Legality of political ‘call-ups’ for serving corps members 

Recent appointment of a corps member into public office has elicited controversy on the imperative of completing the National Youth Service Corps (NYSC) as a requirement for holding political office in Nigeria, AMEH OCHOJILA reports.

The National Youth Service Corps (NYSC) programme is by law essential in determining eligibility for appointment into civil service or private employment. However, for political appointments, its compliance is debatable.

The importance of the scheme stems from the notion that participating in it helps to foster a sense of national unity, social integration, and cultural understanding among Nigerian youths.

Firstly, the NYSC provides an opportunity for graduates from diverse backgrounds to interact and live together in different parts of the country, promoting tolerance, empathy, and mutual respect. Through the programme, young graduates are exposed to different languages, cultures, and traditions, broadening their perspectives and instilling in them a deeper appreciation for the unity and diversity of Nigeria.

Secondly, the NYSC programme equips participants with transferable skills such as leadership, teamwork, and problem-solving, preparing them to contribute effectively to the development of their communities and the nation as a whole.

These experiences make NYSC alumni well-rounded individuals capable of handling the challenges and responsibilities that come with such appointments, where they will be serving a diverse citizenry with varying needs and aspirations.

Therefore, the NYSC has somewhat become an indispensable criterion for political appointments as it ensures that the individuals selected possess the necessary qualities to address the complex and multifaceted issues facing the country.

Unfortunately, issues regarding the NYSC being a necessary requirement have been treated with levity by the political class.

In the recent case of Hannatu Musawa, Minister of Art, Culture, and Creative Economy, the management of the NYSC confirmed that she is a serving corps member. Nigerians have also been divided over its propriety and legality.

As the debate lingers, jurists and public affairs analysts argue that the only relevant provision for appointment, as minister is Section 147 read along with Sections 65 and 66 of the 1999 Constitution of Nigeria.

They held that Section 65(1) of the Constitution states that subject to the provisions of Section 66, a person shall be qualified for election as a member of (a) the Senate if he is a citizen of Nigeria and has attained the age of 35 years; and (b) the House of Representatives if he is a citizen of Nigeria and has attained the age of 30 years; (2) A person shall be qualified for election under subsection (1) of this section if: (a) he has been educated up to at least School Certificate level or its equivalent, and (b) he is a member of a political party and is sponsored by that party.

While they said Section 65 provides grounds for qualification to contest as a member of the Senate. Section 66 provides for grounds for disqualification as a member of the House of Representatives. Also, Section 147(5) provides that the qualification to be appointed minister is the same as the qualification to contest as a member of the House of Representatives.

“There’s nothing in the provisions that includes completion of NYSC as a qualifier for ministerial appointment,” some of them held.
But those against such appointments cite Section 315 of the Constitution, which makes the provisions of the NYSC Act and some other acts extraordinary (as part of the provisions of the Constitution, in loose terms). Subsection (5) held that “nothing in this Constitution shall invalidate the following enactments, that is (a) the National Youth Service Corps Decree 1993; (b) the Public Complaints Commission Act; (c) the National Security Agencies Act; (d) the Land Use Act, and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9

(2) of this Constitution.
“(6) Without prejudice to subsection (5) of this section, the enactments mentioned in the said subsection shall hereafter continue to have effect as federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.”

The Director, Press and Public Relations of the National Youth Service Corps (NYSC), Eddy Megwa, believes that Mrs Musawa, who is currently on her one-year national youth service, is occupying the ministerial position in breach of the NYSC Act.

Also, human right lawyer, Femi Falana (SAN) said it is a violation of the law for anybody to still be serving in the NYSC and accept a ministerial appointment.

In a statement titled: “A Youth Corps Member is not competent to be a Minister in Nigeria”, Falana said by virtue of Section 2 of the NYSC Act every citizen who graduated from any tertiary institution in and outside Nigeria and was not more than 30 years old shall be mobilised for the one-year compulsory national youth service, while any person above 30 is not eligible to participate in the service, but will be exempted and certified as so.”

An Abuja based human rights activist and a constitutional lawyer, Okuyelegbe Maliki said: “The provisions of the 1999 Constitution of Nigeria, (as altered), stated that to be a lawmaker and minister are ipsissima verba (of the same words). Section 147(6) of the Constitution provides that no person shall be appointed as a Minister of the Government of the Federation, unless he is qualified for election as a member of the House of Representatives.”

He held that Section 66 (1)(f) of the Constitution, which sets out the qualifications to be a federal legislator provides thus: “No person shall be qualified for election to the Senate or the House of Representatives if … he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn, or retired from such employment thirty days before the date of election.”

According to him, the NYSC is obviously a statutory corporation established by an Act of the National Assembly, and is financed principally by the government of the federation.

“In NNDC v. UGBAGBE delivered by the Supreme Court, it is clear that a person who is undergoing the compulsory one-year youth service, (public service of the federation) is expressly disqualified by the Constitution to be appointed a minister in Nigeria.

“This is the position of the law since the Constitution of Nigeria made the same qualifications, and disqualifications for election into the House of Representatives and appointment into the post of a minister,” he argued.

Therefore, he insisted that giving appointment to a person who is undergoing the compulsory one-year youth service by the President is null and void and of no effect whatsoever.

On the contrary, Douglas Ogbankwa, a lawyer said completing NYSC is not a condition for political appointment. “The inconvenient truth is that participating in the NYSC programme is not a sine qua non to be appointed as a minister of the Federal Republic of Nigeria,” he stressed.

According to him, a cursory appraisal of the provisions of Section 147 of the 1999 Constitution particularly sub-section 5, stipulates that no person shall be appointed as a minister of the government of the federation unless he is qualified for election as a member of the House of Representatives.

The lawyer said a community reading of the constitution with section 106, which states the qualification to be elected as a member of the House of Representatives depicts that participation in the NYSC is not a condition and by extension to be appointed as a minister of the Federal Republic of Nigeria.

“For clarity, Section 106 of Constitution states that for you to be elected into the House of Representatives, you must be a citizen of Nigeria, must have attained the age of 25 years, and you have been educated up to at least a school certificate level, or its equivalent. You must be a member of a political party and that political party must sponsor you.

“I have also looked at Section 2 of the NYSC Act. There is no law that says, a minister or minister-designate must have finished service before he or she can be appointed as a minister of the Federal Republic of Nigeria,” he argued.

He said this position has been re-enforced by a Federal High Court in Abuja, which has declared in Kemi Adeosun’s case that participation in the NYSC programme is not a condition precedent for appointment as a minister in Nigeria, adding that since the judgment has not been set aside, it remains the law in force in Nigeria.

Also, Elempe Dele, a public servant said the appointment of persons without NYSC certificate is acceptable since there is no section in the 1999 constitution that makes NYSC a prerequisite in the appointment of a minister.

He maintained that the argument on the need for NYSC certificate as requisite is faulty. He said you do not also need to be a politician to hold ministerial appointments. “We have cases of Dr Ngozi Okonjo-Iweala and some others who served under President Olusegun Obasanjo without being politicians,” he pointed out.

He noted that the NYSC act is inferior to the Constitution. “Section 1(3) of the Constitution says that any provision of any other law which is inconsistent with the provisions of the Constitution is null and void and of no effect. Since the Constitution is explicit on what qualifies one to be appointed a minister, the provision of the NYSC Act is inapplicable because it is inconsistent with the constitutional provision on the qualification for ministerial appointment. That section only makes the NYSC a part of the Constitution but not so as to set additional qualifications for appointment as minister.

“According to the principles of constitutional interpretation, a specific provision of the Constitution is superior to a general provision. The NYSC Act provides in general terms, while sections 147(5) read together with sections 65 and 66 of the Constitution specifically provide the qualification for ministerial appointment.

“To that extent, Section 1(3) of the NYSC Act is still inferior to those sections as they relate to the specific issue of qualification for appointment as minister,” Dele argued.