Must Nigeria Have At Least 36 Ministers In the Government of the Federation? (II), By Jiti Ogunye

To match Interview NIGERIA-BUHARI/It is our submission, therefore, that holding fast and holding slavishly and mechanically to the phrase “shall appoint at least one Minister from each State, who shall be an indigene of such State.” in the proviso to Section 147 (3) of the Constitution, is not useful and helpful in the the consideration and determination of the question, whether the President must establish ministries and appoint 36 ministers. What is helpful is to discover the motive and the intention behind that phrase. If we so did, we would come to the inescapable conclusion that the goal, purpose and intendment of the framers of the provisions is to ensure geographical, ethnic and sectional spread in the appointment of Ministers in the Government of the Federation.

On October 26, Premium Times published our piece titled, “Must Nigeria Have at least 36 Ministers of the Federation?”. Since then, there have been a number of developments that warrants that we return to this subject and make further explication there on, in the public interest.

Following that piece, President Muhammadu Buhari in a television interview granted to a number of broadcast media, on the sidelines of the Indo-Africa Summit held in India recently, was quoted as saying that his government is likely to have 21 ministries, since the Constitution does not make it mandatory that the Federal Government should establish 36 ministries. Said the President, “There used to be 42 ministers, but I think we can barely keep half of that now because we cannot afford it…Others may not be substantive ministers but they will sit in the cabinet because that is what the constitution said and we can’t operate outside the Constitution…We are reducing the number of ministries we can’t afford to pay,” The President was also reported to have said that not all the 36 ministers would head ministries, as the Constitution says there must be one member of the cabinet from each of the states but does not say he must have 36 ministries.

The President reiterated this position on November 3, 2015 when he received the list of confirmed ministers-nominees from the Senate President. At the event which was held in Aso Rock, the President said not all the 36 ministers would head ministries. The Constitution, he said, states that there must be one member of the cabinet from each of the states but does not say he must have 36 ministries, and so he wants to exploit that provision to appoint substantive ministers, while the other “ministers” will be in the Executive Council. In other words, the Buhari Administration will have “36 ministers”, but will not have 36 ministries. This is why it is now being widely imagined that there will be substantive ministers and there will be ministers without portfolios.

In a swift reaction to the idea of appointing ministers without portfolios, my very good friend and comrade, Ogaga Ifowodo, in his article published in the Premium Times of November 4, 2015, admirably, counseled the President against appointing ministers without portfolios, since, the Constitution does not so compel him to have 36 ministers. Ifowodo calls for a liberal interpretation of the provisions of Section 147 of the Constitution, based on the golden rule of interpretation of provisions of statutes, instead of adopting a literal and strict constructionist approach. He is right. He has made this point excellently with sound legal reasoning, infallible logic and literary flourish in a very unique way, given his learning in law and in literature.

If the Constitution does not compel the President to establish a particular number of ministries, the Constitution, interpreted reasonably, cannot compel the President to appoint a particular number of ministers. What is required is not an amendment of the provisions of Section 147, as it is being suggested, but a rational interpretation of same.

From the legal opinions being postulated in the public domain since our said Premium Times article was published, there are, at least, four schools of opinion on the issue of whether the President must establish 36 ministries and appoint 36 ministers. The first opinion is that the President must not only establish a minimum of 36 ministries, but also must appoint a minimum of 36 ministers to occupy the 36 distinct ministries. The second opinion is that the President must establish 37 ministries and appoint 37 ministers to head the ministries so established, since Abuja, the Federal Capital Territory is regarded as a state of the Federation of Nigeria under the Constitution and thus must produce a minister in addition to the 36 ministers from the 36 States of the Federation. The third opinion is that it is not constitutionally compulsory for the President to establish a minimum of 36 ministries but he must appoint at least 36 ministers. This appears to be the position of the President on the subject. Under this opinion, it is deemed permissible for the President to appoint more than one minister to head a ministry, such that there may be appointed a substantive minister and a junior minister (called a minister of state) for a particular ministry; or permissible to have “floating ministers”, in a “pool of ministers”, sitting at the Executive Council of the Federation but without offices, duties or portfolios being assigned to them. The fourth opinion, which is the view we humbly articulated in our said Premium Times article, is that the President is at liberty to establish more or less than 36 ministries and in tandem appoint more or less than 36 ministers. Under this opinion, we take the view that if the President established 18 ministries, for example, he is under no constitutional duty or obligation to appoint 36 ministers to occupy the offices of ministers, on the basis of two ministers (a substantive minister and a junior minister) per ministry; nor is he under an obligation to accommodate the redundancy of some ministers without portfolios upon appointing 18 of the 36 ministers to head the 18 substantive ministries he has established, in exercise of his powers under the Constitution.

Before going further, let us quickly dismiss the opinion which argues that the President must not only establish 37 ministries but also must appoint 37 ministers to head the 37 ministries so established. This opinion erroneously regards the Federal Capital Territory Abuja as a “state” for the purpose of appointing ministers of the Government of the Federation. This opinion, has no constitutional foundation or validity. By virtue of the provisions of Section 2(2) and Section 3 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Nigeria is a country of 36 States and a Federal Capital Territory. The Federal Capital Territory is not the 37th State of Nigeria. Given the legal and constitutional history of the Federal Capital Territory, it is not supposed to have any indigene that qualifies to be appointed as a minister like an indigene of a State under the provision of Section 147(3) of the Constitution. Section 297-Section 304 of the Constitution make provision for the administration and governance of the Federal Capital Territory, Abuja. Essentially, the provisions of the Sections empower the Federal Government of Nigeria and its branches (legislative, executive and judiciary) to govern Abuja, the Federal Capital Territory as if it were a State. Hence, as provided by Section 299 (paragraph a) of the Constitution “all the Legislative powers, the Executive powers and the Judicial powers vested in the House of Assembly, the Governor of a State and in the Courts of a State shall respectively vest in the National Assembly, the President of the Federation and in the Courts which are Courts established for the Federal Capital Territory, Abuja”. Under these provisions, the President, so to speak, is “the Governor” of the Federal Capital Territory. In addition to his presidential functions, he may directly govern Abuja without a minister, delegate the governance of Abuja to his Vice-President under Section 148 of the Constitution or, by virtue of Section 302 of the Constitution, “he may in exercise of the powers conferred upon him by Section 147 of the Constitution appoint for the Federal Capital Territory, Abuja a minister who shall exercise such powers and perform such functions as may be delegated to him by the President from time to time”. Be it noted that Section 148 of the Constitution unambiguously provides that “the President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.”

It is, therefore, very wrong for anybody to peddle the opinion or makes the specious arguments that the provision of Section 299 of the Constitution, which opens by stating that “the provisions of this Constitutions shall apply to the Federal Capital Territory Abuja as if it were one of the States of the Federation”, mean that for the purpose of appointing a minister of the Federal Republic of Nigeria, the Federal Capital Territory Abuja also shall be regarded as a State. It is instructive to note that Section 297(2) and 298 of the Constitution respectively provide that “the ownership of all lands comprised in the Federal Capital Territory Abuja shall vest in the government of the Federal Republic of Nigeria” and “the Federal Capital Territory Abuja shall be the seat of the Federal government of Nigeria and seat of the federation.” FCT Abuja is by no stretch of imagination or force of legal argumentation the 37th State of Nigeria that must contribute a 37th minister to the Executive Council of the Federation.

Now that the President has taken the view that the Constitution has tied his hands to appoint 36 ministers even when he is not going to establish 36 ministries, thereby occasioning a “ministerial glut” or redundancy, the big issue is, who, amongst the 36 ministers, would be the substantive ministers, and who, among them, will be ministers without portfolios or ministers of state (junior ministers), and which of the 36 states will produce substantive ministers and ministers without portfolios or ministers of state (junior minister)? Why should there be more ministers than there are ministries? We wonder whether the position of the President to have substantive ministers and ministers sitting in council who are of cabinet rank but who have no duties or portfolios or ministries to head, will not create marginalization or representation outbursts.

To put in bold relief our further arguments in support of our view that the President can establish less than 36 ministries and appoint less than 36 ministers into the Executive Council of the Federation, let us reproduce Section 147 of the Constitution, as we did earlier, in our first Premium Times article on the subject. Section 147 of the Constitution provides that “(1) there shall be such offices of Ministers of the Government of the Federation as may be established by the President; (2) Any appointment to the office of Minister of the Government of the Federation shall, if the nomination of any person to such office is confirmed by the Senate, be made by the President.”; “(3) any appointment under subsection (2) of this section by the President shall be in conformity with the provisions ofSection 14(3) of this Constitution:- provided that in giving effect to the provisions aforesaid the President shall appoint at least one Minister from each State, who shall be an indigene of such State.”

In the above provisions, there are four key elements: establishment of ministries, nomination of ministers, confirmation of ministers and appointment of ministers. Before nomination, confirmation and appointment of ministers comes the establishment of ministries, which, under Section 147, is the absolute prerogative of the President. The President in his discretion determines the numbers of ministries that he would require to discharge the functions of his office and exercise the executive powers of the Federation. There is no list in the Constitution or in any other law, prescribing the numbers of, and the names of the ministries to be established by the President. That is why the President was right when he declared, as stated above, that there is nowhere in the Constitution where the number of ministries to be established by him for the Federation is prescribed. Nomination, confirmation and appointment of ministers follow establishment of ministries. It stands to reason, therefore, that nominations are made to fill established ministries and that appointments are made for the occupancies of ministerial posts in established ministries. Ministers are not first appointed only for ministries they will occupy to be created later. Rather, offices of ministers are first established before persons are appointed to occupy the ministerial offices so created. Thus, the provision of Section 147(3) and the proviso does no more than to mandate the President to appoint a minister per State were he to establish 36 ministries.

Under Section 147 of the Constitution, if the President establishes 18 ministries, nominates 18 person as ministers, and, after their confirmation, appoints them from all over Nigeria with the spread of appointments based on three ministers per each of the six geo-political zones, the President would not have violated the provisions of Sections 147(3) and 14(3) of the Constitution. If the President established 18 ministries, but nominated and appointed 17 persons as ministers from the States constituting the old Northern Nigeria while allotting one ministerial slot to the States constituting the old Southern Nigeria, the President would have violated the letters and spirit of the provisions of Sections 147(3) and 14(3) of the Constitution. If the President established 50 ministries but nominated and appointed 33 persons as ministers from the States constituting the old Northern Nigeria while allotting 17 ministerial slots to each of the States constituting the old Southern Nigeria, the President would have violated the letters and spirit of the provisions of Sections 147(3) and 14(3) of the Constitution, regardless of his having satisfied and fulfilled the requirement of the letters of the provisions of Section 147(3), of the Constitution, which, when read literally, prescribes that the President only has a duty to appoint, at least, one minister from each of the 17 States in Southern Nigeria.

It is our submission, therefore, that holding fast and holding slavishly and mechanically to the phrase “shall appoint at least one Minister from each State, who shall be an indigene of such State.” in the proviso to Section 147 (3) of the Constitution, is not useful and helpful in the the consideration and determination of the question, whether the President must establish ministries and appoint 36 ministers. What is helpful is to discover the motive and the intention behind that phrase. If we so did, we would come to the inescapable conclusion that the goal, purpose and intendment of the framers of the provisions is to ensure geographical, ethnic and sectional spread in the appointment of Ministers in the Government of the Federation.

Ministers of Government of the Federation, we reiterate, are not representatives of their respective States, they are not elected by the peoples, or nominated by the Government (Legislators or Executive) of the respective States, as representatives of their states, to go and serve in the Executive Council of the Federation. The theory that they are representing the States in the Federal Government is therefore a fallacy.

The task of those who may be called upon to give legal opinions on this subject, therefore, is to rise above the strict constructionist and literal interpretation of the provisions and embrace a broad and liberal construction of the provisions. Once the liberal approach is embraced, the self-inflicted dilemma of the dichotomy between substantive ministers and ministers without portfolios; minister of a ministry and minister of state for a ministry; and minister of special duties and minister of ordinary duties; and such other outlandish ministerial nomenclatures would be resolved. Thus, if the President decides to establish 18 Ministries for the effective discharge of his functions and exercise of the executive powers vested in him, he can indeed nominate and appoint 18 Ministers with the requisite spread in substantial compliance with the provisions of Section 147(3) and 14(3) of the Constitution. If the Constitution does not compel the President to establish a particular number of ministries, the Constitution, interpreted reasonably, cannot compel the President to appoint a particular number of ministers. What is required is not an amendment of the provisions of Section 147, as it is being suggested, but a rational interpretation of same.

If the provision of Section 147(3) is interpreted in the way we have suggested, the President will not need to worry about the issue of a fair, equal and non-discriminatory treatment of the ministerial appointees from all the 36 States of the Federation, for he would not have needed to appoint 36 ministers even when he has not established 36 ministries. Now that the President has taken the view that the Constitution has tied his hands to appoint 36 ministers even when he is not going to establish 36 ministries, thereby occasioning a “ministerial glut” or redundancy, the big issue is, who, amongst the 36 ministers, would be the substantive ministers, and who, among them, will be ministers without portfolios or ministers of state (junior ministers), and which of the 36 states will produce substantive ministers and ministers without portfolios or ministers of state (junior minister)? Why should there be more ministers than there are ministries? We wonder whether the position of the President to have substantive ministers and ministers sitting in council who are of cabinet rank but who have no duties or portfolios or ministries to head, will not create marginalization or representation outbursts. We can discard the possibility of legal contestations by ministers who may not be assigned portfolios. Appointment as a minister is a privilege, not a right. As such, successfully instituting a court action anchored on the equitable principle of promissory estoppels and right to freedom from discrimination, is far-fetched.

Our Constitution no doubt, was poorly drafted. But we can ameliorate its disastrous operation if we do not interpret it badly.

In conclusion, we want to state with all sense of humility that our reading and understanding of the provisions of the Constitution, which though is a rigid and written Constitution, do not yield an interpretation that Mr. President must establish no less than 36 ministries and appoint no less than 36 ministers; or that he must appoint no less than 36 ministers even if he were to establish less than 36 ministries, such that there will be duplication of roles, atomisation of duties, replication of assignments or redundancy in the Federal Government of Nigeria. The Supreme Court of Nigeria under Section 230 of the Constitution could have up to 21 Justices but never has had 21 Justices since 1999. Currently it has 17 Justices, but it is no less the Supreme Court of Nigeria. Ministers of Government of the Federation, we reiterate, are not representatives of their respective States, they are not elected by the peoples, or nominated by the Government (Legislators or Executive) of the respective States, as representatives of their states, to go and serve in the Executive Council of the Federation. The theory that they are representing the States in the Federal Government is therefore a fallacy. The Constitution does not say so. Using this fathom representation as a platform for insisting that perforce the Federal Executive Council must have at least 36 Ministers is, thus, misleading. Our Constitution no doubt, was poorly drafted. But we can ameliorate its disastrous operation if we do not interpret it badly.

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