Malami’s Many Controversies By ERIC IKHILAE
The office of the Attorney-General of the Federation (AGF) and Minister of Justice is a creation of the 1999 Constitution under sections 150(1) & (2).
The current occupant of the office is Senior Advocate of Nigeria (SAN) Abubakar Malami.
Malami was appointed by President Muhammadu Buhari in 2015 and is regarded as one of the key members of his cabinet.
However, almost since his assumption of office, many have raised eyebrows about his choice as the nation’s AGF following his office’s alleged role or lack thereof in some trending incidents.
Observers have argued that going by the controversies, Malami may become the most controversial AGF in the nation’s history.
Nevertheless, the Minister has remained resolute that he has always acted, as was expected of him, in the public interest.
The latest of such controversy was his intervention in the Magodo Estate, Lagos crisis over land ownership.
Malami’s involvement in the deployment of armed policemen from Abuja to the estate, ostensibly to execute a Supreme Court judgment had remained in the realm of conjecture until the police officer, who disregarded Lagos State Governor, Babajide Sanwo-Olu’s directives, told the world that he and his team were acting on the orders of Malami and the Inspector-General of Police (IGP), Usman Baba Alkali.
Speaking for his colleagues in the region the Southwest Governors’ Forum (SGF), Ondo State Governor Olurotimi Akeredolu, flayed the role of the AGF and the IG in the deployment of a police detachment.
Akeredolu, chairman of the Southwest Governors Forum in a statement said “the utter disrespect and response of the officer to the governor establishes, beyond doubt, the impracticability of the current system, dubiously christened “federalism.
“We condemn, in very clear terms, the role of the Attorney General of the Federation, Mr Abubakar Malami SAN in this act of gross moral turpitude,” Akeredolu said, adding that “We condemn, very strongly, this brazen assault on decency.”
The Southwest governors chairman called on the IG to “explain the justification for this intrusion.”
Akeredolu said any expectations of rapprochement between so-called federating units and federal security agencies “are becoming forlorn, progressively, due to deliberate acts which mock our very avowal to ethics and professionalism.”
The governor, an advocate of a state police system in Nigeria, questioned the current federal policing structure which compels a governor to “seek clarifications on security issues in his jurisdiction from totally extraneous bodies or persons”, describing it as “a sure recipe for anarchy.”
Despite the criticism, Malami continued to justify his action, insisting that it was incumbent on him as the nation’s Chief Law Officer, to ensure compliance with the law and court decisions.
“It is important to state that the office of the Attorney-General of the Federation belongs to the Executive arm of the government. The Supreme Court belongs to the Judiciary.
“The Office of the Attorney-General of the Federation and Minister of Justice takes exception to the Southwest governors unjustifiable insinuation of impunity against the office of the Attorney- General over execution of a judgment of the Supreme Court.
“The role of the executive is, in this respect, simply to aid the maintenance of law and order in due compliance with rule of law arising from giving effect to the judgment of the apex court of the land.
“Let it be known that the issue is regarding a Supreme Court Judgment that was delivered in 2012 long before the coming of President Muhammadu Buhari’s administration in office at a time when Malami was not a minister.
“The judgment was a re-affirmation of the judgments of Court of Appeal and High Court delivered on 31st December, 1993.
“The Press Release came to us as a surprise. We see it as a vituperation of ulterior motives of some political class who derived pleasure in dragging the name of Malami in the mud to achieve some sinister objectives…
“It is a common knowledge that execution of the judgment and orders of courts of competent jurisdiction, and the court of last resort in the circumstances remains a cardinal component of the rule of law and the office of the Attorney-General wonders how maintenance of the law and orders in the course of execution of the judgment of the Supreme Court can be adjudged by imagination of the governors to be unruly.
“We want to restate that the sanctity of the rule of law is not a matter of choice,” Malami said in a statement issued on January 5, 2022 by his media aide, Umar Gwandu.
The Magodo incidents came just while many were trying to put behind them the October 29, 2021 invasion of the Abuja residence of Justice Mary Odili of the Supreme Court by some security operatives.
Malami’s name also featured prominently in the case, with one of the suspects claiming to have a relationship with the AGF, having earlier acted as a consultant to him.
Although Malami denied his involvement and distanced himself from the suspect, it seemed the more the AGF tried, the more the suspicion about his involvement grew.
For the first time in the nation’s history, few days after his denial, a group of senior lawyers, acting under the aegis of the Body of Senior Advocates of Nigeria (BOSAN) led by Adegboyega Awomolo (SAN), protested to the office of the AGF and demanded that those behind the invasion on Justice Odili’s residence be unveiled.
Also, the Nigerian Bar Association (NBA) stated that it had no confidence in Malami’s involvement in investigating the incident.
The NBA, through the Chairman of Section, Public Interest And Development Law (SPIDEL), Monday Ubani, argued that Malami was not fit to set up an independent panel to probe the siege on Justice Odili’s residence because his named featured in the incident.
“It is wrong for probably the AGF to investigate himself, because of the fact that he had been implicated, sort of, not that he has been found liable, but somebody mentioned his name,” Ubani said.
The above cases are only the recent few instances involving Malami.
2015 Kogi governorship election
Shortly after his appointment in 2015, Malami raised dust when he directed the Independent National Electoral Commission (INEC) to allow the All Progressives Congress (APC) substitute its dead candidate in the Kogi State governorship election.
While many had thought James Faleke, the running mate to the deceased governorship candidate, Abubakar Audu, ought to automatically step in, Malami argued otherwise.
Malami contended that “the issue is very straightforward. Fundamentally, Section 33 of the Electoral Act is very clear that in case of death, the right for substitution by a political party is sustained by the provisions of Section 33 of the Electoral Act.
“And if you have a community reading of that section with Section 221 of the constitution it clearly indicates that the right to vote is the right of a political party and the party, in this case, the APC has participated in the conduct of the election. It is, therefore, apparent that the combined community reading of the two provisions does not leave any room for conjecture.
“APC as a party is entitled to substitution by the clear provisions of Section 33 of the Electoral Act. Also, Section 221 of the constitution is clear that the votes cast were cast in favour of the APC.
“Arising from that deduction, it does not require any legal interpretation. The interpretation is clear, APC will substitute, which right has been sustained by Section 33 of the Electoral Act. So be it.
“The supplementary election has to be conducted along the line,” the AGF said.
His position was promptly adopted by INEC, following which the APC later adopted Yahaya Bello, who came second in its primary, as a replacement for Audu.
2016 invasion of judicial officers’ houses
The nation woke up on October 8, 2016 to learn about the simultaneous invasion of the houses of some judicial officers across the country by men of the Department of State Services (SSS).
While many were still struggling to come to terms with the strange development, Malami was quoted to have justified the invasion, thus betraying his involvement in the plot.
He was severely criticised, particularly within the nation’s legal circle, with many classifying it as a sacrilege and a desecration of the Judiciary.
One of the affected judges, Justice Adeniyi Ademola of the Federal High Court (now retired), was categorical in blaming Malami for his ordeal.
In his October 11, 2016 letter to the Chief Justice of Nigeria (CJN), Justice Ademola alleged that the invasion of his Abuja home was instigated by Malami.
Justice Ademola claimed that Malami was trying to get back at him for ordering his arrest for professional misconduct, while he was serving as a judge in the Kano division of the Federal High Court between 2004 and 2008. Malami was based in Kano then.
Part of the letter reads: “Contrary to media report being circulated, I have never confessed to any crime or implicated anybody, including judges, in my statement obtained from me by the DSS.
“What is more intriguing in this whole episode is that I see it as a vendetta/revenge from the Hon. Attorney-General of the Federation, Abubakar Mallami, SAN, (who) whilst I was in Kano between 2004 and 2008 as a Federal High Court judge was involved in a professional misconduct necessitating his arrest and detention by my order.
“However, with the intervention of the Nigerian Bar Association, Kano Branch, the allegation of misconduct was later withdrawn by me. Consequently, the National Judicial Council referred Abubakar Mallami to the NBA Disciplinary Committee for disciplinary action.
“It was a result of this he was denied the rank of SAN by the Legal Practitioners Privileges Committee for the period of four years, until when he produced a fake letter of apology, purportedly addressed to me. It was then he was conferred with the rank. Since the above incident, Abubakar Mallami has threatened to revenge and swore to do anything to bring me down.”
His fight with Magu
For most part of his time at the helm of affairs at the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu was at loggerheads with Malami over the operations of the organisation.
Magu never survived his brushes with Malami. He was never confirmed as the substantive Chairman of the agency and was subsequently eased out unceremoniously on July 7, 2020 when he was suspended based on a petition written against him to Buhari by Malami.
Magu never returned until a successor Abdulrasheed Bawa was appointed.
Link with Maina’s reinstatement, Oyo-Ita’s fall
Malami’s name featured prominently in the controversial reinstatement and promotion of the now jailed former Chairman of the Pension Reform Task Team (PRTT), Abdulrasheed Maina.
Maina was sacked in 2013 over his indictment for his complicity in the looting of pension funds. He subsequently ran outside the country when the EFCC went after him.
But about four years later, information filtered in that Maina has not only been reinstated to the Ministry of Interior, but had also been elevated, a development that attracted criticism.
The then Head of Service of the Federation (HOSF), Mrs. Winifred Oyo-Ita distanced herself from Maina’s reinstatement and blamed it on Malami.
Like Magu, Oyo-Ita never survived her decision to oppose Malami on the Maina case. She was later relieved of her office and subsequently charged with fraud.
She is, along with some of her ex-aides, being prosecuted before Justice Taiwo Taiwo of the Federal High Court in Abuja.
It later turned out that Maina’s reinstatement was on the strength of Malami’s letter, with Ref. No. HAGF/FCSC/2017/Vol. 1/3, in which he among others, directed the Federal Civil Service Commission (FCSC) to give effect to a 2013 judgment of the Federal High Court, Abuja which he claimed gave Maina a clean bill of health and voided the process that led to his dismissal from service.
On the strength of the letter, the FCSC, at the end of a meeting it held on June 14, 2017, requested the Office of the Head of the Civil Service of the Federation (OHCSF), vide a letter marked FC.4029/82/Vol. III/160, and dated June 21, to advise the Permanent Secretary of the Ministry of Interior to consider the AGF’s letter and make appropriate recommendations on the Maina’s case.
The Ministry of Interior, at its Senior Staff Committee meeting held on June 22, placed reliance on the AGF’s letter and recommended that Maina be reinstated into the Service as Deputy Director on Salary Grade Level 16.
On August 16, the FCSC approved the reinstatement of Maina with effect from February 21, 2013 (being the date he was earlier dismissed from service.
The FCSC equally agreed to allow Maina to sit for the next promotion examination to the post of Director (Administration) with Salary Grade Level 17.
In the height of the controversy generated by Maina’s reinstatement, some legal minds were compelled to engage in a closer scrutiny of the judgment referred to by Malami.
It was then uncovered that allegedly Malami either misinterpreted or imported his own meaning to the judgment delivered on March 27, 2013, by Justice Adamu Bello (now retired).
Justice Bello, in the judgment, merely quashed a warrant of arrest issued against Maina by the Senate of the National Assembly and faulted the process leading to the issuance of the arrest warrant.
The judge said there was no evidence that the investigation the Senate commenced against Maina was “one validly commenced in accordance with the provisions of Section 88(1) of the 1999 Constitution”.
He held that the Senate’s investigative committee failed to present before his court, vital documents to show that Maina was accorded fair treatment before the warrant of arrest was issued against him.
Justice Bello did not clear Maina of allegations by the EFCC that he embezzled pension fund to the tune of N2 billion. The judge also did not insulate Maina from EFCC’s investigations.
Instead, Justice Bello advised Maina to surrender himself to the authorities investigating the alleged N2 billion fraud.
Part of the judgment reads: “The implication of the failure to produce and annex these vital documents to the counter affidavit of the 1st, 2nd, 3rd, 4th, 5th, 8th and 9th respondents is that there is no evidence before me to show that the investigation commenced by the said respondents is one validly commenced in accordance with the provisions of Section 88(1) of the 1999 constitution.
“If it has not been validly commenced in accordance with the Constitution, it follows that the summons or invitation to the Applicant (Maina) to appear before the Committee would not have been validly issued and ipso facto, the warrant of arrest was not validly issued.
“In the circumstances therefore, I am bound to set aside the warrant of arrest issued by the 2nd respondent which threatens the right of the applicant to his personal liberty.
“Consequently, the warrant of arrest issued by the 2nd respondent for the arrest of the applicant is set aside.
“I grant relief-1 contained in the statement. I also grant an order of perpetual injunction restraining the respondents jointly and/or severally by themselves and or their agent, privies, servants, however so called from arresting the applicant on account of the warrant of arrest which has been set aside.
“However, beyond these two reliefs, given all the facts available to the court, the applicant is not entitled to any other relief.
“My decision is based purely on the failure of the respondents to annex the vital documents I mentioned, otherwise, the applicant would not have any case at all.
“The decision should not, therefore, send a wrong signal to the public that the Senate does not have the power to cause an investigation within the purview of the powers conferred on it by Sections 88 and 89 of the Constitution with respect to the matters enumerated therein.
“It has such powers and when properly exercised, it can summon any person in Nigeria to give evidence and can also compel the attendance of any such person.
“Let me end the judgment by advising the applicant to submit himself voluntarily to the investigation by the Senate in order to show that he respects constituted authority.
“It is the least expected of him as a public officers and as a citizen of Nigeria”, Justice Bello held.
In reaction to the controversy generated by Maina’s reinstatement, the Federal Government ordered his sack, following which he was prosecuted by EFCC and jailed along with his son, Faisal for money laundering.
Malami introduced what his critics considered a ludicrous dimension to the debate over the continued sustainability of open grazing of cattle in view of its devastating effects on the nation’s peace, security and crop farming as a result of the incessant clashes between herders and farmers.
In reaction to the problem of herders/farmers clashes, the 17 governors of the southern states rose from a meeting in Asaba, Delta State in May 2021 and announced the ban of open gracing of cattle in their states.
Malami promptly countered the governors, arguing that their position amounted to an affront on human rights.
The AGF queried the legality of the policy, contending that it violates the constitutionally guaranteed right to freedom of movement, adding that it “does not hold water” within the context of human rights as enshrined in the constitution.
Malami added: “It is about constitutionality within the context of the freedoms expressed in our constitution. Can you deny the rights of a Nigerian?
“For example, it is as good as saying, perhaps, maybe, the northern governors coming together to say they prohibit spare parts trading in the North.
“Does it hold water? Does it hold water for a northern governor to come and state expressly that he now prohibits spare parts trading in the North?”
He argued that those seeking to ban open grazing should first, facilitate the amendment of the constitution to that effect.
“If you are talking of constitutionally guaranteed rights, the better approach to it is to perhaps go back to ensure the constitution is amended.
“Freedom and liberty of movement, among others, established by the constitution, if by an inch you want to have any compromise over it, the better approach is, go back to the national assembly to say open grazing should be prohibited and see whether you can have the desired support for the constitutional amendment.
“It is a dangerous provision for any governor in Nigeria to think he can bring any compromise on the freedom and liberty of individuals to move around,” Malami said.
Intervention in cases involving Oduah, Ohakim
The AGF’s intervention in some high profile cases has not only been controversial, it has acted to delay proceedings in the cases.
For instance, the planned arraignment of former Aviation Minister and serving Senator, Stella Oduah was stalled before a Federal High Court in Abuja on November 22, this year owing to Malami’s intervention.
The EFCC had filed a charge against Oduah, her aides, Gloria Odita, Nwosu Emmanuel and Irene Chinyere Chukwuma along with some firms, in which they are accused of engaging in money laundering to the tune of N10billion.
At the scheduled arraignment of the defendants on November 22, lawyer to some of the seventh and eighth defendants – Crystal Television Limited and Sobora International Limited) – Ogwu Onoja (SAN) showed the court a copy of a letter he claimed the AGF wrote following a petition by his (Onoja’s) clients, directing the EFCC to submit the case file to his office.
Upon sighting the letter, Justice Inyang Ekwo put off the planned arraignment and adjourned till February 10, 2022 to enable the AGF communicate his final position in the case.
A similar intervention of the AGF equally stalled proceedings in the two cases involving a former Imo State governor, Ikedi Ohakim before the High Court of the Federal Capital Territory (FCT) in Maitama and the Federal High Court in Abuja.
In the case before Justice Taiwo Taiwo of the Federal High Court, Ohakim and one of his aides, Chinedu Okpareke are accused of threatening the life of the ex-governor’s alleged ex-mistress, Mrs. Chinyere Igwegbe Amuchienwa.
In the case before Justice Yusuf Halilu of the High Court of the FCT, Mrs. Amuchienwa is accused of threatening the ex-governor.
Trial was to commence last November this year in both cases (originally filed by the Inspector-General of Police), but it had to be postponed till this year by both courts after the AGF intervened and took over the prosecution of both cases.
Support for Malami on the Magodo estate crisis
Although many have continued to criticise Malami on his intervention in the Magodo crisis, the AGF’s position on the issue gained some support from some lawyers.
One of such lawyers is Abuja-based Vincent Adodo.
Adodo argued that by Section 287 (1) of the 1999 Constitution As Amended, the Attorney-General of the Federation and Minister of Justice has a bounden and constitutional duty to enforce the decisions of the Supreme Court. Below is the text of the said section 287 (1): ‘The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by court with subordinate jurisdiction to that of the Supreme Court.’
He added: “From the cited provisions of the supreme law of the land, it becomes demonstrably clear that the duty to enforce the judgment of the Supreme Court is not exclusive to certain persons or agencies but it is a duty imposed on persons and authorities, particularly the HAGF.
“There is no doubt that the Sherrifs and Civil Process Act, Cap S6 Laws of the Federation of Nigeria 2004 (SCPA) makes specific provisions concerning the procedure for enforcement of court judgments, it is respectfully submitted, however, that the scope of the application of the SCPA is limited to instances where a judgment is being enforced by a Sherrif of the High Court of a state or the FCT pursuant to his powers under the SCPA.
“Where compliance with a court judgment is secured by the Attorney- General of the Federation in his capacity as the Chief Law Officer of the Federation, he is not bound by the SCPA given that his powers to seek compliance with a court judgment is derived from section 287 of the Constitution and not the SCPA which is a legislation inferior to the Constitution.”
He argued further that the office of the AGF is a creation of section 150 of the Constitution.
“The HAGF is bound to protect the Constitution and ensure compliance with extant laws by all agencies of Government. In the circumstance, it is incumbent on the HAGF to ensure that the dignity and integrity of the highest court in the land was not subjected to further ridicule through the perennial disobedience to it’s judgment by Lagos State.
Furthermore, the intervention of the HAGF became at this point necessary because the law abhors a vacuum in the scheme of affairs.
“The Lagos State High Court Enforcement Department headed by its Sherrif having abdicated it’s duty of enforcing the judgment under the Sherrifs and Civil Process Act, a situation warranting resort to any other lawful means was thereby created and this other lawful means – seeking compliance with the judgment through another lawful mechanism outside the control of the Lagos State Government – is imperative and sanctioned by section 287(1) of the Constitution and the doctrine of necessity
“In the final analysis, it is not disputable that the statutory procedure for enforcing a judgment is enacted in the SCPA, nevertheless, the intervention of the HAGF can be justified under the imperative necessity to ensure the preservation of the integrity of the Supreme Court, that is the necessity to put an end to further violation of the 1999 Constitution which in section 17 (2) (e) guarantees the independence, impartiality and integrity of courts of law.
“Finally, the SCPA is applicable only in instances a judgment of court is sought to be enforced through the sherriff of a High Court whose powers and functions are established and delineated by that law.
“Conversely, the powers of the HAGF to enforce or seek compliance with the judgment of a Court (in this instance, the supreme Court) is derived directly from the Constitution and not the SCPA. The HAGF is thus not bound by the procedures stipulated therein.”