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.
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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.
