In an article widely published on Monday, November 02, 2015,
distinguished rights advocate and legal luminary, Mr Festus Keyamo had
argued that the Constitution of the Federal Republic of Nigeria, 1999
(as amended) did not impose any obligation on the Nigerian President on
the minimum number of Ministers that he could appoint into his Cabinet.
While submitting that the President was free to appoint fewer than
thirty-seven (37) Ministers, and that the Constitution only obliges the
President to ensure that by the time he leaves office in four years, he
has (at one time or another) appointed at least one person from each
State of the Federation as a Minister, Mr Keyamo concluded that, “the
long-held notion in Nigeria that the President of the Federal Republic
of Nigeria is under an obligation to appoint at least 37 ministers into
his cabinet is erroneous, after all going by a holistic appreciation of
the spirit and letters of the 1999 Constitution (as amended).” Now, with
the greatest respect to the distinguished lawyer, my respected learned
friend, Mr Keyamo, I think that by virtue of section 147 (3) of the
Constitution of the Federal Republic of Nigeria, His Excellency, Mr
President is in duty bound to appoint at least one person from each
State of the Federation as a Minister; there must, therefore, be no
fewer than 37 Ministers of the Federal Republic. Although, by section
147 (1) of the Constitution, as amended, “the Offices or Ministries
shall be as may be established by the President,” which in effect
suggests that Mr. President is entitled to establish such number of
Ministries as he may wish. Yet, it should be noted that the power or
discretion to create Ministries is different from the power to appoint
Ministers.
Appointment to the office of Minister of the
Government of the Federation shall … be made by the President -- section
147 (2). And, regarding the NUMBER of Ministers, the Constitution does
not set any maximum; Mr President reserves the discretion to appoint as
many persons as he wishes, provided he complies with section 147 (3) of
the Constitution, which imposes an obligation on him with respect to the
MINIMUM number of Ministers. In other words, section 147 (3) clearly
obliges Mr President to appoint no fewer than thirty-seven (37)
Ministers, at least one from each State of the Federation and the FCT.
Thirty-seven (37), because, by virtue of the provisions of section 299
of the Constitution of the Federal Republic of Nigeria, as amended, the
provisions of the Constitution shall apply to the FCT, Abuja as if it
were one of the States of the Federation.
A close look at the
wording of section 147 (3), shows that the President has no discretion
as to the minimum number of Ministers to be appointed. It is immaterial
that, or if, he has decided to reduce the number of Ministries. Even if,
in recognition of his discretionary power under section 147 (1), the
President reduces the number of Ministries to two, he must still appoint
at least 37 Ministers to make up the FEC or ECF. It must be noted,
though that it is not mandatory that all the Ministers should have
portfolios; this is another area that is within the President’s
discretion. But, still talking about the minimum number of Ministers,
the provisions of section 147 (3) leaves no one in doubt: “any
appointment under subsection (2) of this Section by the President shall
be in conformity with the provisions of section 14 (3) of the
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 that State.”
I have even heard
some people suggest in this very respect that since section 14 (3) of
the Constitution is non-justiciable, being a part of the Fundamental
Objectives and Directive Principles of State Policy, failure by Mr
President to “have regard” to that section (14 (3)) in appointing his
Ministers should also be taken to be non-justiciable. This view is
wrong, first, in view of the proviso to section 147 (3), which clearly
imposes an obligation on the President regarding the minimum number of
Ministers, and second, because the view fails to recognize the fact that
section 147 (3) of the Constitution has removed section 14 (3) from the
non-justifiability of Chapter Two of the Constitution, in so far as
appointment of Ministers of the Government of the Federation is
concerned. Accordingly, the President is bound to comply with section
147 (3) in appointing his Ministers. There shall be no excuses, not even
the explanation that “Nigeria is broke,” nor the decision to trim down
the number of Ministries, could justify or permit the appointment of
fewer than thirty-seven (37) Ministers, unless the Constitution is first
amended to permit such. To do otherwise would amount to a gross
violation of the Constitution, the provisions of which Mr President has
sworn to preserve and defend!
On the other hand, what I
understand Mr Keyamo to be saying is that , in a bid to satisfy the
provisions of section 147 (3), requiring at least one Minster from each
State, the President should just ensure that before he leaves office in
four years, at least one Minister has been appointed from each State of
the Federation. This view, with the greatest respect, cannot stand in
the face of reason, common sense and clear provisions of the
Constitution. Outside the Constitution, a simple common-sense
illustration would help to clear the cobweb. Let us assume that the
President reduces the number of Ministries to, say, twenty (20), in his
bid to cut cost, ensure efficiency, (and, maybe, curb corruption), the
question is, what happens if the TWENTY men or women appointed (from
TWENTY States of the Federation) to man these Ministries are found to be
exceedingly competent, efficient, effective and trustworthy, so much so
that the President becomes reluctant to remove and replace them (with
person from the other States) so as to comply with the Constitution?
Going by Mr Keyamo’s suggestions, Mr President would, in such a case,
have no choice than to remove some or all of them at some point during
his tenure, with a view to replacing them with persons from the other
SEVENTEEN STATES, yet to be represented in the Cabinet, so as to meet
the requirements of the Constitution, in line with Mr Keyamo’s
interpretation of the same.
There is a popular saying that
“power corrupts and absolute power corrupts absolutely,” or, as Chief
Obafemi Awolowo once put it, “power enslaves and absolute power enslaves
absolutely.” With Mr. President’s proclivity to appointing only people
he “can trust,” one would not be shocked if the President, following
this school of thought, decides, for example, to first appoint the first
batch of 20 (twenty) Ministers from the 19 States of the North and the
FCT, to the exclusion of the entire Southern Nigeria, with a promise to
subsequently, probably after one or two or three years of his four-year
mandate, remove them and replace them with people from the Southern
part. He could as well choose to start from the flipside of the coin ---
this is not ruled out. But the question, now, is, how would that sound?
Although Mr Keyamo might agree that Mr President, acting in this
manner, would not have broken any provisions of the Constitution, since
by the time he leaves office in four years, he would have appointed “at
least one person from each State of the Federation?” Again, I ask, how
does such an arrangement “reflect the Federal character of Nigeria?”
And, please, also tell me, how would that guarantee “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 State or from a
few ethnic or other sectional groups in that Government?” May I
respectfully, again beg to completely disagree. This could not have been
the intention of the framers of the Constitution of a Country of no
fewer than 250 ethnic nationalities. The framers of the Constitution
knew the nature of Nigeria as a country, and had carefully chosen the
words of those sections ---- section 14 (3) and 147 (3) ---- to take
care of the very heterogeneous nature of the country. I repeat that
these words are clear on this issue.
The President must have no
fewer than 37 Ministers on the Federal Executive Council. Section 14 (3)
of the Constitution, compliance with which section 147 (3) has now made
MANDATORY, compels as follows: “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 State or from a few ethnic or other
sectional groups in that Government or in any of its agencies.” In GANI
FAWEHINMI V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (2007)
LPELR-9005 (CA), Chief Gani Fawehinmi (SAN) (may his soul rest in peace)
had argued that “the appointment of Ministers is governed by Section
147 of the Constitution …; section 14 (3) of the Constitution concerns
the reflection of the Federal character in the Appointment of Ministers
…. Ministers of the Federation are public officers established by the
Constitution and appointed to reflect Federal Character of Nigeria.”
That was Chief Fawehinmi’s view on the issue of appointment of
Ministers, even though the case cited relates to a different subject
matter.
There is, therefore, only one conclusion to be drawn
from the aforesaid provisions, and that is that there shall be no fewer
than 37 Ministers (at least one appointed from each State of the
Federation), and all sitting at the Federal Executive Council (FEC),
nay, the Executive Council of the Federation (ECF), to take decisions on
the administration and governance of this multi-lingual, multi-ethnic,
multifaceted, and if I may add, “multi-everything,” country. It is only
in this way that the very spirit and intendment of section 14 (3),
compliance with which is now mandatory (in this particular respect) by
the provisions of section 147 (3) of the Constitution, would be
respected. In a letter to Justice William Johnson of the United States,
Sir Thomas Jefferson, a founding father and 3rd President of the United
States of America, had this to say: "on every question of construction
[of the Constitution] let us carry ourselves back to the time when the
Constitution was adopted, recollect the spirit manifested in the
debates, and instead of trying what meaning may be squeezed out of the
text, or intended against it, conform to the probable one in which it
was passed." The following words of Abraham Lincoln, delivered in a
speech he made on August 27, 1856, at Kalamazoo, Michigan would serve as
a piece of advice to us on construction of our Constitution: “Don't
interfere with anything in the Constitution. That must be maintained,
for it is the only safeguard of our liberties. And not to Democrats
alone do I make this appeal, but to all who love these great and true
principles.” Let us then not turn our government and governance away
from the channel in which the framers of the Nigerian Constitution
originally placed them. The business of governance is too serious and
onerous to be left in hands of only the leaders; they need the law and
the Constitution as their guide.
Respectfully,
Sylvester C. Udemezue
(udemsyl@hotmail.coM)RYR
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