By Chief Mike Ozekhome, SAN, OFR
Last week, we discussed the non-justiciability of Section 14 (3) of the Constitution and its spill over effects on Ministerial appointments. Justiciabilitity concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual adversarial issue exists.
Although there is no argument that neither Section 14(3) nor Section 147 gives any individual the right to approach a court to compel the President to appoint ministers, it is pertinent to state that the violation of a mandatory Constitutional provision, which may not always be justiciable, is always impeachable under the provision of Section 143 of the Constitution.
Now, Section 14 (3) of the Constitution of the Federal Republic of Nigeria, 1999, as altered, provides: “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 groups or other sectional groups in that Government or in any of its agencies”.
Section 147(3) is very clear and unambiguous. By Section 147 (1), “the offices or Ministers shall be as may be established by the President”. This has been used by some people to argue that by this provision, the President is constitutionally permitted to establish such nummber of Ministers as he desires.
Indeed, some people have stood logic on its hear by arguing that the intendment of Section 147 (3) is that the President must ensure that by the time he leaves office in four years, he should have, at one time or the other, appointed at least one person as a minister from each state of the Federation. This notion is nothing but a red herring and a specious gamble.
It is submitted that Constitutional provisions as THEY relate to the appointment of ministers are not in any way discretionary, but expressly mandatory and exclude whims and caprices in appointing less than the Constitutional requirement by the President. Thus, the President has no choice but to appoint at least 37 ministers.
However, it must also be stated that although, it is Constitutionally mandatory for the President to appoint at least, 37 ministers, one from each of the 36 States and the FCT, the discretion of assigning portfolios to ministers, or how many ministers he must have, are purely within the President’s power in accordance with Section 147(1) of the Constitution, which in interpretation states that the President must establish offices and ministries.
This means PMB can decide to have as many as 100 Ministers but only 10 Ministries, if he so desires. But, he must have at least 37 Ministers.
That is the imperative and obligation of Section 147 (3). Indeed Section 147 (1) actually gives him the discretion to create “such offices of ministers of the Government of the Federation” as he deems necessary. This means PMB can collapse all his ministries to five or expand than to 100, but he must obey Section 147 (3) in appointing Ministers to man them. Thus the discretion to create ministries is quite different from the power to appoint Ministers. The first is discretionary, the second, mandatory.
The President also has the discretion whether or not to assign portfolios to ministers. He could have Ministers as Minister, 1, 2, 3, or Minister, Deputy Minister, Vice Minister, Assistant Minister. That can only be according to his style. He can also decide to rename the Ministry of Foreign Affairs, as Ministry of External Affairs, or rename the Ministry of Interior as Ministry of Internal Affairs (as they were in those days of Military Junta).
He can also decide to collapse Ministries, eg. He can collapse Ministry of Agriculture and Rural Development with Ministry of Water Resources and rename it as Ministry of Agriculture and Water Resources. In the same vein, he can collapse Housing, Urban Development, and Works and call it Ministry of Works, Housing and Urban Development. Aviation being part of transport, PMB may decide to have one emergent Ministry of Transport and Aviation, just as he can collapse Communication and information into one. The coast is wide clear for him to do all these.
In the middle of this analytical write up, PMB finally unveiled his Ministers into his administration. That means his government has just taken shape, and it is now the real work will begin. But looking at the portfolios, however, I congratulate PMB for reducing the positions from 49 to about 25. But, some of the mergers are simply unworkable, elephantine, behemoth and administratively unwieldy.
In Jonathan’s government, Okonjo Iweala was the super Minister as she not only headed the crucial Ministry of Finance, but also doubled as the coordinating Minister of the Economy. This effectively made her a super Minister and the unofficial Vice President of Nigeria.
In the new organogram just set up by PMB, former Governor of Lagos State, Babatunde Fashola SAN, has emerged the super Minister with three former crucial Ministries collapsed under his grip. But the Ministries are highly unrelated. What is the relationship between Power, Housing and Works? One would have expected the Ministry of Power to be tackled alone since it is the beginning and the end of Nigeria’s challenges of underdevelopment.
While Power has to do with generating constant light and energy, Housing has to do with accommodation for teeming Nigerians. Works on the other hand, has to do with the building of durable roads and bridges across Nigeria. Each of this is a daunting task in itself.
How will Fashola, no matter how brilliant and hardworking he is, be able to execute the challenging duties in each of these three-in-one ministry, in a situation where many of the equally brilliant ministers were made ministers of state with little or nothing to do? For example, what is Ocholi, SAN doing in the cabinet as a Junior Minister under Ngige that heads Labour and Employment? What is Dr. Ehanire, a brilliant Medical Doctor, seasoned politician and the only representative of Edo State, the Heart Beat of the Nation, doing in the cabinet as a Junior Minister?
Trust Nigerians, no matter the controversy and tension generated by any issue, they have a creative way of putting humour in it and dousing the tension, and one cannot help but clasp his ribs with laughter, such is the case of Fashola and his three ministries in one.
After the assigning of portfolios, under the attention catchy head of “Breaking News”, an anonymous Nigerian posted as follows: “President Muhammadu Buhari this afternoon explained that Power, Housing and Works are not under one man as many have said. He said, Babatunde is Minister of Power, Raji is Minister of Housing and Fashola is Minster of Works”. You cannot beat Nigerians and their creativity and ingenuity.
As for PMB who has appointed himself the substantive Minister of Petroleum Resources, with brilliant and hardworking Dr. Ibe Kachikwu as a Junior Minister, it is hoped that he will find enough time from his very busy schedule as President, C-in-C of the armed forces of FRN, to execute his onerous duties of this very sensitive Ministry.
Obasanjo did same before him and we did not see any positive result. Yet, we have been talking about corruption in the Oil industry, which actually blossomed under OBJ. But, who can probe OBJ? We are running after trifles and mere messengers when the principals are available, but untouchable.
I suggest that PMB appoints Kachikwu substantive Minister since he has shown himself to be capable to tackle the massive and mind boggling corruption in the Oil sector. He has shown this in the last three months as the GMD of NNPC.
Congratulations, PMB, for finally swimming across the Sharks-infested oceans of high wired politics, centripetal, centrifugal, to finally name your cabinet, even if belatedly. Welcome on board, Ministers and Deputy Ministers. Let the work now begin. Nigeria we hail thee!