The Hon. Attorney General of the Federation and Minister of Justice, Abubakar Malami SAN, on 5th June, 2021 as reported by the people’s gazette online page, issued the directive in a statement signed on his behalf by his spokesman, Dr. Umar Jibrilu Gwandu, in which he ordered federal prosecutors to arrest and prosecute users of the Twitter Application (A micro-blogging App), after a ban of the usage of the app from Nigeria social media space on Friday, 4th June, 2021 and the said ban took effect 12am on Saturday morning of 5th June, 2021.
This paper intends to examine the constitutional recognition of the creation and powers of the office of the Attorney General of both the state and the Federation. Also, who can issue Executive order/directive, whether Executive Order holds the same legal effect as a written Law, and lastly whether the Attorney General of the Federation and Minister of Justice, Abubakar Malami SAN can make order for arrest of twitter users.
The office of the Attorney General and the Minister for Justice is fused in Nigeria. Section 150 and 195 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide for the office of the Attorney General of the Federation and that of the State as the Chief Law Officer. Section 150 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide thus: “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”
While Section 195 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide thus: “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 the State”
The holder of the office has a duty to ensure the faithful execution of the laws of the federation at all times being the Chief Law Officer. The Constitution states the powers of the Attorney General as a public prosecution in Section 174 (1) (a) – (c) & 211 (1) (a)-(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 174 (1) (a)-(c) provide thus:
174(1) The Attorney – General of the Federation shall have power-
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
See also the case of NYAME .V. F.R.N (2008) LPELR- 8872 (CA); SAIDU .V. STATE & ORS (2014) LPELR- 22672 (CA).
The order given by Abubakar Malami to arrest twitter users brings us to the questions, what is an Executive order, who has power to issue such order and is executive directive/order a law?
Though executive order (s) definition is not provided for expressly by any law, however the case of ELEPHANT GROUP PLC .V. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR- 45528 (CA) states
“…..in law, an Executive order such as Exhibit NSA 7 is an order or regulation issued by the president or some administrative authority under his direction for the purpose of interpreting, implementing, or giving administrative effect to a provision of the constitution or of some of treaty. It is indeed an effective instrument or tool for good governance and administrative by the Government. See Black’s Law Dictionary 6th Edition @ page 569” Per Biobele Abraham georgewill, JCA (Pp 85-86 paras F-B)
An Executive Order is not an Act of the National Assembly, or a Law of a State, neither is it a subsidiary legislation or instrument under the provisions of a law. In the case of OYELARAN 1 OLORO of OFO & ANOR .V. OLAYIOYE & ORS (2013) LPELR- 20502 (CA) on how executive powers vested in the president can be exercised, the court states;
“in the case of A.G. Federation .v. Abubakar (2007)10 NWLR (Pt. 1041) 1 AT 82, Akintan JSC, lucidly stated: while the constitution specifically created the office of both the President and that of the Vice-president, it went ahead to vest the executive powers of the Federation in only the president. But the President is required to exercise the executive powers conferred on him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the federation”.
See also Section 5(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
It is an undeniable fact that as long as the office of the Attorney General of the Federation and Minister for Justice is fused, whoever holds the office is not just an Attorney General, but also a “MINISTER” of Justice, and that makes the holder of the office a part of the executives who can exercise executive powers upon the directive of the President. However, Section 5 (1)(b) states “shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws. In other words, executive orders can only be made to execute and maintain the laws contained in the Constitution and laws made by the National Assembly, and not otherwise. See also the entire provisions of Section 315 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Like both legislative statutes and the regulations promulgated by government agencies, executive orders are subject to judicial review and may be overturned if same is against natural justice, equity and good conscience or it does not flow from the Constitution or any other written law.
Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus: “A person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, and subsidiary legislation or instrument under the provisions of a law.”
Accordingly, the attempt to criminalize the circumvention of the Order banning the use of twitter and to punish its users by Abubakar Malami SAN cannot stand as it infringes on the fundamental right to Freedom of expression as contained under 39(1)&(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The legal maxim is Nullum crimen sine lege (‘’no crime without law’’). In the celebrated case of AOKO V. FAGBEMI (1961) 1 ALL NLR 400 the Supreme Court held that an act or omission cannot constitute a crime except it is prescribed in a written law. This position was reaffirmed by the Apex Court in the latter case of FEDERAL REPUBLIC OF NIGERIA V. IFEGWU (2003) 15 NWLR (PT. 842) 133.
In the recent case of FAITH OKAFOR .V. GOVERNOR OF LAGOS STATE & ANOR. (2016) LPELR-41066 (CA); (2016) JELR 41851 (CA) (2017) 4 NWLR (Pt. 1556) 404, the Governor of Lagos State issued a directive restricting the movement of citizens and residents during the State’s monthly environmental sanitation, the Court of Appeal unanimously held that the Appellant, Faith Okafor, could not be arrested or prosecuted for disobeying or flouting the Executive Order or Directive of the Governor of Lagos State because the Appellant could only be arrested and prosecuted for an offence that is prescribed in a written law.
In his concurring judgment, Biobele Abraham Georgewill, J.C.A. at p 46-47 declared thus:
“…. It could neither understand nor stand or countenance the temerity of Citizen Faith Okafor in challenging, as it were, the directive of the Government of Lagos State that every person must stay at home and away from the streets of Lagos State on every last Saturday of the month save those so authorized to be on the street. Under Section 41(2) of the 1999 Constitution (as amended), for any law or every direction by the Respondent to merit justification, the restriction must be directed at any person who has committed or is reasonably suspected to have committed a criminal offence. Anything otherwise renders such a law or directive of the Governor of Lagos State unconstitutional, unlawful and illegal and thus without any force of law. To restrict the movement of every person, Citizens of this great country, who has neither committed any offence nor reasonably suspected of having committed a criminal offence in the name of enforcing sanitation directives of the Governor of Lagos State is highly reprehensible, since it is unconstitutional. It is my view, that democracy thrives more on obeying and promoting the rule of law rather than the whims and caprices of the leaders against the lead. I find the conduct of the Respondent in not only persecuting the Appellant, yes that is what in my view it amounts to when a free Citizen of this great Country such as Citizen Faith Okafor, is put through the rigors of criminal process for an offence not prescribed in any written law but merely on the directive of the Governor of the Lagos State. An action which if allowed to thrive in a democracy such as ours could confer on such office holders infinite, absolute and autocratic powers contrary to the clear provisions of the Constitution of the land, to which both the leaders and the led are subject. I refuse to allow such autocratic, absolute and infinite powers to fester upon our nascent democracy.”
In conclusion, it is evident that Executive order is not a law; it is more of an administrative directive issued for the purpose of interpreting, implementing, or giving administrative effect to a provision of the Constitution or an Act of the National Assembly or a law enacted by the House of Assembly. Section 315 (4)(b) the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide thus: “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which have been passed or made before that date comes into force after that date; and”
The use of the banned twitter application is not a defined offence neither is the penalty defined in any written law. Therefore the order issued by Abubakar Malami SAN, the Hon. Attorney General of the Federation and Minister of Justice for the arrest and prosecution of the users of the banned micro-blogging Application “TWITTER” is unconstitutional and same is null and void.
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