“If you want to change big things, you pay attention to small things.” – Rudy Giuliani
It is no more news that President Muhammadu Buhari GCFR has openly avowed his decision to double as the Petroleum Minister. The rationale for this decision can’t be far-fetched beyond his ambition to annihilate the long established corrupt and unethical practices in the nation’s most remunerative industry.
However, it is trite that when a presidential decision (however logical or applaudable) conflicts with any provision of the constitution, the provision of the constitution shall prevail and any conflicting decision whatsoever shall be void to the extent of its inconsistency.
The resolve of the President to uphold and observe the rule of law to the core, as testified by his conducts since his assumption of office is why it becomes more imperative to bring his attention to details as this. Otherwise, I may not bother my pen; as such exercise mostly ends in futility in the past.
It will be useful to remind the President that the oath of allegiance he took upon his assumption of office as contained in the Seventh Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended) was; to discharge his duties in accordance with the Constitution, as well as to preserve, protect and defend same.
Without much ado, I humbly refer to Section 138 of the 1999 Constitution (as amended) which provides as follows:
“The President shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever.”
Except a superior argument which is not in existence, that Ministers of the Federal Republic are not bona fide members of the Executive branch of the government can be supplied, the provision above stands as a disqualification of the President from doubling as a Minister. In fact, if the wording of that section of the Constitution is strictly interpreted, it makes such a decision of the President an illegality.
Ministers although aren’t elected members of the Federal executive like the President and the Vice President. Their offices are nevertheless constitutionally anointed as members of the Federal Executives under Chapter 6 (Part I) of the Constitution. Consequentially, for anyone to hold himself as a legitimate Minister of the Federal Republic, whether ‘doubling’ or non-doubling, his appointment must be in absolute conformity with Section 147 of the Constitution. Therefore, even if per chance the legality of the President doubling as a Minister is proven, he must still submit himself to all the procedures just as any other ministerial nominee, which involves the submission of name and screening by the National Assembly. The authority that compels this submission is the general expression that was used under Section 147 of the Constitution which established the Ministerial offices. It is a clear general expression, without any intention of subjecting its provisions to any other provisions of the Constitution. Subsection 2 of the section provides:
“ANY APPOINTMENT to the office of Minister of the Government of the Federation SHALL…”
The word “any” in the legal realm has been severally interpreted to also mean an indiscriminate expression that consumes everything in generality under the category it is expressed for. Thus, except there is a provision of the Constitution providing a specific exception, the general provision stands as the position of the law.
It is immaterial if there are precedents of Presidents or Governors doubling as Ministers or Commissioners respectively. Those precedents hold no judicial weight and are irrelevant for the legal validation of a Constitutional matter. Besides, we are all unanimous on the fact that we are now in an era of “Change”.
I humbly submit in reliance upon Section 5 (1) (a) of the 1999 Constitution (as amended) that defines the power and delegating authority of the President, which provides that the President may also exercise his duties directly in his personal capacity if he chooses not to act indirectly via the vice-president, ministers or officers of the public service. This section hereby reduces the disqualification imposed by section 138 to an issue of designation or acting capacity. The designation “Minister” as an establishment of the constitution and as a membership of the Federal Executive cannot be used or dashed-out at will without full constitutional compliance.
Therefore, a joint consideration of Sections 5 (1) (a) and 138 of the Constitution will bring us to the conclusion that it is not permissible for the President to use the designation “Minister” of Petroleum, but his constitutional powers permits him to act as an ‘Administrator’ of the Petroleum Ministry in his direct capacity as the President of Nigeria.
President Buhari has shown his preparedness to yield to corrections of law like this. An example was the submission of the names of the appointed Service Chiefs to the Senate for confirmation. An unprecedented move that my learned colleague; Festus Keyamo loudly crusaded against the past administration to comply with, but yielded no obedience.
I pray that this submission is not disregarded.
God bless the Federal Republic of Nigeria.
Abdul Hasib Suenu is a Nigerian Barrister and Solicitor, and an LL.M candidate at Girne American University, Cyprus.
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A Report Of The Judgement Of The 16 Divisions Of The Court Of Appeal In Nigeria