June 13, 2009

The many sins of Andoakaa (SAN)

By Ise-Oluwa Ige
Between 2007 and now, there have been dozens of calls on Chief Michael Kaase Andoakaa (SAN) to honorably resign his office as the Attorney-General of the Federation and Minister of Justice.

Some of the requests came from individuals resident within and outside the country.
Others came from civil society groups, political parties and prominent politicians in the country including members of the ruling Peoples Democratic Party (PDP).

They asked him to honourably resign his appointment after it was evident that President Yar’Adua who hired him was reluctant to invoke his powers under section 147 of the 1999 constitution to redeploy him let alone sack him from his cabinet.

They said he would do himself more good than harm if he resigns his office now.
But each time the call for his resignation or sack came, Andoakaa (SAN) had either ignored it or declared in no unmistakable words that he would never leave office.

Because of the weight of the allegations  against him and the personages behind the allegations, Saturday Vanguard sought the opinions of senior lawyers on how well the Attorney-General of the Federation is indeed performing the functions of his office and whether there was any need to demand his resignation.

Some of the prominent legal practitioners accosted to speak on the issue include one-time Chief Judge of Lagos State, Justice Omotunde Ilori, the Ibadan-based member of the inner bar, Chief Adeniyi Akintola (SAN), a Lagos-based lawyer, Chief Emeka Ngige (SAN) and an Abuja-based lawyer, Chief Chris Uche (SAN) among several others.

Why many lawyers are reluctant to discuss Andoakaa (SAN)

Many of them refused to make any publishable comment about him saying it was not yet time to open up on him, few of them spoke by way of commenting on issues affecting his performance   in office.

Yet, others who agreed to speak on him on the condition of anonymity described Andoakaa (SAN) as both an irritant and an abysmal failure who should not, in the first place, be allowed to spend an extra day in office.

But a rights activist and Professor of Law, Mr Chidi Anselm Odinkalu who himself was apparently not satisfied with the performance of Andoakaa (SAN) said many senior lawyers unwilling to tackle him frontally were being tactful.

He said the reasons for keeping quiet could not be disconnected from the fact that some of these lawyers handled election petitions for the Federal Government and that the money made available for the final settlement of their professional fees by President Yar’Adua was not quite a quarter of what they demanded for.

He said it is the attorney-general that is in charge of making approval for the settlement of such bill and that running one’s tongue anyhow can make the chief law officer to wield his big stick against them.

Besides, he said that apart from the prison decongestion scheme started by the regime of Chief Bayo Ojo (SAN) which many senior private lawyers loyal to the chief law officer are benefiting from, he said the government is also giving out fiat to such lawyers to prosecute a lot of cases against it.

He said their fees are also to be approved by Chief Andoakaa (SAN).

He added that vociferous lawyers would not want to talk about Andoakaa (SAN) because there is no business transaction involving the Federal Government, multi-national companies and huge sums of money that will not require the input and endorsement of the chief law officer.

He said some of these lawyers defend the interest of these multi-national companies.
He said that running one’s mouth as a lawyer might put one’s interest in jeopardy.

He however said that notwithstanding all these, he said there was nothing wrong in discussing Andoakaa (SAN) in relation to the functions of his office since he is a public officer.

But when he was asked to critique the less than two-year tenure of Andoakaa (SAN), like Socrates, he asked if there was anything to discuss about the Attorney-General of the Federation who has no programme.

In fact, he asked Saturday Vanguard to mention any achievement recorded by Andoakaa (SAN) since he got to office.

But the Attorney-General of the Federation himself is not bothered by the opinion of his critics and his colleagues in the legal profession.

He had replied his critics at a forum that he is not begging anybody to like him.
He said he is paying the price of the office he is holding by being hated.

He listed some of his predecessors in office and said that several negative things were said about them.

He said having agreed to work in Yar’Adua government, he said he would not allow such side-talks to affect the performance of his duties.

Why Andoakaa’s critics want him sacked

Firstly, it is their case that he is not experienced to hold the exalted office.

Those making this claim said the incumbent chief law officer of the Federation was practicing in the rural Gboko and did not really have a relatively successful practice until he got the appointment.

They said he was never appointed out of exceptional performance in the practice of law but on political ground to perform what they called some “political functions” in order to stabilize the government of President Yar’Adua.

They said he should be sacked because the demands of the Office of the Attorney-General requires an experienced hand.

Again, it was also the claim of his accusers particularly the opposition Action Congress (AC) that Chief Andoakaa (SAN) was in the habit of standing on the way of government agencies fighting corruption in the country.

They said if he is not suggesting to government how to collapse all the anti-graft agencies in the country like the EFCC, ICPC and the Code of Conduct Bureau into one in order to weaken the nation’s fight against graft, he will be writing letters to foreign governments not to prosecute some Nigerians accused of corruption.

It is also history today that Chief Andoakaa (SAN) wrote a letter to the incumbent Chairman of INEC, Prof Maurice Iwu asking him to stay action on the implementation of the judgment of the Appeal Tribunal over election into the Uyo Federal constituency.

The Court of Appeal, Uyo which sat as a final court of the land on petitions arising from the conduct of the National Assembly election declared a winner for the April 2007 poll and ordered INEC to issue certificate of return to him.

But Andoakaa (SAN) in his characteristic manner wrote   the INEC boss that he should stay action on the implementation of the court order.

The judgment creditor and his lawyers had fired back at Andoakaa (SAN), saying it was not available to him to dabble into the arena even if a petition was written to him on the matter by either party on the issue as he claimed.

They said what he secretly did in the matter was enough a reason for him to resign his office.

A former Chief Judge of Lagos State, Chief Omotunde Ilori who was asked to comment on the conduct of Andoakaa (SAN) in the matter said what the Attorney-General of the Federation did by writing that letter to Iwu was what he called “pollution of the water of justice.”

Hear him: “The attorney-general is not an appellate court over the court. It has no appellate jurisdiction over any court. The attorney general cannot exercise any appellate authourity on any court. Once the court has given an order, the attorney general cannot grant stay of execution.

“Only the court can grant stay of execution. Only the court which gives an order can stay execution on that order. No other authourity whatsoever can stay execution of that order.

“If the court says go and do x, y z, and there is need to stay it, what the aggrieved can do is to take an application before the court and say for this reason and this reason, the order cannot be obeyed now. It is only for the court to say the order is stayed.

“This unfortunate action by some people not vested with judicial powers interfering with the exercise of that powers only pollutes the judicial powers of that authourity.

“Anybody not vested with judiciary powers but interfering with the exercise of that power is a pollutant.

“The waters of justice must run without any pollution so that anybody who wants a suspension of an order ought to go back to that court for stay of execution. Nobody else can stay it.

“Anybody who wants a suspension of an order of the court will go back before that court for a stay or suspension of that order.

“I agree that the rule of law must be complied with as he allegedly claimed but the meaning of rule of law is that the law shall reign supreme.

“The rule of law does not say that anybody who is not a judge shall interfere with the exercise of judicial powers.

“If somebody is an object of the ruling of a court and he does not want that ruling to be executed, all he needs do is to file an application for stay of proceedings in the deputy sheriff’s office.

“Once that application is there, nobody can enforce that ruling. “Anybody who has nothing to do with the judiciary cannot stay the order of the court,” the retired chief judge added.

Besides the issue of alleged abuse of his office vide writing of letters, Andoakaa’s critics also alleged that the Attorney-General of the Federation has so much desecrated his office that if one routinely visited his chambers, one would see all manners of accused persons facing trial in court wanting to meet with him for audience.

Indeed, Saturday Vanguard can confirm that Chief Andoakaa (SAN) made the disclosure shortly after he inaugurated the five-member inter-agency probe panel headed by the Inspector-General of Police, Mr Mike Okiro, with a mandate to look into the Halliburton bribery scandal.

He had tacitly said at the occasion that his difficulty was the 1999 constitution.
But when he was reminded by newsmen that by virtue of section 174 of the 1999 constitution, he has the constitutional rights to initiate criminal proceedings against any person before any law court in Nigeria in respect of any offence like the instant one created by or under any Act of the National Assembly without any recourse to anybody, Andoakaa (SAN) said he admitted but that his discretion to exercise his prosecutorial powers is, unfortunately, subject to the approval of Mr President.

He fingered section 130 (1) (2) of the 1999 constitution as one that limited his discretion to exercise his unlimited prosecutorial power.

The said section 130 of the 1999 constitution states:
(1) There shall be for the Federation a President.

(2) The president shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation.

Although a thorough reading of the cited constitutional provision did not circumscribe, in any clear term, the discretion of the chief law officer of the Federation to prosecute any person in any law court as claimed by Andoakaa (SAN), he however laboured in vain to explain that the addition of “Chief Executive” to the appellation of Mr President which was absent in the 1979 constitution implied that all ministers serving in his (Mr President’s) cabinet must take instruction from him on anything in their ministries including prosecution of criminals.

Human rights activist, Prof Chidi Odinkalu and a former Chief Judge of Lagos State , Justice Omotunde Ilori were prompt in disagreeing with Andoakaa on this issue.

The duo said they were not interested in discussing Andoakaa as a person but his office.

According to Justice Ilori, he said the constitution of the Federal Republic of Nigeria 1999 has three principal concepts.

“The first is the separation of powers. That is you have the executive the judiciary and the legislature.

“Secondly, you have division of powers. That is the division of powers between the federal, states and local governments.

“But still, you have the appropriation of powers where the constitution specifically gives certain functions to specific people.

“Now when you look at that constitution, you discover that section 150 creates the position of the attorney-general specifically as distinct from the position of minister.

And when you go to section 174, you now have appropriation of powers where the power to prosecute is appropriated to the attorney-general.

“Now after the post has been created by section 150 which says “the Attorney-General of the Federation shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation, section 174 (1) says the Attorney-General of the Federation shall have powers

(a) To institute or 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.

The power to prosecute is specifically vested by section 174 (1) (a) in the Attorney-General of the Federation.

“Section 174 (1) (b) also says he shall have powers to take over and continue any criminal proceedings that may have been instituted by any other authourities or person while section 174 (1) (c) says he shall also have powers to discontinue any case, at any stage, before judgment is delivered in any such criminal proceedings.

In the exercise of that power, the attorney general is the only person empowered to do so.

“When you now go to section 174 (3) which is relevant in this case as to the exercise of his powers, the constitution says: “In exercising his powers, under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process

“That decision to prosecute or discontinue a case is entirely that of the Attorney-General of the Federation.

“You will see that in similar manner, the constitution donated powers to the National Assembly besides their legislative functions.

“The constitution gives them the powers to set up a tribunal to investigate any matter that they can legislate on.

“The same thing applies in that power is donated to some public bodies created by the constitution like the civil service commission which the constitution gives powers to appoint and discipline, the police service commission etc.

“These are instances of appropriation of powers. And this has been confirmed by the Supreme Court that where power is appropriated to any particular person or institution, no other person can exercise that power.

“And the exercise of that powers is not subjected to any directive by any power.

“When the constitution created the Federal Executive Council and Ministers, the constitution gives powers to the President to allot to any minister any ministry and what he will do there.

“But as far as the Attorney-General is concerned, what he will do is specifically given by the constitution not that the president shall give it to him.

“If you open the constitution to section 147, it says there shall be such offices like ministers as may be established by the president.

“This implies that whatever the minister will do will be established by the president.
“But the case of the Attorney-General is not so because what he will do is specifically donated to him by the constitution.

Although he may have a formal consultation with Mr president. But if he is a strong Attorney-General worthy of his position, he will realize that he cannot come out to the public and say: whatever the president says I should do, I will do.

“Even if he is to be given any directive relating to the performance of his duties as a minister, such directive cannot be in relation to prosecution. This is because the powers to prosecute has been given to him.

“Another instance on the donation of powers can be found in the auditing of public account.

“The constitution says the public account shall be audited by the Auditor-General. You can’t go and bring Akintola Williams or any other person to come and do it even if they are better than the Auditor-General of the Federation.

“This is because the powers have been donated to a particular person.

“In the same way, it is only the Attorney-General who can initiate prosecution. It is he only who can enter a nolle prosequi.

“By virtue of section 174 (3), he does not take any directive from anybody before he can enter nolle.

“In the exercise of this powers, the Attorney-General of the Federation shall have regard to public interest. The constitution did not say he shall have regard to Mr President but that he shall have regard to public interest,” he said.

But when Justice Ilori’s attention was pointed to section 130 (1) (2) cited by the Attorney-General of the Federation as the provision that circumscribed his unlimited prosecutorial powers, he said Andoakaa (SAN) seemed not to appreciate the functions of his office and its sacredness.

Hear him again, “the constitution has given him powers to perform all these functions.

“Can the president say because he is the Chief Executive of the Federal Republic of Nigeria , he can direct just anybody to audit the public account of the Federation.

“In interpreting the constitution, you need to look at how each section follows the other.

“Section 174 is after section 130. Those who drafted section 174 are quite aware of the provisions of section 130.

“If they want section 174 to be curtailed by section 130, section 174 will be drafted by saying “subject to the provision of section 130”. But there is no such expression in section 174.

There is no subject to in section 174,” he added. In his own view, Prof Odinkalu said “any attorney general that out-sources the constitutional responsibilities of his office is not worth the office of the attorney general.

“It is an hallowed office in government. There is no other appointive office that has that degree of responsibility.

“In 1983 after the election, President Shehu Shagari went to Mr Kehinde Sofola (SAN) to become the Attorney-General but he refused. “However, when he was pressured, he gave them conditions. He said that if you give me the job, there will be no political interference.

“I will do my job to the best of my conscience. If anybody interferes with it, I will quit.
“That was the man. That was the lawyer. That was the Attorney-General.

“Taslim Elias set example,” Prof Odinkalu said.