July 20, 2018

Abubakar Malami: Balancing the Scale

Malami, open grazing

Abubakar Malami (SAN) . Photo by Gbemiga Olamikan

By Wale Suleiman
LAWYERS know everything about the scale of justice. When Judges weigh the evidence against the claims and tilt the scale either in favour of justice or in support of the evidence. That is the culture of the court, but in governance and politics, the scale is different. Sentiments, perception and interests are the items on the scale.

AttorneyGeneral of Federation and Minister of Justice Abubakar Malami

The politician finds a different hue of justice, not the justice the court espouses. In the political court, evidence is not as important as the perception of the evidence. Facts are not as relevant as sentiments and interests.

This is what Abubakar Malami, SAN, Nigeria’s Attorney-General and Minister of Justice, must have learned about Nigeria’s politics since President Muhammadu Buhari appointed him as the country’s Chief Law Officer. On almost every important issue of law he has dealt with, the politicians have always reminded him that the values are different in politics. His official actions and pronouncements have stirred insinuations, base sentiments and outright resentment from people hiding under institutions and patriotism.

A pragmatic lawyer working in an administration that craves results under difficult and even frustrating circumstances, he has had to find ingenious ways of getting around a system that frustrates go-getters.

Pragmatic  lawyer

He has found himself thinking about the law and about politics simultaneously. Is this action the right step to take? If yes, would the politicians see it as right? What would be the insinuations, and what could be the fall out of such insinuations?

Sometimes politicians have demanded actions that are clearly against the law. Such situations are tempting especially when they could help to prove an important point. Like the time politicians demanded government publish the list of looters. A lawyer knows only the court has the constitutional duty to pronounce anyone guilty of a crime. Section 6 (1) of the Constitution states as follows: “The judicial powers of the federation shall be vested in the courts to which this section relates, being courts established for the federation.”

Section 36 (5) of the Constitution which guarantees fair hearing to all litigants states as follows: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty, provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”

Yet, a refusal to bring out the list would have portrayed the government’s anti-corruption fight as mere noise and witch-hunt, and a capitulation would also send a wrong signal about the administration’s respect for the rule of law. Thus, when the government eventually released a short list of alleged looters (those facing court actions), the same politicians carpeted the administration as violating the rights of those mentioned. Some even went as far as calling for the AGF’s sack.

When the issue of the recall and re-instatement of Abdulrashhed Maina, former Chairman of the Presidential Task Force on Pension Reform broke, Malami also became the fall guy. An alleged meeting between the AGF and the fugitive in Dubai two years ago became the subject of focus. The people in the House of Reps engineered a public hearing on the issue and the AGF was invited to defend himself.

Again, the conflict between law and politics reared its ugly head. The AGF defended his alleged meeting as necessary to get to the bottom of the rot Maina had investigated. It was a pragmatic action which, even though not unlawful, was seen as morally wrong by the politicians. The House ad-hoc committee that did the hearing later turned in a highly discredited report indicting the AGF as complicit in Maina’s re-instatement.

Responding to his indictment by the House in an interview with a magazine, the AGF said: “If hundreds of Mainas believe that they have information to offer as far as the protection of the national interest is concerned, I will meet them and will do so again.” Similarly, a recent constitutional action of issuing an Executive Order by President Muhammadu Buhari was given a controversial spin by lawmakers who attacked the President for “usurping” their function.

The Executive Order 6 signed by Buhari, which is seen by many as a masterstroke and most potent weapon against corruption, has been interpreted by lawmakers as undermining the legislature. The Executive Order No. 6 of 2018 aims to, among others, restrict dealings in suspicious assets subject to investigation or inquiry bordering on corruption in order to preserve such assets from dissipation, and to deprive alleged criminals of the proceeds of their illicit activities which can otherwise be employed to allure, pervert and/or intimidate the investigative and judicial processes.

The Nigerian Senate, especially those in the opposition Peoples Democratic Party, PDP, revolted strongly against the order. The Senate eventually passed a resolution summoning the AGF to appear before the legislators to defend the action. It was a resolution many saw as unnecessary and uncalled for since the President did not breach any constitutional provisions.

Constitutionality of the Executive Order

Addressing a press conference in Lagos on the issue, the Minister of Information and Culture, Alhaji Lai Mohammed, who is also a lawyer, defended the constitutionality of the Executive Order, saying those opposed to it should go to court. He added: “The truth is that, having realised the potency of the Order in giving muscle to the fight against corruption – which by the way is one of the three cardinal programmes of our Administration – the corrupt and their cohorts have become jittery. They have every reason to be. Henceforth, it won’t be business as usual.”

Just last week, the politicians again planned to put the AGF on the spot over the loot recovered from Europe from the late General Sani Abacha family. An online paper had, curiously, published stories about some alleged wrongdoings of the AGF regarding the recovered loot. The AGF was accused of hiring new lawyers to wrap the deals when they had already been concluded by the previous administration. The paper claimed it was a way of “finding jobs for the boys,” and that the Federal Government should disclose how much it had collected so far.

No doubt the allegations were untrue and they had been debunked. But the House of Reps still went ahead to fix a hearing, which was later cancelled at the last minute! So much for politics!

  • Mr Suleiman, a commentator on national issues, wrote from Lagos