Section 5 and the Mohammed Bello Adoke case

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By Reuben Abati

His Lordship Justice Binta Nyako at the Federal High Court sitting in the Federal Capital Territory last Friday, gave an instructive, landmark judgment in the matter between Mohammed Bello Adoke and the Attorney General of the Federation on the extent of Presidential powers. 

I had addressed this particular subject in a previous essay titled “Obasanjo and the extent of presidential powers” (January 29, 2018) when President Obasanjo argued forcefully that President Muhammadu Buhari must be prepared to accept responsibility for the failings and failures of his government and stop blaming previous governments or political leaders. What Justice Binta Nyako has done in the suit titled FHC/ABJ/94/446/2017 re: Mohammed Adoke vs. Attorney General of the Federation is to give a judicial stamp to the theoretical views expressed in that earlier essay and even an earlier one preceding it. I could not previously comment on the details of such matters before the court, in order not to run foul of the rules of contempt, ex facie curia, but it seems to me that Justice Binta Nyako with her ruling affirming the extent of presidential powers has enriched our jurisprudence. Except there is any earlier precedence under the 1999 Constitution, this must be taken as a locus classicus, and how it plays out in our jurisprudence should be of both theoretical and practical interest. 

Further, Justice Binta Nyako has upheld the potency of Section 5 of the Constitution, which vests the powers of the President of Nigeria under the 1999 Constitution, in his person and not in institutions. The meaning here is clarified in Section 148 which allows the President to delegate his authority.  Justice Binta Nyako ruled that where the President’s delegated authority is carried out lawfully and with consequent approvals, the person exercising that delegated authority is free of any liability. This is a technical point of law, which further establishes a trite point about the relationship between an agent and a principal. In this matter, Mohammed Bello Adoke is the agent and President Goodluck Jonathan and the Federal Government of Nigeria (of which Jonathan was Head of State and Head of Government) exercising powers granted under the Constitution, are the disclosed principals.

Nyako’s ruling is important in part, also, because following the displacement in 2015 of the then ruling Peoples Democratic Party (PDP) by the All Progressives Congress (APC), the new power brokers at the centre simply adopted the notion that anybody close to Jonathan must be corrupt. Even where and when they have plausible reasons for investigation, or prosecution, their partisan, accusatorial, selective, and vindictive approach has ruined what could otherwise have been a worthy governance issue. Making the fight against corruption look like an attempt to destroy Jonathan by all means, has in the last one year backfired. Justice Nyako’s ruling of course has nothing to do with politics: it is about what the law says.  

In the other matter of Colonel Sambo Dasuki, Jonathan’s National Security Adviser (NSA), for example, and in similar other matters involving President Jonathan’s agents, the defendant(s) simply need(s) to prove that he or she acted in line with the directives and approvals of the President and that would be the end of the matter.  I should also add that members of the Buhari administration may in the future find themselves quoting this same Nyako ruling, except it is upturned, as the main cover available to them for lawfully carrying out Presidential directives.  It is useful always when the Constitution is tested. It should therefore be seen as a good development that Section 5 of our 1999 Constitution is now being tested, given the enormous powers at the disposal of the Nigerian President and his agents.

Mohammed Bello Adoke wherever he may be, must be happy with the outcome of this case that he instituted on the extent of presidential powers. I know him - we served in the same government - and I know he has been on self-imposed exile, away from the unhealthy political environment imposed by the ruling APC.  Adoke has also been the target of all kinds of charges, obviously the effect of the attempt by the ruling APC to denigrate some of the shining stars in the Jonathan government. Adoke was definitely a shining star, one of the many who were in the Jonathan government: men and women who not only boasted of first-rate education, but who were internationally regarded for their talents and accomplishments. At the risk of sounding like someone who was involved, and probably making a passionate assessment, I will like to throw up a point: that in the last 35 years or so, President Ibrahim Babangida, President Olusegun Obasanjo and President Goodluck Jonathan recruited into the Federal Government at all levels some of the best and the brightest that Nigeria has ever offered. What each one of these three political leaders did or achieved with the talents at their disposal, however, or the quality of their individual efforts, is something we can debate.

Back to Adoke: whatever the State may be afflicting him with today, I can attest that he was an asset to the Jonathan government and an asset to the Nigerian State itself. The substantive issue before Justice Binta Nyako was the Constitutional interpretation of Sections 5(1), 147, 148 and 150 of the 1999 Constitution but underlying it is the matter of OPL 245 or what is more popularly known as the Malabu Oil deal, and Attorney-General Mohammed Bello Adoke’s role.  The Malabu oil deal is a case that spans the life-time of five successive governments – from Abacha to Abdusalami to Obasanjo to Yar’Adua to Jonathan but only the last phase of it is the subject of the Buhari government’s interest. What is the role of previous governments and Presidents and their agents?

In many press releases, Mohammed Bello Adoke who was Jonathan’s Attorney-General insisted that he acted based on Presidential directives and that he did no wrong and that if anything, he helped Nigeria to retrieve money and save litigation costs. It is noteworthy that some currently serving public officials are trying to pay something even higher for that same transaction that has since been paid for, completed and closed. Nigeria owes Kemi Adeosun, the current Minister of Finance, a debt of gratitude for blocking that curious attempt to obtain from the Nigerian Government under false pretence, and M.B. Adoke for acting in accordance with the law as affirmed by Justice Binta Nyako’s court.

Nyako’s court gave declaratory orders, which I hope the Federal Government will respect. Should the contrary be the case, the present Attorney-General, Abubakar Malami, whose office is already in danger of being accused of persecution of political opponents, has the option of testing the Constitution further. It will be clearly within his prerogative to do so and a plus for our jurisprudence. But let him note this: the position of the Attorney-General of the Federation and Minister of Justice is a constitutional position, perhaps the only Ministerial position that is so expressly recognized. This is probably the same reason why everyone who occupies that position must be concerned about his or her legacy.  Her - yes - Nigeria is yet to appoint a female Attorney-General of the Federation and Minister of Justice but it should happen someday in the future.  What will be Malami’s legacy as Attorney General of the Federation and Minister of Justice?   

I mentioned earlier that I worked with Mohammed Bello Adoke. He was a very influential man in the Jonathan government. He was so involved that he even occasionally, wrote drafts of Presidential speeches, and I had to warn him to focus on the law and not dabble into the work of night-soil men. His usual defence was that he was only concerned about matters of the law, and he needed to be sure that his Principal, his favourite name for President Jonathan, did not violate the Constitution. He distanced himself from politics, because in his view, an Attorney-General of the Federation must be non-partisan. “I am a Constitutional purist”, he always said and “my job is to ensure that the President acts in accordance with the laws of Nigeria.” President Jonathan had many officers like that who would insist on their professionalism, and their understanding of rules, best practices, and standards. Their story, individually and collectively, will be told.

In Adoke’s case, the fact that he is now on self-imposed exile, and his political persecution, draw attention away from his outstanding achievements as Attorney General and Minister of Justice. It was under his watch that the Freedom of Information Law was passed in 2011, and the Administration of Criminal Justice Act in 2015 - two laws that are now being used to prosecute cases against the same government and the same persons that made them! Mohammed Adoke was leader of the Nigerian delegation to the Nigeria-Cameroon Boundary Commission and leader of the same delegation to the follow-up committee on the UN implementation of the Green Tree Agreement that brought the ICJ judgment on the Bakassi peninsula to a peaceful resolution.  He also presided over the reform of the Evidence Act, 2011, and the Terrorism Prevention Act of 2011, and its 2013 amendment. He was elected during this period as a member of the International Law Commission- a United Nations body of selected 34 experts across the world.

President Jonathan, given his respect for the law and due process, regularly sought Adoke’s counsel. Adoke’s tongue is sweet-coated but when it comes to matters of the law, he removes the sugar and says it as it is. President Jonathan respected him for that. When the Federal Executive Council decided to impose a state of emergency in parts of the North East, in the wake of the Chibok girls’ crisis, and there were complaints about the failure of the Governors in that part of the country, there was a demand that the Governors should be removed.  Adoke put his feet down. He said a state of emergency could be declared but it would be unconstitutional to displace the political authorities. Some other lawyers in the Cabinet, holding other portfolios insisted that President Olusegun Obasanjo, during his tenure, declared a state of emergency in two states and removed the Governors. Adoke argued that Obasanjo was wrong and that such precedents could not stand. He won the argument. The Governors in the North East kept their seats, but a state of emergency was declared.

When Nyesom Wike was to be sworn in as Governor of Rivers State, there was no Chief Judge of Rivers State in office. Adoke had to argue that a Chief Judge from a neighbouring State could do the job. And that was what happened. When Adams Oshiomhole as Governor of Edo State wanted to sign death penalty warrants for condemned persons in his State, Mr. Adoke had to remind Edo State that the Nigerian Government was on a self-imposed moratorium on the death penalty. This brought him in conflict with the then Edo State Governor. He held his ground. Oshiomhole signed the warrants anyway. Adoke understood the powers of his office and he hid under the purity of the law to exercise those powers.

But for all that he has done for Nigeria, it is unfortunate that the only thing many know about him is OPL 245. That is just the way it is in our country. We destroy, persecute and humiliate our best talents, for nothing other than political reasons. But the judiciary is gradually finding its voice and standing up in the defence of the law and the rights of persons (see Reuben Abati, “Judges, the law and our democracy”, ThisDay, back-page, February 20, 2018). The ruling by His Lordship Justice Binta Nyako is the latest in this regard. Whatever the colour of the party in power, the judiciary remains the last hope of the common man, the aggrieved and the victim of persecution. In a country where noise is more important than reason, where allegations are packaged as truth, and villains behave like victims, the judiciary should always seek to remain the voice of reason, truth, justice, equity and good conscience - against all odds.