by on November 26, 2015

A few days ago I wrote on the unconstitutionality of the proposed move by the President to have ministers without portfolios. In that piece I pointed out strongly the fact that the President is surrounded with lawyers and they cannot afford to allow him commit such grave constitutional and political errors in swearing in ministers and asking them to take an oath to discharge a duty he will not give them.

So when on Wednesday, 11th November 2015, the President swore in 36 Ministers and gave all of them portfolios, a lot of people were surprised but I wasn’t. President Buhari is a shrewd tactician and I believe he should know the consequences of such a proposed action. I wrote that piece out of concern that a man I believe in was about to make a costly mistake. I’m really glad he heeded the voice of reason and the constitution.

A lot of people are already voicing concerns about having a President who says one thing and does the other. I agree that this sort of prevarication is not presidential but there is also something to cheer about in this. I think we have got a President who is not afraid of turning back when he finds out he is on the wrong path.

Many leaders of his status will be too proud to make a public statement and go back on it even if such statements are misguided. So let’s give it up to our president for this rare show of courage. But as earlier noted, the concern of those who thinks the President prevaricates is justified. One can only hope that with his team of ministers in place now the President should be properly packaged.

We don’t want to have a President who looks to the whole world as if he talks before he thinks. One day the President says he will have ministers without portfolios and the following day he swears in ministers and assigns all of them portfolios. The APC can come up with as many essay titles like “THE PRESIDENT SHOCK MINISTERS WITH PORTFOLIOS”, to make the whole thing look good but it will still not detract from the kernel of the issue.

And the issue is we should have a president who means what he says and says what he means; otherwise, soon his word might be worth just a pinch of table salt. No nation wants such a thing to happen to her president. We don’t want the President talking and people go like “Are you sure?” “Just leave him alone, he will do something else later.” Glad as I am that he later decided to give every minister a portfolio, I can’t pretend I want a president who speaks before he thinks or whose actions doesn’t match his words.

Infact this presidential word and action tug of war is generating a lot of debate and confusion as it concerns the petroleum ministry right now. First the president says he will head the petroleum ministry, he later recanted and said he will not head the petroleum ministry and then he inaugurated the cabinet without a petroleum minister but he appointed a Minster of State for Petroleum Resources, which is a deputy minister.

So is the President right now the substantive Minster of Petroleum Resources? If yes, is this constitutional? There are salient questions to answer here: 1. Can a sitting president double as a substantive minister? 2. Is President Buhari the substantive Minister of Petroleum Resources right now? Let’s turn to the constitution to answer these questions one after the other.

Section 147(1) of the 1999 constitution says “There shall be such offices of Ministers of the Government of the Federation as may be established by the President.” This section begins with a “Shall” and ended with a “May”. That is to say it mandates the President to establish offices of Ministers of the Federal Government but the number of such offices is left to the discretion of the President. In other words, we must have ministers and ministries but the number of ministries (offices of ministers) is left to the President to determine.

Section 147(3) has already mandated the President to nominate at least one Minister from each of the 36 States of the Federation, so, he very well has no choice in that. Whether he decides to have just 5 ministries or offices of Ministers, which he has powers to determine, he must have 36 ministers.

Section 148(1) empowers the president to give any office, ministry or portfolio to a minister as he likes or deem fit. In other words this section is saying that the President has the discretionary powers to say Minister “A” should be the Minister of Defense while Minister “B” should be the Minister of Agriculture. The framers of the constitutional, surely, did not envisage any president using this power to make himself a substantive minister.

So these sections clearly debunk the claim held by some persons that the President can decide to have ministries/ministers or not. The President lack such powers. He only have powers to determine the number of ministries and which minister heads any particular ministry.

Those who say the President can be a minister have surely not consider the comedy of their assertion in the light of section 147(2) which says that “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.”

Has President Buhari been cleared by the Senate? “Any person” as used in this section means any person other than the President. The power given to the President by this section is to appoint the “any person” who has been cleared by the Senate after having such ‘any person’s” name forwarded to the Senate by the same president.

Section 138 says “The President shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever.” Being a minister is clearly an executive office and a paid employment. Will the President take the oath of office for ministers as contained in the seventh schedule of the constitution after taking the oath of office for presidents? Will the President be the one to be summoned by the Senate to give account of a particular ministry? The framers of the constitution surely did not envisaged such an absurdity.

I therefore submit that it is unconstitutional for the president to double as a substantive minister of any government ministry.

To the second question: Is President Buhari the substantive Minister of Petroleum as of today? I watched the proceedings of the cabinet inauguration and there was nowhere the president declared himself the Minister of Petroleum. I know he only appointed a deputy minister in that ministry without a substantive minister and though I wish we have a substantive Minister of Petroleum, I submit that Buhari has the powers to do what he did.

Section 148 (1) says the “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.” As long as no minister is left without a portfolio, whether the president refuse to appoint a substantive minister of Petroleum, he is within the bounds of the law.

So who is the Minister of Petroleum Resources? I think that is no longer a legal question for President Buhari to answer but it will remain a moral question for him to answer.It will be sound logic to assume that Buhari is the Petroleum Minister but as long as he has not openly named himself minister such an assumption will remain legally impotent.

There is nothing in the constitution that prevents the President from naming a minister of state in a particular ministry and keeping silent as to who is the substantive minster; as long as no minister is kept without a portfolio. And having named a minister of state for petroleum, I think he has adequately provide someone that can be summoned by the Senate for their oversight functions.

I know oil is the nation’s cash cow and so the reason being given for the President to monitor it closely might be valid. But there is a “but”…

For a political party that rode to Aso Rock on the promise of diversifying the economy and doing things differently, shouldn’t the President be paying closer attention to the ministry of Agriculture? Why should a particular ministry be even more important? Even if any ministry should rank as “most important”,in my view it should be the ministry of education.

“A leader generally, if he is really the leader, does not walk on beaten tracks, because the political field situations change, men change, conditions change and environments change and a real leader must match his policies to the changing conditions.” – Shastri

 First Baba Isa (FBI) writes from Abuja

The writer can be reached on twitter via @firstbabaisa



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