The Roles of A.G of States in the Resolution of Dichotomy arising from the Applicability of Federal Laws to States: A Role requiring Active Action By Hameed Ajibola Jimoh
The Attorney-General of the Federation and the Attorney-General of each State of the Federation have been established under the Constitution of the Federal Republic of Nigeria, 1999-herein after referred to as the Constitution- under section 150 and 195, respectively. Section 150 of the Constitution 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’. Also, section 195 of the Constitution provides that ‘There shall be an Attorney-General for each State who shall be the Chief Law Officer of the State and a Commissioner for Justice of the Government of that State’.
From the above provisions of the Constitution, it is submitted that the protection of both the Federal Laws and the State Laws and the resolution of any dispute arising there-from are the sole responsibility of the Attorney-General of the Federation and the Attorney-General of each State of the Federation, even as suits in respect of and or arising from those laws are being instituted by and or against each of the Attorney-Generals respectively in their respective official capacity on behalf of the Federal Republic of Nigeria or the Federal Government and the State Government respectively.
However, a close scrutiny of the laws in Nigeria, especially those that are made by the National Assembly of Nigeria and most particularly those relating to crimes, by the writer of this paper, reflects that there have been some dichotomies on whether those or some of those laws are applicable throughout Nigeria and binding on the States of the Federation? That is why many of the times, legal authorities and legal views are argued on whether there is need for domestication of those laws. Of course, this argument on whether there is need for domestication will arise as a result of the manner the laws are made to seem as if they were binding on the States.
From the observation made by the writer of this paper, had the Attorney-General of the States of the Federation or any of the Attorney-General of the States made drastic efforts in protecting and or securing the territory of the States or the respective State, by seeking judicial declarations in Court of competent jurisdiction to settle the dichotomy, some of these arguments and or disputes and or confusions on whether the laws made by the National Assembly are applicable to the States of the Federation would not have arisen and or would have been settled to clear the dichotomy. But what is observed is that only on very few occasions do or does the Attorney-General of each States of the Federation made the drastic step in clearing the confusion and many of the legal views and arguments made remain in academic materials without the force of law unless there is judicial interpretation and or resolution on the subject.
The writer of this paper suspects and or considers the passive action of the Attorney-General of each State in prosecuting some of these dichotomies in our Federal legislations might have been due to the ambiguous Constitutional provisions and the decision of the Supreme Court of Nigeria in the case of A.G. Ondo State v A.G. Federation and 36 others (2002) 9 NWLR (pt . 772) 222, (2002) 6 S.C. (Pt. 1) 1., thereby drawing the attention of the writer of this article to sections 14(2) and item 60(a) of the Constitution of the Federal Republic of Nigeria, 1999 (3rd alteration as amended)-herein after referred to as the Constitution, for consideration. However, the writer of this paper is of the view and submission that had the Attorney-General of the States or each State of the Federation considered the decisions of the Supreme Court in the cases of: A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. and the case of Balewa v Doherty (1963) 1 WLR 949 at 961, in respect of ‘crime’ generally and or the power of the House of Assembly of a State of the Federation to legislate on matters which are on the Residual Legislative List exclusively, including ‘crimes’, there might have been a more active steps taken in challenging the Federal Government on those Federal Laws that have the tendencies of controlling and or interfering with the powers of a State Government in Nigeria. In the case of A.G. Federation v A.G. Lagos State (supra), it was held that:
‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list. The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws. The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists’.
Furthermore, at the moment, some of the Federal laws suspected by the writer of this paper to have generated dichotomy are: the Terrorism (Prohibition) Act, 2011(as amended in 2013), Cyber Crimes (Prohibition and Prevention) Act, 2015, among others.
Also, the writer of this paper wonders why there is passive actions on the part of the Attorney-General of each State of the Federation, since financially, there is no hindrance as many or all the Rules of Courts exempt government and or public officers of the Federation and or any part of it from paying any prescribed legal fees to the Court. So, documents are filed without paying legal or statutory fees, except in respect of Certified True Copy, default fees and court ordered costs which only arise as a result of rare circumstance and self-induced penalty.
Furthermore, in considering who is the appropriate party to such suit in respect of the Federal Laws that seek to intervene in the affairs of a State of the Federation, it is the humble submission of the writer of this paper that it is the Attorney-General of each State of the Federation that is more appropriate even though any other citizen of Nigeria might also have the locus to institute such legal action, even without the Attorney-General’s fiat and or consent.
It is therefore recommended by the writer of this paper that the Attorney-General of each State of the Federation should make a very bold step in challenging those Federal Laws that tend to interfere with its powers as guaranteed by law and taking steps to seeking judicial intervention in courts of law as such is a very good instrument in developing our laws in Nigeria and reviewing some archaic and moribund laws warranting necessary repeal and or amendment. Also, this action will be a guide to the appropriate law makers in Nigeria.