Th e Ultimate Judge had just listened to the parties of the crime. It was an excruciating moment of having to severe proximity to allow the Laws take their natural course void of inhibition. Th e loss of celestial senses, banishment, tilling the ground in hard labour and pain through childbirth were the punishment. Th ere was no allocutus – that plea of mercy that softens the heart of a judge to tone down the harshness of Common Law. What would follow later proved to be even more direr. Adam and his wife Eve had twins at fi rst birth.
In the process of time two men born of the same womb, birthed of the same promise had a response to the Law of sacrifi ce that were diametrically opposed to their heritage. Cain brought a corrupt off ering of the fruit of his ground while Abel brought the fi rstlings of his fl ock and fat. Predictably, Abel’s off ering earned more respect and this angered Cain. Why are you angry Cain? If you have done well, will you not be accepted? But Cain’s rage overruled his sense of reason. Cain murdered his brother Abel yet his brother; though dead continued to cry out for justice through his blood that soaked the ground. Cain reminds us of the see-saw that goes on in the legal space on the role of a chief law offi cer. Th e offi ce was created to resolve the unstructured and inconsistent system of law enforcement where a crime, however heinous may be cancelled out leaving the victim doubly cheated.
So yes, the French Revolution ended the divine rights of kings and impeached the lordly privilege of leaders being the law. Individuals were no longer to be mere objects or pawns in the hands of state actors but there was still a problem. Th e people and the government were poles apart and there was then the need for a gobetween and who better than an Attorney General! Perhaps no offi ce is so important to any nation or state as the offi ce of the Attorney General. “Th ere shall be an Attorney General of the Federation who shall be the chief law offi cer of the federation and a minister of the government of the Federation”, says section 150(1) of the 1999 Constitution of the Federal Republic of Nigeria.
So vital is the offi ce and the occupier of the offi ce that the drafters of the Constitution in their wisdom did not deem it fi t to lump the description of a Federal and State A.G. but conveyed the majesty and prestige of the offi ce in such eloquence that no one misses its importance: “Th ere shall be an Attorney General for each state who shall be the chief law offi cer of the state and commissioner for justice of the government of that state” (Section 195 (1) of the 1999 Constitution. Our ground norm is not alone in its disposition. In all countries and jurisdictions, the Laws are vocal about the importance and role of the Attorney General.
He/ she is fi rst a servant in the temple of justice before he is a clerical staff in the shrine of policy- and this for good reason: as Chief Law offi cer, the call is to ensure laws preside over policies. He is not a fi gure head of the government to bend the laws to fi t their spleen, no. He makes the promise of the Law a reality and it is to that end that an Attorney General who is not passionate about the soul and spirit of the laws cannot function properly for he shall end up picking and choosing which laws to obey and which to throw out for not being in consonance with the desires of state actors. Th e role is an interesting one. Th e people and the government are both clients of the Attorney General. It is to that end that the A.G. becomes the horse that drives the chart. He instructs the government on what should be done. He creates a synergy between law, public policy and public interest. His enormous powers are as found in section 211 of the Constitution: Th e Attorney General of a State shall have power to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any off ence created by or under any law of the House of Assembly.
He/she shall have the power to take over and continue any such criminal proceedings that may have been instituted by any other authority or person and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. Let’s go over it again: Th e A.G. can institute, undertake, takeover or continue any criminal proceeding. I think we are all cool with that. Th e conversation begins to roughen when section 211(1) (c) jumps in- that power to discontinue any such criminal proceeding undertaken not just by the A.G. but by any other person who instituted the action. Th e prosecution of any crime in a court of law can be discontinued by an A.G.
Th e good news is that Section 211 (3) states that in exercising his powers, the Attorney General shall have regard to the public interest of justice and the need to prevent abuse of legal process. Th e bad news is sometimes (and this may be as many times as could get us all shuddering); Attorney Generals do not comply with the high threshold of giving due regard to public interest, justice and the need to prevent abuse of legal process in exercising their powers of case discontinuance (also called nolle prosequi powers). Th e reason is not hard to fi nd. Any president or governor who would want to insist on his way is more likely to make a weak choice of an A.G. who is a lawyer who merely was on the campaign train or just attended law school but has very little understanding of the powers of law as basis for governance. Th e government then ends up with a partisan politician who does not understand the gravity of jettisoning his role as defender of public justice.
So while the eff ect of a nolle is a discharge and not acquittal, it still does not tone down the implication of not prosecuting crime simply because the Attorney General is not interested ( or properly putinterested) in a matter. When then does an exercise of nolle powers amount to obstruction of justice? Jon Stewart expressed this frustration in a veiled satire when he said: “If the events of September 2011 have proven anything, it is that terrorists can attack us but they cannot take away what makes us American-our freedom, our liberty, our civil rights-No, only Attorney General John Ashcroft can do that.”
Stewart’s frustration is easily recognizable. An Attorney General should be one who protects, defends the Constitution and defends State sovereignty and individual liberty not one who stifl es them. Indeed, we cannot even talk about constitutional defense without acknowledging Law as an instrument that puts all humans on equal pedestal. Once an Attorney General seizes to meet those requirements, his exercise of nolle powers are tantamount to obstruction of justice and should be sanctioned by Law. In punctuating one’s thoughts on this important discourse on the offi ce and powers of the Attorney General, it becomes immediately clear why certain critical decisions stand on their head whether at the Federal or state level.
Th e situation is often a Cain refl ection- a man who wanted to eat and have his cake all at once and when he found that it was not feasible, murdered his brother. Th e spirit of our laws has time and again been murdered by persons who occupy/occupied the offi ce of the Attorney General without understanding the demands of the job. Th e outcome is often seen in a society that fails to make progress due to its lack of respect for the Rule of Law.
Th e time has come for the equities to be even out. Nigeria and its States need to consciously and consistently choose Attorney Generals who will have the spine to ensure that policies that are at parallels with the law would to the extent of their inconsistencies be declared null and void. We need Chief Law offi cers who would animate themselves with the systematic fl ow of allowing the Constitution and Statute Laws to speak in accents that are clear and still. Now that the cat is out can we now evaluate and ask: Who are the persons who preside in the Federal and States Ministry for Justice? Do they qualify for the roles they play? Because their offi ces may just be the point to trigger the positive change we want to see rippled across our nation.
