Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Abubakar Malami and the concept of ‘respect’ in governance 10 Aug 2017

As a young professional, one of the challenges I face is convincing clients of my ability to deliver the results they want. Many clients are willing to give to my firm briefs that they consider not too technical or difficult, to 'assist' or 'encourage' this courageous young lady that decided to manage her own practice.
When these clients believe the legal issues are too complex, would involve some experience or the ability to leverage reputation, relationships or connections in high places, then they understandably go for the big players to whom they pay almost ludicrous fees. To be clear, I have a deep appreciation for experience; and I personally value it above formal education. My challenge is with the stereotype of 'young and inexperienced.' So, I try to correct it one client at a time, one brief at a time.

However, what I find that truly irks me as a young professional is what I have termed the 'concept of respect,' which obtains in both the corporate world as well as public service. We live in a country where because of our cultural and religious influences, it is considered disrespectful to question or challenge anyone older than us or in a position of power. This concept of respect is usually the last card played when a subordinate holds a different view or opinion from that of a superior.

Personally, it took a while for me to experience it. I was lucky enough to start my legal practice under a man with whom his associates could disagree both on the substance of the law and the legal strategy to be adopted in cases. However, he would not hesitate to tongue-lash them for limited thinking, myopic views or wrong interpretations of the principles of law. Most times, we went along with his strategy and adopted his views, seeing that he was the owner of the firm and the boss. But the environment he created for a true exchange of ideas was where most of us (his associates) learnt the strategies for determining the legal remedies to be adopted for different situations.

That environment was where we learnt some of the most important tools in the legal profession that are not taught in law school. It is, therefore, extremely strange and particularly exasperating to me when I find that a dissent in opinion is interpreted as disrespect.

This concept of respect played out recently when a respected Senior Advocate of Nigeria (SAN) and professor of law, Itse Sagay, reportedly stated that the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), ought to be sacked over his comments on the executive-legislature impasse on the confirmation of the Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, by the Senate. Prof. Sagay described the AGF's comments as insubordination.

The Acting President, Yemi Osinbajo, had stated in an interview that he agreed with the position of some senior legal practitioners, including Femi Falana SAN, that the appointment of the Chairman of the EFCC did not require confirmation by the Senate. Following a Federal Executive Council (FEC) meeting sometime last month, the AGF stated that Osibajo's statement was his personal opinion and not that of the executive council. This is what Sagay, who is also Chairman of the Presidential Advisory Committee Against Corruption (PACAC), has deemed insubordination and capable of having the AGF sacked.

The first thing that one notices when critically examining this issue is that the AGF has not yet stated whether he agrees or disagrees with the Acting President on the issue. And, as far as I can tell, he has also not given his own interpretation of the relevant provisions of the Constitution and the EFCC (Establishment) Act. He is being criticized because a lot of people interpret his statement as either an attempt to subvert the leadership of the Acting President, or create the impression of a division in the executive. While I am not in denial of possible political undertones, I still have issues with Prof Sagay's comments.

Relying on Section 5 (1) of the 1999 Constitution, Sagay stated, according to a report in Punch newspaper on July 7, “The Executive Council of the Federation, also known as FEC, cannot have views that are separate or different from those of the President, or where applicable, the Acting President; otherwise, that will constitute gross insubordination and misconduct that can lead to dismissal.

“Therefore, the slant being given to the statement of the Attorney General of the Federation, namely; that the Executive Council of the Federation is entitled to meet in order to express an opinion or view on a matter on which the President or Acting President has already expressed his views or opinions is wrong, misleading and totally unconstitutional.”

Before I give a constitutional reaction to Prof. Sagay's position, it is important to state that any leadership – whether of a country, organization, association or even a small family unit – that interprets divergence of views and opinions on policies and issues as a sign of disrespect or insubordination would only stifle growth and development. A true leader would create an environment that allows for independent thoughts and the constructive expression of those thoughts. A true leader also knows that no one man is the sole repository of wisdom and knowledge.

If we are going to truly harness the potential in our young people, both in the corporate sector and public service, then this concept of respect must change. We must stop vilifying people for daring to have different opinions or views from the subsisting leadership.

Granted, in a more organized and less politicised executive branch of government, differences in opinions on government policies and actions held by members of the executive would be expressed behind closed doors. Once the president makes a final decision, his cabinet stands solidly behind him or her. Any member of the cabinet who feels strongly opposed to an issue usually shows his or her disapproval by resigning from the administration.

In this Nigerian context, the political undercurrents in the continuing absence of President Muhammadu Buhari have been used to interpret the comments of the AGF.

I do not believe that our Constitution creates the office of a president that is infallible or unquestionable. First and foremost, the interpretation given to Section 5(1) of the 1999 Constitution to the effect that the executive powers of the federation are vested in the president is incomplete. The provision states: “Subject to the provisions of this Constitution, the executive powers of the Federation shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him directly or through the Vice President and Ministers of the Government of the Federation or officers in the public service of the Federation…”

The Constitution, therefore, recognizes that the executive powers can be exercised through the ministers and even through other public officers. We do not run a system of government where one individual is the alpha and omega.

Furthermore, the FEC meeting is constitutionally provided for. Section 148 (2) of the Constitution makes it mandatory for the president to hold regular meetings with the vice president and all the ministers for the following reasons: To determine the general direction of domestic and foreign policies of the government of the federation; to co-ordinate the activities of the president, the vice-president and the ministers of the federation in the discharge of their executive responsibilities; and to advise the president generally in the discharge of his executive functions.

I do not, therefore, believe that it is out of place for the FEC to discuss the stand-off between the Senate and the executive over the confirmation of the appointment of the EFCC Chairman. Also, it should be perfectly normal for the Attorney-General of the Federation, who is described as the Chief Law Officer of the Federation in the Constitution, to advise the president on the issue.

I had earlier stated my opinion on the confirmation of Ibrahim Magu's appointment in an article in the May 2017 edition of Financial Nigeria. I said that only the judiciary can make a determination on the constitutionality of the provision of the EFCC (Establishment) Act that provides for the confirmation of Magu's appointment by the Senate. I also said the executive ought to approach the court to have that provision declared unconstitutional, null and void, or otherwise obey it.

If such suit were to be filed, it would be done by the office of the AGF. We should thus be more concerned about what Malami's views truly are on the issue. A call for his stand on the issue as the Chief Law Officer of the Federation is preferable to browbeating him over his remark that the issue has not been discussed at the FEC.

As a legal practitioner (and a fellow Senior Advocate of Nigeria), Malami is entitled to his own opinion on the interpretation of our Constitution and our laws. As the Attorney General and Chief Law Officer, he owes a duty to the President or Acting President to advise him based on the AGF's interpretation. Neither his personal opinion nor his advice to the president should be construed as disrespectful or insubordination.

A Financial Nigeria columnist, Funmilayo Odude is a Lagos-based legal practitioner, and a public affairs analyst.