By Kenechukwu Obiezu
NIGERIA has always struggled with the rule of law. Whether it be watery legislations, wavering legislators, arrogant executives or jaded judges, Nigeria has always found it difficult to give teeth to the laws which would protect the giant of Africa from the liliputians of impunity.
At the centre of Nigeria’s extremely strained relationship with the rule of law is the 1999 Constitution which by virtue of being the highest law of the land, is the source of all other laws, the gold standard against which all other laws are tested and ultimately survive or expire.
In 1998, as Nigeria’s military prepared to undertake a long overdue return to the barracks, a constitution was hastily cobbled together to serve as a beacon for a tortured country as it resumed its journey to democratic development. The problem with the Constitution put together in 1999 was that its provenance was faulty just as the military’s incursion into Nigerian politics first in 1966, and subsequently for a cumulative period of over two decades, will always remain faulty.
At the root of Nigeria’s flawed Constitution is a crisis of identity. Where did the Constitution for the most populous Black country on earth come from? For starters, in spite of its extremely hubristic posturing, the Constitution was no popular legislation. It did not come from Nigerians. It was not a child of the choice of Nigerians freely exercised. The whole process which culminated in the framing of the Constitution only used the participation of Nigerians as an elaborate façade to mask the overbearing influence of the military in the constitutional process, its interference in the democratic process, and the fact that what came out at the end of the day was a framing of its will. Thus, it remains exceptionally scandalous that the Constitution which today serves the giant of Africa has the fingerprints of men who are more attuned to warcraft than statecraft. In spite of the various expensive attempts to amend the Constitution since, the flaws remain, perhaps,fatally so.
Indeed, it is a magnetic field of flaws, with a flawed constitution and flawed custodians. Under every Nigerian administration, the attorney-general who also doubles as the minister of justice usually takes centre stage. Usually, it takes only very little time for the occupants of one of Nigeria’s most exalted, albeit non-elective, offices to journey into the eye of the storm. The pattern is now predictable. With many Nigerian presidents struggling to deliver the democratic goods they promised on the campaign trail, it usually falls the lot of whoever is chosen as the attorney-general to defend the indefensible very early in the life of the administration.
So, before long, the recriminations come along with the angry denunciations and the coruscating critiques. So, there was Mr. Adoke, Mr. Aondoakaa and now there is Mr. Malami. It is always a senior advocate of Nigeria and before they leave office they somehow contrive to lose what little credibility they had before office. The banana peels are usually many. If the remit of Nigeria’s attorney general at any point in time was limited to defending indefensible government actions, it would have been difficult enough. In Nigeria, it is made backbreaking by everything that corruption represents and every effort made to counter it.
Since corruption became an existential problem in Nigeria, the pledge to fight it has always accompanied every Nigerian president from candidacy to presidency. So, while on the campaign trail, different promises are made. But upon assumption of office, a jarring reality is usually served hot: that corruption feeds the Nigerian political system and sustains it. Without its sour soup, political death is certain. Thus, when things come to a head, the cart of political self-preservation is placed before the horse of loyalty to pre-election promises. When this happens as has happened under the current administration, it becomes the unenviable province of whoever is the attorney general to placate desperately disappointed Nigerians as well as give the war against corruption a semblance of continuation; as it is the attorney general who can prosecute, give another the fiat to prosecute or refuse to prosecute at all.
But perhaps, what is most significant is what an attorney-general can do or not do in criminal prosecutions in which the anti-corruption war is usually framed. The 1999 Constitution of the Federal Republic of Nigeria (as amended) gives by sections 174 and 211 power to an attorney-general of the federation, and that of a state, to take over or discontinue any criminal prosecution against anyone at any stage in the interest of the public. What is public interest in the high stakes world of Nigerian corruption has been hotly disputed as some high-profile corruption cases have been abruptly discontinued for no convincing reason. And because official silence goes unpunished in the country, few dare to ask questions.
Mr. Malami, the current attorney general of the federation is in a difficult situation: he is serving a government that must put up with the bitter disappointment of Nigerians many of whom feel betrayed that feverish pre-election promises have not been kept. Mr. Malami is also serving a government under which the pearl of judicial independence has been cast before the swine of impunity and trodden underfoot. He is in the thralldom of a government that seemingly abhors accountability and transparency. But, on his own part, Mr. Malami has not covered himself in glory in Nigeria’s pre-eminent law office.
He brings nonchalance and defiance to the office of Nigeria‘s chief law officer and when angry Nigerians vent at him for the failures of the current administration in which he is a prominent player, he bristles and goes on the defensive. So, in Nigeria‘s court of public opinion, each time Mr. Malami looks, he sees a madding mob, each time he strains his ear to listen, he hears the maddened cries of a madding mob. If the fundaments of Nigeria are flawed, it is because many of its laws and those who should obey and enforce them are irremediably flawed themselves so at the end of the day what the country is left with is a volatile brew of flawed legislations, failed institutions and a failing state.
A country where impunity flows in the corridors of power is never going to make much progress. In all these, Mr. Malami must remember that his loyalty lies first with the law before even his principal. This is decidedly difficult in a country where bread-and-butter politics is an addiction. Since 2015, very few members of Buhari‘s cabinet have helped their case and cause with Nigerians in any way. In Malami‘s case, beyond dispatching a cast of writers to launder his image in the media, he will be remembered as the attorney general under whom the law lost more ground in a lawless country.
Obiezu, a public affairs analyst, wrote via: [email protected]