“The constitution does not contemplate a situation where any person, natural or artificial, can claim any exception before the law. It has to be a situation of anarchy and wholesale illegality in which an exception or a preferential treatment is dispensed in favour of anyone, including the so-called high-profile corruption cases which the Chief Justice alluded to. Our laws have no provisions for “high- profile” criminals because a criminal is a criminal, irrespective what we think of him. It is the failure of the system that has created that monster category of law-breakers in Nigeria.”
Nigeria is a state that is founded on the philosophy of the Rule of Law wherein all persons and institutions are subject to the same legal treatment. This idea of the rule of law has been expressed in many ways. The starting point for its discussion is the Constitution, which has boldly set out the juristic parameters of the concept as it applies to the Nigerian State whose nature, philosophy and other characteristics are equally embedded in the Constitution.
The claim by the CJN, Aloma Muktar, last week, that the AGF office is undermining this time-honoured doctrine by its failure to carry out prosecutorial duties that the office is constitutionally obliged to perform is a huge one, no doubt. If criminals are roaming our streets in open defiance of the legal order, it is because someone has failed in his duties. According to the learned CJN, “…the court cannot on its own prosecute criminal cases; there must be the willingness of all prosecuting agencies to prosecute cases brought before our courts, especially high-profile cases of corruption and all others.”
Specifically, Section 1 (1) of the 1999 Constitution provides that “this constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
What this provision of the constitution seeks to establish is that the constitution does not contemplate a situation where any person, natural or artificial, can claim any exception before the law. It has to be a situation of anarchy and wholesale illegality in which an exception or a preferential treatment is dispensed in favour of anyone, including the so-called high-profile corruption cases which the Chief Justice alluded to. Our laws have no provisions for “high- profile” criminals because a criminal is a criminal, irrespective what we think of him. It is the failure of the system that has created that monster category of law-breakers in Nigeria.
Applied in the context that the CJN used the phrase, namely, “high-profile corruption cases,” we can guess that she meant cases involving criminals who enjoy high social status in Nigeria, such as those of governors, ministers and other members of the elite class. The question is: does the Nigerian constitution make exceptions for the so-called high-profile corruption cases? The simple answer is no, because all accused persons are equal before the law for reasons of prosecution and other fair legal processes. Letting criminals off the hook simply because they are considered high-profile is a direct invitation to anarchy and manifest impunity. More importantly, it gives the false impression that crime pays.
The CJN was very specific in her allegation of the existence of inequality in the dispensation of criminal justice in the country and she listed the office of the AGF as the principal culprit in this charge. That is really shameful. For the avoidance of doubt, I must point out that the office of the Attorney-General is the only ministerial position specifically listed in the constitution and it is, by its establishment, composed of two important functions, i.e., by virtue of Section 150 of the Constitution, he is both (a) the Chief Law Officer of the Federation and (b) a Minister in the Government of the Federation.
As the chief law officer of the nation, he is historically considered as the “keeper of the conscience of the nation” under which it is his solemn duty to uphold the rule of law without fear or favour on behalf of not the President or any authorities for that matter, but that of the nation as a whole. In this capacity, the Attorney-General is not subject to the control of the President because he is acknowledged as the leading officer in the Temple of Justice. That is why he can lawfully initiate proceedings against anyone, including the President in certain situations.
But as a minister, he is generally subject to the control of the President like any other appointee, wherein he could be contaminated by the forces of politics and, by implication,in his professional judgment. That is why some people have been arguing for the separation of the office of the Attorney-General as the law officer of the federation from that of the Minister of Justice, which is a mere political appointment.
The constitution understands that this is a very delicate office which requires that the occupants are not likely to betray the high duties tied to it and that is why it is the only ministerial position with specific qualifications and length of experience tied to it. In other words, not just anybody can be made an Attorney-General. A would-be appointee must first be a lawyer and must be so qualified for a minimum period of 10 years. He is also the only minister whose duties have been set out under the constitution, in Section 174.
Why then did we have the shameful experience of AGFs failing to prosecute high-profile cases of corruption involving politicians and other members of the nation’s anarchic elite? Is it that we have appointed the wrong persons into that high constitutional office? It must be conceded that this charge, as weighty as it is, relates more to the riotous Obasanjo era wherein court cases were indecently manipulatedand court orders routinely flouted, especially if those involved were connected to the ruling party.
Since Yar’Adua’s inauguration in 2007, there have been appreciable but slow efforts to return the nation to the path of legality. The Jonathan administration has happily kept faith with that positive philosophy, so far. Nigeria is condemned to anarchy if high-profile criminals expectedly get only slaps on their wrists in lieu of just and appropriate punishments, while petty offenders are given the cruelest and disproportionate punishments.
It is therefore commendable that the CJN timeously pointed out this unfortunate development as another legal year was being inaugurated. The nation cannot ask for less.