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Lawyers divided over Buhari’s plan to head petroleum ministry

By Abiodun Fagbemi, Seye Olumide, and Bertram Nwannekanma
08 October 2015   |   12:56 am
PRESIDENT Muhammadu Buhari’s declaration on the sidelines of the last United Nations General Assembly in New York that he intends “to remain the minister of petroleum resources” has stirred the hornet’s nest as Nigerians, especially lawyers have taken positions over the matter, some for, others against.
Tunji-Braithwaite-01

Braithwaite

PRESIDENT Muhammadu Buhari’s declaration on the sidelines of the last United Nations General Assembly in New York that he intends “to remain the minister of petroleum resources” has stirred the hornet’s nest as Nigerians, especially lawyers have taken positions over the matter, some for, others against.

Among those in favour of Buhari’s stance are elder statesman and constitutional lawyer, Dr. Tunji Braithwaite, another constitutional lawyer, Chief Mike Ahamba (SAN), two other Senior Advocates of Nigeria, Olusola Bayeshea and Abeny Mohammed and the Convener, Coalition of Democrats for Electoral Reform (CODER) and former National Secretary of National Democratic Coalition (NADECO), Ayo Opadokun.

However, Ebun Olu Adegboruwa, lawyer and human rights activist spoke against the idea of the president becoming minister of petroleum.
Significantly, both sides are relying on provisions of the Constitution of the Federal Republic of Nigeria to justify their positions.
Justifying Buhari’s position on holding the office of minister of petroleum, Ahamba said since the executive power of the federation is vested in the president, he could exercise this power either directly or through a minister.

Relying on the constitution, he said: “Section 5 (1) (a) of the constitution stated that “the executive powers of the Federation shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation.”

According to him, “if the president now decides to exercise the power directly by retaining the office of the minister of petroleum, I do not see anything wrong in it.
“It is my humble view that the president in deciding to retain the ministerial position is constitutional and therefore he did not break any law,” he added.

To Braithwaite, the exigencies on ground justify the president’s decision.
Although, he concurred that Section 138 of the Nigerian 1999 Constitution says the president shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever, Braithwaite said this section of the constitution cannot be treated in isolation.

This section of the constitution does not preclude the President from overseeing in addition to his presidential office, any other executive functions of the Federal Government.
“This could be resolved by the exigencies of the situation on ground.
In this case, the Petroleum ministry and the Nigerian National Petroleum Corporation (NNPC) both of which are the cash cows for Nigeria have been mired in unbridled corruption. This is an open secret.
“The President may be justified to take special look and interest to arrest and purify the stench in that ministry.”
Similarly, Opadokun said while Buhari could have appointed anybody as petroleum minister, “he is in order and for reasons best known to him to appoint himself to hold the ministry in trust for the benefit of Nigerians.”
Opadokun also recalled that former President Olusegun Obasanjo did appoint himself in 1999 as Minister of Petroleum while the immediate past Governor of Lagos State, Babatunde Fashola did not have a Commissioner for Works throughout his first tenure.

Mike-Ahamba

Mike Ahamba

Opadokun said: “Going by the present situation in the country, and Buhari having once been a former chief executive and minister of petroleum, I think he has what it takes to direct the affairs of the ministry in such a way that it will benefit Nigerians. I won’t condemn the decision, more so since he may likely appoint a Minister of State for Petroleum.

Also yesterday, Bayeshea and Mohammed threw their weights behind the president, saying his decision over his planned move not to appoint a substantive minister of petroleum in his cabinet was constitutional and needed to stem alleged cases of financial recklessness associated with the ministry.

They argued that if a former Nigerian president could rule the nation without a petroleum minister, then Buhari’s proposition should not be viewed as an aberration.

They said a section of the Constitution gives powers to the President to create or abolish any ministry at will, despite the fact that Section 138 forbids him from doing any other work but farming.

For them, the desire to supervise the ministry would not make him the minister just as it would be absurd to expect that the president would appear before the Senate in order for him to be screened as a minister.

According to Bayeshea, “people seem not to have understood what President Buhari was saying when he said he would be the supervising minister for petroleum ministry. He has the constitutional power to do so any way. But he may have a junior minister too for the ministry.
“We should not look at the letter of his statement to the exclusion of the spirit behind it. He can’t be ‘stricto sensus’ (in the real sense of the word) be called a minister so the question of his need to appear for screening before the Senate would not be right.
“There had been too much stench in that ministry. So if he wants to eradicate it, people should look at the best intention behind it.”

But Lagos-based lawyer, Ebun Olu- Adegboruwa disagreed, describing Buhari’s decision to be petroleum minister as “illegal, unconstitutional and an affront to democracy,” and “a continuation of the military mentality that the President seemed to have imbibed in his days in the Army and as Head of State, which has no place in a constitutional democracy.”

According to him, Section 138 of the Constitution provides that the President shall not, during the tenure of his office, hold any other executive or paid emolument in any capacity whatsoever.

This provision is very clear and when accorded its literal or ordinary meaning, it is obvious that the President of the Federal Republic of Nigeria can only act as the President and Commander-in-Chief of the Armed Forces of Nigeria and nothing else. He cannot occupy any other executive office which is what the office of a minister is.

For a person to function in office as a minister, his appointment, office and status have to be approved and confirmed by the Senate. Can the President appear before the Senate to be confirmed as a minister? It will be nothing but a constitutional aberration, to say the least,” he added.
He, however, advised the President to “keep his eyes on delivering the various promises he made to Nigerians during his campaign, while he continues his search for people of integrity to help him manage other departments of state.”

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