Ministers without portfolios, grave constitutional errors and why we should all be worried

The President has told us that nearly half of the 36 ministerial nominees cleared by the Senate will not be given portfolios because the Federal Government cannot afford to pay them. He claims that his decision is even backed by the constitution. According to him the constitution only mandates him to allow the ministers to sit in his cabinet. And the Senate President has even lend his support to President Buhari’s stance by reminding him that this will not be the first time Nigeria will be having ministers without portfolios.

I have read every word of the 1999 constitution as amended searching for even an alphabet that supports this claim by the President and Senate President and couldn’t find any. With the deepest respect, the President’s claim is unconstitutional and his stance is a political and personal invasion of the 1999 constitution as amended. And the Senate President’s remark is misguided, politically anachronistic and a clear show of party nepotism.

Let me begin with the Senate President’s remark. The only time we had ministers without portfolios was in the First Republic when we practiced the parliamentary system of Government. Then, cabinet ministers were also members of parliament. So for the Senate President to compare that era with the presidential system we practice now is a comparative dislocation with the intent to deliberately mislead.

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) 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.” I believe this is the section that might be confusing some people as to the President’s powers. The discretionary powers vested on the President by this section does not in any way empower the President to keep a Minister idle.

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 keep a minister idle or without a portfolio.

Who is a minister of the Federal Government anyway? Someone becomes a Minister after going through 3 constitutional stages. The first stage is when his name is sent to the Senate for screening and confirmation. At this stage he is known as a ministerial nominee. After the screening and confirmation by the Senate he is known as a ministerial designate. So when does he become a minister?

A joint reading of sections 147(2) and 148(1) of the constitution will show you that after the confirmation by the Senate, someone can only become a minister when he is appointed by the President into an office. The President cannot just declare a person a minister without giving him a portfolio. The constitution didn’t make provisions for ministers by declaration; we have ministers by appointment. And an appointment must be done into an office.

An online dictionary defines appointment as “The act of appointing; designation of a person to hold an office or discharge a trust. The state of being appointed to service or office; an office to which one is appointed. The assignment of a person by an official to perform a duty.” So where did we get the idea that someone can be appointed a minister without an office or portfolio? Ministers without portfolio is unconstitutional and a lynching of commonsense.

The President said most of minister designates will sit in his cabinet without having portfolios. This is surely going to be a constitutional tragedy. As I have earlier pointed out, without being given portfolios they are not ministers in any sense. They are only minister designates. What is a cabinet in governmental sense? An online dictionary defines a cabinet as “The group of ministers responsible for creating government policy and overseeing the departments comprising the executive branch.”

Section 148(2) that stipulate cabinet meetings says “The President shall hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation…” so any person who attends these meetings without a portfolio is not a minister and as such has contravened this section of the constitution. The President should be careful not to plunder the very constitution he swore to uphold.

And the economic reason being given as why some minister designates will not have portfolios is suspect. Is attending cabinet meetings or sitting in the cabinet not part of a minister’s job? Who says they are not entitled to remuneration or allowances just by attending meetings or sitting in the cabinet? If you ask them to sit, you can as well be asked to pay them for sitting.

This whole “they will just sit in the cabinet” thing gets more ridiculous when you look at the constitutional oath the minister designates will take as contained in the Seventh Schedule of the 1999 Constitution as amended. Part of the oath reads: I, ………. do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as Minister of the Government of the Federation, I will discharge my duties to the best of my ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Federal Republic of Nigeria…” So do you see it? President Buhari will ask the minister designates to take an oath to discharge duties he will not give them.

If they are not given portfolios they are not ministers and it will be unconstitutional for any of them without portfolio to sit in the cabinet. Any minister designate who is not given a portfolio is not a minister and his home state cannot be said to have a minister in the Federal Cabinet as stipulated by sections 14(3) and 147(3) 0f the constitution.

I wonder what will qualify one minister to have a portfolio and another not to. The President has been accused in the past of being tribalistic and sectional in his appointments. Some people believe that if the constitution has not forced his hand, he wouldn’t have named indigenes of some state in his ministerial list. Indigenes of such states will be hard pressed not to believe that this is a ploy to technically deny them a ministerial slot if their indigene is one of those who will not be given a ministerial portfolio.

This is why we should all be worried. What if states who might be denied ministerial portfolios are those who voted massively against President Buhari? They might see this as punishment for their electoral sins. And even those who voted massively for the President might feel slighted if their indigene is among those denied a ministerial portfolio. This is a political gamble a wise party who wants to remain long in power will not play.

Nerves are strained, people are frustrated, and this government should not take actions that are opened to so much sectional colourations. I will advise any state denied a ministerial slot by not being given a portfolio to approach the courts to test the law in this regard.

If money is truly the problem then the President should negotiate with some of them to work without pay. Afterall no man or woman on that list is poor. Some of them are ex this and ex that, earning fat pensions from our commonwealth. I hear that some of them have even offered to work for free. If this is true and the President is still insisting on having ministers without portfolios then there is more to it than meets the eye.

I believe the large retinue of lawyers around the President are not blind to this illegality he is about to commit and I understand the burden they must have in trying to interpret the constitution to suit the President’s whims but when the consequences dawn on all of us, this nation will remember their legal silence.

First Baba Isa (FBI) writes from Abuja

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