Why It Is Incorrect To Say President Can Appoint At Least 37 Ministers – Festus Keyamo

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The long-held notion in Nigeria that the President of the Federal Republic of Nigeria is under an obligation to appoint at least thirty-seven (37) Ministers into his cabinet is not correct after all – at least by a holistic appreciation of the spirit and letters of the 1999 Constitution (as amended).

This notion has been taken for granted that no one has bothered to read the provisions of the Constitution over and over again. And of course, since it suits the politicians to promote this notion, none of them has ever dared to suggest otherwise. But, with the greatest sense of patriotism, I submit that the President can, indeed, appoint far less than thirty-seven (37) Ministers and have a very lean cabinet.

The whole idea of having at least thirty-seven (37) Ministers is derived from section 147(1), (2), (3) and section 302 of the 1999 Constitution (as amended) which states as follows:

“147. MINISTERS OF FEDERAL GOVERNMENT
(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 nomination of any person to such office is confirmed by the Senate, be made by the President.
(3) Any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of section 14(3) of the 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.”

A cursory reading of the above section will lead to a quick conclusion that since we have thirty-six (36) States of the Federation, a Minister from each State would naturally mean that the President must appoint at least thirty-six (36) Ministers from the States. And if you add the Minister for the FCT that section 302 imposes on the President to appoint, then the conclusion would naturally be to have at least thirty-seven (37) Ministers of the Federation. However, I respectfully submit that this long-held notion is built on a faulty premise, a constitutional misunderstanding and a restrictive interpretation of section 147 as quoted above.

Firstly, the Constitution does not stipulate the time-frame within which the President shall appoint Ministers once he assumes office. If that is accepted then it means the President has the whole of the four-year tenure at his disposal to fulfill the Constitutional provision of appointing a Minister each from each State of the Federation.

Secondly, the Constitution does not state that the Ministers so appointed have a fixed term of office. In other words, they are appointed and removed at the pleasure of the President. They are not bound to spend four years in office with the President.

Thirdly, the Constitution does not state that ALL the Ministers from all the thirty-six (36) States and the FCT must be appointed at the same time. To buttress this point, most Presidents in the past have always sent list of Ministers in batches to the Senate for approval and nobody has raised an eye brow about that. In fact, a close look at subsections (2) and (3) will show that the phrase “any appointment” is consistently used, and not “all appointments”. It means the appointments can be done piecemeal.

Fourthly, the Constitution does not state that all Ministers appointed from each State must enjoy equal tenure of office. The provisions of section 147 shall be satisfied if, during the tenure of that administration, at least a Minister is appointed from each State of the Federation – irrespective of the period of time they spend in office.

Lastly and most importantly, subsection (1) gives the President an absolute discretion to establish “such offices of Ministers of the Government of the Federation”. That subsection does not circumscribe the discretion of the President to create as many or as little portfolios as he deems fit and is not made subject to subsection (3).

The sum total of all I have said above is that,

(a) If we accept that the President can appoint and remove Ministers at will;
(b) If we accept that the Constitution did not state that all the Ministers from each State must be appointed at the same time;
(c) If we accept that the President is not given a time frame within which he must appoint Ministers upon assuming office;

then we must accept that the President can appoint far less that thirty-seven (37) Ministers in the first instance upon assuming office. But he must ensure that before the end of his tenure as President, he rotates or reshuffles his cabinet in such a way that each State must produce at least a Minister. Of course, this is not suggesting that for the sake of continuity in government, the President cannot appoint thirty-seven (37) or more Ministers from the inception. He can, of course, do that. It is his complete discretion to do so. But nobody should suggest that it is not his discretion to appoint far less than thirty-seven (37) Ministers and reshuffle his cabinet at mid-term or any time at all to accommodate all the States of the Federation.

In sum total, what section 147 of the Constitution merely stipulates is that during the term of office of a President, he must appoint a Minister each from each State of the Federation. The provisions of the section do not state that AT THE BEGINNING of his term of office, he must appoint a Minister each from each State of the Federation.

In conclusion, at this time when the President-elect, Muhammadu Buhari has vowed to cut down the size of his cabinet, he may consider drastically reducing the number of Ministers. A large cabinet is an unnecessary drain on our national resources.

I rest my case.

FESTUS KEYAMO, ESQ.

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