In a short period of one week, President Buhari has gone from stating that some of his soon-to-be-appointed ministers will have no portfolios, to reversing himself (through his senior special assistant on media, according to Daily Trust), and then to insisting on his earlier position. I had originally entitled an earlier version of this piece for my “For Crying Out LOUD!” column in Vanguard as above, then rephrased the last five words as “to Appoint 36 Ministers” upon reading the Daily Trust report “All ministers will get portofio (sic) — Presidency,” and then returned to my initial title when I saw, later in the day, the counteracting report “Some ministers will have no portfolios, Buhari tells Saraki” in Vanguard.  

Pres. Muhammadu Buhari

Needless to say, one of the qualities that recommended, even endeared, President Buhari to a majority of the electorate over and above former president Goodluck Jonathan in the last election was that of resoluteness. His first coming as military head of state had left no one in doubt that his mind, once made up, can be as unbending as his steely spine. His character profile said simply: Buhari means what he says and says what he means. In general, this is an admirable quality, especially in a leader, but it can also prove to be a flaw, as candidate Buhari learnt during the campaigns when some of his less carefully guarded statements — borne of righteous indignation at the bare-faced robberies misnamed elections in at least two of his previous tries for the presidency — were hurled back at him with glee by his opponents.

But that enviable characteristic, it would appear, has deserted the president in the matter of the number of ministers to appoint into his cabinet. Convinced, as we all are, of the crying need to reduce the size of government, Buhari would prefer to appoint only eighteen ministers. But the constitution, he says, ties his hands. Specifically, Section 147(3) which enjoins the president to “appoint at least one Minister from each state.” It is a well-intended but woolly-headed offering to the Moloch altar of federal character enshrined in Section 14(3) of the constitution. Here it is in all the glory of its purblind vision: “The composition of the Government of a State, a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognise the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.”

The president who wishes, however, to appoint only 18 ministers, laments that he “cannot work outside the constitution” as “there must be a cabinet representative from each state.” But is the president truly hamstrung? Actually, no. All that Buhari needs is the political will to do that which is not only rational but also constitutional. Section 147 which purportedly fetters him begins thus: “There shall be such offices of Ministers of the Government of the Federation as may be established by the President.” In other words, Buhari is free to decide the number of ministries, and so the size of his cabinet. If fair representation in government is the goal, then that is more perfectly taken care of by the legislature which, lest we forget, is an arm of the government! In any case, the mere appointment of an individual from a state does not in any way guarantee fairness to every individual or group inhabitant of that state. For instance, the Isoko people have never had a minister appointed from their midst in all of the 55 years of Nigeria’s independence!

My good friend and comrade, Jiti Ogunye, has brilliantly exposed the fallacy of the thinking that the constitution binds the president hand-and-foot to a prescribed number of ministers in his article entitled “Must Nigeria have at least Thirty-Six Ministers of the Federation?” published by the online newspaper Premium Times (26 October 2015, http://blogs.premiumtimesng.com/?p=169364). I commend it to the president, particularly as he seems to base his desire for a leaner and justifiable cabinet more on an inability to pay the salaries and emoluments of 36 ministers in the face of the current fiscal crisis — “There use[d] to be forty two ministers but I think we can barely keep half of that now because we cannot afford it” — than on the sheer absurdity of a narrow and backward interpretation of the constitution. What the constitution enjoins is fairness in the appointment of any number of ministers that a president might deem necessary for effective governance and the realisation of the manifesto or programme for which he was elected. With 36 states and counting, a literal interpretation of Section 147 only produces a very costly absurdity. Such as impelled the president to contemplate appointing ministers without portfolios but who would nonetheless “sit in the cabinet because that is what the constitution said and we can’t operate outside the constitution.” No, I repeat, the constitution does not insist on that. At the very least, it is ambiguous, leaving the way open for a liberal and preferable interpretation. Or for any state that feels unfairly treated and denied the chance of displaying loyalty to the nation to approach the Supreme Court for justice.

As every sophomore law student knows, however, the Golden Rule of statutory interpretation is to be preferred where the literal or strict constructionist approach would lead to absurdity; or when the intention of parliament—which as a rule cannot be absurd or deemed against equity, natural justice and good conscience—cannot be easily discerned; or, where discernible, it would be impossible to implement. To appoint ministers without portfolios, in other words, without a job to do, is simply to worship the letter while profaning the spirit of the constitutional goal of fairness and national sense of belonging. It is to perpetuate the unacceptable status quo. And it is to prolong the material and moral vandalisation of the nation of which President Buhari speaks so eloquently and passionately. He must now bring his fabled resoluteness to bear on the problem. That would be a true measure of the change we all yearn for and which he swears to help bring not caring whose ox is gored.

Ogaga Ifowodo

omoliho@gmail.com

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