Appointments: Did the President violate the Constitution?

Since Thursday, August 27, when President Muhammadu Buhari, made what has been termed key appointments in his Presidency, political analysts have been saying things are no longer at ease; and that it will require an arrow of God, to prevent things from falling apart in the nation.

What are the facts?

The President on that day, made the following appointments: Engr. Babachir David Lawal from Adamawa State, as Secretary to the Government of the Federation; Alhaji Aba Kyari, from Borno State as Chief of Staff to the President; Col. Hameed Ali(retd.) from Kaduna State, as Comptroller-General of the Nigerian Customs Service; Mr. Kure Martin Abeshi, from Nassarawa State, Comptroller-General of the Nigerian Immigration Service; Senator Ita Enang from Akwa Ibom State, Senior Special Assistant to the President on National Assembly Matters(Senate); Hon. Suleiman A. Kawu, from Kano State, Senior Special Assistant to the President on National Assembly Matters (House of Representatives).

Even before these latest appointments, there had been grumblings that the previous ones announced by the Presidency, were not reflective of neither regional nor geographic spread.

A few days after taking the oath of office, the President had made the following appointments: Femi Adesina, from Osun State, Special Adviser on Media and Publicity; Lt. Col. Mohammed Abubakar from Kano State, as Aide De Camp; Lawal Kazaure, also from the North as State Chief of Protocol; Abdulrahman Mani, from the North as Chief Security Officer; Ahmed Idris, from Kano, as Accountant General of the Federation; Lawal Daura, from Katsina State, as Director-General of the State Security Services; Amina Zakari, from Jigawa State as the acting Chairman of the Independent National Electoral Commission and Garba Shehu from Kano State, as Senior Special Assistant to the President on Media and Publicity. According to political watchers of the polity, with 27 appointees from the North out of 30, the President stands guilty of discriminating against citizens from the South-East, South-West and South-South geo-political zones.

Some critics of the President have even gone as far as pointing out that the heads of the Senate; House of Representatives and the judiciary are all from the North, conveniently omitting the fact that President Muhammadu Buhari didn’t appoint the Chief Justice of Nigeria or the President of the Court of Appeal. Those appointments were made by his predecessor. Also, members of the two arms of the National Assembly appointed their leaders and not the President.

Conscious of the diversity of the nation, the President, had told an excited nation in his inaugural speech that he belonged to no one and belonged to everybody. Proof, if any was needed that he would run an all inclusive government and that he was not oblivious of the fact that Nigeria is a multi-ethnic and multi-religious society.

Is the President guilty as charged?

Has the President violated the oath of his office?

The Seventh Schedule of the Constitution contains the Oath of office of the President which Muhammadu Buhari swore to on May 29, 2015. The President had sworn to “…discharge my duties to the best of my ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Federal Republic of Nigeria; that I will strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria…”.

It can be argued that appointing mostly northerners into a Federal Government headed by a northerner is capable of threatening the well-being and prosperity of the nation which the President had sworn to protect.

From available facts, many a southerner are aggrieved about the appointments referred to above. If they decide to pursue their grievances further, that can threaten the peace and stability of the nation.

The argument that the appointees merit the positions or that they are people of undoubted integrity is beside the point.

It is clear even to the blind, that every part of the country is not in short supply of men (and women) of intellect and integrity.

In the oath of office quoted above, the President swore to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution.

This is contained in Chapter Two of the Constitution. The relevant section is Section 14 (3).

I quote: “The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that government or any of its agencies.”

So, those parroting the argument that it does not matter even if the President appoints all his aides from a local government area, provided they are competent and people of integrity, are advised to read this provision of the Constitution again.

Of course, it can be argued that many of the appointees are aides of the President but the fact remains that they will be conducting the affairs of the nation. And it is important that their fellow citizens have the confidence that they will be treated fairly and justly. As they say, perception is everything.

The wise men (and women) who drafted our Constitution took into consideration the experience of our recent past and the peculiarities of a multi-ethnic and multi-religious society such as ours.

It is clear that what we have from the appointments made so far by the President are a predominance of persons from a few ethnic group which the Constitution frowns against.

Regrettably for the nation but luckily for President Buhari, Chapter Two of the Constitution is non-justiciable otherwise; many lawsuits would have been slammed on the President.

Section 153 of the constitution established Federal Executive Bodies. These bodies are listed in the section. Their composition and powers are contained in the Third Schedule of the Constitution. Among these bodies is the Federal Character Commission.

The commission comprises of a chairman and one person to represent each of the states of the federation and the Federal Capital Territory, Abuja.

The constitution stipulates that the Federal Character Commission shall give effect to the provisions of section 14 (3) of the constitution which I have quoted earlier on in this article.

The commission is empowered to:

(a) Work out an equitable formula subject to the approval of the National Assembly for the distribution of all cadres of posts in the public service of the federation and of the states, the armed forces of the Federation, the Nigeria Police Force and other government security agencies, government-owned companies and parastatals of the states;

(b) Promote , monitor and enforce compliance with the principles of proportional sharing of all bureaucratic, economic, media and political posts at all levels of government;

(c) Take such legal measures, including the prosecution of the head of or staff of any Ministry or government body or agency which fails to comply with any federal character principle or formula prescribed or adopted by the commission;

(d) Carry out any other functions as may be conferred upon it by an Act of the National Assembly.

From the mandate of the commission, which includes prosecuting the head of a Ministry who violates the federal character principle, it is clear that section 14(3) of the constitution is a sacred provision which must be held dear.

Has the President violated the provisions of the constitution in his lopsided appointments? It is debatable.

Legally speaking, if a court has not made a pronouncement on a matter, it is difficult to pronounce ex cathedra that this is the position of the law.

While it may be argued that President Muhammadu Buhari has not, strictly speaking violated the provisions of the constitution, it is doubtful whether anyone can convincingly argue that he has not violated the spirit of the Constitution.

Ogunleye, a legal practitioner, is Provost of the Nigerian Institute of Journalism, Lagos