The fusion of the offices of the Attorney General of the Federation (AGF) and the Minister of Justice in Nigeria has been a subject of legal and political debate for decades. While the AGF is meant to be an impartial legal officer serving the rule of law, the Minister of Justice is a political appointee responsible for implementing the government’s legal policies.
The combination of these two distinct roles has led to situations where the AGF, instead of acting as the chief legal protector of the country, becomes a defender of political decisions—even when they are contrary to the Constitution and the principles of justice.
A recent example that highlights this issue is the reaction of the current AGF and Minister of Justice, Lateef Fagbemi, SAN, to the controversial declaration of a state of emergency in Rivers State. His attempt to justify an action widely regarded as unconstitutional was not only shocking but also indicative of the inherent conflict of interest in his position.
Under Section 150(1) of the 1999 Constitution, the AGF is the chief law officer of the country, responsible for advising the government on legal matters and prosecuting or discontinuing cases in the public interest under Section 174. The AGF’s duty is first and foremost to the Constitution and the people of Nigeria, not to the president or any political party.
The Minister of Justice, on the other hand, is primarily a political appointee whose responsibility is to oversee the legal framework within which government policies are executed. Unlike the AGF, who is meant to be impartial, the Minister of Justice is expected to align with the government’s political agenda.
By combining these roles, the AGF is often caught between defending the government’s political interests and upholding justice. The result is a compromised legal system where the pursuit of justice is often sacrificed for political loyalty.
A clear example of this conflict of interest occurred under Mohammed Adoke, SAN, who served as AGF and Minister of Justice during President Goodluck Jonathan’s administration.
In the Malabu oil scandal, Adoke was accused of facilitating questionable financial transactions instead of protecting Nigeria’s legal and financial interests. His defence was that he was acting in line with government policy—a classic example of how the AGF’s role is often subordinated to political interests.
Similarly, in the case of Lateef Fagbemi, SAN, his attempt to justify the Rivers State emergency declaration, despite widespread criticism from constitutional law experts, demonstrates how AGFs often struggle to balance legal integrity with political loyalty.
The AGF’s prosecutorial powers under Section 174 of the Constitution allow to institute, take over, or discontinue criminal proceedings. However, history has shown that this power is often used selectively to shield political allies and target opponents.
For instance, under Abubakar Malami, SAN, who served as AGF in the Buhari administration, there were allegations of selective prosecution in high-profile corruption cases. Critics accused Malami of discontinuing cases against politically connected individuals while aggressively pursuing opposition figures. This pattern has repeated itself across various administrations.
When the AGF is seen as an extension of the ruling party rather than an impartial guardian of justice, public confidence in the legal system erodes. The perception that the government can manipulate the justice system for political ends discourages citizens from seeking legal redress, thereby weakening democracy.
Several countries have recognized the inherent conflict of interest in merging these roles and have taken steps to separate them:
The UK has a Lord Chancellor (Minister of Justice), who is a senior government official who oversees legal affairs, heading the Ministry of Justice. Currently, the role is held by Shabana Mahmood (appointed in July 2024 under the Labour government). The Attorney General, on the other hand, is the government’s chief legal adviser, a separate role currently held by Lord Richard Hermer KC (also appointed in July 2024).
Nigeria can learn from these models to create a more independent and effective legal system.
Recommendations and Way Forward:
1. Constitutional Amendment to Separate the Offices
The 1999 Constitution should be amended to create two distinct offices, ensuring a clear separation between legal advisory functions and political responsibilities:
The AGF should be a non-political legal officer appointed based on professional merit, with a secure tenure, similar to a Supreme Court judge. Responsible for prosecutorial decisions, legal advisory functions, and ensuring justice is upheld without political bias.
The Minister of Justice can be a political appointee of the government tasked with legal policy implementation, law reforms, and overseeing the judiciary. While working closely with the AGF, the Minister would have no direct influence over prosecutions and legal interpretations. This separation would prevent situations where the AGF is forced to defend unconstitutional or illegal actions simply because they are part of the executive.
2. Independent Appointment Process for the AGF
To ensure the AGF’s independence, their appointment should not be solely at the discretion of the president. A more transparent, non-partisan process should be adopted:
The AGF should be appointed based on merit and legal expertise rather than political affiliation. The National Judicial Council (NJC), which oversees judicial appointments, should vet and recommend candidates for the position.
The AGF’s appointment should require Senate confirmation, ensuring a level of legislative oversight to prevent executive control. The AGF should have a fixed tenure (e.g., six years) and should not be removed arbitrarily by the president. By adopting this approach, Nigeria would prevent situations where the AGF is pressured to serve the interests of the president rather than the legal system.
3. Limiting the AGF’s Power to Discontinue Cases (Nolle Prosequi)
Section 174 of the Constitution grants the AGF the power to discontinue criminal proceedings at any stage (nolle prosequi). While this power is meant to serve the public interest, it has often been abused for political protectionism—allowing politically connected individuals to escape prosecution.
There is a need to amend Section 174 to limit the AGF’s discretionary power by requiring a judicial review before discontinuing any criminal case. Establish an independent legal panel (composed of retired judges and senior lawyers) to review decisions on nolle prosequi, ensuring they are made in the public interest, not for political gain.
Require the AGF to publicly disclose reasons for discontinuing high-profile cases, ensuring accountability and transparency. This reform would prevent scenarios where the AGF is used as a tool to shield political allies from prosecution.
About the Author:
Emmanuel Christopher Diah is a research consultant, writer, and Nigerian Law School candidate, also known by the pseudonym Chrispodiah Emmanuel. With a strong background in legal studies, he has conducted extensive research across various fields, including constitutional law, corporate law, and intellectual property. His work focuses on providing scholarly insights and practical legal solutions.