First Baba Isa|6 July 2016|9:23am
Recently the Senate summoned the Attorney General of the Federation to explain why he was prosecuting the Senate President and the Deputy Senate President for alleged forgery of the Senate rules.
The AGF didn't appear but sent a representative in the person of Chief Okoi OBONO-OBLA, the SA to the President on Prosecution.
Chief was not granted audience. He later on addressed the press where he submitted that the Senate has no powers to summon the AGF on the issue. This comment has raised some dust in the legal and political circles.
John Gaul Lebo, the Speaker of CRSHA, wondering what kind of constitutional interpretation would have authorised the AGF to disobey the invitation or summon of the National Assembly, (as reported by his aide, Emmanuel Etim) said: “The Constitution is very clear about this issue.
1. Under S.67 (2) A minister of the government of the federation SHALL attend the National ASSEMBLY if invited to explain the conduct of the ministry and when the affairs of the ministry is under discussion.
2. Under S 88 of the Constitution also, the National ASSEMBLY has powers to investigate any Ministry, Agency, department or persons and by so doing invite any such person.
3. Under S 89 of the Constitution, the National ASSEMBLY also has power to summon anyone in Nigeria to give it to further any investigation under S 88.
4. Finally under S 89 (2) The National ASSEMBLY can further issue any warrant through the Inspector General of Police or any police officer to compel the attendance of the person summoned.
The Attorney General of the Federation is under legal obligation to respect and honour the invitation of the National ASSEMBLY. The content of the issues involved in the invitation can be categorised, argued and resolve only after he attends.”
The Rt Hon Speaker with the deepest respect is wrong. Please I assure him of my greatest respect for his person and office, because the last time I disagreed with him, he blocked me on Facebook. I guess he doesn't take opposing views lightly.
Now to the issue. The AGF is a sui generis minister. He is unlike any other minister in the cabinet. In fact his portfolio is the only one provided for in the constitution. Other ministries can be scrapped, merged and renamed as the President desires but not the ministry headed by the AGF.
The AGF is both the minister of justice and the chief law officer of the country. In fact many have campaigned for these two huge responsibilities to be separated to avoid confusions like the one we are talking about here.
The Senate has the powers to summon any minister including the minister of justice.
But when the AGF is acting as a law officer and a prosecutor he becomes an officer of the court and a sort of god unto himself. That is what Chief OBONO-OBLA was saying when he said: “The Honourable Attorney General in exercise of his power over public prosecution under Section 174 subsection 1 of the Constitution is not answerable to any authority or person and as such the exercise of this power is not subject to review by any authority, even the courts. See State v Ilori (1983) 2 SC 155'.”
This is what section 174(1) of the 1999 Constitution says: “The Attorney-General of the Federation shall have power – (a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.”
This is known as powers of Nolle Prosecui. The AGF can take over any case, discontinue any case or commence any case without any legal obligation to explain his actions to anyone. This is the position of the Supreme Court in State v. Ilori, supra.
I will like to ask John Gaul Lebo, whether the AGF is not also the chief law officer who can prosecute with immense unquestionable powers.
That's what Chief respectfully went to tell the Senate. They had already told the AGF why he was being summoned. He wasn't being summoned as a minister but as a prosecutor. No one can summon a prosecutor or a judge acting in their judicial capacity.
The attorney general is answerable to no one in terms of who he prosecutes, how and why.
The Constitutional provisions quoted by John Gaul Lebo are clearly talking about being summoned to give account of his ministry not when he is prosecuting anyone.
As the minister of Justice, the AGF is part of the executive but when acting as a prosecutor he is strictly part of the judiciary.
In the last sentence of the comment quoted above, Lebo said “The content of the issues involved in the invitation can be categorised, argued and resolve(sic) only after he attends.” That, is the AGF's prerogative. When the content is clear and bothering on his prosecutorial activities, how he chooses to respond is his choice.
He chose to send a representative to tell them: I can't explain to you what you are asking me to explain to you. You are inviting me as a prosecutor not as a minister of justice. You can't do this. The matter is in court. Its sub judice. Let the court decide.
He can decide to go himself tomorrow to tell them this himself again. But the position of the law will remain unshakeable like the Rock of Gibraltar.
The Senate can summon the AGF as the minister of Justice to give account of his ministry but he cannot be summoned while acting as a prosecutor. That's what the constitution says and that is what the Supreme Court decided in State v. Ilori.
The Senate cannot terrorise the judiciary under the guise of oversight functions. The constitution that anointed it with the powers to oversee ministers is the same constitution that anointed the AGF with the vast powers to prosecute anyone without being answerable to anyone.
I rest.
First Baba Isa
Is a Legal Practitioner and writes from Abuja.
meandisa@gmail.com,
7B065368,
07037162029,
@firstbabaisa.