back to centuries before the 16th Century, which was when it assumed a more defined office. Initially, the king’s attorneys were appointed only for a particular business or for particular cases or courts, but in the 15th century, an attorney general for the crown was a regular appointee. In time, he had be given the right to appoint deputies and became a figure of great influence as the medieval system broke down and political institutions were established[4].
However, the duties/power of the office has not always been as clear-cut as enumerated above. indeed to the evolution of the office from that of the King’s Attorney to the modern-day Attorney General has had a chequered history. Tracing the historical evolution of the office of the Attorney-General, Professor Sayles opined that although the sovereign is in theory, the fountain of Justice and supreme, there are so many cases reported in the yearbooks in which the king was a litigant in his courts and presumably abided by their decisions. According to him, since it was inconceivable for the king to appear in person to the suits, they could only sue or be sued by their Attorneys-The Attorney-General. In this connection, it is interesting to note that as early as 1243, a professional Attorney -One Lawrence Del Brok was already prosecuting pleas of particular concern to the sovereign[5]. Between 1254 and 1268, there is a record of at least thirty cases in which this Attorney was engaged by the Crown[6]. Professor Sayles refers to Lawrence Del Brok being paid a regular fee of twenty pounds a year for suing the king’s affairs of his pleas before him[7]. It can therefore be contended that LAWRENCE Del Brok was the king’s first Attorney and the progenitor of the modern-day AG. In 1311, the practice of appointing the King’s Attorney by letters patent was established[8]. The first appointee to the office of the King’s Attorney was Robert Poun but it was only in 1315 that the first formal appointment is recorded of a specially designated King’s Attorney- William of Langley. Mention must however be made of the fact that before this time, a peculiar situation arose after the demise of Del Brok in 1274, during the tenure of his successor – Walter of Wimborne who was appointed justice of the king’s bench only two years after his appointment as King’s Attorney. As a result, some of the king’s pleas were assigned to a professional Attorney or to the care of Clerks of the court to sue on the king’s behalf but the ones affecting the sovereign were delivered by Walter of Wimborne in person to the King s Sergeants. However, in quite a number of these pleas, the new King s Attorney cum royal Justice appeared in court himself to plead the Kings cause thus creating a connection of interest and roles Where in Some cases the new King s Attorney adjudged the very case in which he had earlier personally participated as King’s legal representative[9]. However, this practice was abolished in 1290 with the appointment of Richard de Brettivile as King’s Attorney. It is important to observe that during this period, the King’s Attorney did not have any political functions to perform as the Attorney-General performs today. His responsibility was simply to maintain the crown s interest before the courts. During this time, the practice was that the king’s Attorney was appointed and assigned to a particular court. For instance, John de Norton was appointed in 1312 as King’s Attorney in the King’s Bench, and shortly thereafter in 1315, William of Langley was appointed as King’s Attorney to cover the court of Common Bench. This practice continued unabated throughout the reign of Edward III.
However, with the coronation of Henry IV in 1399, the foundation for the modern structure of a single King’s Attorney with the right of audience in all the royal courts was instituted. Again, the King’s Attorney began to have terms of appointment from the appointment of William de Ludington in 1399. Before then, the King’s Attorney had general supervision over the King’s affairs in the royal courts. Subsequent appointments of the King’s Attorneys followed the same or similar terms of appointments.
In 1461, with the patent appointing John Herbert the authority of the King’s Attorney to appoint one or more deputies was introduced. However, the tenure of office was irregular, with the result that some of the King’s Attorney, by custom, held an appointment as the King’s Legal representative during the pleasure of the sovereign, some others were appointed quamdiu se bene gesserit[10]and this applied more frequently in later years. Significantly during the reigns of King Henry V and Henry VI1, the appointment of the King’s Attorney was done ad vitam[11]. However, there has been a complete reversal as patents of modern Attorneys-General now make provisions for appointment “during our pleasure”
In 1461, the expression “Attorney- General of England was used for the first time in the patent of appointment of John Herbert. This is the earliest instance of the adoption and use of the term Attorney-General. It was also in this year that the first King’s Solicitor- Richard Fowler was appointed and this was the original precursor of the modern-day office of the Solicitor-General.
It is also important to observe that the now very wide and expansive powers of the Attorney-General in England did not come about in one fell swoop They developed with the development historical evolution of the office By the turn of the 19” Century, it had become clear that the Attorney-General had control over all criminal prosecutions in England. Even in civil matters, all suits for or against Government or any department of Government were (are still are) instituted by or against the Attorney-General. Still on criminal prosecutions, so wide were the powers of the Attorney General that by the Public Bodies Corrupt Practices Act 1889 and the Prevention of Crimes Act 1906, the fiat or consent of the Attorney-General were required before certain proceedings could be commenced and in some cases as in the Lunacy Act 1890, the consent of the Attorney-General was declared necessary before certain penalties could be recovered. Again, it was necessary to obtain the Attorney-General fiat for certain appeals to the House of Lords (Appellate Jurisdiction Act 1876- S.10) Ditto for the Printers and Publishers Act 1839, confirmed by the Newspaper s and Reading Rooms Repeal Act 1869 and Explosives Act 1853. It has also been the duty of the Attorney-General in England to attend at the Bar in a judicial capacity and report on the claim whenever the House of Lords sat in a committee of privileges and he is almost invariably a member of the House of Commons where he answers questions on legal matters of public interest and this brings to bear the political nature of his office[12].
With the history above substantially dealt with, the researcher will go forward to discuss the Function/Powers of the office of the Honourable Attorney General in the Nigeria State
2.0 Powers/ Functions of the office of the Attorney General
The Attorney General has numerous functions in the two areas of law that the entire legal system is based on, that is, Criminal and Civil Proceedings, and thirdly, in the Administrative System of law. All these functions are provided for by the 1999 Constitution of Nigeria. These three areas will be explained briefly and explicitly.
Briefly, Criminal proceedings[13]are simply the ways criminal offenses provided by the laws are being resolved, even in the military, while Civil proceedings[14]are simply how every other issue that is not a criminal issue is being resolved, then the Administrative functions[15]do not deal with dispute resolutions but with advisement to the executive and any other functions. With this said, these areas will be discussed thoroughly.
2.1 Criminal Litigation
The first function here is that of inquiry. On any issue of violence or sudden death that is unnatural or may be caused by crime[16], Sections 3 & 6 of Coroner Law of Lagos State as well as the provisions in the Coroner Laws of other states and the federation, mandates the Attorney General is to set up or appoint a person(s) to conduct an inquest regarding such death. After the findings, the Attorney General brings the matter to the court. Also, if victims of any kind of offense report to the Attorney General, the Attorney General can through his office mandate the police and other law enforcement agencies or security agencies in a criminal proceeding to carry out their functions. Attorney General can also ask for sanctions by asking the court to give orders against them for non-performance of the duties that are within their power. The sanctions for failure to obey these orders will lead to contempt of the Court, which includes fines and imprisonment amongst other things. However, no one can drag the President and vice or Governor & deputy to court let alone give the order[17].
The Second function of instituting criminal matters. This means that if any crime is committed against a person(s), whether or not the suspect is known, once the Attorney General is informed of the case, the Attorney General can commence the matter in any court within his jurisdiction which is either at the state or federal level, except for the court-martial. In simpler terms, if anyone should harm a person(s), his property, notwithstanding that the offender is the Chief of Army Staff, Minister, Senator, Policeman, Governor, Judge, President, etc, the foremost person to inform is the Attorney General. The Attorney General is the proper and the topmost person that can institute matters for that person(s). Other people that can institute a case are the Police, EFCC, NDLEA, Customs, Immigration, etc., a lawyer whether an independent lawyer or a lawyer that works in the ministry of justice or even a magistrate in the North can do that too but Attorney General is Chief Law Officer which makes him the topmost lawyer. Although all these people mentioned above are all subservient to the Attorney General, they do not always need his consent but for a few of them prescribed by law to obtain a fiat before instituting a Criminal proceeding[18].
The third function is that of taking over any criminal matter. Now the Police[19], EFCC, NDLEA, Customs, Immigration, etc., a lawyer whether an independent lawyer or one that works in the ministry of justice or even a magistrate in the North can institute criminal proceedings. In a layman’s term, these people can bring the matter to court as earlier mentioned. The victim whether dead or alive can’t do that, not even his relative who is not any of the above cans. However, all these people the researcher called are all submissive to the demigod Attorney General in their various jurisdictions. So, the Attorney General can tell any or all of them orally or in a written letter “to go home and sleep”, that he is taking over the matter and no one will question it, no one. The only exception to it is if the matter is instituted at the Court Martial. The court-martial is for persons subject to the Service Law (Armed Forces Act)[20]. However, there is an exception to this exception which empowers the Attorney General again. This is when it is not a criminal military offense and the researcher will give examples of non-criminal military offenses; battery, assault, murder of civilians, robbery[21], etc., these offenses are called civil offenses by the Armed Forces Act. The Attorney General has the right to seize such a case and institute criminal proceedings against them or even for them if the member of the armed forces is the one harmed. The Attorney General can institute such a case not minding that the court-martial is handling it or has handled it and given a verdict. The Attorney General can still resurrect it and prosecute the matter in a normal civil court of superior record. Also, The Attorney General can take up such matter before the court-martial, give the verdict, go to court, and when the civil court gives its verdict, the court-martial is rendered powerless, which means they can’t do anything about the matter again[22]. Also, that the court-martial tried any offense does not mean the verdict of the court-martial is final because the civil court can still institute the matter again through the Attorney General and the decision of that civil court will be the final verdict[23]. The issue of taking over proceedings, the reader may feel is not right because probably he was not there to know how it started and the amount of work already put in it. Well, it is simply because of uniformity of action that the power of takeover is needed. The National Assembly is not to establish commissions or agencies that will use their powers arbitrarily without control on criminal proceedings, hence the need for Attorney General.
Lastly, as it concerns the Functions and Powers of the Attorney General in a criminal proceeding is the power to discontinue a case. This is called Nolle Prosequi. While those mentioned with the authority to institute criminal cases above are in court prosecuting the case, the Attorney General can wake up any day, go to court, ask the court to stop hearing the matter, and tell those that are prosecuting to stop prosecuting. This he can do without anyone asking him for reasons, not even the judges. However, it must be known that this function is to be exercised with utmost care in respect of (1) interest of justice, (2) public policy, (3) preparation of the case for better trials. The last point hinges on the fact that the order of discontinuance given by him does not dismiss the issue completely. He can bring back the case to court or when he leaves office another Attorney General appointed after him will reinstitute the matter[24]. On this last issue of discontinuance, the reader may be saying it may occasion injustice to the victim and the state. Well, the answer to it is that if enough evidence is not found to nail the accused to crime and the accused is innocent, without discharge the accused may languish in jail for no just cause. But the discharge does not set the accused free completely. He will pay for his crime any day evidence is found against him.
2.2 Civil Proceedings.
The first function is the power of the Attorney General as a nominal party on issues that concern the executive arm of government. It is the representative capacity of the Attorney General to the executive arm of government concerning suits brought for or against them. This representative function covers every aspect of the executive government ranging from the president/ Governor to the heads of ministries and agencies as it concerns their actions in their official capacities. Simply put if the government takes a person’s land unlawfully and the person wants to sue the government, the person(s) is suing the Attorney General invariably. The Government terminates the job of a public servant unlawfully, the public servant invariably sues the Attorney General. If any of the commissioner or minister does not do his work or in his official capacity, commit any harm which will require redress in court, the person seeking such redress will sue the Attorney General, and many other issues as far as it concerns the executive arm of government[25].
The Second power is provided for by section 84 of the Sherriff and Civil Process Act[26]which simply states that when a person has a case against the state government and the court gives judgment in the person’s favor and money is awarded to the person as damages, that the said person will need the consent of the Attorney General to be given the money. If the Attorney General does not consent, the person will not get that money. Simply put, in cases where the Government owes for a contract done for them or a civil servant’s job is terminated unlawfully or the government converts a person’s land and destroys a person’s property unlawfully, etc and the court says that they, the government has done wrong to the persons, and says the government should pay the person for it, the person needs the Attorney General’s consent to be given that money. The reason provided for this is that every money in the government account has already been provided for in the budget and that the debt was not part of it[27]. Though the issue is still in so much content, The Researcher laughs at that law; my answer is simply this, a day will come the Federal Government will owe the state government and when the Attorney General of Federation refuse to give consent to the Attorney General of that state on the judgment debt. He will simply go to the Federal High Court or Supreme Court as the case may be to ask the court to declare that provision of the Sheriff and Civil Process Right Act void and inconsistent with the provisions of sec 4 (3 and 7) of the constitution, inconsistent to public policy, rule of law, equity and a good conscience and, the Justices of the Supreme Court will joyfully grant that request. Why is that possible because, unlike criminal proceedings, in civil matters, the court is only allowed to make decisions on the claims before them and nothing more. Though they can make incidental decisions like declaratory decisions the Court (Supreme Court inclusive) can also make the executory decision. The Researcher still laughs, if the reader asking why that has not been done already, The Researcher does believe the answer will be in the next issue that will be raised.
The last function/power of the Attorney General in civil proceedings is what the researcher considers the most important of them all. And the researcher will discuss delicately is the power to represent the entire Nigerian populace either in the state or federal and fight for them legally against bad legislative enactments. The provisions of section 20 of the Supreme Court Act read together with the provisions of section 295, 232(1) of the constitution and section 1(1)(a) -(c) of the Supreme Court (Additional Original Jurisdiction) Act 2002[28].
These provisions simply state that the Supreme Court has the original jurisdiction in any matter that concerns the National Assembly and President or Governor of a state amongst other powers to interpret any law made by the National or State Assembly to be in tandem with the constitution. The provisions also state that the Attorney General will be the only one to commence the case on behalf of the Governor or President as the case may be, against the National Assembly
Now the law is what the Supreme Court and the Courts interpret it to be. The provisions of the constitution are enough in almost all issues to progress Nigeria. The highest of them is section 4(3 and 7) of the Constitution which provides for the legislature to make laws for peace, order, and Good Governance. This provision is enough to push Nigeria forward. To the researcher, it is probably the most important provision in the constitution. It simply means that every law that the National or State house of Assembly makes, must conform with that provision Section 4(3 and 7), and the Supreme Court and other Courts are meant to interpret it to conform to that provision of the constitution or it is no law. Therefore, all those bad laws made by the legislature are meant to be made void. Bad laws like laws giving the legislature the power to amass wealth to the detriment of the general public, will be interpreted as void. Bad laws which are still bills, like constituency project which is being affected by the legislature though not yet passed as a law except in Lagos State which has made it a law. Bill on social media regulation yet to be passed as a law which will infringe on the constitutional right of the freedom of expression and is also part of the fundamental human right, is why Nigeria is in chaos and other laws which will be interpreted by the Supreme Court to be either void or better improved to suit the constitution and the country.
One may ask why are they not interpreting the constitution and the laws of the legislature to suit that provision of Section 4 (3 and 7) of the constitution and as well as interpreting the laws for the good of Nigeria. The answer lies in Section 20 of the Supreme Court Act. That only the Attorney General can require them to do that by bringing those issues on behalf of the executives to the court against the National Assembly and State House of Assembly and as the case may be, only the Attorney General can do that and no one else. The researcher wishes to inform the reader that the Justice of the Supreme Court has their hands tied until the Attorney General confronts them to interpret any law made by the legislature that is not good.
2.3 THE ADMINISTRATIVE POWERS/FUNCTIONS
The administrative functions of powers of the Attorney General includes advising the executive as the chief law officer, guiding them on issues of laws for them not to breach the rule of law or go contrary to the constitution. This is part of his work as a member of the Council of State provided for in Sections of the constitution to advise the President[29].
He/she also arranges for legal officers or lawyers to prosecute criminal matters and arranging for lawyers to institute or defend civil actions on behalf of the States and Federation, its parastatals, and agencies. The functions also include keeping under review all the laws applicable to States and Federation with a view of reviewing their systematic development and reform, preparing executive bills following directives from the Cabinet for Laws to be enacted by the State House of Assembly or the National Assembly, Preparing subsidiary legislation for Government Ministries and other Bodies, attending the Federal and State Executive Council meeting where policies are formulated for the States and Federation. And he performs any other duty that may be assigned to him by the President/Governor.
3.0 A COMPARISON OF THE MODE OF APPOINTMENT OF ATTORNEYS GENERAL IN OTHER JURISDICTIONS
This paper reviews the mode of appointment in other jurisdictions particularly the United Kingdom and the United States of America. In the USA some states vote the Attorney General into offiice without any interference from anyone. On the other Hand, in other states and the Federation, the Attorney General is nominated by President/ Governor and confirmed by the congress. In the United Kingdom which uses a parliamentary system of Government, He is nominated by the Prime Minister and he must not be a member of the parliament and after the confirmation by the House of Lords, He becomes Attorney General. He is not still a member of the Prime Minister’s cabinet because he is known as the Attorney General to the crown or the crown’s legal adviser. Although he is not a cabinet member, he can still attend cabinet meetings[30]. All these Countries are still in dilemma on the mode of appointment of the Attorney General[31]
- 0 CHALLENGES OF THE POSITION OR OFFICE OF THE ATTORNEY GENERAL IN NIGERIA.
Nigeria practices the democratic system of government which vests the republic’s supreme power in the citizens[32]. The people choose, directly or indirectly, representatives to exercise that power. In return, the people expect government officials (and government) to be responsive, responsible, and accountable. The peoples’ representatives are charged with upholding the Constitution and conducting the business of government for the benefit of all, preventing the abuse of power is a central problem of any civilization.
This paper is not majorly concerned with the power of the Attorney General but the mode of appointment, that is what all these are about and how proper appointment of Attorney General can change Nigeria powerfully. The appointment of the Attorney General, both state and Federal are almost the same. I must say clearly that the provisions that established the Attorney General did not say anything about His appointment, Section 150 and 195 of the constitution respectively[33]. The appointment is based on the provisions of the 1999 Constitution. The fact that the position of Attorney General serves the dual function of Attorney General and Minister/Commissioner is also provided for in the constitution. The mode of appointment is provided for by the entirety of Section 147 which makes use of Section 14 (3) of the constitution for appointment of the minister and Section 192 of the constitution which makes use of Section 14 (4) of same 1999 constitution. They are both simply saying that the President should nominate indigenes of different States/Governors should nominate indigenes of different Local Governments, send for confirmation and subsequent appointment for any ministry the President/Governor establishes.
4.1 CHALLENGES WITH THE MODE OF APPOINTMENT
This paper presents four things should be noted in this appointment which form major challenges:
- Appointment of Ministers and Commissioners are for ministries established by the president or Governor by Section 147 and 192 of the constitution. Simply put, the ministry of petroleum, finance, health and technology etc are all establishments of President/Governor as he likes. A very good example of this is the ministry of happiness in one Igbo State like that.
- The Attorney General is the only minister/commissioner established by the constitution and not by these executive heads.
- The constitution did not provide for the mode of appointment of this Attorney General ministerial/ commissioner position. Therefore, it could be said that the best provision that can go with the provision of Section 150 and 195 of the Constitution is Section 14(1) this is because of the peculiarity and powers of that position of Attorney General. Section 14(1) simply provides that the Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice.
- Also by the provision of the constitution the Attorney General is a member of the Judiciary as he is a member of the State Judicial Service Commission of various States, Federal Judicial Service Commission, and State Judicial Service Committee of Federal Capital Territory[34].
However, although he/she is, in effect, a “political officer charged with legal duties.” What sets him apart from other executive department heads is that along with attending to vast administrative burdens, the Attorney General must perform as a lawyer with the special professional obligations that are attached. He must act consistently with the President’s policies but not let political considerations or “inappropriate and improper, though not necessarily illegal” influences sway his legal judgment[35].
These challenges are caused by this mode of appointment by the executive. Without prejudice to the office of the executive heads who are Governors and the President, the researcher uses the words “possible and percentage” in writing these challenges.
Is it possible that the executive head does not heed the advice of the Attorney General appointed? The answer on the possibility is 93%.
Is it possible that they can dismiss the Attorney General recklessly for disobedience to unlawful instructions given to him to the detriment of the people they are serving? The answer on the possibility is 96%.
Is it possible that they can stop the Attorney General from doing lawful actions? The answer on the possibility is 89%.
Is it possible that they can use the Attorney General to enter the power of discontinuance which will cause the discharge of social deviants who are thugs and hoodlums to members of the executives, who have been charged for a heinous crime? The answer on the possibility is 99½%.
Is it possible that they can hijack the powers of the Attorney General by forcing him to give fiat (authority) to lawyers of their choice for their whims? The answer on the possibility is 95%.
Is it possible that they can appoint members of the bar who have lost the good character to be appointed Attorney General, but being appointed because he is a sycophant? The answer on the possibility is 100 ½ %
Is it possible that they can make the Attorney General withhold his consent to the judgment creditor as I mentioned in my second letter? The answer you already know.
Is it possible that they can make or instruct the Attorney General to prosecute and persecute their enemies when they find him in court at all cost? The answer you already know.
Is it possible that when their enemies are victims of a crime committed against them and the suspects of the crime are brought to court that they will not use the power of the Attorney General to make a muddle of the case or enter the power of discontinuance for the accused persons to deal with their enemies who are the victims? The answer you already know.
Lastly, is it possible that since the executive head can serve for 8 years and can appoint his Attorney General twice and that criminal proceeding that he buried or the accused person that he made the Attorney General enter the power of discontinuance for, will not amount to justice delayed hence justice denied? The answer you already know[36].
- 0 RECOMMENDATIONS
As earlier written, the researcher is not mainly interested in the powers of the Attorney General, but the mode of appointment and tenure of that office. The researcher will like to restate some facts.
The Ministers and Commissioner Appointments are for ministries established by the President or Governors under Section 147 and 192 of the constitution which is read together with Section 14 (3 and 4) of the same constitution. Simply put, the ministry of petroleum, finance, health, technology are all establishments of President/Governor as he likes and the appointments should reflect Federal character.
The Attorney General is the only Minister/Commissioner established by the constitution and not by the executive head.
Also by the provision of the constitution, the Attorney General is a member of the Judiciary as he is a member State Judicial Service Commission, Federal Judicial Service Commission, and State Judicial Service Committee of Federal Capital Territory[37].
The constitution did not provide for the mode of appointment of this Attorney General ministerial/ commissioner position. Therefore, It must be said that the best provision that can go with the provision of Section 150 and 195 of the Constitution is Section 14(1). This is because of the peculiarity and powers of that position of Attorney General. Section 14(1) simply provides that the Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice. The reason is that the Attorney General is first and foremost a lawyer, who should works within the bounds of as provided by Laws of the nation, rule of Law and Justice to the society[38].
In line with the above, the researcher humbly recommends that the Nigerian Bar Association and Nigerian Bar Association Chapters of various states vote in 3 persons as a recommendation to the Governor, for him to select one of them and send to the House of Assembly for confirmation[39]. These persons appointed must have several cases done in the interest of the public and have shown some credibility of some sort.
There should also be a stricter disciplinary committee of the Legal Practitioners Disciplinary Committee to discipline and recommend for removal of the Attorney General.
Also, as for the Attorney General of Federation, the researcher will simply say the NBA State Chapters and NBA National executive committee will Nominate those to be appointed the Attorney General of Federation and every Lawyer will vote for the three persons, the president will select one of them and send to the Senate for confirmation.
Again, the recommendation for a single tenure for the Attorney General so that if he enters the power of discontinuance that is not of public interest another Attorney General can resurrect that case.
These recommendations are humbly made to the National Assembly because they will reflect on section 14(1) of the constitution[40].
The reasons have already been given above. It should be made a statute of its own or be made as part of the alterations of the constitution. It will be similar to the recommendation by the National Judicial Council. And the decision in the case of Elelu Habeeb V Attorney General Kwara[41]State will apply.
What simply happened, in that case, was that the Governor of Kwara State removed the Chief Judge of the State on grounds of misconduct from the office after an address approved by the House of Assembly. She, the Chief Judge sued and one of the issues was whether the Governor has absolute right to remove her without the input from the NJC. The court decided among other things that the Governor and the House of Assembly cannot remove a Chief Judge before the age of retirement without first a recommendation of the NJC for such removal. Therefore, the Chief Judge was reinstated.
6.0 CONCLUSION.
In the words of Paula K. Maquire:
“The challenge for the Attorney General, the Department of Justice, and the Congress together is to develop an ethical creed that is not limited by the experience of history. It will require a new vision unhampered by historical ideas of what is “necessary,” who the client is, and to whom the Attorney General owes his duty of loyalty. It must leave behind old definitions in favor of inventing new meanings for a new context. These measures are imperative if the Attorney General and the Department of Justice are to ethically discharge the administration of justice. The principles of democratic government demand as much“[42].
In the researcher’s view, our constitution is almost perfect but for the mode of appointment of the Attorney General. If the Attorney General is voted in, by lawyers not by the general public, it will be easy to manage because there are not up to 30,000 lawyers in the entire Federation. And who better to know stoic and fair lawyers if not fellow lawyers. Also, allowing the public will be expensive on the Government as INEC will be forced to be involved, and shrewd politics will set in. if this recommendation is approved and imbibed, for the first time, Nigerians will be forced to see beyond ethnicity as voting will be purely on merit and it will show itself first in the legal profession; that will be Democracy.
Endnotes:
[1]Chudi Ojukwu is an Associate Professor of Law at the Department of Public Law, College of Law, Gregory University , Uturu. cojukwu@gmail.com
[2]Section 150 & 195 (1) of the 1999 Constitution of Nigeria as amended.
[3]The words the Attorney General of the Federation and Attorney General of State will be subsequently be referred as Attorney General. Also, the masculine pronouns used throughout this essay are intended as gender-neutral pronouns, notwithstanding the statutory language creating the Office of Attorney General and the historical reality.
[4]The entirety of the evolution of the Attorney General written in this article are all gotten from the paper presented by Hon. Charles Uwensuyi Edosomwan SAN Attorney General & and commissioner for Justice, Edo State “Powers of the Nigerian Attorney General in Perspective”
[5]Kings Bench Vol.1 P. exIV, Also, See tor instance, the book Tabular Curiales published in 1865 where Lawrence Del Brook was named first King’s Attorney in England.
[6]Dr. Bellot’s works at P. 406
[7]Kings Bench Vol. V PxxxIII No.2
[8]See Kings Bench Vol. XXXVII
[9]Kings Bench Vol IP. CXIl where mention is made of this practice being criticized
[10]“During good behavior” J. Edwards: The Law Officers of the Crown P.26
[11]Cohen: History of the Bar
[12]Professor Sayles Kings Bench Vol. V.p.IV at seg
[13] Section 174(1)[a-c] and 211(1)[a-c] of the 1999 constitution of Nigeria as amended
[14]Section 20 of the Supreme Court Act
[15]Section 174(2) and 211(2) of the 1999 constitution of Nigeria as amended
[16]Section 3 & 6 of Coroner Law of Lagos State as well as the provisions in the Coroner Laws of other states and federation, states
[17]Section 308 of the 1999 Constitution of Nigeria as Amended
[18]Section 174(2) and 211(2) of the 1999 constitution of Nigeria as amended
[19]Section 4, 19 and 20 of the Police Act Cap P19 laws of the federation of Nigeria 2004
[20]Section 130 of the Armed Forces Act Cap A20 laws of the federation of Nigeria 2004
[21]Sections 45-103 of the Armed Forces Act A20 laws of the federation of Nigeria 2004
[22]Section 170 and 171 of the Armed Forces Act Cap A20 laws of the federation of Nigeria 2004- these give the civil court (federal high court and state high court) the power to try all military offences but it will be safe to allow it to be civil offenses only because of the “doctrine of compact”. See also Chukwuemeka Castro Nwabuzor on the article “ Courts- Martial and Civil Courts: the Doctrine of Compacthttps://www.nials.edu.ng/index.php/resources/seminar/298-courts-martial-and-civil-courts-the-doctrine-of-compact#:~:text=As%20a%20general%20rule%2C%20persons,the%20Constitution%20specifically%20deny%20them.
[23] See the case of Capt. Akanni v Nigerian Army (CA/L243C/2015) (206) NGCA3
[24]State V Illori (1981) 14 NSCC 69
[25]Sections 150 and 195 of the 1999 constitution of Nigeria as amended
[26]Section 84 of Sherriff and Civil Process Act
[27]See the case of Jallo V Military Government of Kano State (1991) 5 NWLR (P+194) 154. Hon. Justice Ogunare JCA admonished the Attorney General not to fold his hands and frustrate court judgments and judgment creditors. The same was held by Hon Justice Muntaka Commaissie in the case of Christopher Onjewu v. Kogi State Ministry of Commerce and Industry (2002) LPELR-5507 page 42.
[28]Section 20 of the Supreme Court Act Cap S15 laws of the Federation of Nigeria 1990 provides thus ” Any proceedings before the Supreme Court arising out of a dispute referred to in section 212(1) of the Constitution and brought by or against the Federation or a State shall- (a) (b) in the case of the Federation be brought in the name of the Attorney-General of the Federation; in the case of a State be brought in the name of the Attorney-General of the State “. the reader should be aware that the said 212 quoted is now Section 232 of the 1999 constitution of Nigeria as amended , provisions of 232(1) of constitution “The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a state or between states if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”. And section 1(1)(a) -(c) of the Supreme Court (Additional Original Jurisdiction) Act Cap 424 laws of the Federation of Nigeria 2002 “Additional original jurisdiction for the Supreme Court(1) In addition to the jurisdiction conferred upon the Supreme Court of Nigeria by section 232 (1) of the 1999 Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between–(a) the National Assembly and the President; (b) the National Assembly and any State House of Assembly; and (c) the National Assembly and the State of the Federation, in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depend”.
[29]Third Schedule Part 1 B 5(h) and Section 175(2) of
[30]Wikipedia “Attorney General” https://en.m.wikipedia.org/wiki/Attorney_general
[31]Paula K. Maquire, The Attorney General: Political Loyalty v. Professional Responsibility – The Ethical Challenge in Serving Three Masters, 23 J. Marshall L. Rev. 229 (1990) https://repository.law.uic.edu/lawreview/vol23/iss2/6
[32]The Preamble of the 1999 Constitution of Nigeria Supra
[33]Well, with a disclaimer, when I was in 200 Level at the Faculty of law, EBSU, Ass. Prof. Ben Igwenyi who was then the immediate past Attorney General of Ebonyi State, in teaching about the Attorney General established that the first work of the Attorney General is to give legal advice to the executive as well as its ministries and Agencies, So that they do not go against the law in order for the Governor and Commissioners or President and Ministers to be able to maintain good governance. He also told us that sometimes the Attorney General can go against the Government in order to uphold justice in criminal issues and probably face the consequences of immediate sack from office. With the above said, I urge the executive to seek a symbiotic relationship with the office of the Attorney General for the interest of the state and country.
[34]Part I, II, III of third Schedule of the 1999 Constitution of Nigeria as Amended
[35]Miller, The Attorney General as the President’s Lawyer, in ROLES OF THEATTORNEY GENERAL OF THE UNITED STATES 41, 43 (1963)
[36]This reflects heavily on the rate of pretrial detention in the country
[37]Supra
[38]Rule 1 and 7 of the Rules of Professional Conduct for Legal Practitioners laws of the federation of Nigeria 2004.
[39]the Nigerian Bar Association will be referred to NBA subsequently
[40]Supra
[41]Hon. Justice Raliat Elelu-Habeeb National Judicial Council V The Hon. Attorney General of the Federation, The Hon. Attorney General of Kwara State, The House of Assembly of Kwara State (2012) All FWLR (Pt. 629) 1011; (2012) 13 NWLR (Pt. 1318) 423.
[42]Paula K. Maquire, The Attorney General: Political Loyalty v. Professional Responsibility – The Ethical Challenge in Serving Three Masters, 23 J. Marshall L. Rev. 229 (1990) https://repository.law.uic.edu/lawreview/vol23/iss2/6
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