Abubakar Malami and the con­cept of ‘re­spect’ in gov­er­nance

Any lead­er­ship that in­ter­prets di­ver­gence of views and opin­ions on poli­cies and is­sues as a sign of dis­re­spect or in­sub­or­di­na­tion would only sti­fle growth and de­vel­op­ment.

Financial Nigeria Magazine - - Contents - Front, from left: At­tor­ney Gen­eral and Min­is­ter of Jus­tice, Abubakar Malami; Act­ing Pres­i­dent Yemi Os­in­bajo; Chair­man, Pres­i­den­tial Ad­vi­sory Com­mit­tee Against Cor­rup­tion, Itse Sa­gay A Fi­nan­cial Nige­ria colum­nist, Fun­mi­layo Odude is a Lagos-based le­gal pra

As a young pro­fes­sional, one of the chal­lenges I face is convincing clients of my abil­ity to de­liver the re­sults they want. Many clients are will­ing to give to my firm briefs that they con­sider not too tech­ni­cal or dif­fi­cult, to 'as­sist' or 'en­cour­age' this coura­geous young lady that de­cided to man­age her own prac­tice.

When these clients be­lieve the le­gal is­sues are too com­plex, would in­volve some ex­pe­ri­ence or the abil­ity to lever­age rep­u­ta­tion, re­la­tion­ships or con­nec­tions in high places, then they un­der­stand­ably go for the big play­ers to whom they pay al­most lu­di­crous fees. To be clear, I have a deep ap­pre­ci­a­tion for ex­pe­ri­ence; and I per­son­ally value it above for­mal ed­u­ca­tion. My chal­lenge is with the stereo­type of 'young and inexperienced.' So, I try to cor­rect it one client at a time, one brief at a time.

How­ever, what I find that truly irks me as a young pro­fes­sional is what I have termed the 'con­cept of re­spect,' which ob­tains in both the cor­po­rate world as well as pub­lic ser­vice. We live in a coun­try where be­cause of our cul­tural and religious in­flu­ences, it is con­sid­ered dis­re­spect­ful to ques­tion or chal­lenge any­one older than us or in a po­si­tion of power. This con­cept of re­spect is usu­ally the last card played when a sub­or­di­nate holds a dif­fer­ent view or opinion from that of a su­pe­rior.

Per­son­ally, it took a while for me to ex­pe­ri­ence it. I was lucky enough to start my le­gal prac­tice un­der a man with whom his as­so­ci­ates could dis­agree both on the sub­stance of the law and the le­gal strat­egy to be adopted in cases. How­ever, he would not hes­i­tate to tongue-lash them for lim­ited think­ing, my­opic views or wrong in­ter­pre­ta­tions of the prin­ci­ples of law. Most times, we went along with his strat­egy and adopted his views, see­ing that he was the owner of the firm and the boss. But the en­vi­ron­ment he cre­ated for a true ex­change of ideas was where most of us (his as­so­ci­ates) learnt the strate­gies for de­ter­min­ing the le­gal reme­dies to be adopted for dif­fer­ent sit­u­a­tions.

That en­vi­ron­ment was where we learnt some of the most im­por­tant tools in the le­gal pro­fes­sion that are not taught in law school. It is, there­fore, ex­tremely strange and par­tic­u­larly ex­as­per­at­ing to me when I find that a dis­sent in opinion is in­ter­preted as dis­re­spect.

This con­cept of re­spect played out re­cently when a re­spected Se­nior Ad­vo­cate of Nige­ria (SAN) and pro­fes­sor of law, Itse Sa­gay, re­port­edly stated that the At­tor­ney Gen­eral of the Fed­er­a­tion and Min­is­ter of Jus­tice, Abubakar Malami (SAN), ought to be sacked over his com­ments on the ex­ec­u­tiveleg­is­la­ture im­passe on the con­fir­ma­tion of the Chair­man of the Eco­nomic and Fi­nan­cial Crimes Com­mis­sion (EFCC), Ibrahim Magu, by the Se­nate. Prof. Sa­gay de­scribed the AGF's com­ments as in­sub­or­di­na­tion.

The Act­ing Pres­i­dent, Yemi Os­in­bajo, had stated in an in­ter­view that he agreed with the po­si­tion of some se­nior le­gal prac­ti­tion­ers, in­clud­ing Femi Falana SAN, that the ap­point­ment of the Chair­man of the EFCC did not re­quire con­fir­ma­tion by the Se­nate. Fol­low­ing a Fed­eral Ex­ec­u­tive Coun­cil (FEC) meet­ing some­time last month, the AGF stated that Osi­bajo's state­ment was his per­sonal opinion and not that of the ex­ec­u­tive coun­cil. This is what Sa­gay, who is also Chair­man of the Pres­i­den­tial Ad­vi­sory Com­mit­tee Against Cor­rup­tion (PACAC), has deemed in­sub­or­di­na­tion and ca­pa­ble of hav­ing the AGF sacked.

The first thing that one notices when crit­i­cally ex­am­in­ing this is­sue is that the AGF has not yet stated whether he agrees or dis­agrees with the Act­ing Pres­i­dent on the is­sue. And, as far as I can tell, he has also not given his own in­ter­pre­ta­tion of the rel­e­vant pro­vi­sions of the Con­sti­tu­tion and the EFCC (Es­tab­lish­ment) Act. He is be­ing crit­i­cized be­cause a lot of peo­ple in­ter­pret his state­ment as ei­ther an at­tempt to sub­vert the lead­er­ship of the Act­ing Pres­i­dent, or cre­ate the im­pres­sion of a di­vi­sion in the ex­ec­u­tive. While I am not in de­nial of pos­si­ble po­lit­i­cal un­der­tones, I still have is­sues with Prof Sa­gay's com­ments.

Re­ly­ing on Sec­tion 5 (1) of the 1999 Con­sti­tu­tion, Sa­gay stated, ac­cord­ing to a re­port in Punch news­pa­per on July 7, “The Ex­ec­u­tive Coun­cil of the Fed­er­a­tion, also known as FEC, can­not have views that are sep­a­rate or dif­fer­ent from those of the Pres­i­dent, or where ap­pli­ca­ble, the Act­ing Pres­i­dent; oth­er­wise, that will con­sti­tute gross in­sub­or­di­na­tion and mis­con­duct that can lead to dis­missal.

“There­fore, the slant be­ing given to the state­ment of the At­tor­ney Gen­eral of the Fed­er­a­tion, namely; that the Ex­ec­u­tive Coun­cil of the Fed­er­a­tion is en­ti­tled to meet in or­der to ex­press an opinion or view on a mat­ter on which the Pres­i­dent or Act­ing

Pres­i­dent has al­ready ex­pressed his views or opin­ions is wrong, mis­lead­ing and to­tally un­con­sti­tu­tional.”

Be­fore I give a con­sti­tu­tional re­ac­tion to Prof. Sa­gay's po­si­tion, it is im­por­tant to state that any lead­er­ship – whether of a coun­try, or­ga­ni­za­tion, as­so­ci­a­tion or even a small fam­ily unit – that in­ter­prets di­ver­gence of views and opin­ions on poli­cies and is­sues as a sign of dis­re­spect or in­sub­or­di­na­tion would only sti­fle growth and de­vel­op­ment. A true leader would cre­ate an en­vi­ron­ment that al­lows for in­de­pen­dent thoughts and the con­struc­tive ex­pres­sion of those thoughts. A true leader also knows that no one man is the sole repos­i­tory of wis­dom and knowl­edge.

If we are go­ing to truly har­ness the po­ten­tial in our young peo­ple, both in the cor­po­rate sec­tor and pub­lic ser­vice, then this con­cept of re­spect must change. We must stop vil­i­fy­ing peo­ple for dar­ing to have dif­fer­ent opin­ions or views from the sub­sist­ing lead­er­ship.

Granted, in a more or­ga­nized and less politi­cised ex­ec­u­tive branch of govern­ment, dif­fer­ences in opin­ions on govern­ment poli­cies and ac­tions held by mem­bers of the ex­ec­u­tive would be ex­pressed be­hind closed doors. Once the pres­i­dent makes a fi­nal de­ci­sion, his cabi­net stands solidly be­hind him or her. Any mem­ber of the cabi­net who feels strongly op­posed to an is­sue usu­ally shows his or her dis­ap­proval by re­sign­ing from the ad­min­is­tra­tion.

In this Nige­rian con­text, the po­lit­i­cal un­der­cur­rents in the con­tin­u­ing ab­sence of Pres­i­dent Muham­madu Buhari have been used to in­ter­pret the com­ments of the AGF.

I do not be­lieve that our Con­sti­tu­tion cre­ates the of­fice of a pres­i­dent that is in­fal­li­ble or un­ques­tion­able. First and fore­most, the in­ter­pre­ta­tion given to Sec­tion 5(1) of the 1999 Con­sti­tu­tion to the ef­fect that the ex­ec­u­tive pow­ers of the fed­er­a­tion are vested in the pres­i­dent is in­com­plete. The pro­vi­sion states: “Sub­ject to the pro­vi­sions of this Con­sti­tu­tion, the ex­ec­u­tive pow­ers of the Fed­er­a­tion shall be vested in the Pres­i­dent and may, sub­ject as afore­said and to the pro­vi­sions of any law made by the Na­tional As­sem­bly, be ex­er­cised by him di­rectly or through the Vice Pres­i­dent and Min­is­ters of the Govern­ment of the Fed­er­a­tion or of­fi­cers in the pub­lic ser­vice of the Fed­er­a­tion…”

The Con­sti­tu­tion, there­fore, rec­og­nizes that the ex­ec­u­tive pow­ers can be ex­er­cised through the min­is­ters and even through other pub­lic of­fi­cers. We do not run a sys­tem of govern­ment where one in­di­vid­ual is the al­pha and omega.

Fur­ther­more, the FEC meet­ing is con­sti­tu­tion­ally pro­vided for. Sec­tion 148 (2) of the Con­sti­tu­tion makes it manda­tory for the pres­i­dent to hold reg­u­lar meet­ings with the vice pres­i­dent and all the min­is­ters for the fol­low­ing rea­sons: To de­ter­mine the gen­eral di­rec­tion of do­mes­tic and for­eign poli­cies of the govern­ment of the fed­er­a­tion; to co-or­di­nate the ac­tiv­i­ties of the pres­i­dent, the vice-pres­i­dent and the min­is­ters of the fed­er­a­tion in the dis­charge of their ex­ec­u­tive re­spon­si­bil­i­ties; and to ad­vise the pres­i­dent gen­er­ally in the dis­charge of his ex­ec­u­tive func­tions.

I do not, there­fore, be­lieve that it is out of place for the FEC to dis­cuss the stand-off be­tween the Se­nate and the ex­ec­u­tive over the con­fir­ma­tion of the ap­point­ment of the EFCC Chair­man. Also, it should be per­fectly nor­mal for the At­tor­ney-Gen­eral of the Fed­er­a­tion, who is de­scribed as the Chief Law Of­fi­cer of the Fed­er­a­tion in the Con­sti­tu­tion, to ad­vise the pres­i­dent on the is­sue.

I had ear­lier stated my opinion on the con­fir­ma­tion of Ibrahim Magu's ap­point­ment in an ar­ti­cle in the May 2017 edi­tion of Fi­nan­cial Nige­ria. I said that only the ju­di­ciary can make a de­ter­mi­na­tion on the con­sti­tu­tion­al­ity of the pro­vi­sion of the EFCC (Es­tab­lish­ment) Act that pro­vides for the con­fir­ma­tion of Magu's ap­point­ment by the Se­nate. I also said the ex­ec­u­tive ought to ap­proach the court to have that pro­vi­sion de­clared un­con­sti­tu­tional, null and void, or oth­er­wise obey it.

If such suit were to be filed, it would be done by the of­fice of the AGF. We should thus be more con­cerned about what Malami's views truly are on the is­sue. A call for his stand on the is­sue as the Chief Law Of­fi­cer of the Fed­er­a­tion is prefer­able to brow­beat­ing him over his re­mark that the is­sue has not been dis­cussed at the FEC.

As a le­gal prac­ti­tioner (and a fel­low Se­nior Ad­vo­cate of Nige­ria), Malami is en­ti­tled to his own opinion on the in­ter­pre­ta­tion of our Con­sti­tu­tion and our laws. As the At­tor­ney Gen­eral and Chief Law Of­fi­cer, he owes a duty to the Pres­i­dent or Act­ing Pres­i­dent to ad­vise him based on the AGF's in­ter­pre­ta­tion. Nei­ther his per­sonal opinion nor his advice to the pres­i­dent should be con­strued as dis­re­spect­ful or in­sub­or­di­na­tion.

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