57 days after being sworn in, Bola Tinubu, Nigeria’s president is yet to submit a list of ministerial nominees to the Senate for ratification. The absence of the much-awaited list has triggered a flurry of speculations and hints among citizens eagerly anticipating the appointment of key officials in the administration. Amidst the anticipation, there have also been instances of disinformation and fake news, with various high-profile politicians being wrongly linked to the coveted nomination list.
This situation is also being mirrored at the various state levels. Recently, A lawyer was reported to have taken Osun state’s governor to court for what he perceives as a contentious act of self-appointment. According to the lawyer, the governor appointed himself as the commissioner for works and his deputy as the commissioner for sports and special needs.
So, let us talk about it.
What does the law say about ministerial appointments? What makes someone qualified to be a minister? What happens after a list is submitted to the Senate or House of Assembly, as the case may be? Is there a time limit for submitting said list? Is there a penalty for failing to meet the deadline? Can one person hold two offices? What does the law say about a president or governor appointing himself to a cabinet position?
These and other questions will be addressed as best as we can.
Ministerial appointments and the Law
The task of selecting, compiling, and submitting a list of individuals to work in the government falls upon the newly elected executive. Additionally, they hold the authority to create any ministerial positions they consider necessary for their administration.
Section 147 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) gives the president the power to nominate a potential appointee to the Senate for confirmation and ratification.
Is there a time frame for ministerial nominations?
Former President Muhammadu Buhari, signed into law a constitutional amendment that mandates newly elected presidents or governors to submit the names of cabinet members for ratification within sixty days of being sworn in.
The fifth alteration bill (number 23) aims to shorten the time it takes newly elected executives to form their cabinet. Buhari himself did not submit the names of his ministers until six months after his inauguration in 2015. There have also been instances where state governors did not appoint their commissioners until after one year in office.
The ministerial and commissioner roles are critical to the newly elected head of government’s administrative success.
As it is, Tinubu has just three days to submit his list to the senate.
Are there consequences if the 60days limit lapses?
It is important to note that, while the amendment specifies the time frame and limit within which a newly elected head of government must submit to the Senate the list of ministers who will comprise his cabinet, it says nothing about the consequences if the executive fails to meet the 60-day deadline.
So who is qualified for a ministerial appointment?
Section 147(5) provides that in order to be appointed as a minister, one must be qualified to be elected as a member of the National Assembly.
Who can be elected to be a member of the legislature?
Section 65(2b) of the CFRN states that to be elected as a representative, one must identify with a political party and be sponsored by that party; this implies that only a card-carrying member of a political party can be appointed as a minister.
The law also stipulates that each of the ministers must belong to at least one state of the federation. This ensures that each of the 36 states is fairly represented.
After the ministerial list has been submitted to the Senate, what’s next?
Section 147(6) of the Constitution gives the Senate 21 days after the president submits the list to complete the screening of the nominee and either confirm or reject their appointment. Hence, the nominees are invited to the Senate plenary session for screening.
The screening process is not set in stone; sometimes nominees are asked questions about their portfolios or about themselves, sometimes senators give glowing reviews of the nominee’s character, and sometimes they are simply asked to bow and leave. According to reports, “taking a bow” is a direct approval of their appointment; those who take a bow are not grilled.
Most times, those nominees who are asked to “bow and leave” have once served as elected members of the National Assembly either as a Senator or Honorable Member of the House of Representatives.
Any senator may grill and question the ministerial nominee. In 2019, Dino Melaye asked Festus Keyamo, a Buhari cabinet nominee, to recite the second stanza of the national anthem. However, the senate president overruled his request.
Following the screening, the senate president will put the confirmation to a voice vote on the House floor, “the yay or the nay.”
Section 149 of the CFRN requires ministers to declare their assets and liabilities prior to taking office and beginning their duties.
The president will then set aside a day for their inauguration and the announcement of the various ministries (portfolio) they will lead.
Can an individual hold two portfolios?
The trend of one person managing two portfolios is unusual, but it is not unprecedented. Olusegun Obasanjo, Nigeria’s former president started the trend when he appointed himself as the minister of petroleum during his presidency from 1999 to 2007.
Muhammadu Buhari appointed himself as the minister of petroleum in 2015, while serving as the nation’s head of government.
A spotlight away from the federal government to the state; Ademola Adeleke, the current governor of Osun State, released the list of commissioners on his cabinet, and it was revealed that he appointed himself as the commissioner of works, while his deputy will preside over the ministry of sports and special needs. Their appointments are currently being challenged in court.
In 2017, a Senior Advocate of Nigeria, Olisah Agbakoba, challenged Buhari’s ministerial appointment in court, asking the court to sack him and declare it unconstitutional. His argument was based on Section 138 of the CFRN, which prohibits the president from holding any other executive appointment or paid employment, and the fact that the constitution prohibits anyone from being appointed as minister unless they go through the nomination process and Senate confirmation.
The court, however, ruled in its decision that the president was not in violation of that constitutional provision because he was not directly overseeing the office. The court explained that the phrase “hold” in Section 138 of the constitution “meant to preside, act, possess, occupy, or conduct the actual day to day running of the office” and that there would have been a violation if someone else had not been appointed to oversee the day to day running of the office.
The court went on to say that simply declaring oneself a minister is not enough to establish that one holds the office of minister. The president appointed Ibe Kachikwu as the minister of state, petroleum.
Olusegun Obasanjo also had a minister of state, petroleum who oversaw the affairs of the ministry during his tenure, but reports abound about how Obasanjo was ultimately responsible for all decisions pertaining to the sector.
We await the verdict of the court on the Osun State governor’s decision to hold two executive positions, at the same time.