The office of Attorney General of the Federation and Minister of Justice is an office of unique Constitutional significance. By Section 150 (1) of the Constitution of the Federal Republic of Nigeria 1999 the portfolios of Attorney General and Minister of Justice are combined in one person thus making the Attorney General the Chief Law Officer of the Federation and a cabinet Minister. Unlike other ministerial positions it is an office specially created by the constitution itself and the Attorney General is the only cabinet minister who must be appointed on the basis of a prescribed professional qualification. No one who is less than 15 years at the Bar can be appointed to the office.
Though the office is one the most easily recognisable of the ministerial positions, whose origins date back to colonial times, yet the duties associated with the office are often misunderstood. The Attorney General, as chief law officer, is the parens patriae which means that he is the guardian of public interest and is has vested with the sole authority to uphold and enforce public rights. In relation to criminal prosecution, he can initiate or discontinue criminal proceedings, in his absolute discretion. Based on what is now known as the Shawacross doctrine, he should never accept dictation from the executive or anyone else as to how he exercises his powers in relation to criminal proceedings.
The duties of the office can be stressful. A former Attorney General of England, Sir Elwyn Jones in an address to the Cambridge University Law Society in 1969 recalled the views of previous holders of the office in the following terms “one of my famous predecessors, Francis Bacon once said that the office of Attorney General “was the painfullest in the realm”. It fell to another Attorney General a few centuries later, Sir Patrick Hastings, to say that to be a law officer was to be in hell” I am happy to say that it is only occasionally that I feel like that about it”.
In the discharge of his duties the Attorney General must be guided by the public interest. In his Memoirs, another Attorney General of England, Lord Shawcross expressed the position as follows:
“Finally – and this is a field of great significance- the Attorney General is in a way the protector of not only charities but of the public interest generally the duty has a very early origin. He has for long been the proper person to take legal proceedings where the interest of the public are endangered or where acts tending to public injury are taking place without authority…………………………………
I felt that it was of the utmost importance to maintain the position that it was the duty (however personally unpleasant) of His Majesty’s Attorney General to represent the public interest with complete objectivity and detachment and that to refuse to discharge that duty in a particular case in which the public interest might be suspected to be in conflict with the interest of certain of his friends or political colleagues would be tantamount to saying that the office itself was inadequate to represent and protect the public interest against whosoever might challenge it”
The recent Offshore Reference case instituted at the Supreme Court by the Attorney General. Chief Bola Ige SAN has once again brought into focus the burden and demands of the office. The case has pitched the Attorney General against the protagonists of resource control who have construed the reference as an opposition to their demands. There have even been criticisms from his party, the AD to the effect that Chief Ige’s action derogates from the manifesto of the party. These criticisms underscore the misconceptions widely held about the duties of the Attorney General. The paramount consideration which should guide the actions of an Attorney General should be the public interest and in a situation where there is a dispute over the provisions of the constitution which is capable of degenerating into a crisis it is quite reasonable for the Attorney General to refer the matter to court for adjudication. In so doing, the Attorney General does not thereby become an adversary of any of the parties but is merely interested in having the dispute resolved judicially. He has no personal stake in the matter. In many Federal jurisdictions, there have been similar Offshore Mineral References. There was such a reference to the Canadian Supreme Court in 1967 and there have been similar references in the US and Australia. The present Attorney General should therefore be commended for this initiative.
Regrettably the approach of the present Attorney General to the controversy over the adoption of the Sharia by some of the states of the federation cannot elicit the same commendation. The neglect by the Federal Government in taking legal action earlier in the controversy and the recent public pronouncements on the issue by the present Attorney General have justifiably given rise to the charge by protagonists of resource control of some double standard. In a recent interview in THIS DAY Newspapers, the Attorney General was reported to have declared that the adoption and implementation of the Sharia as being undertaken by Zamfara State and some other northern states is constitutional. This startling declaration seems to have been made without reference to the previous directive of the Vice – President that those states should revert to the previous position adopted during the first Republic whereby non-civil aspects of the Sharia were enforced through the Penal Code. No one who has been living in this country since May 1999 will deny that the constitutionality of the adoption of the Sharia by certain states has been the most engaging constitutional issue.
A large section of the country have taken objection to adoption to the Sharia in its renewed form on the grounds that it offends against section 10 of the Constitution which prohibits the adoption of a state religion and also section 38 which provides for freedom of thought, conscience and religion. There is also section 42 which provides for freedom against discrimination.
Given the weightiness of these issues it is out of place for the Attorney General to dismiss these objections off hand, which is what his declaration as to the constitutionality of the Sharia purports to do.
The Sharia controversy like the Offshore Minerals dispute is best resolved through judicial process as there are adequate legal standards on which the issues in controversy can be determined. If one is being submitted for reference to the Supreme Court, there appears to be no reason why the Attorney General cannot initiate proceedings ex officio in relation to the other dispute. A decision by the courts will be most helpful in streamlining the application of Sharia. It will provide guidance for both the states that have adopted the Sharia as well as the non – Sharia States. It appears that the real reason why the Federal Government has neglected to act is the fear that litigation will only further inflame an otherwise volatile political situation. If this had been the reason advanced it would perhaps have been more gratifying than having the Attorney General pronounce on the constitutionality of such a sensitive matter on the pages of the newspapers. As the guardian of public interest more restraint and professional detachment was called for.
There is no doubt that Attorneys General are often politicians but it is important that an Attorney General is not avidly political; a disposition towards frequent public pronouncements on sensitive political matters or becoming embroiled unabashedly in partisan politics are actions which are capable of undermining the esteem in which the office is held. Another English Attorney General, Lord Rawlinson once commented on the duties of the Attorney General as follows “Certainly dangers will arise if, during his term of office a law officer is seen to be or thought to be overtly political; too much the Minister and too little counsel to the crown and to Parliament. Like the Lord Chancellor he should not, in my opinion, engage in extravagant party political debate”.
It is hoped that in future more constitutional issues will be resolved through our courts as it is only by confronting our problems that we can best resolve them rather than by brushing them aside.