His Lordship Justice Binta Nyako at the Federal High
Court sitting in the Federal Capital Territory last Friday, gave an
instructive, landmark judgment in the matter between Mohammed Bello
Adoke and the Attorney General of the Federation on the extent of
Presidential powers.
I had addressed this particular subject in a previous essay
titled “Obasanjo and the extent of presidential powers” (January
29, 2018) when President Obasanjo argued forcefully that President
Muhammadu Buhari must be prepared to accept responsibility for the
failings and failures of his government and stop blaming previous
governments or political leaders. What Justice Binta Nyako has done
in the suit titled FHC/ABJ/94/446/2017 re: Mohammed Adoke vs
Attorney General of the Federation is to give a judicial stamp to
the theoretical views expressed in that earlier essay and even an
earlier one preceding it. I could not previously comment on the
details of such matters before the court, in order not to run foul
of the rules of contempt, ex facie curia, but it seems to me that
Justice Binta Nyako with her ruling affirming the extent of
presidential powers has enriched our jurisprudence. Except there is
any earlier precedence under the 1999 Constitution, this must be
taken as a locus classicus, and how it plays out in our
jurisprudence should be of both theoretical and practical
interest.
Further, Justice Binta Nyako has upheld the potency of Section 5
of the Constitution, which vests the powers of the President of
Nigeria under the 1999 Constitution, in his person and not in
institutions. The meaning here is clarified in Section 148 which
allows the President to delegate his authority. Justice Binta Nyako
ruled that where the President’s delegated authority is carried out
lawfully and with consequent approvals, the person exercising that
delegated authority is free of any liability. This is a technical
point of law, which further establishes a trite point about the
relationship between an agent and a principal. In this matter,
Mohammed Bello Adoke is the agent and President Goodluck Jonathan
and the Federal Government of Nigeria (of which Jonathan was Head
of State and Head of Government) exercising powers granted under
the Constitution, are the disclosed principals.
Nyako’s ruling is important in part, also, because following the
displacement in 2015 of the then ruling Peoples Democratic Party
(PDP) by the All Progressives Congress (APC), the new power brokers
at the centre simply adopted the notion that anybody close to
Jonathan must be corrupt. Even where and when they have plausible
reasons for investigation, or prosecution, their partisan,
accusatorial, selective, and vindictive approach has ruined what
could otherwise have been a worthy governance issue. Making the
fight against corruption look like an attempt to destroy Jonathan
by all means has in the last one year backfired. Justice Nyako’s
ruling of course has nothing to do with politics: it is about what
the law says.
In the other matter of Colonel Sambo Dasuki, Jonathan’s National
Security Adviser (NSA), for example, and in similar other matters
involving President Jonathan’s agents, the defendant(s) simply
need(s) to prove that he or she acted in line with the directives
and approvals of the President and that would be the end of the
matter. I should also add that members of the Buhari administration
may in the future find themselves quoting this same Nyako ruling,
except it is upturned, as the main cover available to them for
lawfully carrying out Presidential directives. It is useful always
when the Constitution is tested. It should therefore be seen as a
good development that Section 5 of our 1999 Constitution is now
being tested, given the enormous powers at the disposal of the
Nigerian President and his agents.
Mohammed Bello Adoke wherever he may be, must be happy with the
outcome of this case that he instituted on the extent of
presidential powers. I know him – we served in the same government
– and I know he has been on self-imposed exile, away from the
unhealthy political environment imposed by the ruling APC. Adoke
has also been the target of all kinds of charges, obviously the
effect of the attempt by the ruling APC to denigrate some of the
shining stars in the Jonathan government. Adoke was definitely a
shining star, one of the many who were in the Jonathan government:
men and women who not only boasted of first-rate education, but who
were internationally regarded for their talents and
accomplishments. At the risk of sounding like someone who was
involved, and probably making a passionate assessment, I will like
to throw up a point: that in the last 35 years or so, President
Ibrahim Babangida, President Olusegun Obasanjo and President
Goodluck Jonathan recruited into the Federal Government at all
levels some of the best and the brightest that Nigeria has ever
offered. What each one of these three political leaders did or
achieved with the talents at their disposal, however, or the
quality of their individual efforts, is something we can
debate.
Back to Adoke: whatever the state may be afflicting him with
today, I can attest that he was an asset to the Jonathan government
and an asset to the Nigerian state itself. The substantive issue
before Justice Binta Nyako was the Constitutional interpretation of
Sections 5(1), 147, 148 and 150 of the 1999 Constitution but
underlying it is the matter of OPL 245 or what is more popularly
known as the Malabu Oil deal, and Attorney-General Mohammed Bello
Adoke’s role. The Malabu oil deal is a case that spans the
life-time of five successive governments – from Abacha to
Abdusalami to Obasanjo to Yar’Adua to Jonathan but only the last
phase of it is the subject of the Buhari government’s interest.
What is the role of previous governments and Presidents and their
agents?
In many press releases, Mohammed Bello Adoke who was Jonathan’s
Attorney-General insisted that he acted based on Presidential
directives and that he did no wrong and that if anything, he helped
Nigeria to retrieve money and save litigation costs. It is
noteworthy that some currently serving public officials are trying
to pay something even higher for that same transaction that has
since been paid for, completed and closed. Nigeria owes Kemi
Adeosun, the current Minister of Finance, a debt of gratitude for
blocking that curious attempt to obtain from the Nigerian
Government under false pretence, and M.B. Adoke for acting in
accordance with the law as affirmed by Justice Binta Nyako’s
court.
Nyako’s court gave declaratory orders, which I hope the Federal
Government will respect. Should the contrary be the case, the
present Attorney-General, Abubakar Malami, whose office is already
in danger of being accused of persecution of political opponents,
has the option of testing the Constitution further. It will be
clearly within his prerogative to do so and a plus for our
jurisprudence. But let him note this: the position of the
Attorney-General of the Federation and Minister of Justice is a
constitutional position, perhaps the only Ministerial position that
is so expressly recognized. This is probably the same reason why
everyone who occupies that position must be concerned about his or
her legacy. Her- yes- Nigeria is yet to appoint a female
Attorney-General of the Federation and Minister of Justice but it
should happen someday in the future. What will be Malami’s legacy
as Attorney General of the Federation and Minister of Justice?
I mentioned earlier that I worked with Mohammed Bello Adoke. He
was a very influential man in the Jonathan government. He was so
involved that he even occasionally wrote drafts of presidential
speeches, and I had to warn him to focus on the law and not dabble
into the work of night-soil men. His usual defence was that he was
only concerned about matters of the law, and he needed to be sure
that his principal, his favourite name for President Jonathan, did
not violate the Constitution. He distanced himself from politics,
because in his view, an Attorney-General of the Federation must be
non-partisan. “I am a Constitutional purist”, he always said and
“my job is to ensure that the President acts in accordance with the
laws of Nigeria.” President Jonathan had many officers like that
who would insist on their professionalism, and their understanding
of rules, best practices, and standards. Their story, individually
and collectively, will be told.
In Adoke’s case, the fact that he is now on self-imposed exile,
and his political persecution, draw attention away from his
outstanding achievements as Attorney General and Minister of
Justice. It was under his watch that the Freedom of Information Law
was passed in 2011, and the Administration of Criminal Justice Act
in 2015 – two laws that are now being used to prosecute cases
against the same government and the same persons that made them!
Mohammed Adoke was leader of the Nigerian delegation to the
Nigeria-Cameroon Boundary Commission and leader of the same
delegation to the follow-up committee on the UN implementation of
the Green Tree Agreement that brought the ICJ judgment on the
Bakassi peninsula to a peaceful resolution. He also presided over
the reform of the Evidence Act, 2011, and the Terrorism Prevention
Act of 2011, and its 2013 amendment. He was elected during this
period as a member of the International Law Commission- a United
Nations body of selected 34 experts across the world.
President Jonathan, given his respect for the law and due
process, regularly sought Adoke’s counsel. Adoke’s tongue is
sweet-coated but when it comes to matters of the law, he removes
the sugar and says it as it is. President Jonathan respected him
for that. When the Federal Executive Council decided to impose a
state of emergency in parts of the North East, in the wake of the
Chibok girls’ crisis, and there were complaints about the failure
of the Governors in that part of the country, there was a demand
that the Governors should be removed. Adoke put his feet down. He
said a state of emergency could be declared but it would be
unconstitutional to displace the political authorities. Some other
lawyers in the Cabinet, holding other portfolios insisted that
President Olusegun Obasanjo, during his tenure, declared a state of
emergency in two states and removed the Governors. Adoke argued
that Obasanjo was wrong and that such precedents could not stand.
He won the argument. The Governors in the North East kept their
seats, but a state of emergency was declared.
When Nyesom Wike was to be sworn in as Governor of Rivers state,
there was no Chief Judge of Rivers State in office. Adoke had to
argue that a Chief Judge from a neighbouring state could do the
job. And that was what happened. When Adams Oshiomhole as Governor
of Edo State wanted to sign death penalty warrants for condemned
persons in his state, Mr. Adoke had to remind Edo State that the
Nigerian Government was on a self-imposed moratorium on the death
penalty. This brought him in conflict with the then Edo State
Governor. He held his ground. Oshiomhole signed the warrants
anyway. Adoke understood the powers of his office and he hid under
the purity of the law to exercise those powers.
But for all that he has done for Nigeria, it is unfortunate that
the only thing many know about him is OPL 245. That is just the way
it is in our country. We destroy, persecute and humiliate our best
talents, for nothing other than political reasons. But the
judiciary is gradually finding its voice and standing up in the
defence of the law and the rights of persons (see Reuben Abati,
“Judges, the law and our democracy”, ThisDay, back-page, February
20, 2018). The ruling by His Lordship Justice Binta Nyako is the
latest in this regard. Whatever the colour of the party in power,
the judiciary remains the last hope of the common man, the
aggrieved and the victim of persecution. In a country where noise
is more important than reason, where allegations are packaged as
truth, and villains behave like victims, the judiciary should
always seek to remain the voice of reason, truth, justice, equity
and good conscience – against all odds.
His Lordship Justice Binta Nyako at the Federal High
Court sitting in the Federal Capital Territory last Friday, gave an
instructive, landmark judgment in the matter between Mohammed Bello
Adoke and the Attorney General of the Federation on the extent of
Presidential powers.
I had addressed this particular subject in a previous essay
titled “Obasanjo and the extent of presidential powers” (January
29, 2018) when President Obasanjo argued forcefully that President
Muhammadu Buhari must be prepared to accept responsibility for the
failings and failures of his government and stop blaming previous
governments or political leaders. What Justice Binta Nyako has done
in the suit titled FHC/ABJ/94/446/2017 re: Mohammed Adoke vs
Attorney General of the Federation is to give a judicial stamp to
the theoretical views expressed in that earlier essay and even an
earlier one preceding it. I could not previously comment on the
details of such matters before the court, in order not to run foul
of the rules of contempt, ex facie curia, but it seems to me that
Justice Binta Nyako with her ruling affirming the extent of
presidential powers has enriched our jurisprudence. Except there is
any earlier precedence under the 1999 Constitution, this must be
taken as a locus classicus, and how it plays out in our
jurisprudence should be of both theoretical and practical
interest.
Further, Justice Binta Nyako has upheld the potency of Section 5
of the Constitution, which vests the powers of the President of
Nigeria under the 1999 Constitution, in his person and not in
institutions. The meaning here is clarified in Section 148 which
allows the President to delegate his authority. Justice Binta Nyako
ruled that where the President’s delegated authority is carried out
lawfully and with consequent approvals, the person exercising that
delegated authority is free of any liability. This is a technical
point of law, which further establishes a trite point about the
relationship between an agent and a principal. In this matter,
Mohammed Bello Adoke is the agent and President Goodluck Jonathan
and the Federal Government of Nigeria (of which Jonathan was Head
of State and Head of Government) exercising powers granted under
the Constitution, are the disclosed principals.
Nyako’s ruling is important in part, also, because following the
displacement in 2015 of the then ruling Peoples Democratic Party
(PDP) by the All Progressives Congress (APC), the new power brokers
at the centre simply adopted the notion that anybody close to
Jonathan must be corrupt. Even where and when they have plausible
reasons for investigation, or prosecution, their partisan,
accusatorial, selective, and vindictive approach has ruined what
could otherwise have been a worthy governance issue. Making the
fight against corruption look like an attempt to destroy Jonathan
by all means has in the last one year backfired. Justice Nyako’s
ruling of course has nothing to do with politics: it is about what
the law says.
In the other matter of Colonel Sambo Dasuki, Jonathan’s National
Security Adviser (NSA), for example, and in similar other matters
involving President Jonathan’s agents, the defendant(s) simply
need(s) to prove that he or she acted in line with the directives
and approvals of the President and that would be the end of the
matter. I should also add that members of the Buhari administration
may in the future find themselves quoting this same Nyako ruling,
except it is upturned, as the main cover available to them for
lawfully carrying out Presidential directives. It is useful always
when the Constitution is tested. It should therefore be seen as a
good development that Section 5 of our 1999 Constitution is now
being tested, given the enormous powers at the disposal of the
Nigerian President and his agents.
Mohammed Bello Adoke wherever he may be, must be happy with the
outcome of this case that he instituted on the extent of
presidential powers. I know him – we served in the same government
– and I know he has been on self-imposed exile, away from the
unhealthy political environment imposed by the ruling APC. Adoke
has also been the target of all kinds of charges, obviously the
effect of the attempt by the ruling APC to denigrate some of the
shining stars in the Jonathan government. Adoke was definitely a
shining star, one of the many who were in the Jonathan government:
men and women who not only boasted of first-rate education, but who
were internationally regarded for their talents and
accomplishments. At the risk of sounding like someone who was
involved, and probably making a passionate assessment, I will like
to throw up a point: that in the last 35 years or so, President
Ibrahim Babangida, President Olusegun Obasanjo and President
Goodluck Jonathan recruited into the Federal Government at all
levels some of the best and the brightest that Nigeria has ever
offered. What each one of these three political leaders did or
achieved with the talents at their disposal, however, or the
quality of their individual efforts, is something we can
debate.
Back to Adoke: whatever the state may be afflicting him with
today, I can attest that he was an asset to the Jonathan government
and an asset to the Nigerian state itself. The substantive issue
before Justice Binta Nyako was the Constitutional interpretation of
Sections 5(1), 147, 148 and 150 of the 1999 Constitution but
underlying it is the matter of OPL 245 or what is more popularly
known as the Malabu Oil deal, and Attorney-General Mohammed Bello
Adoke’s role. The Malabu oil deal is a case that spans the
life-time of five successive governments – from Abacha to
Abdusalami to Obasanjo to Yar’Adua to Jonathan but only the last
phase of it is the subject of the Buhari government’s interest.
What is the role of previous governments and Presidents and their
agents?
In many press releases, Mohammed Bello Adoke who was Jonathan’s
Attorney-General insisted that he acted based on Presidential
directives and that he did no wrong and that if anything, he helped
Nigeria to retrieve money and save litigation costs. It is
noteworthy that some currently serving public officials are trying
to pay something even higher for that same transaction that has
since been paid for, completed and closed. Nigeria owes Kemi
Adeosun, the current Minister of Finance, a debt of gratitude for
blocking that curious attempt to obtain from the Nigerian
Government under false pretence, and M.B. Adoke for acting in
accordance with the law as affirmed by Justice Binta Nyako’s
court.
Nyako’s court gave declaratory orders, which I hope the Federal
Government will respect. Should the contrary be the case, the
present Attorney-General, Abubakar Malami, whose office is already
in danger of being accused of persecution of political opponents,
has the option of testing the Constitution further. It will be
clearly within his prerogative to do so and a plus for our
jurisprudence. But let him note this: the position of the
Attorney-General of the Federation and Minister of Justice is a
constitutional position, perhaps the only Ministerial position that
is so expressly recognized. This is probably the same reason why
everyone who occupies that position must be concerned about his or
her legacy. Her- yes- Nigeria is yet to appoint a female
Attorney-General of the Federation and Minister of Justice but it
should happen someday in the future. What will be Malami’s legacy
as Attorney General of the Federation and Minister of Justice?
I mentioned earlier that I worked with Mohammed Bello Adoke. He
was a very influential man in the Jonathan government. He was so
involved that he even occasionally wrote drafts of presidential
speeches, and I had to warn him to focus on the law and not dabble
into the work of night-soil men. His usual defence was that he was
only concerned about matters of the law, and he needed to be sure
that his principal, his favourite name for President Jonathan, did
not violate the Constitution. He distanced himself from politics,
because in his view, an Attorney-General of the Federation must be
non-partisan. “I am a Constitutional purist”, he always said and
“my job is to ensure that the President acts in accordance with the
laws of Nigeria.” President Jonathan had many officers like that
who would insist on their professionalism, and their understanding
of rules, best practices, and standards. Their story, individually
and collectively, will be told.
In Adoke’s case, the fact that he is now on self-imposed exile,
and his political persecution, draw attention away from his
outstanding achievements as Attorney General and Minister of
Justice. It was under his watch that the Freedom of Information Law
was passed in 2011, and the Administration of Criminal Justice Act
in 2015 – two laws that are now being used to prosecute cases
against the same government and the same persons that made them!
Mohammed Adoke was leader of the Nigerian delegation to the
Nigeria-Cameroon Boundary Commission and leader of the same
delegation to the follow-up committee on the UN implementation of
the Green Tree Agreement that brought the ICJ judgment on the
Bakassi peninsula to a peaceful resolution. He also presided over
the reform of the Evidence Act, 2011, and the Terrorism Prevention
Act of 2011, and its 2013 amendment. He was elected during this
period as a member of the International Law Commission- a United
Nations body of selected 34 experts across the world.
President Jonathan, given his respect for the law and due
process, regularly sought Adoke’s counsel. Adoke’s tongue is
sweet-coated but when it comes to matters of the law, he removes
the sugar and says it as it is. President Jonathan respected him
for that. When the Federal Executive Council decided to impose a
state of emergency in parts of the North East, in the wake of the
Chibok girls’ crisis, and there were complaints about the failure
of the Governors in that part of the country, there was a demand
that the Governors should be removed. Adoke put his feet down. He
said a state of emergency could be declared but it would be
unconstitutional to displace the political authorities. Some other
lawyers in the Cabinet, holding other portfolios insisted that
President Olusegun Obasanjo, during his tenure, declared a state of
emergency in two states and removed the Governors. Adoke argued
that Obasanjo was wrong and that such precedents could not stand.
He won the argument. The Governors in the North East kept their
seats, but a state of emergency was declared.
When Nyesom Wike was to be sworn in as Governor of Rivers state,
there was no Chief Judge of Rivers State in office. Adoke had to
argue that a Chief Judge from a neighbouring state could do the
job. And that was what happened. When Adams Oshiomhole as Governor
of Edo State wanted to sign death penalty warrants for condemned
persons in his state, Mr. Adoke had to remind Edo State that the
Nigerian Government was on a self-imposed moratorium on the death
penalty. This brought him in conflict with the then Edo State
Governor. He held his ground. Oshiomhole signed the warrants
anyway. Adoke understood the powers of his office and he hid under
the purity of the law to exercise those powers.
But for all that he has done for Nigeria, it is unfortunate that
the only thing many know about him is OPL 245. That is just the way
it is in our country. We destroy, persecute and humiliate our best
talents, for nothing other than political reasons. But the
judiciary is gradually finding its voice and standing up in the
defence of the law and the rights of persons (see Reuben Abati,
“Judges, the law and our democracy”, ThisDay, back-page, February
20, 2018). The ruling by His Lordship Justice Binta Nyako is the
latest in this regard. Whatever the colour of the party in power,
the judiciary remains the last hope of the common man, the
aggrieved and the victim of persecution. In a country where noise
is more important than reason, where allegations are packaged as
truth, and villains behave like victims, the judiciary should
always seek to remain the voice of reason, truth, justice, equity
and good conscience – against all odds.
Read more https://nairalaw.com/section-5-and-the-mohammed-bello-adoke-case-by-reuben-abati/