More than two months after the inauguration of President Muhammadu Buhari, who is currently in his second term in office, his ministers' portfolios were announced. Of particular concern to the legal profession was the re-appointment of first-term Federal Attorney General Abubakar Malami to the Ministry of Justice.
During his confirmation appearance before the Senate, when asked why the administration had failed to comply with court orders, Malami responded that the orders were not in the public interest. He received significant criticism for his comments, with most critics pointing out that public interest lay in the preservation and promotion of the rule of law, and one of the principal functions of an attorney general is to preserve and promote the rule of law, as well as to advise the government to adhere thereto.
Observers of the attorney general's performance during his first period in office would not have been surprised by his statement, given how he used Executive Order 6, issued by Buhari in July 2018. The order apparently intended to enable the federal government to:
restrict dealings in suspicious assets subject to investigation or inquiry bordering on corruption in order to preserve such assets from dissipation and to deprive alleged criminals of the proceeds of their illicit activities which can otherwise be employed to allure, pervert and/or intimidate the investigative and judicial processes.
The attorney general's office used this order, through the Central Bank of Nigeria (CBN), to indiscriminately prevent persons not accused of wrongdoing from accessing bank accounts without recourse to the courts. This was done notwithstanding the fact that the Constitution is clear in circumscribing the circumstances under which the government can interfere with a citizen's rights to property. Essentially, a court order is required to do so.
Purporting to act under the executive order – which a court had ruled could be implemented only in accordance with existing law – the CBN administratively blocked the bank accounts of numerous individuals and corporations against which no allegations of involvement in crime had been made. Essentially, rather than follow existing procedures, which require an application to be made to a court (available on an ex parte basis), the attorney general obtained freezing orders through an administrative process. There are no reported decisions challenging these freezing orders.
Given that the attorney general believes that the government's view of what constitutes public interest is superior to court orders, it will be interesting to see whether:
- he continues to hold this position; and
- there will be robust challenges to federal government actions taken based on this position during Buhari's second term.
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