Eze Onyekpere
The just concluded screening of persons nominated as ministers
by President Muhammadu Buhari has thrown up some issues about the
rule of law and entrenchment of democratic principles in Nigeria.
The central question is: What is the purpose of the Senate’s
screening? A rubber-stamping exercise or service to the fatherland
to determine the qualification and suitability of nominees who have
been put forward to serve as ministers? This discourse reviews the
screening especially within the context of the questions put
forward to the former Attorney General and Minister of Justice,
Abubakar Malami and the answers he proffered.
By Section 147 of the Constitution, it is stated that there
shall be such offices of ministers of the government of the
federation as may be established by the President. Any appointment
to the office of minister of the government of the federation
shall, if the nomination of any person to such office is confirmed
by the Senate, be made by the President. From the wording of this
section, the Senate has a discretion to exercise and no one can
become a minister without the confirmation of the Senate. The
Senate, this time round, adopted the procedure of asking general
questions to the nominees and the proceedings were televised,
thereby offering every Nigerian the opportunity to watch the
confirmation hearings.
Malami was questioned by the Senate Minority Leader, Enyinnaya
Abaribe, why he counselled, supported and procured the disobedience
of various court orders while he was the Attorney General between
2015 and 2019. He replied on national television that he conceded
that he had a responsibility as Attorney General of the Federation
to protect individual rights; but looking at the provisions of
Section 174 of the constitution, he stated that the Office of the
AGF is meant to protect public interests and where the individual
interests conflicts with the public interests of 180 million
Nigerians, then the public interest as determined by the office of
the AGF must prevail. He referred to the decision of the Supreme
Court in the case of Asari Dokubo Vs Federal Republic of Nigeria
that when an individual’s interest conflicts with public interest,
the public interest will prevail. Thereafter, the Senate confirmed
his nomination which has been forwarded to the President.
Specifically, the response to the question provides reasons for the
Buhari administration’s continued disobedience to court orders
This response from Malami and the Senate’s confirmation of his
nomination portend grievous danger to the rule of law and
constitutional democracy. The constitution is very clear on who has
powers to determine the national or public interest. By Section 6
of the constitution, the judicial powers of the Federation shall be
vested in the courts to which this section relates, being courts
established for the Federation and these powers extend,
notwithstanding anything to the contrary in this constitution, to
all inherent powers and sanctions of a court of law. They also
extend, to all matters between persons, or between government or
authority and to any persons in Nigeria, and to all actions and
proceedings relating thereto, for the determination of any question
as to the civil rights and obligations of that person. And the
executive is under constitutional oath and obligation to enforce
all judgements of the courts.
The constitution anticipates that there may be the need for
derogations from fundamental rights and freedoms and clearly makes
a provision for such. It states in Section 45 that nothing in
Sections 37 (right to privacy), 38 (freedom of thought, conscience
and religion), 39 (freedom of expression), 40 (freedom of assembly
and association) and 41 (freedom of movement and residence) of this
Constitution shall invalidate any law that is reasonably
justifiable in a democratic society in the interest of defence,
public safety, public order, public morality or public health; or
for the purpose of protecting the rights and freedom or other
persons. Further, an Act of the National Assembly shall not be
invalidated by reason only that it provides for the taking, during
periods of emergency, of measures that derogate from the provisions
of Section 33 (right to life) or Section 35 (right to personal
liberty) of this constitution; but no such measures shall be taken
in pursuance of any such Act during any period of emergency save to
the extent that those measures are reasonably justifiable for the
purpose of dealing with the situation that exists during that
period of emergency.
Thus, the constitution requires that a law be enacted by the
National Assembly authorising the derogations based on the
exceptions listed above. And when this law is enacted and
derogations are based on it, the courts still have the final word
as to the legality of such derogation of rights. Let me paint the
scenario clearly. Malami as the Chief Law Officer of the Federation
then prepares a brief on behalf of the Federal Government (for
instance, in defence of an application for bail of a detainee, at a
time there is no state of emergency), submits to the jurisdiction
of the court and once the court rules against his submission and
frees the detainee, he assumes the illegal, non-constitutional and
treasonable title of the defender of the public interest, which now
finds the temerity to disobey court orders. This is the ball game
of dictatorship, tyranny and subversion of the constitution.
This is not only an insane proposition and position but a sure
recipe to anarchy, disaster and breakdown of law and order. This
must only come from the thought process of a man suffering from
severe delusion as to his powers and duties. In the Asari Dokubo Vs
Federal Republic of Nigeria case, the court did not donate its
powers to the executive; it was merely stating the issues, facts
and conditions that it will take cognisance of in coming to a
decision about the derogation of fundamental rights. It is clear
that Malami was knowingly and coldly trying his hands at some
mischief.
For the Senate to have approved and confirmed Malami as a
minister of the Federal Republic of Nigeria after this response
shows a fundamental failure of duty. It shows a disconnect between
the citizens and those who find themselves in the corridors of
power.
The Senate has done a great disservice to the rule of law and
constitutionalism. It is very likely that the President may send
him back to the Ministry of Justice since he is happy with his
first term performance. This is one of the greatest dangers facing
the nation. Although the Nigeria Bar Association put up a statement
condemning Malami’s position, it is imperative that the Bar takes
steps to protect the rule of law. For instance, the Nigeria Labour
Congress has urged the President not to send Chris Ngige back to
the Ministry of Labour. The NBA can adopt a similar position by
requesting the President not to send Malami back to the Ministry of
Justice.
Evidently, Malami is not a fit and proper person to re-assume
the position of the Chief Law Officer of the Federation as the
Attorney General and Minister of Justice. If the Senate failed
Nigerians, Malami’s professional colleagues should not shirk their
responsibility of salvaging the rule of law.
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