Malami’s struggle to balance national security, rule of law – TheNigerialawyer

In 2015 when freshly appointed as the Attorney General of the
Federation and Minister of Justice, Mr Abubakar Malami (SAN),
believed the rule of law and national interest could co-exist
without friction; four years after, his views may have changed,
ADE ADESOMOJU and OLADIMEJI RAMON write.

The family of ex-National Security Adviser, Sambo Dasuki, wants
the Attorney General of the Federation and Minister of Justice, Mr
Abubakar Malami (SAN), sanctioned for his last year’s comment
allegedly justifying the former NSA’s continued detention in
violation of court orders. The family is praying that Malami be
stripped of the coveted Senior Advocate of Nigeria rank.

The family had, through Dasuki’s son, Abubakar Dasuki; his wife,
Hajia Bintu Sambo-Dasuki, and his nephew, Umaru Dahiru, submitted a
petition against Malami to the Legal Practitioners’ Privileges
Committee.

Dasuki, who is facing corruption charges in relation to the
alleged diversion of funds meant for the procurement of arms needed
for prosecuting the war against Boko Hara in the North-East, has
been in the custody of the Department of State Services since
December 2015, despite a series of court orders granting him
bail.

The latest court’s pronouncement ordering his release was
delivered by Justice Ijeoma Ojukwu of the Federal High Court in
Abuja, on July 2, 2018.

In their petition to the LPPC, Dasuki’s family alleged that
Malami, in an interview with a media outfit, made an
“unprofessional” and “embarrassing” statement “unbecoming of a
Senior Advocate of Nigeria”, by saying that “irrespective of the
judgment directing the said release, the Federal Government will
not comply”.

But in his defence before the LPPC, Malami denied making such a
statement.

He said, “At no point in time did I, Abubakar Malami, SAN, the
Honourable Attorney General of the Federation and Minister of
Justice, make or utter such statement wrongly attributed to me,
that ‘irrespective of the judgment directing the said release, the
Federal Government will not comply’.

“It is observed that the alleged statement is not verifiably
quoted, and where such statement was, by any means, reported and or
attributed to me by any media report, then such attributed
statement must have been quoted and or reported out of
context.”

But during his appearance before the Senate for ministerial
screening for his re-appointment as the AGF in July this year,
Malami told the Senate that he believed that “The Office of the AGF
has the exclusive responsibility to uphold the public interest
above personal interest of anybody.”

He said, “The Minister of Justice and Attorney General, as
stipulated by sections 36, 37 and 39 of the constitution, is
supposed to protect the rights of any citizen from being violated
even by the state, but where such rights conflict with the public
interest, the latter overrides the former.”

In Malami’s submission was the echo of President Muhammadu
Buhari’s position on the relationship between the rule of law and
national interest.

In a keynote address he delivered at the beginning of the 58th
Annual General Conference of the Nigerian Bar Association on August
27, 2018, Buhari had said, “The rule of law must be subject to the
supremacy of the nation’s security and national interest.”

But back in 2015 as a brand new minister, Malami’s position on
the relationship between the rule of law and national interest was
different.

In his maiden address as the newly-appointed AGF, on November
19, 2015, the day he formally resumed office, Malami expressed a
belief which was in contrast to his current views.

In his prepared speech four years ago, Malami had said, “Under
the right leadership” the two concepts of “security measures to
protect the state” and “the respect for human rights” could
“mutually co-exist”.

He said, “The debate about the necessary balance between
security measures to protect the state and respect for human rights
is one which has become a constant issue all over the world.

“I am convinced that these two concepts can mutually co-exist
under the right political leadership as we have in Nigeria
today.”

Malami not only stressed that in dealing with security
challenges under a democratic government, the importance of the law
could not be overlooked.

He went on to assure Nigerians that his ministry would ensure
that security challenges were tackled without violating fundamental
human rights.

“The importance of the law in dealing with these security
threats in a constitutional democracy cannot be over-emphasised,
and indeed can never be overlooked.

“Relying on the provisions of Chapter Four of the 1999
Constitution of the Federal Republic of Nigeria (as amended) and
the provisions of several international conventions and instruments
to which Nigeria is a party, let me assure you that my ministry
will work assiduously to reinvigorate the implementation of our
existing laws as may be necessary to make them suitable to tackle
the current challenges without violating the fundamental human
rights of any individual.”

But Buhari’s government, to which Malami is the chief legal
adviser, has been under heavy criticisms in the last for years for
failure to respect court orders, especially where the court ordered
the release of certain individuals.

Among those currently bearing the brunt of acts of violation of
court orders by the Buhari administration are Dasuki, the leader of
the Islamic Movement of Nigeria, Sheikh Ibraheem El-Zakzaky, and
his wife, Zeenat, and lately, the publisher of SaharaReporters,
Omoyele Sowore, along with his co-defendant, Olawale Bakare, with
whom he was charged with treasonable felony.

The detention of these men has attracted wide criticisms.
Meanwhile, lawyers have continue to warn that disregard for the
rule of law and court orders had dire consequences for the
nation.

Bemoaning the state of the rule of law in Nigeria, a Senior
Advocate of Nigeria, Dr Wale Babalakin, had called on Nigerian
lawyers to stand up in the defence of the judiciary.

Babalakin warned lawyers not to look up to their colleagues
holding executive and legislative positions to fight for the
independence of the judiciary.

He said history had shown that lawyers who found themselves in
the corridors of power were the most draconian, arbitrary and
mostly treated the rule of law with indifference.

He said the fact that Nigeria’s Vice-President, Prof Yemi
Osinbajo (SAN), the Speaker of the House of Representatives, Mr
Femi Gbajabiamila, and many governors were lawyers was no guarantee
that the independence of the judiciary would be safeguarded.

Babalakin spoke in Lagos last week at the unveiling of the
biography of the immediate-past Chief Judge of Lagos State, Justice
Opeyemi Oke.

He said, “If you think that because today the Vice-President is
a lawyer, the Speaker of the House is a lawyer, many governors are
lawyers; the minute they wear the executive toga they cease to be
interested in the full independence of the judiciary. You are the
ones that can save yourselves. You should save yourselves by
protecting the system.

“From my own experience, lawyers who found themselves in
executive positions are the more draconian, are the more arbitrary
and are the most indifferent to the rule of law. So, it is you that
can save the profession.”

Also, speaking in August at this year’s Annual General
Conference of the NBA in Lagos, Mr Offiong Offiong (SAN) had said
though judiciary independence was crucial to the rule of law,
Nigerian judges had been under a siege in the last three years.

Offiong said lawyers in positions of power must use their
positions to fight for the independence of the judiciary.

The SAN had said, “I understand, by the way, that one of our
colleagues, who headed the recovery panel, has been sacked and he
has gone to court. It just emphasised that we need the court.

“When you are in power, you think you don’t need the court but
when you are out of power you run to the court. And the time to
fight for the independence of the judiciary is actually when you
are in power.”

“The time to fight against evil is when the evil is knocking at
your neighbour’s door. Don’t wait for the evil to overpower your
neighbour and then come for you because there will be no neighbour
to fight for you,” he added.

Just last week at the 12th Annual Business Luncheon of a
commercial law firm, SPA Ajibade & Co., in Lagos, a Court of
Appeal Justice, Justice Biobele Georgewill of the Court of Appeal,
made a similar point.

“Without the rule of law there is no democracy. You can’t
pretend to practise democracy and you don’t practice the rule of
law,” Justice Georgewill had said.

The Justice recalled how when he was a high court judge, a
retired army general ran to his court seeking an injunction against
the Nigerian Army.

“I told him, ‘You too! You came to the court! Before you retired
if I invited you, would you have come? You wouldn’t. That is the
rule of law for you. It is the master of all and we must all be
ready to subject ourselves to the rule of law. Without the rule of
law there is no democracy. You can’t pretend to practice democracy
and you don’t practice the rule of law,” the Justice said.