Celebral human rights lawyer, Prof. Chidi Odinkalu, has warned that one of the charges filed against the former Attorney-General of the Federation and Minister of Justice (AGF), Abubakar Malami, SAN, seriously threatens the integrity of the office of the Attorney-General in particular.

He therefore advised for urgent corrective action by the current AGF, expressing the hope that Lateef Fagbemi, as HAGF, will take over the case and urgently apply to withdraw the count.

According to him,“it is in error or at worst, it is unlawful overreach”.

Odinkalu particularly warned that retaliatory prosecutions that undermine constitutional safeguards ultimately weaken the justice system, adding that even as an act of reprisal, it is worse than “biting off the nose to spite your prosecutorial face”.

Odinkalu, who stated these on his X handle (Tweeter) on Wednesday, stressed that the OAGF is traditionally held in high esteem and prefixed with the title; “Honourable,” as a result of its high constitutional standing.

He stated, “the Office of the Attorney-General of the Federation is usually prefixed with the word ‘Honourable’. In Nigeria, therefore, the occupant is addressed as HAGF — Honorable Attorney-General of the Federation”.

Odinkalu noted that Malami occupied the office for eight years, from 2015 to 2023, making him the second longest-serving Attorney-General in Nigeria’s history, behind the late Taslim Elias.

According to him; “for 8 years from 2015–2023, @aamalamiSAN occupied that office. By the time he left, he had logged the record of the 2nd longest occupant in Nigeria’s history, behind only the late, great Taslim Elias”.

The former chairman of the National Human Rights Commission (NHRC), was however critical of Malami’s tenure, saying that “he brought the office into disrepute”.

In the words of Odinkalu; “As HAGF, Malami inflicted extraordinary dishonour on the office, reducing an office of the highest constitutional salience into an object of both grubbiness & disrepute”.

The professor of law argued that while he acknowledged the fact that Malami is entitled to the presumption of innocence, he however, expressed little sympathy for him.

In the words of Odinkalu, “of course, as an accused, he is entitled to presumption of innocence. That said, I hope that he receives the benefit of kind of law that he visited on his many victims. 

“The lawyers call it the discipline of ‘precedent’. He deserves everything that happens to him”.

Odinkalu however noted that one of the charges reportedly preferred against Malami raises grave legal and constitutional red flags stressing that the allegation that Malami refused to prosecute alleged terrorism financiers is a case in point.

He said; “Malami is accused of knowingly refusing to prosecute alleged terrorism financiers whose case files were submitted to his office for legal action, an offence the prosecution said is contrary to Section 26(2) of the Terrorism (Prevention and Prohibition) Act, 2022”.

He, however, noted that while the allegation is “extraordinarily serious,” he however insisted that it is not legally sustainable, saying; “the charge is neither tenable under the Constitution nor cognisable under the Terrorism (Prevention and Prohibition) Act when applied to a serving or former Attorney-General.

“Yet, this is not a tenable charge under the Constitution nor a cognizable one under the s.26 of the TPA against a HAGF. The prosecutorial discretion is constitutionally protected.

“Many people often have reason to disagree with prosecutorial decisions by a HAGF, but that discretion enjoys fortified constitutional protection for good reason,” he stated.

Odinkalu therefore warned that allowing such a charge to stand could have far-reaching consequences for the office of the Attorney-General, including for the current occupant, Lateef Fagbemi, SAN.

He added; “the current Attorney-General, Lateef Fagbemi, surely knows that a HAGF cannot be charged under law with ‘refusing’ to prosecute anyone. Inherently, it is unlawful”.

He cautioned that endorsing such a charge, even against a controversial predecessor, could set a dangerous precedent.

Odinkalu said; “Functionally, he must know that if he acquiesces in this charge against even a disreputable predecessor like Malami, every subsequent HAGF, including himself, is fated to end up in jail.

“I make this point not for the sake of Malami — for whom I can only wish the Rule of Law. Instead, it is for the preservation of the high constitutional office of HAGF”.