My Brief by SKB

Why President Bola Ahmed Tinubu Should Appoint a Minister of Constitutional Matters and Legal Affairs

Tihe office of Attorney-:General of the Federation (AGF) and Minister of Justice has long been regarded as one of the great and grand offices of State. Some of our finest legal minds such as Taslim Elias, (a former Chief Justice of the Federation), Richard Akinjide, SAN, Kehinde Sofola, SAN, Prince Bola Ajibola, SAN, Michael Agbamuche, SAN and Dr Olu Onaguruwa, SAN but to mention a few, are just some of the former distinguished occupants to have graced this office. One noticeable weakness we have as nation, is that we rarely implement or embark upon structural change, and this has undoubtedly held us back from being truly regarded as the giant of Africa. It has equally hampered our ability to project ourselves as the political and economic powerhouse, that our abundant human talent and economic resources ought to clearly portray.

Take for instance the 1999 Constitution, which was hurriedly drafted and imposed upon us by the Military just before the beginning of the Fourth Republic. Apart from the fact that we never ratified the Constitution in a referendum, neither has it been wholly revised or redrafted other than for a number of constitutional amendments over the years, many of which were simply imposed upon us by the National Assembly without proper scrutiny or due consultation. The Ministry of Justice which, from my understanding, ought to be the appropriate Ministry that ordinarily safeguards our interests by reviewing these constitutional amendments and assessing their legality or otherwise, never appears to be particularly bothered. One reason for this apparent lethargy in approach, in my view, stems from the fact that the constitutional and ministerial position of AGF and Minister of Justice is itself in dire need of reform. Although this ministerial office has been in each of our previous Constitutions since independence without change, now is the time for this great office of State to be modernised and remodelled, so that it is not only becomes fit for this age, but also reduces the potential conflicts between governmental duties and political party interests. The full extent of the responsibilities directly under the office of AGF and Minister of Justice is extremely vast and varied. In truth these duties have become unsustainable for one holder, in this modern day and age. There is therefore, an urgent need for us as a nation to move with the times and implement much needed structural changes to both the office of AGF and the Minister of Justice which the AGF heads as the Chief law Officer of the Federation.

Arguments for Splitting the Office of Attorney-General of the Federation and Minister of Justice

Although the same old argument of the need to split the office of AGF and Minister of Justice continues to persist, this is only because of a misconceived perception that the office and appellation of AGF and Minister of Justice is actually embedded within the Constitution.

Section 150 of the 1999 Constitution (as amended) provides as follows:

“There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation”.

Contrary to perceptions, there is nothing in this section of the Constitution to suggest that the AGF must double up as the Minister of Justice. It would be sufficient to have the AGF as a Minister of the Government, and at the same time, appoint a Minister of State within the Ministry of Justice. The Minister of State could be given the title or appellation of Minister of Constitutional Matters and Legal Affairs, thereby overseeing and ensuring strict compliance with the provisions of the Constitution.

Now that the dawn of a new cabinet is upon us following the inauguration of President Bola

Ahmed Tinubu yesterday, it would be highly desirable if the President could break with tradition and create this junior ministerial portfolio of Minister of Constitutional Matters and Legal Affairs. We know the President can create, merge or change the name of whatever Ministry he chooses. The portfolio of AGF and Minister of Justice is mere nomenclature. If the President was to establish and create the portfolio of Minister of Constitutional Matters and Legal Affairs, this would go a long way in addressing those issues in the first place precipitating the need to split the ministerial office of AGF and Minister of Justice. It is interesting to note that the position at State Government level under the Constitution, is slightly different. Section 195 (1) of the 1999 Constitution ( as amended) provides as follows:

“There shall be an Attorney- General for each State who shall be the Chief Law Officer of the State and Commissioner for Justice of the Government of that State” .

The provisions for a State Attorney-General under Section 195 of the Constitution above, differs in wording from Section I50 of the Constitution relating to the office of the AGF, in that unlike the AGF, a State Attorney-General must double up as the Commissioner for Justice. This, in practical terms, means that a State Governor can only appoint a Special Adviser to the Government on Constitutional Matters and Legal Affairs. Considering however, that Special Advisers at State level can also be of cabinet rank, there would be little or no difference with the Federal position if a Governor also decides to appoint a Special Adviser for Constitutional Matters and Legal Affairs.

What’s the Advantage in Having a Minister of State for Constitutional Matters and Legal Affairs?

Since the beginning of the Fourth Republic in 1999, there have been several unchecked infractions to the Constitution at both State and Federal levels. Most of the time, we are even oblivious to these infractions because no one points them out. This has made constitutional law and practice not only cumbersome, but stale and static. The system of checks and balances essential in any democracy, does not appear to be working optimally here in Nigeria. The National Assembly (NASS) and the Presidency, have initiated and passed several Bills into law that were never properly scrutinised by the Executive or vice versa by the Legislature, although in fairness, NASS do a lot more scrutiny than the Executive ever bother to do. The problem with NASS however, is that sometimes self-interest gets in the way and is often, even the main reason for initiating a Bill in the first place. If the Presidency does not pay sufficient attention to the details of these Bills that are presented, they will simply become law. It is for these reasons that we could do with a Minister of Constitutional Matters and Legal Affairs, whose responsibility it would be to ensure compliance with the Constitution.

Examples

For instance, should an Inspector General of Police be appointed for the Federation without ensuring compliance with Sections 215(a) and 216(2) of the 1999 Constitution (as amended) and Section 7(2) of the Police Act 2020, requiring the occupant of such office to have four years in service?

Should the Federal Government have passed the Covid-19;Regulations under the Quarantine Act, without sufficiently modifying the Quarantine Act under Section 315 of the Constitution?

Was it proper for the Presidency and the Central Bank to have announced the Naira redesign policy, without due consultation with the National Economic Council, since as pointed out by the Supreme Court, this was necessary since it had an impact on the various States of the Federation?

Could NASS extend the original jurisdiction of the Supreme Court to hear cases between itself and the Federal Government at first instance, by adding the word “exclusive” to an Act it passed, even though the Constitution does not provide for the use of this word under Section 232(2) of the Constitution?

Should the Independent Electoral Commission (INEC) have sought further clarification on the true meaning of Section 134 (2) of the Constitution, with regard to whether Abuja was of special status and significance in a Presidential election?

If we had a Minister of Constitutional Matters and Legal Affairs, many of these constitutional issues raised above would be directly under his purview and get appropriately addressed.

There are several other examples of constitutional infractions too numerous to mention, but, what is now clear is that the country could do with a Minister of Constitutional Matters and Legal Affairs to oversee strict compliance with the Constitution. The interpretation of the Constitution should not be speculative. It needs to be clear, concise and unambiguous. There should always be a Minister on hand to advise the Government on specific constitutional issues, as opposed to the AGF whose vast responsibilities means he may be preoccupied with other matters, and, as such, having to delegate these issues of concern to an official in his Ministry. It would be far better if a junior Minister of Cabinet rank takes full responsibility for research on constitutional matters, and then advise the cabinet accordingly.

Conclusion

The responsibilities and duties of the Minister of Constitutional Matters and Legal Affairs should ordinarily include, but by no means be limited to the following:

a) The need to coordinate and facilitate constitutional Implementation;

b) Conduct continuous civic education on the Constitution in order to enhance constitutional awareness in Nigeria;

c) Policy directions on the review, revision, redraft, implementation and amendment of the Constitution wherever or whenever necessary;

d) Review of electoral and political processes such as legislation for free and fair elections, including but not limited to our Political Parties and other issues under the Electoral Act 2022;

e) Provide legal opinions and analysis for the government on the Constitution.

While the AGF on the other hand, will continue to:

a) Advise Government Ministries, Departments, Agencies, National Commissions and National Corporations on legislative and other legal matters;

b) Advise Government on all matters relating to the Constitution, international law, human rights, consumer protection and legal aid;

c) Coordinate reporting obligations to international human rights treaty bodies to which Nigeria is a member, or on any matter which member States are required to report in consultation with the Nigerian Bar Association and,

d) Advise the Government on regulations to the legal profession and essential changes to the Judiciary.

Whatever the case, despite this proposed demarcation in duties and responsibilities, the AGF as the Chief Law Officer of the Federation will always have the final say over his junior ministerial colleague, in the event of a conflict of opinion.

“It would be sufficient to have the AGF as a Minister of the Government, and at the same time, appoint a Minister of State within the Ministry of Justice. The Minister of State could be given the title or appellation of Minister of Constitutional Matters and Legal Affairs, thereby overseeing and ensuring strict compliance with the provisions of the Constitution”