Must Nigeria have at Least Thirty-Six Ministers of the Federation?, By Jiti Ogunye

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There is a popular misconception about the minimum number of ministers that President Muhammadu Buhari must appoint into the Executive Council of the Federation, to work with him as Ministers of the Federal Republic of Nigeria. Many believe that the minimum number of ministers he could appoint is 36, at least one minister from each of the 36 states of the Federation. This notion has been propagated by lawyers who, in our view, are casually, literally or narrowly interpreting the provisions of the Constitution of the Federal Republic of Nigeria 1999 governing the subject; and by politicians who are always desperate to occupy political offices and perpetuate political sinecures. However, a proper reading and rational interpretation of the provisions of the Constitution governing appointment of Ministers in the Government of the Federation do not support the conclusion that Nigeria must have a minimum of 36 ministers. The Constitution does not prescribe the number of ministers that Nigeria must have. What the Constitution provides is that if Nigeriadecided to have 36 ministers or more, at least one minister must be appointed from each of the States of the Federation, of which he or she is an indigene.For a long time, Nigerians have been complaining about the bloated size of government at the federal, state and local government levels. We all want a slimmer and a more efficient government. We decry a situation in which, recurrently in our national budget, recurrent expenditure outweighs our capital votes, by almost eighty to twenty percentage. We say this is not sustainable. It was for this reason that the Goodluck Jonathan Administration set up a presidential committee on reform of government agencies. The Committee recommended in its 800 Page Report the reduction of statutory agencies of government from 263 to 161, from the total 541 government parastatals, commissions and agencies (statutory and non-statutory) in the country, in order to drastically reduce the cost of running government.

Many had hoped that President Buhari, whose Transition Committee, headed by Ahmed Jodah, was said to have recommended restructuring, merging, consolidation or rationalisation of the existing Federal Ministries, was going to commence his effort to reduce the cost of governance by reducing the number of ministries. The media was even awash with speculations that the Buhari Administration was going to have 18 or 19 ministries. The list of minister-nominees, most of whose nominations have been confirmed by the Senate, has now dashed that hope. Thus far, we have 36 persons, nominated from the 36 states of the Federation, who are going to be appointed ministers. Interestingly, the “people” of the Federal Capital Territory, Abuja, reportedly, are agitating for “their own” minister-nominee. The Federal Capital Territory, in many respects, is accorded the status of a state of the Federation under the Constitution.

Going by this list of ministers Nigeria may not have a lean government under the Buhari Presidency. The regime of bloated government continues.

The question that arises, therefore, is: must Nigeria have at least 36 ministers, and are the hands of the President tied? Our answer is No. We validate our answer below, by considering the relevant provisions of the Constitution.

Section 5.(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (‘constitution’) provides that “subject to the provisions of this Constitution, the executive powers of the Federation: (a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation”

Section 130 of the Constitution provides that “(1)there shall be for the Federation a President”; and (2) “the President shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation.”

We argue that if the President establishes 18 offices of Ministers of the Government of the Federation, and appoints 3 Ministers from each of the 6 geo-political zones in the Country, that is from 18 states of the Federation (3 states from each geo-political zone), and decides to compensate the other 18 states by appointing special advisers from those states, the President would have satisfied the provision of Section 14(3) of the Constitution.

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 of Section 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.”

Section 148 (1) of the Constitution 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.”

Now, Section 14(3) of the Constitution which the President is obligated to conform with in making a ministerial appointment provides simply that “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 in any of its agencies.”

And Section 14(4) of the Constitution provides that “the composition of the Government of a State, a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognise the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.”

For the purpose of determining whether the President is under a constitutional obligation to appoint at least 36 ministers to work with him in the Executive Council of the Federation, we need to focus especially on Section 147( 1,2 & 3) of the Constitution. We submit that by virtue of Section 147(1) of the Constitution, which unambiguously declares that “there shall be such offices of Ministers of the Government of the Federation as may be established by the President”, the number, composition and designation of the offices of Ministers of Government of the Federation are the absolute prerogatives of the President. Nowhere under Section 147 or under any other provisions of the Constitution is the number of Ministers of the Government of the Federation to be appointed by the President prescribed. In exercise of his prerogative, the President may establish 12, 19, 30, 36, 40, 50, 70 or 100 offices of ministers. Under President Goodluck Jonathan, Nigeria had more than 36 ministers, and that was constitutional. If the point is conceded that the President can establish more than 36 offices of ministers, we may, therefore ask that in the event the President appoints 50 ministers, for example, how will some states in the Federation not have more than one Minister each? In such a situation, what happens to the federal character principle in the Constitution?

We further submit that Section 147 (2&3) which provides that “(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.”; and that “(3) any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of Section 14(3) of this Constitution:- provided that in giving effect to the provisions aforesaid ( that is Section 14 {3}) the President shall appoint at least one Minister from each State, who shall be an indigene of such State.” means no more than that if the President decides to establish 36 or more offices of Ministers, he shall appoint at least one minister from each State. If the President does not establish up to 36 offices of Ministers, and therefore cannot possibly appoint one minister from each of the 36 states of the Federation, but ensures an equitable and a fair spread in the appointment of ministers along the geo-political zones of the Country in accordance with the principle of federal character, he will not be violating the provision of the Constitution.

It is our considered view that the operation of the proviso in Section 147(3) is restricted or limited to Section 147(2), which states that“(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.” The proviso does not extend to or cover the exercise of the power of the President under Section 147(1) to establish such offices of Ministers of the Government of the Federation as the President may wish, so as to fetter, limit or hamper his free exercise of that power. Before nominating and appointing ministers, the President first must have established such offices of ministers in the Government of the Federation. If, we take the view that the President must appoint no less than 36 ministers, it then means that the President is no longer able to freely exercise his constitutional prerogative of determining and establishing such offices of ministers that he desires. That provision of the Constitution would have been rendered inoperative. Our view is that the applicability of the proviso in Section 147(3) literally is conditional on if and only if the President establishes 36 or more offices of Ministers. If the President does not establish 36 or more offices of ministers, he cannot be compelled to appoint at least one minister from each of the 36 states.

There are several provisions of the Constitution which can only be implemented or enforced when the envisaged situation arises. For example, under Section, 134(1-5) of the Constitution, where there are two or more presidential candidates in an election, a second election (ballot) or third election (ballot) can only be conducted, if no winner is elected in the first election. If amongst the candidates, a president is elected on the first ballot, a second or third election will not be necessary.

We insist that this is the only reasonable and logical interpretation of Section 147, especially when one considers the possibility that more states can be created under Section 8 of the Constitution. If ten more states were to be created, for example, are we to then sheepishly accept that Nigeria must have 46 Ministers?

We argue that if the President establishes 18 offices of Ministers of the Government of the Federation, and appoints 3 Ministers from each of the 6 geo-political zones in the Country, that is from 18 states of the Federation (3 states from each geo-political zone), and decides to compensate the other 18 states by appointing special advisers from those states, the President would have satisfied the provision of Section 14(3) of the Constitution. By way of emphasis, the Section provides that “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 in any of its agencies.”

It is to be noted that Section 151 (1&2) of the Constitution provides that “the President may appoint any person as a Special Adviser to assist him in the performance of his functions; and that (2) the number of such Advisers and their remuneration and allowances shall be as prescribed by law or by resolution of the National Assembly.”

We submit that the intendment of the framer of the Constitution in wording the provision of Section 147 of Constitution the way it is couched is not to compel the President to appoint a minimum of 36 ministers, but to obligate him to evenly and equitably, in accordance with the federal character principle, appoint each minister per state in the event that he established 36 ministries. We insist that this is the only reasonable and logical interpretation of Section 147, especially when one considers the possibility that more states can be created under Section 8 of the Constitution. If ten more states were to be created, for example, are we to then sheepishly accept that Nigeria must have 46 Ministers?

Section 192 (1&2) of the Constitution governs the appointment of commissioners of state governments. The Section provides that “there shall be such offices of Commissioners of the Government of a State as may be established by the Governor of the State; (and) any appointment to the office of Commissioner of the Government of a State shall, if the nomination of any person to such office is confirmed by the House of Assembly of the State, be made by the Governor of that State and in making any such appointment the Governor shall conform with the provisions of section 14(4) of this Constitution.” The said Section 14(4) of the Constitution provides that “the composition of the Government of a State, a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognise the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.”

Taking into cognizance the fact that Kano and Lagos States respectively have 44 and 20 Local Government Areas, can anyone seriously argue that, relying on Section 192 (1&2) and Section 14 (4) of the Constitution, Kano State and Lagos State must also have 44 Commissioners and 20 Commissioners in their respective State Governments?

The principles governing the construction or interpretation of constitutional provisions, particularly upon the adoption of our presidential system of government, are well laid out in a number of decisions of the Supreme Court. The locus classicus decided by the Supreme Court is the case of Nafiu Rabiu v. The State (1981) 2 NCLR 293 at pages 326, and 302-303, where Sir Udo Udoma, JSC and Idigbe JSC respectively stated as follows: “My Lords, it is my view that the approach of this court to the construction of the constitution should be, and so it has been one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat (meaning it is better for a thing to have effect than for it to be made void). I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provision will serve to enforce and protect such ends.” And that “accordingly, where the question is whether the Constitution has used an expression in a wider or narrower sense, the court should always lean where the justice of the case so demands to the broader interpretation, unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.”

The provisions of the Constitution ought not to be mechanically interpreted. It should be interpreted liberally, broadly and purposively, with a view to discovering the intendment of the framers, and the object of the provisions. The objective of Section 147 is that there should be equal, fair and equitable representation of all sections of the Country in the Executive Council of the Federation; not that Nigeria must have no less than 36 ministers. Nigeria is said to have 250 ethnic groups. Appointing 36 ministers from 36 states will still not address the issue of ethnic representation in the central government. And nobody can rightly suggest Nigeria should have 250 ministers.

Obaseki, J.S.C. obviously followed that decision in Garba v. University of Maiduguri (1986) 1 N.W.L.R Pt. 18 550 at 583where he stated that “the provisions of the Constitution are to be given liberal construction so as to best carry out the intention of the founding fathers.”

The Supreme Court has followed its decision in Nafiu Rabiu v. The State in a number of cases including the case of Okotie-Ebor v. Manager (2004) 18 NWLR (Pt. 905) 242 at pages 289-290, where Pats-Acholonu, J.S.C. (of blessed memory) stated at page 290, paras. D-F that “…it is the eternal duty of the (Supreme Court) to construe some provisions of the Constitution in a wider sense to give meaning and life to the law, bearing in mind that the primary law is for the living; that as much as possible, a holistic approach should be given to any provision with a view to expounding its scope. By so doing, the courts would be liberating wooly provisions of the Constitution that appear nebulous, and therefore make the law embrace all that would ennoble the society and would guarantee its fairness and space for growth and development so that in the final analysis it shall be understood by all that the law is made for men and women and not the other way round.”

We should discard the illusion that 36 ministers from 36 states helps Nigeria manage its diversity better and guarantees inclusiveness, and geo-political and ethnic balance in composition and operation of the central government. In any case, and this context must be kept in mind, there are many layers of representation in government: the councilors at the local government level; the members of houses of assembly at the state level; and the members of the National Assembly at the central level.

The provisions of the Constitution ought not to be mechanically interpreted. It should be interpreted liberally, broadly and purposively, with a view to discovering the intendment of the framers, and the object of the provisions. The objective of Section 147 is that there should be equal, fair and equitable representation of all sections of the Country in the Executive Council of the Federation; not that Nigeria must have no less than 36 ministers. Nigeria is said to have 250 ethnic groups. Appointing 36 ministers from 36 states will still not address the issue of ethnic representation in the central government. And nobody can rightly suggest Nigeria should have 250 ministers. We should discard the illusion that 36 ministers from 36 states helps Nigeria manage its diversity better and guarantees inclusiveness, and geo-political and ethnic balance in composition and operation of the central government. In any case, and this context must be kept in mind, there are many layers of representation in government: the councilors at the local government level; the members of houses of assembly at the state level; and the members of the National Assembly at the central level. Unlike ministers of the central government, the number of local state and federal legislators and the wards, constituencies and districts of these representatives are fixed by the Constitution and the law. Ministers may be appointed from the states in the Federation but they are not representatives of the States.

United States of America with its 50 States, extensive territory and huge population of 322 million people have 15 major federal government departments headed by secretaries ( ministers); and we copied our brand of presidential system of government from there.

Nigeria can make the burden of a horribly and hurriedly fabricated Constitution lighter by adopting interpretative flexibility in its operation. United States of America with its 50 States, extensive territory and huge population of 322 million people have 15 major federal government departments headed by secretaries ( ministers); and we copied our brand of presidential system of government from there.

If President Buhari honours his promise of change by pegging the number of ministers that he is going to appoint to 15 or 18, for example, aggrieved persons or states of the Federation may seek the interpretation of the provision of Section 147 of the Constitution in the Court, to determine the question of whether the President can establish less than 36 offices of Minister in the Government of the Federation; and whether it is mandatory of the President to appoint no less than 36 ministers from the 36 states of the Federation to form his Executive Council of the Federation. Ultimately, the Supreme Court would be afforded the opportunity to make a pronouncement on the issue, and the rule of law and constitutionalism will thereby be enriched. Sadly, again, it appears the principles of governance have been sacrificed on the altar of crass politics.

Jiti Ogunye, lawyer, legal commentator, author, and essayist, is the Legal Adviser of Premium Times.