UnderTow

There are suggestions that Abubakar Malami, Justice minister and Attorney General of the Federation (AGF), may be coveting the Kebbi State governorship in 2023. The soothsayers who claim to perceive his ambition insist Mr Malami is such an open book that he is easy to read. He has so far comported himself in a manner that even if that book is open, the text is nevertheless tiny. What is neither tiny nor indistinguishable, however, is that since he became AGF, he has not stopped playing politics in such an open and affronting manner that a Nigerian would be blind not to see either his governorship interest or his passion for hegemonic politics. In whatever way he carries himself, Mr Malami is first and foremost a politician, then secondarily a lawyer, and finally, but only as an afterthought, the nation’s chief law officer. It presents the nation a worrisome and curious window into his mind that he has not played any of the three roles with the astuteness, ethicalness and candidness his qualification and office demand of him.

For a moment, ignore his politics. He will continue to play politics till his dying day. Today, instead, consider his office as the nation’s chief law officer, to which he has brought his qualification as a lawyer. Whether he becomes governor of Kebbi or not as many Nigerians have read into his life, it is already established that he is AGF, and will remain so to the end of the Muhammadu Buhari administration. Since the president does not have an eye for competence and skillfulness, and is chary of sacking any of his aides or ministers, including the worst performers ever, it can be presumed that Mr Malami’s position is safe till 2023. What cannot be presumed, however, is whether he will leave a great legacy behind, in the manner of other great Nigerian chief law officers. Indeed, there is no proof, his qualification notwithstanding, that Mr Malami is substantially bothered about any legacy other than his preoccupation with his personal and probably group interests.

The AGF has not betrayed any suspicion that he knows the juristic contempt he is held by his contemporaries and Nigerians at large. But by nearly universal consensus, Nigerians have very low opinion of Mr Malami as the nation’s chief law officer. In fact they think he disgraces that position, has actively undermined the rule of law, which triggered a short-lived campaign to derobe him, has no mastery of law nor is he interested, and thinks little about the future of law as an indispensable principle of both justice and democracy. Rarely does Mr Malami intervene in matters of law strictly defined and interpreted. If political advantages cannot be derived from the legal issues he has made controversial, the AGF can hardly be bothered beyond his official duty. But when politics is involved, especially when that politics touches on his private and group interests, Mr Malami can be trusted to muscle in uninvited, and offer so-called expert opinion, even if far-fetched.

Such was his enthusiasm in 2015, only a few months after he assumed office, that he waded into a political controversy brewing in Kogi State at the death of the All Progressives Congress (APC) candidate moments before the governorship election of that year was called. Prince Abubakar Audu, the candidate, had just died before the electoral umpire, INEC, declared the result. A few polling units were slated for a rerun, but even if the opposition won the rerun 100 percent, it was not enough to alter the outcome from the unassailable lead the APC had achieved. As the body saddled with the responsibility of organizing the election, INEC was still contemplating how to interpret the Electoral Act when Mr Malami barged in and offered his unsolicited view. That view scandalously suggested that Yahaya Bello, who came a distant second in the APC primary and actively worked against Prince Audu’s election, should inherit the party’s votes instead of the running mate, Abiodun Faleke. INEC welcomed the AGF’s needless intervention and concurred with its conclusions, thus indicating that rather than adhere to a strict interpretation and application of the law, a conspiracy was involved and preferred.

Here is how Mr Malami framed his intervention: “The issue is very straightforward. Fundamentally, Section 33 of the Electoral Act is very clear that in case of death, the right for substitution by a political party is sustained by the provisions of Section 33 of the Electoral Act. And if you have a community reading of that section with Section 221 of the constitution it clearly indicates that the right to vote is the right of a political party and the party, in this case, the APC has participated in the conduct of the election. It is, therefore, apparent that the combined community reading of the two provisions does not leave any room for conjecture. APC as a party is entitled to substitution by the clear provisions of Section 33 of the Electoral Act. Also, Section 221 of the Constitution is clear that the votes cast were cast in favour of the APC. Arising from that deduction, it does not require any legal interpretation. The interpretation is clear, APC will substitute, which right has been sustained by Section 33 of the Electoral Act. So be it. The supplementary election has to be conducted along the line.”

The AGF was not INEC’s legal officer, but that did not matter. Nor did he say anything about why Mr Faleke, who was already on the ticket, did not merit being adopted by the party, even going by the community reading of the relevant provisions of the Electoral Act. Worse, it did not matter to Mr Malami that Mr Bello, whom his convoluted interpretation of the constitution and the Electoral Act benefited, was not registered to vote in Kogi State as at the time of the 2015 election. The number of those qualified to vote in the rerun election was also less than the difference between the votes cast for the Audu/Faleke ticket and the votes of the nearest challenger, the Peoples Democratic Party (PDP). Mr Malami simply glossed over this and rushed headlong into his partisan conclusions. Perhaps he truly forgets the weight of his office, or the huge and sacred responsibility which that office thrusts upon his sagging shoulders.

In June, justifying his deep involvement in the affairs of the APC, particularly why he presided over the swearing in of the controversial Governor Mai Mala Buni-led caretaker convention committee, Mr Malami offered this extraordinary argument: “Entrenchment of democracy and democratic culture is not only a desirable responsibility, but a constitutional one regardless of being added to the constitutional provisions and the demand for sustenance of democracy in the country. The office of the attorney general exercises dual functions inclusive of that of minister of justice which is a political and advisory function. Administration of justice is one of such functions. A federation is an embodiment of the governance inclusive of the executive, legislature, and Judiciary with a possible expansion to accommodate private, corporate and associated entities. Within that context, it will not be out of place for an attorney general of the federation to administer an oath on any one inclusive of leadership of any political party whether he belongs to it or not.” In the eyes of Mr Malami, nothing is off limit; absolutely nothing. For him, there is nothing and no involvement that cannot be justified.

Apart from swearing in anyone and anything, a task very menial compared with the far more onerous job of justifying tyranny, the AGF seized upon a 2006 judgement by the Supreme Court in the treason trial of Asari Dokubo to declaim upon the highly vexed issue of how to balance national security and individual rights. The court had ruled that “Where national security is threatened or there is the real likelihood of it being threatened, human rights or the individual right of those responsible take second place; human rights or individual rights must be suspended until the national security can be protected or well taken care of.” A more astute AGF would have seen the pitfalls in the apex court making an obviously political statement destitute of legal principles, but Mr Malami hungered for excuses to underscore his unsavoury pursuits.

He was in fact believed to have inspired the address read by President Buhari at the annual Nigerian Bar Association (NBA) conference in August 2018, an address drawing inspiration from the Supreme Court judgement in the Asari Dokubo case. Said the president two years ago: “The Rule of Law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that where national security and public interest are threatened, or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society.” Mr Malami echoed this sentiment in 2019 during his Senate screening in July. According to him, “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.” The devil is of course in the detail as to what the AGF really meant, and what he is prepared to do when the state, to which he is subservient, clashes with the individual’s rights for which he demonstrates considerable loathing.

It was not surprising, therefore, that when Mr Malami waded into the so-called December 1 House of Representatives ‘summon’ of the president on insecurity, he seemed to have overridden the president’s initial preparedness to honour the invitation. Here is his controversial argument: “The confidentiality of strategies employed by the President as the commander in Chief of the Armed Forces of the Federal Republic of Nigeria is not open for public exposure in view of security implications in probable undermining of the war against terror…The National Assembly has no Constitutional Power to envisage or contemplate a situation where the President would be summoned by the National Assembly on operational use of the Armed Forces. The right of the President to engage the National Assembly and appear before it is inherently discretionary in the President and not at the behest of the National Assembly…The management and control of the security sector is exclusively vested in the President by Section 218 (1) of the Constitution as the Commander in Chief of the Armed Forces including the power to determine the operational use of the Armed Forces. An invitation that seeks to put the operational use of the Armed Forces to a public interrogation is indeed taking the constitutional rights of law making beyond bounds. As the Commander in Chief, the President has exclusivity on security and has confidentiality over security. These powers and rights he does not share. So, by summoning the President on National Security operational Matters, the House of Representative operated outside constitutional bounds. President’s exclusivity of constitutional confidentiality investiture within the context of the constitution remains sacrosanct.”

Mr Malami is of course talking gibberish. Even if the legislature cannot summon the president, given public apprehensions, should the president not take the initiative to address the nation on insecurity, speak to the legislature, engage all stakeholders, and do much more? In the end, the president came across as lackadaisical, Mr Malami as partisan and meddlesome, and the administration as incompetent. Regardless of what anybody says, Mr Malami will not concern himself with the law when it conflicts with politics, and will rarely mind the delicate issue of legacy as the nation’s chief law officer. It is not because he cannot tell the difference when a distinction is drawn before him; it is simply because he is naturally incapable of the discipline needed to do anything noble and different. He will remain partisan to the very end, law and legacy be damned.

By UnderTow and originally published in TheNationonlineng

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