It’s Illegal for Buhari to Appoint Himself Minister, Says Ex-CLASFON President

 President Muhammadu Buhari

• Ndume, Hon: There is nothing wrong with it

By Tobi Soniyi in Abuja and John Shiklam in Kaduna

Former President of the Christian  Lawyers  Fellowship of Nigeria (CLASFON), Pastor Sunny Akanni, has said Nigerians will challenge President Muhammadu Buhari for violating the provisions of the constitution if he goes ahead to appoint himself as  the petroleum minister.

Buhari had in an interview last week during his visit to New York said he would head the ministry of petroleum and that he would only appoint a minister of state to assist him.

His decision was greeted with so much criticisms by many who held the view that the nation’s constitution forbids a president from holding another public office.

But the Senate Leader, Senator Ali Ndume, dismissed such arguments, saying many Nigerians who are saying that the president cannot appoint himself as minister are ignorant of the constitution.

Also, a constitutional lawyer, Sabastine Hon (SAN), said the president has the constitutional power to so do.

Akanni, a Kaduna-based legal practitioner, told THISDAY in a chat that Section 148 of the Nigerian constitution (as amended) does not permit the president to hold ministerial position.

“He can only ask the vice-president to add the minister of petroleum to his portfolio as the president cannot hold any executive position apart from being the president of the country.

“If he goes ahead to appoint himself as minister of petroleum, it will amount to violation the provision of the constitution of,” he argued.

According to him, former President Olusegun  Obasanjo was able to get away with such illegality during his tenure because he became president at a time when Nigerians wanted to do away with military rule.

He said this time around, Nigerians have become politically aware and cannot keep quiet when they see leaders doing things with impunity.

He said no matter Buhari’s good intentions by choosing to be minister of petroleum, he would be making a mockery of the constitution in this era of change being championed by him.

However, Ndume in an interview with the Hausa service of the British Broadcasting Corporation (BBC) monitored yesterday in Kaduna, maintained that Section 5 of the Nigerian constitution empowers the president to control up to three ministries not just one.

“Section 5 of the constitution allows the president to take control of up to three ministries no just one and he must not even come to the senate to be screened because the constitution permits him to appoint himself or the vice president to be in control of any ministry,” he said.

Also commenting on the ministerial screening scheduled for Tuesday next week, the Senate Leader said screening would be different from previous ones because the provisions of the constitution would be adhered to.

“The screening will be slightly different because in the past, the law was not being followed, the present government is a government of change and wants to obey the law. That is why we scheduled the screening to Tuesday next week so that the nominees will have the time to meet the requirements prescribed in the constitution.

“The requirements include proofs that they are educated up to secondary school level and that they are up to 30 years of age and their state of origin, since one minister is to be appointed from every state. They must also be card carrying members of the party and they have the support of the party,” he said.

Asked whether those who are not card carrying members of the party will not be screened, Ndume said: “Every nominee would be screened because the president is the one who selected them, but we are talking about the provision of the constitution. Anyone who loves Buhari will not say he does not like APC.”

Also, Hon said the president’s self-appointment as minister of petroleum was moral, lawful, constitutional and valid.

According to him, Section 5(a) of the 1999 Constitution as amended has provided for the executive functions of the federation to be performed by the president “directly or through the vice-president and ministers of the government of the federation or officers in the public service of the federation.” 

He argues that, the “or” separating “directly” and “through” in the paragraph mean the president is at liberty, subject to other provisions of the constitution, to assign any ministry to himself or to assign it to the vice-president, a minister or any of the other persons named in the paragraph.

This position, he stated “is reinforced by the provisions of sections 130(2) and 148(1) of the constitution.”

He stated that while section 130(2) has made the president the Chief Executive of the Federation, section 148(1) provides that the president may, in his discretion, assign to the vice-president or any minister of the government any executive function.

This he said  had clearly  created absolute discretion in favour of the president either to assign to himself such executive functions or to delegate them to his ministers.

He argued further: “Indeed, section 147(1) of the constitution provides that there ‘shall be such offices of Ministers of the Government of the Federation as may be established by the President.’

“While the phrase ‘there shall be such offices of Ministers’ implies that the president must appoint ministers form his executive council, the rest of the provision means he can expand or trim down existing ministries as he deems fit.

“This further goes to show that the issue of appointment of ministers is entirely at the discretion of the president, which discretion is so personal to him that no other power can validly question him on the choices he has made.
“Apart from section 147(1) of the constitution which has made it mandatory for the president to appoint ministers - even though the section has, as shown above, not placed any burden on him to appoint a particular number of ministers - section 150 of the said constitution has established the office of Attorney-General of the Federation and Minister of Justice.

“Thus, under our constitutional scheme, the president is under obligation to appoint a Minister of Justice who must posses the qualifications named in section 150(2).   “Appointment to office of the Minister of Justice, therefore, is one of the limitations on the seemingly nebulous powers of the president to appoint Ministers - which means that the president is under obligation to appoint at least the minister of justice.”

He concluded that the president’s self appointment as minister of petroleum is moral, lawful, constitutional and valid.

The framers of the constitution, he said, were wise in making it so, because the president of Nigeria was unlike the prime minister of a nation under the parliamentary system of government, who must be personally (and not collectively) liable for the success or failure of his government.

According to him, Buhari has taken a monumental risk by offering himself to serve as minster of the potentially combustible petroleum ministry, which has always come under harsh and pinpoint scrutiny by not only Nigerians but by members of the international community as well.