OPINION: Pardons, clemency, and the death of moral clarity

LATEEF Fagbemi is Nigeria’s attorney-general and minister of justice. He has been at the job since August 2023. He is a senior advocate, the equivalent of a King’s [formerly Queen’s] Counsel in the United Kingdom. He might have been a brilliant lawyer but his lawyering skills became more pronounced with his dexterity over election matters. My understanding is that he has had quite a few victories in high profile electoral disputes. And the crowning prize of his nose for winning election disputes was in 2023 when he led a team of other senior lawyers and a motley of nondescript attorneys to persuade the Supreme Court to rubber stamp the award of the presidency of Nigeria by the ‘Independent’ National Electoral Commission [INEC] to Alhaji Bola Ahmed Tinubu. It should be obvious that that win was what contributed in recommending him for the job of the top law officer of this country. We know that winning legal victories in court on election matters are often not strictly based on laws. Many of our judges are known to be corrupt. The additional qualification of Fagbemi was that he is Yoruba. In our country, being controversial comes with the job of being attorney-general and minister of justice. You are not expected to be at the service of Nigerians. You are the lickspittle of the president who appointed you. To be fair, Fagbemi is not alone. He is in the same boat as his predecessors.

In some jurisdictions the attorney-general and the minister of justice are too separate individuals – the minister can be a partisan hack while the attorney-general is not. In our country, some advocates have been campaigning to separate the two offices. But the advocacies had been half-hearted at best. Even as recent as last year, there was a bill introduced in the House of Representatives by opposition lawmakers of the Peoples Democratic Party [PDP] to separate the ministry of justice and the office of the attorney-general. The bill introduced by Mansur Soro [Darazo/Ganjuwa federal constituency in Bauchi state), and Oluwole Oke of Osun state, was then said to be receiving ‘legislative input from the House Committee on Constitution Review chaired the Deputy Speaker, Benjamin Kalu’. The bill was designed to alter section 150 of the 1999 Constitution with the introduction of sub-section 1 to read’:
“There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation different from the person occupying the position of the Minister of Justice to be appointed by the President subject to the confirmation of the Senate”. In the same bill a sub-section to section 195 of the Constitution was proposed. The new sub-section should read, “There shall be an Attorney-General for each state who shall be the Chief Law Officer of the state to be appointed by the Governor, subject to the confirmation of the Governor”. Two things are possible with this bill. One, the bill is still alive awaiting the consummation of the alteration of the Constitution which has remained a work in progress since 2023, or that the bill fell by the way side. Two, the proponents had abandoned the bill in the wake of mass defections to the ruling All Progressives Congress [APC] by governors and lawmakers nationwide. The PDP is so decapitated that it is possible that the sponsors of the bill had jumped ship. And as a member of the ruling party you cannot be seen to be backing a bill that will offend the deity inside the Rock who is the owner of the party and the parliament. That will be the day. A similar move to separate the offices failed at the last hurdle in 2017 when the alteration couldn’t muster the concurrence of two-third of the 36 state assemblies.

So Fagbemi, as the attorney-general and minister of justice, and as an apparatchik of the APC, has been working his socks off for the president, the APC, and Nigerians in that order. By the virtue of his office, he is the chief legal adviser to the president. When you work for Tinubu, especially as it pertains to politics, independence of mind is not a virtue that’s encouraged. You are better served if you can correctly read his mind and proceed to do such things that he has in mind. And so far Fagbemi appears to be good at it. Between Tinubu and Fagbemi, they have the Supreme [Cult] Court for its imprimatur as the need arises. That informed the approach to the Supreme Court by the duo to make the combined 774 local government areas as a federating unit in Nigeria along with the federal and state governments. Their lame argument was that the Constitution prescribed that the Councils should be financially autonomous, and so should receive their allocations directly from Abuja. Tinubu and Fagbemi conveniently ignored another constitutional provision which stipulated that the states shall superintendent the operations and activities of the local government areas within their jurisdictions. The duo expectedly extracted victory from the pliant justices of the Supreme Court. But for all intents and purposes, it appears so far to be a pyrrhic victory. State governors had continued to use Council allocations as slush funds. The easier and better thing to do would have been to delete the council areas from the Constitution, allow states to create as many local governments or whatever name they choose to call them, and administer and fund them.

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As part of duty as the chief legal adviser to Tinubu, Fagbemi is complicit in the constitutional aberration in the suspension and removal from office for six months of the elected governor, deputy governor, and lawmakers of the Rivers state House of Assembly. And the appointment of an obviously illegal Sole Administrator. A court in Abuja only ruled on technicalities after the fact of the suspension. The main suit challenging what has been variously described as an abuse of power by the president is still languishing in the dockets of one of the courts in the federal capital. This could only happen because like the national assembly, the judiciary is now being widely regarded as a parastatal of the presidency. In like manner the same attorney-general recommended the seizure of the financial allocations to the council areas of Rivers state in the wake of a controversial council election conducted under the governor before he was sacked. But Fagbemi supported the release of the same funds to unelected councils under the Sole Administrator, and in contravention of a Supreme Court judgment that unelected councils should not receive any funds from the federal purse. Fagbemi was also behind the stalemate in Osun state where he has sided with the APC claimants to councils’ chairmanship positions against the PDP. There was a report recently that the PDP governor of Osun state, along with his wealthy songster nephew, had been paying the local government workers from their personal finances. This is not how to run a country or its subnational.

The latest scandal is that this same attorney-general and minister of justice is currently reviewing a proclamation already publicly issued by the president on clemency and pardons for categories of detainees and prisoners who included merchants of psychotropic drugs and murderers. The review of the proclamation of a presidential order suggests that the buck does not stop at Tinubu’s desk any longer. And that the input prior to the pardons, if any, of the National Council of State comprising former presidents, heads of state, former and current heads of the three arms of government, governors, and other selected personages was of no consequence. What this tardiness, lack of vigour and rigour exposes is that governance is a charade in our clime. And especially in this dispensation. Members of sensitive and critical councils or committees or commissions lend themselves to be used as rubber stamps in decision-making including those involving life and death. They are herded into the Aso Rock Chamber without being armed in advance with briefing folders to acquaint themselves with the details of the issues they are expected to deliberate on and endorse. How is this possible with personages who should ordinarily be regarded as protectors of the realm? Should Fagbemi still be regarded as a fit and proper person for the exalted office he occupies?

In some other places, and we verily believe that the same applies here, nobody has the authority or power to vary a clemency or pardon which has already been publicly granted by the president especially when that favour has passed through recognised persons and agencies of state. The office of the attorney-general is setting a dangerous precedent by purporting to be working to potentially vary a presidential decree. The likely argument that the pardons had not been gazetted and that the beneficiaries had not been freed from prison is neither here nor there. If the regime in the course of the ongoing review advances salient reasons why some of the beneficiaries of the pardon should be unpardoned, it will only confirm the widely held views that our rulers are neither thorough nor serious on matters concerning the wellbeing of Nigerians. In addition, anyone who had been pardoned and then unpardoned, and who can muster the courage may approach the courts to challenge the flipflop. The person could make a number of claims including discrimination and emotional trauma. The only drawback will be that the people who pardoned and unpardoned also own the courts and the judges.

Apart from suggestions that this controversial clemency and pardons which have enraged a cross section of Nigerians were tailored to favour kindred spirits, there’s a greater concern that they will be disincentives to those who work tirelessly to ensure that the rule of law prevails. When drug traffickers and merchants are whimsically pardoned, you kill the zeal of the diligent officers of the Nigerian Drug Law Enforcement Agency [NDLEA] and similar institutions. A corollary to this is that you embolden those who are minded to get into the illicit and deadly business. We also create more drug addicts who will become a menace to society and a burden to our health facilities. Those who are incharge of the administration of justice may not be motivated to do more, seeing how their efforts can be undone by a casual and careless stroke of an apparently presidential auto pen. No matter how this ends, the country will be worse for it.

AUTHOR: UGO ONUOHA

Articles published in our Graffiti section are strictly the opinion of the writers and do not represent the views of Ripples Nigeria or its editorial stand.

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