Lawyers disagree over legality of Tinubu’s ministerial nomination

Lawyers disagree over legality of Tinubu’s ministerial nomination

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Last week, President Bola Ahmed Tinubu submitted the second batch of names of nominees for ministerial positions in the Federal Republic of Nigeria, bringing the total number of nominees to 48. However, there had been various criticisms trailing the list especially in terms of legality. YEJIDE GBENGA-OGUNDARE in this piece explores the legal steps highlighted under the provisions of the law for selection of ministers and the level of compliance in the recent exercise and different views expressed by lawyers.

Following the submission of the names of ministerial nominees to the Nigerian Senate in batches, activist and legal practitioner, Ebun-Oluwa Adegboruwa, SAN, joined the list of people that faulted the composition of President Bola Tinubu’s ministerial list and the process of the nomination. Speaking on a national television, he claimed that the manner in which the President sent his ministerial nominees’ list to the Senate, was not in tandem with the requirements of the constitution.

He further argued that the first batch of 28 names, sent to the Senate, was less than the number of states in the country, adding that compliance with the provisions of the constitution should be holistic and total, rather than at the discretion of the President.

“First of all, is to state that from the point of view of the law, we don’t have ministers currently because the president didn’t fulfill the requirements of the constitution in nominating the ministers or sending the list. The first thing the constitution says clearly is that you must have one minister per state, at least there must be a ministerial nominee from each of the states of the federation who must be indigenes of that particular state and we have 36 States.

“Then also, the law says in sending these nominees, he must do so within 60 days he has taken the oath of office. The president took the oath of office on 29th of May. By sending the names of ministerial nominees that is less than number of states in Nigeria, that means he has not fulfilled or complied with the constitution because he sent 28 names within the 60 days.

“You don’t decide as discretion on how you want to comply with the constitution. The compliance must be holistic; it must be total. At the time the president was sending the list, he should have sent not less than 37; 36 States for the purpose of ministerial appointments, and FCT is also counted as a state.

“So, not sending 37 names as of 27th of July, the President has not complied with the law,” he had said.

Another Senior Advicate of Nigeria, Chief Yomi Alliyu will not agree with his fellow Silk.

He told The Jury that “By Section 130 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended), the President is the Chief Executive of the Federal Republic of Nigeria and the discretion of who to nominate and appoint as a minister, and even the portfolio to be assigned to them, resides with him, save that he has to comply with Sections 14(3) & 147 of CFRN as regards Federal character and a minister from all the States including FCT, the discretion is absolute!”

Speaking on the position of the law, the learned Silk further posited “The law is trite that the donee of a discretionary power in the Constitution that is absolute can use any method he thinks will better serve compliance with the discretion where no procedure for doing same is stated in the Constitution or Act. Cases like LIVERSIDGE v. ANDERSON  and our  local case of  ADEREMI v. AKINTOLA are good examples.

“On the above premises, one cannot say PBAT (President Bola Ahmed Tinubu) in nominating candidates from every State in Nigeria including FCT, has breached any provision of the law. His action is more in compliance than in breach; the list having also been brought within the 90 days of taking his oath of office” he submitted.

 

No agreement.

Even views from the Outer Bar, are divergent, with a former chairman of Ikeja Bar, Dave Ajetomobi, pointing out that it is natural for lawyers to see issues of law from different perspectives.

“As lawyers, we are bound to see things from different perspectives” he notes to The Jury, adding that “In my view, since the President reserves the right to hire and fire, I don’t think the process of nominating or substituting his nominees has any issue.”

The Bar leader further argued that the “Process of nominating, to my mind is not same as submission of names of nominees to the NASS; that is done privately by the president, by consulting his party leaders at all levels which is not open to the public.

“Sending the nominees’ name, is another process, which can be done by forwarding same through the officer in the presidency, I think the chief of staff is by no means a small man in the presidency.

“The constitution did not say that the courier must be a specific person or of a particular rank! In the USA, any official can be sent with the list of nominees to the Senate not necessarily a political appointee.

“Let’s not be pedantic about this, it is the exclusive preserve of the president. The constitution only requires him to submit the list for screening, how he comes about the names are his privilege,provided every state and FCT is represented,” he added.

Barrister Foluso Olapo is disagreeing with the views of the past Ikeja Bar chair.

He notes that, “It is good that people are pointing to this (piecemeal submission of ministerial nominees’ list).

“The constitutional provision is that the president should forward the name of his nominees to the Senate within two months of his inauguration. A piecemeal submission of the name to extend beyond the constitutional provision, is illegal and unconstitutional” he reasoned.

Human rights activist, lawyer and founding National Secretary of NCP Comrade Femi Aborisade, has a different dimension to his opinion.

“I do not see how any good person can save the Tinubu-led Federal Government from failing and falling below societal expectations and constitutional standards. This is because the Tinubu-led government has chosen to impose obnoxious policies on the people. The Tinubu-led government is already discredited for anti-people policies in less than two months of its existence.

“A political party is essentially an idea. The APC/Tinubu-led government is already notorious for imposing ideas that the worst military dictatorship could not imagine implementing. To the extent that the Ministers are to drive the pernicious policy-ideas of the President, to that extent, the Ministers would collapse and lose credibility as the Tinubu-led government has lost credibility in less than two months of its existence. Only to that extent, the Ministers can neither save Nigeria nor take Nigeria forward,” he said.

 

Who can be a minister? 

The provisions of Section 147(5) of the 1999 Constitution, states that in order to be eligible to be a minister, the individual must meet the same criteria, to be elected as a member of the House of Representatives. The law has a key criterion that qualifies any individual to become a minster.

According to the Nigerian Constitution, there must be at least one Cabinet member from each of the 36 states in Nigeria, although there are only 28 ministries and at times, the President takes direct control of key ministries like Petroleum Resources. To ensure representation from each state, a minister is often assisted by one or more ministers of state

The criteria that qualify an individual to become a minister of the Federal Republic of Nigeria are as follows:

*the minister must be a citizen of Nigeria

*dual citizenship is not permitted,

*must be at least 25 years old,

*must have been educated up to at least school certificate level or its equivalent, *must be of sound mind,

*should not be under specific types of criminal sentence and;

*should not be an ex-convict for a crime involving fraud and dishonesty.

And based on this provisions of the law, any person who does not meet the strict criteria set out, is not eligible and can have his nomination challenged in court.

 

Process for appointing a minister

There is a legal laid-down procedure for appointing a minister in Nigeria and this procedure falls under five steps;

 

Background checks 

Though it is not a constitutional requirement, it is considered a priority in administrative practice that every potential ministerial nominee must undergo a background check which is carried out by the Department of State Services (DSS) and once their background check is complete, they present it to the President, who then decides whether or not to proceed with the nomination. The security report is only to serve advisory roles and the President isn’t legally bound to act on it in one way or the other.

Asides from the background check which is done by the DSS, the Senate requires that all nominees submit themselves to fingerprint clearance by the Force Criminal Investigations Department of the Nigeria Police Force.

 

Presidential Nomination

For anyone to become a minister in Nigeria, his name must appear on the nomination list of the president and the president must mandatorily present this within 60 days of taking the oath of office.

 

Senate Screening

This is the stage where the nominees are presented to the Senate, and the Senate in full session is able to ask questions from the nominee. Questions can range from their background, to their previous experience, and in some instances if there are issues of alleged misconduct, the nominee can be asked to explain these things to the Senate, so they can determine if the person is suitable to become a Minister.

After the question-and-answer session, the Senators are then asked to vote on whether to confirm the nominee, and they will do a majority vote.

In some instances the Senate has taken to the practice of asking some nominees to ‘bow and go,’ reserved for nominees who are either former members of the National Assembly or are well respected.

 

Asset declaration and oath of office

The provisions of Section 149 of the 1999 Constitution mandate ministers to declare their assets and liabilities and to take the Oath of Allegiance and the oath of office before they can commence their role. If the nominee is someone who is already a public office holder, the expectation is that he/she would have already declared assets. In fact, the Senate won’t screen these public office holder-nominees if they have not already declared their assets.

 

Allocation of office

After the formalities of asset declaration and taking oath of office, the President is then free to appoint a minister to the ministry that such individuals will supervise; this process is known as appointing a Minister to a portfolio.

 

 

Role of ministers

While many people understand that there is always a minister appointed to head ministries, some only think it is a political appointment to cater to the ruling class. This raises the question about the responsibility of a minister?

A minister is someone that is appointed by the President to head a ministry, and is charged with making and implementing decisions on policies for that ministry.

A Minister of State is a junior Minister in the Nigerian cabinet and is normally the principal deputy or one of the deputies to the minister in a federal ministry. The Minister of State may in some cases be the head of a special department in the President’s Office. By law, both Ministers and Ministers of State are regarded as Ministers of the Government of the Federation.

 

Cheers, jeers. 

Speaking on the ministerial list, a former governor of Abia State, Orji Uzor Kalu, commended the President for insightful comprehension of the Nigerian socio-political landscape which he says was evident in list.

“For me, the president has demonstrated capacity of understanding the diversity and geographical spread of Nigeria, I know many people will be complaining that some zones get more, and some did not get more, yes, it is in order, the constitution provides that every state must have one but I appeal that he should give south east one more, to be able to have the sixth one that they used to have.

“To be honest with you, the ministerial list has shown that the president will understand the fundamental problems of Nigerians. Tinubu has shown an understanding of the rudiments of political processes,” he said.

However, there were recriminations from many women groups over the level of women inclusion in the list.

Advocates argued that like his predecessors, President Bola Tinubu had failed to meet the 35 per cent women representation affirmative action, as stipulated in the National Gender Policy 2006.

They said that from 1999, no Nigerian President attained the 35 per cent women representation affirmative action, while decrying the low number of women appointed as ministers by President Tinubu, who they said during his campaign, had promised to respect the affirmative action.

A female politician, Ndi Kato, said the alleged lack of respect for affirmative action, “shows that this government has no regard for women. We have an abundance of qualified women and we have been advocating throughout the process of selecting ministers. The disrespect of tossing women’s request like it doesn’t matter is traumatic.”

Comrade Sola Olawale of the Campaign for Democracy (CD) on his part stated that the list of nominees is proof of Tinubu’s experience and wisdom as a politician, adding “President Bola Tinubu is an experienced politician. You know he even included former Governor Nyesom Wike of Rivers and one other PDP member in his cabinet. He is thinking about future elections. He is not done with the list, only compensating those who have helped him in the past elections and building on the future.

“Those appointed now will be his foot soldiers across the country, if he intends to go for a second term. The list is okay, as far as I am concerned. It will encourage more people to work for him because they now know that if you work, you will be compensated,” he said.

 

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