Malami & the rule of law |

Malami & the rule of law |

“The King himself ought to be subject to God and the law because law makes the king.” These eloquent words have been cited as origin of the expression “Rule of Law” and credited to Aristotle, the Greek philosopher and polymath during the classical period of ancient Greece. Aristotle questioned whether it was better to be ruled by the best man or the best laws then chose the latter.

Bracton, a 13th century judge would later echo the same sentiments to  Henry III, King of France, Poland and Grand Duke of Lithuania whose reign was frequently confronted by  the desire to retain the prestige of the premier chivalric order of France and  violent political factions funded by foreign powers. By 1613,  Edward Coke, Chief Justice of the Kings Bench and one considered to be the greatest jurist of the Elizabethan and Jacobean eras had made the rule of law a common currency of justice. In the Proclamations and Dr. Bohman’s cases, Coke declared  the King a subject of the rule of law or void in actions that were in violation of common right and reason. By 1616 when Sir Edward Coke bowed from the Bench, he left behind a legacy which John Rutledge, associate Justice of the U.S. Supreme Court described as ‘almost the foundations of our laws’.

Today, the foundation of justice rests on the Rule of Law- a principle that all people, institutions and entities are accountable to well-defined and established laws that are supreme, sees everyone as equal, demands accountability from all, is fair in its application and eschews arbitrariness. The sense in which the principle operates is vindicating of the supremacy of law over the pretensions of absolute powers. The President Buhari administration disagrees with the concept. 

In 2018, during the opening ceremony of the Nigeria Bar Association conference, President Muhammadu Buhari in presenting the keynote on the theme ‘ Transition, Transformation and Sustainable Institutions’ said:
“Rule of law must be subject to the supremacy of the nation’s security and the national interest. Our Apex Court has had course to adopt that position in that regard and it is now a matter of judicial recognition that where national security and public interest are urgent or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place in favour of the greater good of the society.”
There is hardly a more sacrilegious opinion on the Rule of Law. In context, President Buhari made the point that government policy and opinion are supreme not the rule of law. While the president claimed he was relying on the pronouncement of Nigeria’s Supreme Court, his inability to quote the case casts a fog on what  case he referred to or the ratio decidendi (reason for the decision). In any case, any judgment that does not recognize the supremacy of the Law and which, in the analysis of the President, shelves the rule of law on mere allegations of threat to national security and national interest is with respect, ultra vires the Constitution that is both supreme and which guarantees the presumption of innocence until  guilt is proven. 

What many may have overlooked as poor choice of reasoning in a speech has continued to play out in the Buhari-led administration and has raised the rife question of whether  there is an Attorney General of the Federation who sees this ever expanding frontiers of a government that seems oblivious of its legal boundaries.

Malami’s interpretation of the rule of law

Following the 9/11 single deadliest terrorist attack in human history, Jon Stewart, political satirist and voice of reason, quipped: ‘ If the events of September 11, 2001 have proven anything, it is that terrorists can attack us, but they can’t take away what makes us American- our freedom, our liberty, our civil rights. No, only Attorney General John Ashcroft can do that.
John David Ashcroft was the 79th Attorney General of the United States and served in the George W. Bush administration. Ashcroft was controversial. His creation of Operation Tips, a domestic program in which workers and government employees would inform law enforcement agencies about suspicious behavior was widely criticized and derided as a domestic informant network that encroached on the rights in the 1st and 4th amendments.In 2009 in the Ashcroft v. Alkidd case the Ninth Circuit Court of Appeals  found that Ashcroft could be held personally liable for the wrongful detention of Alkidd, an American citizen. Of Ashcroft, Judge Milan Smith said  he led actions that were painful reminders of some of the most ignominious chapters of U.S. national history. Many Americans believe  Ashcroft did the hatchet job of providing distractions from the steep fall in approval ratings of President Bush.

Think Ashcroft. Think Nigeria under  AGF Abubakar Malami. It becomes quite clear that to exist as chief law enforcement officer and not merely own the title, there has  first to be a belief in the absoluteness of law. The job of the Attorney General is very specific: it is about enforcing the law and not policy.Therefore defining the rule of law in terms convenient to political inclination has a chilling effect. When the President puts  a whimsical connotation of national security and public interest ahead of the rule of law, we must inquire from  the Attorney General of the Federation his understanding of the rule  of law. We don’t have to wait too long before the AGF answers: Rule of Law, he says, is not a one way traffic arrangement but a balance of both sides. The interview he granted to ThisDay on 13 September,2020 calls for grave concerns. Hear Malami:
“There are grounds that justify the application for setting aside the order.

Thirdly, to consider the possibility of staying the execution of the order, if indeed an appeal has been launched by the government.
“So, within the context of the rule of law, if the government decides to appeal and file an application for stay of execution, if the government decides to file an application for setting aside, both the government and the accuser are operating within the context of the rule of law, and the way the judicial processes and system operate, is not for the government to follow it hook, line and sinker, and unconditionally comply with the court order, where it has a legislative power to appeal and file an application for stay of execution. 

“So, when the government decides not to release the accused, on the grounds that it has filed an application for stay of execution, and the application for stay of execution is being considered and determined by court, you are still operating within the context of the rule of law, because the rule of law gives an opportunity for the accuser to apply for bail. It is the same rule of law that gives the government the opportunity to challenge the order by way of an appeal, stay of execution or by section aside…“It is never a one-way traffic affair, whereby you look at it from the perspective of complying with an order or judgment hook, line and sinker without factoring the associated counter rights and privileges available at the expense of the other. So, that is the rule of law and that is the constitutional context of it,” he explained…

“So, I think that makes the record clear as far the function of rule of law is concerned and we shall continue as a government to operate within the context of taking advantage of what options and remedies that are available to us as a government within the context of the constitution and existing legislations and I think the rule of law, is about law and if the law provides that you have certain options, and you take advantage of those options, you can never be charged for operating arbitrarily.”
If Malami goes ahead to amend the Rules of Professional Conduct 2007 without due consultation in the manner he’s done, it should not come as a surprise.

Who is the client of the Attorney General?

The indiscriminate arrests, harrasment and detention of activists and  dissenting voices have proven that the Buhari government cannot be trusted to use power within constitutional bounds. The basic idea of governance is of citizens coming together to divest power in a few to hold in trust for the majority. The Attorney General who should not play politics with law,court or accountability is saddled with the job of enforcing the clear line between law and policy. His foremost calling is to be the chief slave to the law no matter whose ox is gored and in a manner consistent with the ideals of Justice. He is not to belong with the coalition of yes men in the President’s or party’s kitchen. Therefore an AG who defines rule of law in terms amenable to political interpretations,  crushing of accountability structures and demonization of dissent is ill fitting for the job. If Malami takes a look at the man in the mirror, he will find the truth right in there.