The portfolio of Minister of Justice and Attorney General of the Federation (AGF) is the only cabinet position that enjoys express constitutional provision. Abubakar Malami who held that position from November 2015 to May 28, 2019, took considerable flak, much of which was grounded on neither facts nor logic. Given the local political temperament, a converse scenario would probably have been utopian.
I assert the above within the context of the subsisting argument for separating the portfolio of Justice Minister and AGF. Assuming Malami attracted no criticisms in the course of executing his official brief, certainly, for want of something to do, advocates of separation of the two-in-one portfolio would have given currency to the age-long advocacy instead.
To be sure, the advocacy holds that whereas the position of Minister of Justice could be politicized by appointing a lawyer and card-carrying member of the ruling party, the AGF’s position should be reserved for lawyer-technocrats in the public service in order to ensure legal opinions are offered in good conscience sans partisan bias.
While that was not the preoccupation in the last four years, Malami largely drew peer-criticisms from the legal profession. The criticisms, much of which was proxy-sponsored, targeted his integrity and competence. On both scores, Malami’s record could not be impeached. On competence, it was difficult to discount Malami’s capability since the assessment parameters were more explanatorily relative than conclusively objective.
Given partisan bias that is the evident ramification of the appointment of a card-carrying member of the ruling party as Justice Minister and AGF, legal opinions could understandably be politically tainted. While the opposition would naturally kick, the essential philosophical motivation underpinning legal opinions would be appreciated by the ruling government.
For Malami’s traducers to ground their advocacy against his reappointment on alleged incompetence predicated on the context of implied or express partisan bias is to misconceive the role of a “Justice Minister” in a presidential democracy as ours. The mindset of the AGF who should look at the legal issues solely from the prism of the law is subsumed by the exigent imperative of ministerial maneuvers that reinforce the position of the ruling party.
What were the specifics of Malami’s actions that negated the anti-graft war or rendered the policy tentative? None! It is convenient for allegations to be leveled but largely difficult for those who allege to prove them beyond reasonable doubt. It is one of the reasons the Economic and Financial Crimes Commission (EFCC) had lost many of its high-profile corruption cases in court.
In our adversarial legal system, the burden of proof is on the prosecutor while in an inquisitorial legal system such as in France and Netherlands; the burden is on the accused to prove his innocence while judges tend to be free to make decisions on a case-by-case basis.
In the two contexts supra, while Malami’s traducers failed and have been unable to impeach his integrity by reeling out specific corruption allegations against him, I weigh in on inquisitorial basis to absolve Malami of any offence. Specific grounds of validation: I could not come to terms with allegations that Malami was a party to cutting deals without his adversaries adducing specific instances of such beyond the general claim that his office did not secure a conviction for corruption.
In fact, that position was mischievous because the EFCC had been vested with prosecutorial powers by the Justice Minister and AGF’s office in the fight against corruption. The Commission submits to the supervisory leadership of the Justice Minister and AGF’s office, which could justifiably appropriate credit with respect to the 340 convictions and recovery of billions of dollars between January and June 2017 by the Commission, as claimed by its acting Chair, Ibrahim Magu.
In a sense, Malami had been instrumental to management of the prosecutorial process in all its entirety, including acting as superintending authority on contending and emerging legal issues such as plea bargains, setting up of legal mechanisms (like the Presidential Advisory Committee on Anti-Corruption Committee, PACAC), entering of nolle prosequi, and the question of legal protection for whistle-blowers, etc.
With an unwavering loyalty to the President in political relationship that dates back to the formation of the Congress for Progressive Change (CPC) on which platform Buhari contested the 2011 presidential election and a party for which Malami worked as National Legal Adviser, my argument has always been that the political relationship was not the event that proved Malami’s fidelity to Buhari. The test of his loyalty crystallized in the presidential election petition that was instituted against Goodluck Jonathan after the 2011 election.
While very senior lawyers were reluctant to take on Buhari’s brief, scores of Senior Advocates of Nigeria (SANs) who are now on the side of the President in the suit filed by Atiku Abubakar of the Peoples Democratic Party (PDP) for pecuniary benefit, represented Jonathan and the INEC in 2011. Only three SANs represented Buhari, to wit: Malami, Oladipo Okpeseyi and the late James Ocholi.
What motivated Buhari’s legal team was not pecuniary as he did not even have the money to pay the standard legal fee. The team reportedly accepted what was made available to it. But above all, it believed Buhari had a case provable in court: not that he won the 2011 election, but that Jonathan did not win the majority of the validly cast votes. The purpose of the petition was to convince the court to declare a run-off in which case anything could have happened. The Supreme Court, however, upheld the outcome of the election in the national interest. But in 2015, Buhari won and appointed Malami from a ministerial list that had ten lawyers.
In the nation’s cloak-and-dagger politics, Malami thereafter became a target of unconscionable propaganda and relentless smear campaigns all through his first tenure in the cabinet. The dodgy focus of the campaigns of calumny was to damage his leadership of the Justice Ministry and AGF’s office so he could be removed. Traducers attacked him from different flanks as if their lives depended on his exit from the cabinet. Significantly, Malami finished the first tenure strong and unscathed.
I remember the hoopla in the media over repatriation of the Abacha loot from Switzerland as one of the flanks. They had alleged that the Abacha loot was being re-looted because Malami determined the contract of the Swiss lawyer, Enrico Monfrini, in 2016, and appointed a team of Nigerian lawyers to complete the repatriation process. Malami had put an end to Monfrini’s opaque professional charges since 1999 when he was contracted by the Federal Government. His charges had become more of a “spoil system” from which vested interests and some of Malami’s predecessors in office allegedly benefitted.
Significantly, Monfrini had requested to be paid at least a fresh 20 percent as professional fee to complete the repatriation of the remaining $322.5 million, which Malami rejected. The repatriation was completed by the team of Nigerian lawyers at a much lower percentage on the value of money. That entire issue was resolved in favour of Malami’s well-considered decision, which received the consequent approval by the just-dissolved Federal Executive Council (FEC). And now that Malami has exited the cabinet together with his colleagues with his integrity intact, his performance and character of integrity highly recommend him for reappointment. The ultimate decision to reappoint him lies with the President.
· Ojeifo, an Abuja-based journalist, contributed this piece via ojwonderngr@yahoo.com
