Human rights lawyer and former chairman of the National Human Rights Commission, Chidi Odinkalu, has raised serious constitutional concerns over one of the charges reportedly filed against former Attorney-General of the Federation (AGF), Abubakar Malami (SAN), warning that it threatens the integrity of the office of the Attorney-General itself.
In a post on his X handle on Wednesday, Odinkalu recalled that the office of the Attorney-General of the Federation is traditionally prefixed with the title “Honourable,” reflecting its high constitutional standing.
“The office of the Attorney-General of the Federation is usually prefixed with the word ‘Honorable’. In Nigeria, therefore, the occupant is addressed as HAGF — Honorable Attorney-General of the Federation,” Odinkalu stated.
He 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 only the late Taslim Elias.
“For 8 yrs 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,” he said.
However, Odinkalu was sharply critical of Malami’s tenure, accusing him of bringing the office into disrepute.
“As HAGF, Malami inflicted extraordinary dishonour on the office, reducing an office of the highest constitutional salience into an object of both grubbiness & disrepute,” he said.
While acknowledging that Malami is entitled to the presumption of innocence, Odinkalu expressed little sympathy for the former minister.
“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 stated.
Despite this, the senior lawyer said one of the charges reportedly preferred against Malami raises grave legal and constitutional red flags. Citing a report by The Guardian, Odinkalu highlighted an allegation that Malami refused to prosecute alleged terrorism financiers.
According to the report, “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.”
Reacting to the allegation, Odinkalu described it as “extraordinarily serious,” but insisted it is not legally sustainable.
“Let’s be clear: this is an extraordinarily serious allegation. There is no other way to regard it,” he said.
However, he argued that 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,” Odinkalu said, explaining that 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 added.
Odinkalu further 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).
“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 said.
He cautioned that endorsing such a charge, even against a controversial predecessor, could set a dangerous precedent.
“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,” Odinkalu warned.
Calling for urgent corrective action, Odinkalu said the Attorney-General should intervene to withdraw the specific count.
“I hope that Lateef Fagbemi, as HAGF, will take over this case & urgently apply to withdraw this particular count. At best, it is in error. At worst, it is unlawful overreach,” he said.
Odinkalu stressed that his position was not motivated by sympathy for Malami but by concern for constitutional order.
“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,” he said.
He concluded by warning that retaliatory prosecutions that undermine constitutional safeguards ultimately weaken the justice system.
“Even as an act of reprisal, it is worse than biting off the nose to spite your prosecutorial face. It should be withdrawn.”
