BY PROF OBIARAERI, N.O

Beyond the euphoria or mixed feelings or anguish (whichever is applicable to whomsoever) heralding the submission by the President of the lists of 2023 Ministerial nominees to the Senate for confirmation; 

beyond the consequential or resultant agitation by gender activists that the Ministerial list is misogynistic, gender insensitive and did not reflect Gender Equality espoused as Goal 5 of the United Nations Sustainable Development Goals (there are only 9 women out of the 48 nominated Minsters); 

beyond the political sentiment that the South East geopolitical zone is marginalised in the Ministerial appointments (the South East has only 5 representing the five South East States out of 48 Ministerial nominees with no additional South East Zonal appointee unlike the other five geopolitical zones that got one or more extra zonal nominees outside their number of States); 
beyond the concern or the reality check whether 48 Ministers nominated (the highest so far in the history of the country) is not an unwieldy bureaucracy given the hard times and anemic condition of the economy; and beyond the debate whether the protocol adopted by the Senate in the ongoing Ministerial screening is appropriate process for leadership recruitment in this day and age of intellectual rigour,

there is the compelling need to carefully examine whether the President acted within or outside the Constitution by submitting a piecemeal list of 2023 Ministerial nominees to the Senate for confirmation on the various dates he did and specifically whether the President complied with the nascent mandatory constitutional provision that the Ministerial list must be submitted to the Senate within sixty days when he submitted additional lists on 2nd and 4th August 2023 having been sworn into office on the 29th day of May 2023.

This inquisition is undertaken to underscore that the provisions of the national Constitution must be obeyed by all persons and authorities in Nigeria and failure, refusal or neglect to obey same has dire consequences. As expressly provided in section 1(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended the Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria. 

Before returning to the rather technical but important legal analysis, the following are the primary facts that flow directly from the constitutional stipulations and verifiable political developments namely:1. Under section 147(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the President is required to submit his Ministerial nominees to the Senate for confirmation. 

The President has the right to appoint his Ministers while the Senate reserves the power to confirm or reject any Ministerial nominee. A Ministerial nominee who is not confirmed by the Senate cannot be sworn into office by the President.

2. In composing the Federal Executive Council, the President is mandated under section 147(3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, to appoint at least one Minister from each State of the 36 States of the federation, who shall be an indigene of such State. 

This means that the President may appoint more than one Minister from a given State but cannot afford not to appoint a Minister from any given State. This reinforces the provision of section 14(3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended to the effect that the composition of the Government of the federation shall reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.

3. A new constitutional provision, via Fifth Alteration (No. 23) signed into law on the 17th day of March 2023, compels the President and Governors to submit the names of persons nominated as Ministers or Commissioners within sixty days of taking the oath of office for confirmation by the Senate or State House of Assembly. 

The present 2023 Ministerial nomination by President Tinubu is the first since this law came into effect. This extant law is designed to curtail abuses and anomalies occasioned by past experiences where some erstwhile Presidents or Governors saw themselves as “Sole Administrators” and as such did not deem it fit to appoint Federal Ministers or State Commissioners more than seven months or even one year after inauguration.

4. The incumbent President was sworn into office on the 29th day of May 2023. Among other things, both in the Oath of Allegiance and in the Oath of Office, the President swore to preserve, protect and defend the Constitution of the Federal Republic of Nigeria and to discharge his duties in accordance with the Constitution of the Federal Republic of Nigeria and the law.

5. In keeping with the provision of section 147(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, on the 27th day of July 2023, the President sent a list of 28 Ministerial nominees to the Senate for confirmation. This nomination was within the 60 days’ time limit but fell short of the requirement that a Minister must be appointed from each State of the Federation under section 147(3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. An analysis of the different States of origin of the 28 Ministerial nominees contained in the list of 27th July 2023 revealed that 11 States did not have Ministerial nominees. Without argument, this list did not satisfy the mandatory provision in section 147(3) of the Constitution that the Federal Executive Council must have at least 36 Ministers (one appointed from each of the 36 States of the federation by the President) but the President was not out of time in submitting it. 

6. On Wednesday the 2nd day of August 2023, another list containing 19 Ministerial nominees was submitted by the President to the Senate for confirmation. Significantly, this second list contained Ministerial nominees from the eleven States not previously included in the first list submitted. It also contained additional nominees from other States that were previously accommodated in the first list. With this second list of Ministerial nominees, the mandatory requirement of section 147(3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended that the President should appoint at least one Minister from each State of the federation was satisfied. 

By computation of time, this list was submitted 65 days (instead of within 60 days counting from the 29th day of May 2023) after the President was sworn into office.

7. On Friday the 4th day of August 2023, the President wrote the Senate to- (a) withdraw and replace a Ministerial nominee on the second list submitted on the 2nd of August 2023 and (b) add a new Ministerial nominee thus bringing the total number of Ministerial nominees to 48. 

By computation of time, this list was submitted 67 days (instead of 60 days counting from the 29th day of May 2023) when the President was sworn into office. 

8. In sum, out of the total number of 48 Ministerial nominees now undergoing confirmation screening before the Senate, only the 28 contained in the first list of 27th July 2023 were nominated to the Senate for confirmation before the expiration of sixty days’ time limit. 
The remaining 20 were nominated for confirmation by the Senate after the expiration of the constitutional time limit.

9. By computation of time, based on facts already disclosed in paragraphs 4, 6 and 7 above, and as summarized in paragraph 8 above, the lists of Ministers submitted by the President to the Senate for confirmation either on the 2nd or 4th day of August 2023 were submitted after sixty days’ time limit. 

These developments have raised issues of grave constitutional concerns as constitutional provisions must be obeyed.
A number of questions have been thrown up.

What will the Senate do with the list of 20 Ministerial nominees submitted after 60 days in breach of the nascent constitutional provision? 

Should the Senate reject all the 20 Ministerial nominees submitted to it by the President outside or after the expiration of the 60 days’ time limit required by the Constitution? 

It must be acknowledged that this is a dicey situation bearing in mind that the alteration did not expressly stipulate the punishment for breach of the time limit by the President. 

There is also the compelling need to have every State represented by a Minister in the Federal Executive Council as provided in section 147(3) of the CFRN, 1999 as amended and to satisfy the requirement of inclusion in section 14(3) of the CFRN, 1999 as amended. 

In the present circumstances, to reject all the 20 Ministerial nominees contained therein will amount to denial of the constitutional right of States excluded in the first list of 27th July 2023 to be represented in the Federal Executive Council.

Will the Senate exercise its discretion to reject only the Ministerial nominees submitted outside the constitutional time limit who are indigenes of States already accommodated (as required under section 147(3) of the CFRN, 1999 as amended) in the earlier list submitted within the time limit? 
Only the Senate can decide at this stage!

It is beyond argument that the lists of 20 Ministerial nominees submitted by the President to the Senate beyond the 60 days deadline are in clear breach of the Constitution. 
Was this an oversight or deliberate or calculated? 

One makes bold to say that it certainly could not have been deliberate given that the President can be removed from office for breach of the Constitution which is termed gross misconduct under section 143(11) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. 

How will the Senate treat this constitutional breach considering that it is the first time this constitutional time limit for submitting Ministerial nominees became operational? Will the “doctrine of necessity” be invoked to overlook these infringements in the interest of the nation?  Again, only the Senate will decide.

Whatever the Senate does or does not do on this score, it needs to be reemphasized that the law is ensconced like the Rock of Gibraltar that Constitutional provisions must be obeyed strictly. The idea of imposing the time limit for composition of cabinet members is to ensure that the President or Governor hits the ground running immediately on assumption of office. 

To further  reinforce this notable provision, it is suggested that the Constitution should be further amended to provide a clear time limit within which the President or Governor shall take to fully reconstitute the Federal Executive Council in the event of a cabinet dissolution. A President or Governor who dissolves his cabinet or removes a cabinet member midway should be  expressly required to reconstitute the Executive Council within sixty days of dissolution or to re-appoint a Minister from a State that is not represented in the Federal Executive Council in the event of disengagement of a Minister representing that State.

Meanwhile, congratulations to the Ministerial nominees who will get confirmed by the Senate and ultimately sworn into office by Mr President. Congratulations is better than sorry. To whom much is given, much is expected.
A new normal is possible!

Prof Obiaraeri, N.O.

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