1. INTRODUCTION
1.01. I thank the leadership of the Law Officers Association of Nigeria (LOAN), Imo State for the invitation extended to me to deliver a paper on the “Role of the Law Officer to the Legislature” at the 2024 Law Week, of the Association.
1.02. The topic of discussion is germane in the context of our practice of constitutional democracy and, in particular, in this era of mixed feelings about the quality of legislation made by the legislatures at different levels of government in Nigeria. It is desirable that the role of the law officer in the work of the legislature is clearly delineated and, where necessary, adjusted to meet the needs of that arm of government and the society in general.
1.03. As a former law officer myself, having served as the Chief Law Officer of Imo State in the distant past, I should have an opinion on the relationship between the law officer and the legislature. I shall draw from my experience in the course of this presentation.
1.04. In the following pages, I shall, with the limited time available to me, attend to the subject from different perspectives such as constitutional and statutory provisions, judicial decisions, work ethic and fidelity to the law, executive interference and influence, relationship between the law officer and the legislature, etc.
2. LEGISLATURE
2.01. The legislature is the first arm of the government in our constitutional democracy. It is provided for in section 4 of the Constitution of the
Federal Republic of Nigeria, 1999. It has nine (9) subsections which set down, in a fairly elaborate manner, the legislative powers of the Federal Republic of Nigeria and of the States.
2.02. The primacy of the legislature underscores the fact that no organised
society can thrive in the absence of law and order. It is further noted
that the quality of the laws in the society is a reflection of the standing
of that society. As shall be shown, the quality of the lawmaker is a critical
factor in the making of good laws.
2.03. It is needful to set down the provisions of section 4 of the Constitution
to guide our presentation here. Subsection (1) provides that the
legislative powers of the Federal Republic of Nigeria shall be vested in a
National Assembly which shall consist of a Senate and a House of
Representatives.
2.04. Subsection (2), having regard to its significance, is reproduced, thus:
(2) The National Assembly shall have power to make laws
for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Executive Legislative List set out in Part I of
the Second Schedule to this Constitution.
2.05. Subsection (3) emphasises that the power donated to the National
Assembly above “shall, save as otherwise provided in this constitution,
be to the exclusion of the Houses of Assembly of States”. It is plain
that, except as expressly permitted by the Constitution the House of
Assembly of States cannot compete with the National Assembly in
respect of matters listed in the executive legislative list.
2.06. It provided in subsection (4) that the National Assembly shall in addition
to the powers conferred on it in subsection (2), have powers to make
laws with respect to certain matters identified in the first column of Part
II of the Second Schedule to the Constitution and with respect to “any
other matter… to which it is empowered to make laws in accordance with
the provisions of this constitution”.
2.07. Subsection (5) deals with the inconsistency rule applying to the laws
enacted by the House of Assembly of a State vis-a-vis any law validly
made by the National Assembly. Where such a conflict occurs, “the law
made by the National Assembly shall prevail, and that other Law shall to
the extent of the inconsistency be void”.
2.08. Subsection (6) vests the legislative powers of the State in the House of
Assembly of that State, but subsection (7) defines the plenitude of those
powers.
2.09. Again, because of the significance of the provisions of subsection (7),
they are reproduced, thus:
(7) The House of Assembly of a State shall have power to
make laws for the peace, order and good
government of the State or any part thereof with respect to the following matters, that is to say –
a) any matter not included in the Exclusive Legislative
List set out in Part I of the Second Schedule to this
Constitution;
b) any matter included in the Concurrent Legislative List
set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed
in the second column opposite thereto; and
c) any other matter with respect to which it is
empowered to make laws in accordance with the
provisions of this Constitution.
2.10. One of the anchors of the rule of law is provided in subsection (8) of
section 4. It deals with the supervisory role of the judiciary over the
exercise of legislative powers by the National Assembly or by a House of
Assembly. It makes the exercise of those powers “subject to the
jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of
Assembly shall not enact any law that ousts or purports to ousts the jurisdiction of a court of law or of a judicial tribunal established by law”.
2.11. The last subsection of section 4, subsection (9), provides that neither the
National Assembly nor the House of Assembly of a State shall, in relation
to any criminal offence whatsoever, have power to make any law which
shall have retrospective effect.
2.12. It should be noted that though the above provisions deal with the
legislature at the National and State levels of government, there is, by dint of State laws, the legislature at the local government councils. The
details of the legislative powers are to be found in the local government
administration laws of States. However couched, those provisions are
subject to the legislative powers conferred on the Houses of Assembly of
the States concerned.
2.13. Having laid out the legislative powers of the Federal Republic of Nigeria
and of the States, it is proper to identify the law officer and the duties
conferred on him before examining his relationship with the legislature
and other matters arising therefrom.
3. LAW OFFICER
3.01. The basic law of the land, the Constitution, makes clear provisions in
respect of the office of the Attorney-General of the Federation and that
of the States. In section 150(1) thereof, it provides that there shall be
“an Attorney-General of the Federation who shall be the Chief Law
Officer of the Federation and a Minister of the Government of the
Federation”.
3.02. In regard to the States, section 195(1) thereof provides that there shall
be an “Attorney-General for each State who shall be the Chief Law
Officer of the State and Commissioner for Justice of the Government of
that State”.
3.03. The respective powers of the Attorney-General of the Federation and of
the States, with regard to public prosecutions, are set out in sections
174(1) and 211(1) of the Constitution. The said powers are exerciseable
by him in person or through “officers of his department”.
3.04. The Constitution does not, with regard to civil matters and other duties
make express provisions or provide guidelines for the Attorney-General.
In practical terms, however, those other matters are discernible from
statutes, conventions, judicial decisions and other sources.
3.05. As prescribed by the Constitution, the Attorney-General is the Chief Law
Officer of the Federation and of the State, as the case may be. Officers
of his department, however designated, who are legal practitioners, are
regarded as law officers. There had been some disputation about the
propriety of regarding some officers of his department as law officers, but the Supreme Court laid the matter to rest as long ago as 1976 in
Awobotu v. The State 1976 ANLR 237, 252-255 (Reprint).
3.06. Earlier, the Federal Supreme Court in The Queen v. Resident Ijebu
Province (1959) 4 FSC 5, 6 offered guidance as to some of the
matters in respect of which the Attorney-General or law officers may
legitimately appear as counsel in court.
3.07. The Imo State Law Officers (Harmonisation with Magistrates) Edict (now
Law) 1998 defines a “law officer” as a legal practitioner employed by the
government. The Legal Practitioners Act, Cap. L11, LFN 2004 made
reference to “law officers” to whom certain rights and privileges are
offered, and named them as the Attorney-General of the Federation, the
Attorney-General of any State in the Federation and the Solicitor-General
of the Federation: section (2)
3.08. Black’s Law Dictionary, Ninth Edition, defines “law officer”, in part, thus:
“. . . In most common-law jurisdictions, a senior administrator
of justice, such as an attorney general, solicitor general, or
other high level minister or officer of justice”.
3.09. A synthesis of the foregoing suggests that every legal practitioner
employed by the government for the purpose of assisting it in the cause
of justice, under the auspices of the Attorney-General of the Federation
or of the State, is a legal/law officer. It does not matter that as a matter
of administration convenience, exigencies of duty, or for special
purposes, the legal practitioner is deployed to a unit of government
outside the Ministry of Justice.
3.10. As the topic of this lecture connotes, the searchlight is on the law officer
who has special affinity with or particular official duty relating to the
legislature. These include the Attorney-General and other law officers
seconded or attached to the legislature.
4. THE LEGISLATURE AND THE LAW OFFICER
4.01 The primary duty of the National Assembly and the House of Assembly
of a State, commonly known as the legislature, as stipulated in section 4
of the Constitution is to make laws for the “peace, order and good government” of the Federation or any part thereof and of the State and any part thereof.
4.02 The expression “peace, order and good government” is not defined in
the Constitution, but it should be appreciated in the context of the
fundamental objectives and directive principles of state policy set down
in Chapter II thereof. The components of the expression include fidelity
to the constitution itself, principles of democracy and social justice,
sovereignty of the people, security and welfare of the people, non-
discrimination on the grounds of place of origin, sex, religion, status,
ethnic or linguistic association or ties, abolition of corrupt practices and
abuse of power, fair distribution of wealth, promotion of the ideals of
freedom, equity and justice, freedom of the press and other agencies of
the mass media.
4.03 The above is a wide range of issues and activities which are, generally,
non-justiciable, but they are a guide as to how the government should
function and the goals that it should strive to achieve.
4.04 The law officer, though a legal practitioner, has to be knowledgeable
about the variety of issues mentioned above by deliberate training and
self-education. It is often said that a lawyer is a person who knows
something about everything. This lofty statement is valid only if the
lawyer is well trained and disposed to reception of new ideas and
developments in the society. When he is so equipped, he would be able
to add value to the work of the legislature. His duty, therefore, is to assist
the legislature to make laws which promote peace, order and good
government.
4.05 In a nutshell, a law officer who is involved in the work of the legislature
should be:
(a) properly enlightened in legislative procedure;
(b) knowledgeable about the subject matter of proposed
legislation;
(c) courageous to offer professional advice to the legislators or
leadership of the legislature in the course of legislation;
(d) a good draftsman;
(e) able to evaluate every proposed piece of legislation in the
light of relevant constitutional provisions and statutes.
4.06 The work of the law officer in relation to the legislature may vary
according to peculiar circumstances, but it may still be streamlined
generally as follows: drafting legislation; offering legal advice and
opinions to legislators, their committees and staff; analyzing bills or
purposed legislation to identify potential areas of conflict and concerns;
interpretation of existing substantive and subsidiary legislation with a
view to avoiding repetition of provisions and/or improving on them.
4.07 In order to be effective in discharging his duty, the law officer has to
conduct research and analyse data with which to support policy decisions
and law making, particularly at the committee stage where he may need
to testify or provide briefings on legal matters. He should liaise with the
executive and judicial arms of government to obtain hints of their policy
formulation so as to engender synergy, consistency and coordination in
law making. He may also provide training and other forms of enlightenment to legislators and their staff, to improve their understanding of the nuances of particular legislation.
4.08 The law reports are replete with decided cases in which the courts have
struck down legislations or portions of them for being inconsistent with
the provisions of the constitution, contrary to legislative procedure or ultra vires the particular legislature. In such cases, the courts often attribute the poor outcome to the failure of the draftsman, which is a subtle reference to the law officer. In a recent decision, N.P.F. v. Police Service Commission [2024] 2 NWLR (Part 1922) 231, 332D, Saulawa, J.S.C in his contribution referred to “the draftsmen’s sheer
unskillfulness or crass ignorance of the law“.
4.09 It is needful in this context to refer to a variety of cases to buttress the
important issue of enacting laws which are beyond reproach. In
Ukaegbu v. Attorney-General of Imo State [1983] 1 SCNLR 212, 235, 236, the Supreme Court reviewed certain provisions of the Joint Admission and Matriculation Board (JAMB) Act and found them complaint with the constitution, but found certain provisions of the Education Law
of Imo State unconstitutional.
4.10 In Attorney-General of Bendel State v. Attorney-General of the
Federation [1983] 1 SCNLR 239, Bendel State (now, Edo and Delta
States) challenged the constitutionality of the Allocation of Revenue
(Federation Account, etc) Act, 1981 enacted by the National Assembly,
and succeeded in respect of section 2(1) and (2) thereof which was
nullified.
4.11 The constitutionality of many provisions of the Electoral Act, 2001 was
challenged by the Attorneys-General of the 36 states in Attorney-
General of Abia & 35 Others v. Attorney-General of the
Federation (2002) 6 NWLR (Part 763) 264 because they were said
to concern elections into the local government councils. After due
consideration, the Supreme Court nullified sections of the Act which
made provisions for election into the local government councils on the
ground, primarily, that section 7 of the Constitution invests such power
in the States or that they repeated provisions of the Constitution.
4.12 The Supreme Court returned a damning verdict on the Electoral Act, 2001
in these terms, per Kutigi, JSC (as he then was) at page 372C:
As a result of this Electoral Act as whole was a mix-
up, a confusion, because the National Assembly
seemed to have treated its legislative powers with
respect to Federal elections as if they were co-extensive with its powers over Local Government
elections. They were wrong. I have shown above that a few provisions of the Act are good but quite a large number of them are bad and had been struck out.
4.13 In Doherty v. Balewa (1961) ANLR 630, 641, 643 (Reprint), the
Supreme Court held that “the Tribunals and Commissions of Inquiry Act, 1961, in so far as it applies to the whole Federation exceeds the power of Parliament under the Constitution” and that the “power of the Commissioners to impose imprisonment is clearly contrary to the provisions of section 20, . . . This must also apply to the power to impose a fine which is enforceable by
imprisonment. . . we would hold that sections 8, 15 and 18 are invalid...”
4.14 The above decided cases are representative of the fate of numerous
legislations which have faced scrutiny of the courts. This brings to the fore the need to expose law officers who become draftsmen to specialist
training. In the distant past, many law officers were sent to such training
in the United Kingdom, particularly at the Houses of Parliament. In later
years, such training became available in Nigeria; particularly at the
Nigerian Institute of Advanced Legal Studies and the Nigerian Institute of Legislative Studies.
4.15 It is sometimes worthwhile to compare the texts of the laws passed by
the parliaments in the first republic (1960-1966) with those enacted by
the different legislatures in Nigeria since the return to civilian democracy
in 1999. It does not seem, sometimes, that the skills of the draftsmen reflect adequately on the latter.
4.16 There is one area of concern in laws enacted since the return of
constitutional democracy in Nigeria. It is the tendency to confer judicial
powers on the legislature and the executive in order to enable them,
purportedly, to inflict punishment or sanctions (with criminal flavour) on
persons and institutions. It is a carry-over from the mentality of the
military era when, for example, military tribunals had the power, by dint
of decrees, to act as investigators, prosecutors and judiciary.
4.17 The law officer should bear in mind always that the constitution made
clear provisions on the exercise of judicial powers. For ease of reference,
section 6(1), (2), 6 (b) of the constitution is reproduced hereunder:
6(1) The judicial powers of the Federation shall be vested
in the courts to which this section relates, being courts established for the Federation.
(2) The judicial powers of a state shall be vested in the courts to which this section relates, being Courts established, subject as provided by the Constitution, for a state.
(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) . . .
(b) shall extend to all matters between persons, or between government or authority and to any
person in Nigeria, and to all actions and
proceedings relating thereto, for the
determination of any question as to the civil rights and obligations of that person.
4.18 In light of the foregoing provisions, it is disingenuous to provide in a law
enacted by the legislature that certain bodies such as the National
Broadcasting Commission or Entraco has the power to inflict fines, for
example, on persons or institutions alleged to have infringed on some
regulation without a hearing before a court of law. The courts have been
vigilant, in appropriate cases, to strike down such statutory provisions:
see Nosdra v. Mobil Prod. (Nig) Unltd (2018) 13 NWLR (Part 1636)
334, 340 C-E, Doherty v. Balewa, supra.
4.19 Lord Denning, in his Hamlyn lecture, “Freedom Under The Law”, summed
up admirably the basis for the judicial reproach, apart from conflict with
the constitution, thus: “We must see to it that the stream of British
freedom, which has been kept clear by the decisions of the judges, does not perish in the bogs and sands of departmental
decisions.”
4.20 The law officer must see to it that no provision in the law is intended to
overreach or has the effect of overreaching the judiciary in the exercise
of its powers granted by the constitution.
5. CHALLENGES BEFORE A LAW OFFICER
5.01. It has been shown that the law officer has a critical role in the making
of laws, but it must be stressed that he is not the legislator. At best, he
is a legal adviser. It follows that, apart from his personal inadequacies,
he has to overcome many challenges to achieve effectiveness. These
challenges may be summarised, thus:
a) Provision of Resources: The law officer needs a functional
library, internet facilities and subscription to quality literature to
enable him keep up with current affairs. As technology evolves,
new fields of endeavour emerge which need control and regulation by the legislature. It is the government that provides
resources with which the law officer gains knowledge which he deploys in the work of law making so as to keep pace with the
new developments.
b) Training: This is isolated from provision of resources for the
sake of emphasis. The law officer has to be enabled to attend
trainings both online and physical, and both local and overseas.
Physical training involves offering the law officer opportunity to
observe the masters at work. Where desirable or affordable, a
law officer should be allowed to acquire higher qualifications in
legislative drafting, parliamentary practice and procedure, etc.
c) Leadership of the Legislature: An informed leadership of
the legislature is a necessity because it appreciates the work of
the law officer and strives to provide him with the enablement
to thrive. An ignorant leadership, on the other hand, is oblivious
of the fact that the input of the law officer is a necessary
ingredient of effective law making.
It is easy for a legislator to regard himself as the person elected
by the people who, solely, should know their needs and reflect
same in the legislation without the “technicalities” offered by
the law officer. The outcome of such a scenario is the
enactment of what Niki Tobi, JCA (as he then was) in Isang v.
State (1996) 9 NWLR (Part 473) 458, 471 E described as
“a very lazy provision”.
d) Executive Interference: It has become fashionable to hear
that the Chief Executives (at the Federal and State levels)
control the legislature. The implication of the control is that the
legislature becomes a puppet or an appendage of the executive.
The further implication is that any or every proposed legislation
or nomination, etc, from the executive is rammed through the
legislative process without regard to its propriety and,
obviously, disregard of legal advice. It has once happened in
Imo State that persons purportedly appointed to become
members of Imo State Judicial Service Commission were, by the provisions of the Constitution, not appointable; yet the House of Assembly had swiftly approved their appointment!
e) The Attorney-General: The Constitution has made the
Attorney-General the Chief Law Officer of the Federation or of
the State, as the case may be. The influence of that office on
the whole spectrum of government is determined by the person
of the incumbent. The law officer takes a cue from his boss.
Where the Chief Law Officer is effective in checking the
excesses of operators in the system, in the light of the law, the
work of the law officer is partly done as his input in legislative
activities is likely to be appreciated and respected. A Chief Law
Officer who is so beholden to the Chief Executive that he is
unable to put forward, forthrightly, his legal advice sends a
signal to his subordinates that they should be content with any
matter brought to their notice.
In the heydays of military rule, Pats-Acholonu, JCA (as he
then was) was still able to insist in Guardian Newspaper Ltd. v. Attorney General of the Federation [1995] 5 NWLR
(Part 398) 703, 730C-D, that “the office of the Attorney-General in the scheme of the affairs of the state is as old I dare
say as the common law. In the exercise of his functions as the Chief Law Officer of the State, he cannot even take
a dictation from the Head of State as his position is unique”.
6. CONCLUSION
6.01 In this short presentation, the powers of the legislature have been
examined vis-à-vis the role of the law officer in relation to that body. The
outcome is that the work of the law officer is central to the making of
laws which stand the test of time.
6.02 The role of the law officer in relation to the legislature cannot be fully
appreciated unless it passes through the furnace of judicial scrutiny. It
has been shown that many provisions of the law have been found by the
courts to have failed the test of validity because of a variety of reasons ranging from unconstitutionality, to poor draftsmanship. When the axe
falls on a statutory provision, it is the draftsman that usually takes the
blame.
6.03 The paper has highlighted the challenges that face the law officer and
the need to address them so as to enhance the quality of law making.
6.04 The law officer should, in light of the foregoing, remind himself that
whatever the circumstances he owes a duty to the government and the
public to uphold the rule of law in his work with, or at, the legislature.
6.05 Once again, I thank the organisers for giving me the opportunity to
ventilate my thoughts on such a topical issue. If I have added value to
the subject, I give them the credit. But if I have not, please, accept my
regret!
6.06 Thank you for your attention.
[A Lecture Delivered at the Law Officers Association of Nigeria (LOAN), Imo
State 2024 Law Week on Thursday, 21 November, 2024 at the Villa Garden
Hotel, Owerri].
