Aug 2, 2019

The Role of the Attorney-General and the Public Interest | The Justice Reform Project


The principal function of an Attorney-General is to preserve and promote the rule of law and to guide the government so that essential public confidence in the rule of law is maintained. This is a paramount public interest. 


That is why the testimony of Mr. Abubakar Malami SAN (who has recently held the office of Attorney-General of the Federation and may return to it) before the Senate of the National Assembly of Nigeria on 26th July 2019 could be dangerously misleading.

Senators asked the Attorney-General why he has wilfully disobeyed court orders by continuing the detention of individuals who have been granted bail by the very courts to which government has arraigned them. Mr Malami’s response was that he deliberately disobeys some court orders in the interest of the public and that it is his duty to protect the overall rights of Nigerians which overrides the need to respect individual liberties. The Senators did not demur.

Mr Malami is wrong. It is not the right or power of the Attorney General to determine legal rights and to pick and choose which he will respect or not. To assert such a right or power threatens the very constitution and the rule of law. If an individual or a group breaks the law or threatens national security or public order, it is the duty of the Attorney General to build a compelling case and then present it to the constitutional adjudicator. This official cannot be accuser, prosecutor and then judge at the same time. 

If any single minister or group of ministers can secretly determine what is in the public interest and enforce such assumed public interest by defying due and legal process, then every single Nigerian is at risk of arbitrary power. If any minister can determine that he can abuse or discard court process, even after himself invoking the power of the courts, then he can abort every other constitutional guarantee in turn.
The powers of the attorney-general are circumscribed in the constitution, and as a consequence, there may be need for the immediate past attorney-general to reconsider his position, particularly because as a senior member of the bar and former chief law officer, his unusual opinion might be taken as the correct representation of the law. JRP therefore considers it expedient to state that no matter the apparent flaws in our judicial system, it remains the bastion of our democracy that all court orders must be respected by every Nigerian citizen. No person or authority is superior to our constitution and therefore should not undermine the sanctity of court orders.

The Attorney-General’s role in ascertaining the balance between the competing public and private interest, is limited to persuading the court as to where the balance lies. It is necessary to remind Mr Malami, and any other holder of this special office, that as chief law officer he/she as an incumbent must uphold the constitution, the rule of law and respect for the independence of the courts. Arrogating to the office of the Attorney-General, powers that are exclusively reserved for the courts, erodes public trust and confidence in the administration of justice and negates the rule of law which authorises civil government.

Mr. Charles Adeyemi Candide-Johnson, SAN (Convener, Justice Reform Project)
1 August 2019
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