Sharia: Attorney-General of the Federation Has Locus Standi to Sue
by
One of the most contentious public issues in Nigeria today is whether wholesale declaration of Sharia by some states of the Federation, particularly from the north, is constitutional or otherwise.
While the Sharia - introducing states maintain that by virtue of S. 38 of the 1999 Constitution and other enabling provisions, their actions are not illegal, the Federal Government of Nigeria, headed by President Olusegun Obasanjo is of the view that those actions constitute a flagrant abuse of process and are seriously impugning on the same 1999 Constitution. Arguments in favour of this position are predicated on S.10 of the 1999 constitution which states in unequivocal terms thus: "The Government of the Federation or of a state shall not adopt any religion as state religion".
In the last quarter of 1999, Governor Ahmed Yerima of Zamfara State introduced Sharia as that state's official religion. This was then followed, in spite of Federal Government's overt and covert protestations, by states like Niger, Kano, Sokoto, Yobe, Borno, Bauchi, Katsina, Jigawa, etc. The executive arm of the Federal Government which felt highly agitated, betrayed and over-awed prevaricated from the Sharia introduced, being political shall die out slowly", to "the Sharia being introduced is unconstitutional", and yet, to "this is the handwork of fifth colonists who are bent on bringing down the present democracy".
At the height of all this, Nigerians felt very thirsty for a judicial intervention, if not for anything, at least for the purpose of posterity and the need to nip a potentially combustible situation in the bud. Even the Chief Justice of Nigeria, Muhammed Uwais, while treading carefully (the issue being volatile and his views being capable of wrong interpretation), offered last year that aggrieved parties should head to the courts.
The Christian Association of Nigeria, eminent lawyer, Olisa Agbakoba, SAN and others headed for the courts, but the suits were either withdrawn or were struck out on grounds of incompetence. Then all eyes become fixated on the Federal Government. Alas, the then Federal Attorney-General, Mr. Kanu Agabi, SAN declared in clear terms that the Federal Government (hereinafter called the F.G) lacked the locus standi to sue. This view was later to be reechoed by the Information Minister, Professor Jerry Gana Even the present Attorney - General, Chief Bola Ige, SAN asked us (This Day, Sunday 4th March, 2001) that "Now, how then would the Attorney-General of Nigeria say he has locus standi...?"
The pertinent question here is: Does the Attorney-General of the Federation (AGF) have the locus standi to sue the Zamfara State Government, et al, over the issue of Sharia? In answering this question, one has to painstakingly (for the benefit of all Nigerians - both the rulers and the ruled), historically, legally, factually and empirically dig into:-
(a) the powers, duties and obligations of the AGF;
(b) the full, objective, down- to earth meaning of the technical term 'locus standi
(c) whether the AGF has locus standi in this case or not. At the end of this exercise, Nigerians will (or are expected to) determine to whether it is true that the AGF lacks locus standi to sue over the Sharia or he is not willing to sue, for political expediency, amongst other reasons.
The Powers, Duties and Obligations of AGF: In trying to define the powers, duties and obligations of the AGF, recourse must be had to the history of, and the development of this office from England. The raison d'etre is that Nigeria, as a former colony of England, has the bulk of its laws traceable to those of the United Kingdom.
Robert Henley who was appointed the Attorney - General in 1757 was the first Attorney - General to lay down the principle that "he was responsible for his actions to the public as well as to the ministry, and that he was 'a judicial officer between the executive government and the subject". And in 1814, the Attorney - General was first officially treated to an order of Prime Regent as the number one officer of the legal department, thereby giving him an edge over all other officers of the department.
The 1979 and the 1989 Presidential Constitutions created the office of the as a cabinet minister in the government of the Federation, lording it over the Justice Ministry. Of significance was the 1989 Constitution which, apart from re-enacting the provisions of the 1979 Constitution, further added the powers of the Attorney-General by providing that he shall be the "Chief law Officer" of the federation. This legislative effort owed its origin to judicial activism as exemplified in some cases.
For instance, in Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652 at 700, Oputa, JSC referred to a state Attorney - General as the 'Chief Law officer' of that particular state. And apparently, taking a cue from Laoye's case, supra, Tobi, JCA in Esokoro v. Government of Cross River State (1991) 4 NWLR (Pt 185) 336 held thus; - "I now turn to the 2nd respondent - the Attorney - General of the state. He is not only the Head of the ministry of Justice, but also the Chief legal adviser of government. He is basically responsible in law for government actions and in actions" (Emphasis supplied).
The weight of these and other judicial pronouncements, one must submit, bore seriously on the minds of the framers of the 1999 Constitution which is now in force. Section 150 (1) provides thus - "(1) There shall be an Attorney - General of the Federal who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation".
The 'supremacy' of the AGF over all other officers in the Federation concerning legal matters is further reinforced by several superior court decisions. For instance, in Ezemo v. Attorney-General of Bendel State (1987) 11 QLRN 124, the Solicitor-General of the old Bendel State had taken a legal step that was suggestive of a covert challenge of the powers of the Attorney-General. The Supreme Court, relying on constitutional provisions, held that the action of the Solicitor-General was null and void. The apex court also held that the Attorney-General was "a law unto himself", hence is "not under the control of anybody or authority". Consequently, that the Attorney-General had/has the right to sue and be sued co nomine on behalf of the government.
In Attorney-General of Kaduna State v Hassan 1985 2NWLR Pt 8, Pg 483 the Supreme Court sought to know why the Attorney-General should be granted such wide powers. Aniagolu, J.S.C. provided this answer:- "Ideally, I think the makers of the constitution were wise to make it so, because... the Attorney - General is both the legal as well as the political officer who is answerable politically for acts done in the ministry and since the powers exercisable ...., in many cases, may have political over or undertones... It is only fair that he should be left solely with the judicial power to take the steps resulting in those decisions, so that whatever may be the political effects of the legal steps he has taken, he is fully and personally answerable for them - for good or for bad".
As wide as these powers are, however, they are curtailed by "public opinion and that of parliament or legislature". This was the view of the Supreme Court in State v. Ilori 1983 2 S.C. 155 at 178-179. I will aptly add here that at the peak of the Sharia crises here, the National Assembly passed a resolution calling on the AGF to go to court for proper interpretation. This, the AFG has failed, refused or neglected to do, again contrary to a view on this by the Supreme Court in llori's case, as shown above. Mounting public pressure in support of a court action is also brazenly ignored.
From the above, it can be seen that the AGF is, ex-officio, the person that can properly sue and be sued co - nominee on behalf of the Federal Government over any subject matter at all. This power is personalised and yet sacrosanct. As shown above, the AGF has the right to take legal steps that have political undertones. The Sharia as is always admitted by the Federal Government is "a political Sharia which shall die away, leaving the real Sharia".
This, however, is wishful thinking, as the Sharia not only portends a constitutional cum political crisis, it is also self - destructive. And before I conclude on this sub-topic, I would like to remind the Honourable AGF of section 5 (1 ) (b) of the 1999 constitution which provides that : Subject to the provisions of this constitution, the executive powers of the federation- shall extend to the execution and maintenance of this constitution...." (Emphasis supplied).
"Execution and maintenance" of this Constitution includes the right, power and ': duty of the executive branch of government (to which AFG belongs) to defend it against wanton breach. Thus, in a situation whereby the Executive qua, the AGF would maintain that the Sharia is unconstitutional but yet sit and hope on the dying away, this amounts, too, to a breach of the Constitution and a despicable dereliction of a public duty. Two wrongs, they say, cannot make a right.
The Theory of Locus Standi Before 1981, the doctrine of locus standi was restrictively held to endure to a person only when he was able to show special on sufficient interest in a matter, peculiar to himself and quite distinct from other members of the public. But this had to change with the full court of the Supreme Court's decision in Senator Abraham Adesanya v. The President of the Federal Republic of Nigeria & Anor. (1981) 1 NCLR 358. Fatai - Williams, CJN, held at 373, "To deny any member of such a society ( a developing country with a multi-ethnic society and a written constitution) who is aware or believes or is led to believe, that there has been an infraction of any of the provisions of our constitution... access to a court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide ready recipe for organised disenchantment with the judicial process". His Lordship further held that he "would rather err on the side of access than that of restriction".
Uwais, JSC (as he then was), held thus: "It is of paramount importance and indeed most desirable to encourage citizens to come to court in order to have the constitution interpreted".
In A-G (Kaduna) v. Hassan, supra, Oputa, JSC held 526 that "Another test of standing is where there exists a dispute between the parties. Proof of a dispute is in effect proof that the judicial intervention is not only helpful but also necessary indeed".
In summary, therefore, locus standi can be held to endure in somebody's favour if: - He has the legal capacity (and not necessarily a factual cum personal capacity) to sue, or - he is aware, believes, or is led to believe that there has been an infraction of any of the provisions of the Nigerian constitution; or - he has a right to appear and be heard simplicter on any question that is laid before the court; or - he wants simply to have the constitution tested; or - he wants to challenge an order or act; or - he has a dispute with another person, especially a constitutional dispute Does the AGF Have Locus Standi to Sue over Sharia?
The answer, most assuredly, is an 'aye'. First he is an institution recognised by the Constitution as the chief legal officer of the Federal Government. He, therefore, more than any other citizen, passes the 'legal capacity' test. The AGF should stop confusing his office with his person. He is a public officer and Nigeria's Chief Legal Officer. Secondly, the AGF has also passed test number two - that is that he is aware or believes or is led to believe that there is a serious infraction of the 1999 constitution. Thirdly, as historically and legally shown above, the AGF has the right to appear in court for the Federal Government in any matter. Test number three is, therefore, also passed. Fourthly, the AGF can go to court to have the 1999 Constitution tested, if for nothing else at least for posterity sake. Test number four above is also, therefore passed with ease.
The fifth and sixth tests will be combined. There is no gain saying that the President, the former AGF, and the Minister for Information and National Integration have all challenged, viva voce, the legality of the of the Sharia. There is therefore, a dispute, not only between the Federal Government of Nigeria versus Zamfara State & Co., but between Nigerians of diverse cultures and faiths versus the Federal Government (for sleeping over the issue) on one hand and Zamfara & Co., on the other hand.
Finally, I wish to remind the Honourable AGF of the sound reasoning of Eso, JSC, in Attorney - General (Bendel) v. Attorney - General (Federation) supra at pages 190 -191 thus; "On constitutional issues, if this is what it imputes, let there be a floodgate. The constitution can only be tested in the courts and it is access to courts for such test that will give satisfaction to the people for whom the constitution is made". A convincing majority of Nigerians for whom the 1999 Constitution was made are not satisfied with the way the Federal Government and AGF are handling the Sharia issue. They are indeed very hungry for a judicial intervention. This Constitution is made for Nigerians of different faiths and cultural backgrounds. The AGF is the number one defender of this constitution. He, more than any other person, has the locus standi to go to court to have the Constitution tested. Chief Bola Ige, SAN should immediately head to court before Nigeria slides into a political and constitutional abyss.
Mr. Hon. is the Chairman, Movement for the Emancipation of the Middle Belt.
March 2001