New Telegraph

In defence of Minister of State’s office

Some senior lawyers have faulted claims by the immediate past Minister of State for Labour and Employment, Festus Keyamo (SAN), that the of- fice of a Minister of State was not provided for in the Constitution. The lawyers while baring their minds on the issue at the weekend spoke with one voice in disagreeing with Keyamo. To the lawyers, it is the president’s prerogative to assign portfolio to the ministers and as such no one can query his discretion. It would be recalled that Keyamo had while speaking at the valedictory session to mark the end of Bu- hari’s administration disclosed that it was an aberration for the presi- dent to appoint a Minister of State. In his speech, he noted that it would be difficult to assess the individual performances of the junior ministers because any original ideas developed by them will be subjected to clearance by the senior ministers.

While acknowledging that the president had the constitutional powers to assign portfolios to his appointees, the former minister said such appointments must be in line with constitutional provision. Keyamo said: “What I am about to say, therefore, is not and should not be construed as an indication of ingratitude. Far from it. What I am about to say is just my own little contribution to our constitutional development as a relatively young democracy and to aid future govern- ments to optimize the performance of those they appoint as ministers. “Mr. President, the concept or designation of “Minister of State” is a constitutional aberration and is practically not working for many so appointed.

Successive governments have come and gone and many who were appointed as Ministers of State have not spoken out at a forum such as this because of the risk of sounding ungrateful to the Presidents who appointed them. However, like I said earlier, this is not ingratitude. “As a private citizen, I am on re- cord to have gone to court a number of times to challenge unconstitu- tional acts of governments for the sake of advancing our constitu- tional democracy, so, it will be out of character for me to have gone through government and be carried away by the pomp of public office and forget my role as a member of the inner bar and my self-imposed role over the years as a crusader for democracy and constitutionalism “Sections 147 and 148 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), deal with the appointments and responsibilities of Ministers of the Federation. The said sections state as follows: Section 147 “

(1) There shall be such offices of Ministers of the Government of the Federation as may be established by the President. (2) Any appointment to the office of Minister of the Government of the Federation shall, if the nomina- tion of any person to such office is confirmed by the Senate, be made by the President. (3) Any appointment under sub- section (2) of this section by the President shall be in conformity with the provisions of section 14(3) of this Constitution:- provided that in giving effect to the provisions aforesaid the President shall ap- point at least one Minister from each State, who shall be an indigene of such State.” Section 148 “(1) The President may, in his dis- cretion, 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. “Furthermore, the 7th Schedule to the 1999 Constitution provides for the Oath of Office to which each Minister must subscribe. There are no different Oaths for “Minister” and “Ministers of State”.

They all take the same Oath of Office. “In addition to the above, the Ministers-designate appear before the Senate and are grilled and cleared as ministers, not as minis- ters in some instances and Minis- ters of State in some other instanc- es. It is at the point of assignment of portfolios that successive Presidents then reclassified some as “Ministers of State.” Minister of State A Minister of State is a junior Minister in the Federal Executive Council (FEC) 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. The issue of appointment of Minister of State dated back to 1979 during the tenure of Alhaji Shehu Shagari. Since that time, the proce- dure has always been for the Presi- dent to send the list of ministers to the Senate for confirmation. After the confirmation, the President on his own declassifies certain minis- ters to be ministers of state. Lawyers speak In the meantime, a cross-section of senior lawyers have thrown their weight behind the creation of office of the Minister of State, saying it is not unconstitutional.

The lawyers maintained that past presidents who made appointments into the office of Minister of State flouted no law by doing so. In his comments on the issue, a former Vice-President of the Nigerian Bar Association (NBA), Mr. Adekunle Ojo (SAN), said the office of Minister of State is neither an aberration nor unconstitutional. He said: “I have actually looked at the constitutional provisions and in all fairness, one might feel natu- rally belittled that as a minister, he or she is being made to serve under another minister. But, whether the office is unconstitutional is a differ- ent kettle of fish. I don’t agree with Keyamo that the office of a Minister of State is unconstitutional and an abberation. “It is the president’s discretion to ascribe portfolios to the ministers. If for whatever reason, he has to put two ministers in one Ministry and call them senior and junior minis- ters, it is his prerogative. In essence, the office of a Minister of State is not unconstitutional”. In his submissions, a Senior Advocate of Nigeria (SAN), Chino Obiagwu, insisted that the Presi- dent has the power to appoint Min- ister of State. “The Minister of State is a Min- ister. That you are a Minister of State does not reduce you. Minister of States sits in the Federal Execu- tive Council (FEC) meetings, and they are part of the 36 Ministers that have to be appointed from all the states across the federation”, Obiagwu said. On his part, Dr Abiodun Layonu (SAN) noted that the Constitution which give the president leeway to appoint ministers, did not in any way give limit or curtails the pow- er of the president to appoint more than one. In his words: “If the President de- cides to give the ministers any form of designation or title or nomencla- ture, so be it. I certainly do not agree with the view of my learned brother silk. “But if we are to talk about the practical or pragmatic effect of hav- ing two ministers in a ministry, those are issues of human relations. As it is with human nature, some people prefer that they carry all the powers, draw everything to themselves and probably leave nothing to somebody else. It is all part of the exercise of power. That does not make such an appointment an aberration”. Speaking in the same vein, Dr. Fassy Yusuf, said there was no ab- beration or unconstitutionality in the office of a Minister of State. “A minister is a minister, it could be a senior minister or a junior min- ister. What is important is the word, minister, and we should not read other meanings into it. I have not seen anything in the Constitution that says one cannot be a Minister of State. If what Keyamo is suggest- ing is true, then it means we are go- ing to have 36 ministries. So, I want to advise that we should stop mak- ing a mountain out of a mole hill”, Yusuf said. A rights activist, Mr. Kabir Aking- bolu, was highly critical of Keyamo’s submissions, saying he was awfully wrong. Akingbolu said: “How do you see or view a person who occupies a seat for four years, took salaries, collect- ed allowances, extacodes and other fringe benefits and then turn around on his last day in office to denounce his position? It is highly unfortunate. To me, it is too patronizing and preposterous to commonsensical reasoning in view of the provision of the constitution that says the president shall appoint a minister of justice and such number of min- isters in the running of his office. The constitution never mentioned the factors which means the presi- dent is at liberty to go about it in the best way he thinks. “What is festus talking about? Even in America, there is junior minister called Under Secretary. The substantive minister is called Secretary of State and so on. I think he should be questioned or interro- gated and be made to refund all the monies he had collected illegally oc- cupying illegal office. “It is unconscionable of him to continuously collect salary when he knew it was wrong. To me, it’s a polit- ical gimmick to get well placed in the new government, because honestly speaking, no reasonable person will take him serious on that assertion as the president had not done anything wrong or unconstitutional contrary to his uninformed position which is borne out of individual or personal interest”. On his part, Dr Yemi Omodele, noted that the Constitution rarely mention ministers.

“The Constitution does not categorize whether a federal or state minister. The Constitution only said, ministers. “The categorization of Minister of State is the imagination of poli- ticians to satisfy their political sup- porters. When a politician contests, he has supporters that would sup- port him and when they support him and he emerges as the winner, he would want to satisfy his supporters. “So, supporting those supporters, the politician gives them political appointments. I think that was what past administrations have been doing by having federal and state ministers. “With due respect to Festus Keyamo (SAN), who had said the appointment of Minister of State is an aberration and not constitutionally right, his observation is coming after he had enjoyed the benefits of that office having served as a Minister of State under the government of the immediate past administration of former President Muhammadu Buhari.

 

“In my view, the reason why he must have raised such an observation is to correct such an impression in the future. With due respect, I think the said political appointee, if he had wanted to be sincere, would have gone ahead to decline such an appointment, but he did not do that. “Saying that such an office is un- constitutional is as good as saying he had occupied an illegal office. But I wouldn’t say it is an illegal office because he was appointed, and his appointment was confirmed by the National Assembly as a Minister. “Regardless of that, I just want to refer to Section 147 (1) of the Con- stitution of the Federal Republic of Nigeria 1999 (as amended).

It says, “There shall be such Offices of Ministers of the Government of the Federation as would be established by the President’. “Subsection 2 says, ‘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 Sen- ate, be made by the President’. “Subsection 3 says, ‘Any appointment under Subsection (2) of this Section by the President shall be in conformity with the provisions of Section 14(3) of this Constitution: provided that in giving effect to the provisions aforesaid the President shall appoint at least one Minister from each State, who shall be an indigene of such State’.

“Subsection 4 says, ‘Where a member of the National Assembly or of a House of Assembly is appointed as Minister of the Government of the Federation, he shall be deemed to have resigned his membership of the National Assembly or of the House of Assembly on his taking the oath of office as Minister’. “Subsection 5 says, ‘No person shall be appointed as a Minister of the Government of the Federation unless he is qualified for election Section 147 (1) of the Constitution, it says; There shall be such Offices of Ministers of the Government of the Federation as may be established by the President. “It is very clear that when you in- terpret the law or the Constitution literarily, you don’t bring in foreign laws or extraneous materials into it. “So, whether the President calls them Minister of State or whatever is at the sole discretion of the President. The only caution the Constitution gives to it is Section 147 (2) that as may be confirmed by the Senate. “So, there is nothing illegal in it as far as the President has appoint- ed them and confirmed by the upper legislative chamber of the National Assembly”. In his comments, Mr. Malachy Ugwummadu, posited that Section 147 of the Constitution talks about the prerogative of the President upon the confirmation of the Sen- ate to make appointments into the Office of Ministers of the Government of the Federation. He added that Nigeria has an Ex- ecutive President who though can- not operate outside the law, and the law is as provided under Section 5 of the Constitution which vests that executive powers on the President directly. “The issue is with respect to the appointment under Section 147 of the 1999 Constitution as to whether the President has the prerogative or right to make appointments with designations other than the Minister of the Federal Republic of Nigeria. “It is more or less like asking whether the President has the capacity to also create a ministerial portfolio. The answer is in the affirmative. “For exigencies and the purposes of effectual administration of government, particularly with intent to innovations and reforms and dynamics of contemporary times, I have made the point that it is not expressly provided for under the Constitution, the President under Section 5 of the Constitution reserves the right as the Executive President of Nigeria to be able to create Ministries or bureaucracies in a way that helps to facilitate the performance of the functions of his office”, Ugwummadu added.

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