By Yinka Giwa
Constitutional lawyer and human rights advocate, Professor Chidi Odinkalu, has warned that the reported decision to charge former Attorney-General of the Federation (AGF), Abubakar Malami (SAN), for allegedly refusing to prosecute terrorism financiers could set a dangerous legal precedent capable of landing the current AGF, Lateef Fagbemi (SAN), and future occupants of the office in jail.
Odinkalu, in a detailed commentary on Thursday, said while Malami is entitled to face prosecution for any alleged wrongdoing during his eight-year tenure as AGF between 2015 and 2023, one of the charges reportedly preferred against him is constitutionally untenable and threatens the integrity of the office of the Attorney-General itself.
According to reports, Malami is accused of knowingly refusing to prosecute alleged terrorism financiers whose case files were submitted to his office, an offence said to be contrary to Section 26(2) of the Terrorism (Prevention and Prohibition) Act, 2022.
Odinkalu described the allegation as “extraordinarily serious” but argued that it is neither cognisable under the Constitution nor sustainable under the Terrorism Act when applied to an Attorney-General of the Federation.
He noted that prosecutorial discretion is one of the most fortified constitutional powers of the AGF and that disagreements with an Attorney-General’s decision to prosecute or not prosecute do not, in law, amount to a criminal offence.
“A HAGF cannot be charged under law with ‘refusing’ to prosecute anyone,” Odinkalu said, stressing that such discretion is constitutionally protected for good reason.
He warned that if the charge is allowed to stand, it would create a precedent under which every serving and future Attorney-General could be criminally liable for prosecutorial decisions, exposing the office itself to legal jeopardy.
Odinkalu said the current AGF, Lateef Fagbemi, “surely knows” that the charge is inherently unlawful and that acquiescing to it, even against a “disreputable predecessor,” could ultimately rebound against him and others who may occupy the office in future.
“If he acquiesces in this charge, every subsequent HAGF, including himself, is fated to end up in jail,” he warned.
He therefore urged Fagbemi to urgently take over the case and apply for the withdrawal of the particular count relating to refusal to prosecute, describing it as, at best, a legal error and, at worst, an act of unlawful prosecutorial overreach.
Odinkalu said his intervention was not motivated by sympathy for Malami, whom he criticised for bringing “dishonour” to the office during his tenure, but by the need to preserve the constitutional integrity of the office of the Attorney-General of the Federation.
“This is not for Malami’s sake,” he said. “It is for the preservation of a high constitutional office. Even as an act of reprisal, it is worse than biting off the nose to spite the prosecutorial face.”