Single Executive
Section 5 (1) of the Constitution of the Federal Republic of Nigeria, 1999, provides that:
5 (1) Subject to the provisions of this Constitution, the executive powers of the Federation –
(a) 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; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
And Section 148 (1) provides that:
The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of Government.
By those provisions, the executive powers of the Federation are 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; and shall extend to the execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters concerning which the National Assembly has, for the time being, power to make laws. This creates a single executive. What that means is that irrespective of where or to whom they are specifically assigned by the Constitution or a Statute, every executive power of the state is vested in an individual known as the President who is the executive branch of the Government. Unlike the Legislature and Judiciary which are institutions, the Executive arm of Government is the President. The Ministries, Executive Departments, Agencies and offices are bureaucracies through which the President performs the executive business of the Government. The President is, therefore, in absolute command and control of all the executive institutions, ministries, executive departments, agencies and all other bureaucratic agencies, no matter how constituted or called and every one of their respective executive heads is assigned or deemed to be assigned to them by the President. This single executive means that all the heads of the various executive departments are agents of the President and the acts they performed in the regular course of business are presumptively the acts of the President unless expressly disapproved or reprobated by him.
In the article “Assigning Duties or Functions to Ministers”, published in the Nigerian Law Guru, the late Prof Nwabueze expressed the following opinion about the power vested in the President under Section 5(1) of the Constitution:
Under Section 5(1), therefore, the President is within his constitutional right to exercise the entirety of the executive powers of the Federal Government by himself directly, without assigning any part of them or any business of the Government to Ministers, subject to what is said below about the manner or form for exercising the powers. More explicitly, he can keep all the ministries or departments under his direct responsibility and use the Ministers for general duties as Ministers “without portfolio”. This accords with the letters of Section 5(1), though not with its spirit.
If he chooses to assign any part of the executive powers or any business of the Government to the Ministers, he is deemed, in law, to be the one exercising the functions, the Ministers being simply agents to exercise in his name and by his authority, functions so assigned or delegated to them by him. As agents, the Ministers’ official acts, done in the regular course of business, are presumptively the President’s. This encapsulates the principle of “a single executive” underlying Section 5(1) and the presidential system; the Vice-President and the Ministers are not co-beneficiaries of the executive powers with the President; the powers belong to him alone, not to him, the Vice-President and Ministers as joint owners or co-owners. Such is the logic of the principle of the single executive underlying the presidential system. Interestingly, if somewhat inaptly, Section 130(2) designates him (the President), not as the Executive, but as “the Chief Executive”. The implications of the designation, “Chief Executive”, in relation to the principle of a single executive underlying the presidential system, are examined in my book titled, Presidentialism(1974), 442 pages, pp. 18 – 25.
What this invariably means is that all executive appointees in all the length and breadth of the government of the Federation hold their offices and must perform their functions at the pleasure of the president.
It is, therefore, safe to say that although the Constitution specifically established offices, the officials of the said offices are only surrogates or agents of the President with delegated powers and not independent sharers of executive powers. In this wise, we shall now discuss the Vice-President and Ministers and in the third part, we shall discuss the offices of the Secretary to the Government of the Federation; the Public Service of the Federation; and Agencies of the Federal Government.
We shall focus in this part on the vice-president and ministers to assess their importance and how they can influence and impact the functioning of the office of the president.
The Vice-President
Unlike the Ministers and Special Advisers appointed by the President after his electoral victory and assumption of office, the Vice-President of the Federal Republic of Nigeria is nominated at an election by the President as his associate (generally referred to as running mate) from his political party for his running for office of president. The Vice-President shall only occupy the office of Vice-President and be deemed to have been duly elected to the office of vice-president when the president who nominated him wins the election for which he was nominated as an associate. See Section 142(1) of the Constitution.
Eligibility
A person shall be qualified for election to the office of Vice President if – (a) he is a citizen of Nigeria by birth; (b) he has attained the age of thirty-five years; (c) he is a member of a political party and is sponsored by that political party; and (d) he has been educated up to at least School Certificate level or its equivalent. See Sections 131 and 142(2) of the Constitution.
Disqualifications
A person shall not be qualified for election to the office of Vice-President if – (a) subject to the provisions of Section 28 of the Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or (b) he has been elected to such office at any two previous elections; or (c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or (d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or (e) within a period of less than ten years before the date of the election to the office of president he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or (f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country; or (g) being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election; or (h) he is a member of any secret society; or (i) he has presented a forged certificate to the Independent National Electoral Commission.
Tenure of Office
Although the Vice-President is elected on the auspices of the President, he assumes a life of his own the moment he takes the oath of office. Unlike the Ministers and Special Advisers whom the President can sack at will, his tenure is guaranteed as that of the President and can only be removed from office by impeachment under Section 143 of the Constitution or by a Special Resolution passed by a two-thirds majority of all the members of the Executive Council of the Federation under Section 144 of the Constitution. Because of the laborious effort and the rigidity of the processes and procedures for the removal of a Vice-President, there is every likelihood for the Vice-President to be a dagger in the heart of a President in the case of irreconcilable differences or acute conflict between the President and the Vice-President. The case of Obasanjo and Atiku comes to mind here.
In 1999, the Peoples’ Democratic Party (PDP) nominated Chief Olusegun Obasanjo as its presidential candidate in the 1999 Nigerian presidential election. Chief Olusegun Obasanjo, in turn, nominated Atiku Abubakar, a member of the Peoples’ Democratic Party, as his associate for the post of Vice-President to contest the election. Both Obasanjo and Atiku were duly elected but did not end their tenure on a good note as Atiku almost snatched the presidential ticket of the PDP for the 2003 general election from Obasanjo.
Obasanjo, however, renominated Atiku as his running mate for the 2003 presidential election. Both Obasanjo and Atiku were again declared duly elected after the elections and were sworn into office on 29th May 2003 as the President and Vice-President of the Federal Republic of Nigeria respectively.
Subsequently, the relationship between Atiku as Vice-President, on the one hand, and the President, Obasanjo and the Peoples’ Democratic Party, on the other hand, soured. Eventually, Atiku, while still in office as Vice-President, resigned from the Peoples’ Democratic Party, and joined another political party known as Action Congress. In response, Obasanjo withdrew all the rights, privileges, and entitlements, including all security details and staff of Atiku, and declared the office of the vice president vacant.
In response to Obasanjo’s onslaught, Atiku instituted a suit at the Court of Appeal against the Attorney-General of the Federation AGF), the Inspector General of Police(IGP), the Independent National Electoral Commission (INEC) and the Institutions that make up the National Assembly, praying the Court for several reliefs that included the following:
- A declaration that the term of office of the plaintiff as the Vice-President of the Federal Republic of Nigeria which commenced on 29th of May, 2003 still subsists and does not terminate until 29th of May, 2007.
- A declaration that the President has no power under the Constitution of the Federal Republic of Nigeria, 1999, or any other law to declare the office or seat of the plaintiff as the Vice-President of the Federal Republic of Nigeria vacant.
iii. A declaration that the purported declaration by the President of the Federal Republic of Nigeria of the office of the plaintiff as Vice-President of the Federal of Nigeria vacant is unconstitutional, illegal, null and void, and of no effect whatsoever.
- An order setting aside the withdrawal of all the rights, privileges, entitlements, inclusive of all security details and the staff of the plaintiff as directed by the President of the Federal Republic of Nigeria.
- An order restoring all the rights, privileges, entitlements and or benefits howsoever of the plaintiff as the Vice-President of the Federal Republic of Nigeria.
- An order of perpetual injunction restraining the defendants whether by themselves, agents, privies, servants, or otherwise howsoever from impugning or violating constitutional immunity conferred on the plaintiff as the Vice-President of the Federal Republic of Nigeria.
The Court of Appeal granted the reliefs sought by Atiku. Dissatisfied with the decision of the Court of Appeal, the AGF, IGP and INEC appealed to the Supreme Court. The Supreme Court dismissed the Appeal and affirmed the decision of the Court of Appeal.
While reflecting on the nature of the office of Vice-President and the relationship between President and Vice-President of the Federal Republic of Nigeria, the Supreme Court stated that:
The Vice-President, by the intention of the legislature as expressed in the provisions of Section 142 of the 1999 Constitution, is not subordinate to the President nor is the relationship between them that of master and servant. That the Constitution intends the Vice-President to be an associate of the President does not go beyond the time of the election of both of them to office. Once they have been elected into office, they stand separately. [P.D.P. v. I.N.E.C. (1999) 11 NWLR (Pt.626) 200 referred to.] (Pp. 174-175, paras. E-C)
In the words of Per I.T. MUHAMMAD, J.S.C as he then was:
… democracy, which is founded upon a Constitution, which assigns offices and responsibilities, the Vice-President cannot be a slave to the President with no will or opinion of his own and that his personality or individuality should submerge in that of the President. That is perhaps why Abdullahi, PCA held the view that:
‘I too, do not know of any authority which creates a supine, single-minded Vice-President, indeed a robot. It is respectfully to my mind not the intention of the Constitution to create a Vice-President with no mind of his own.’
Although both the President and his Vice contested and won the election together under the umbrella of the same party, I share the same view with the court below that the bond of companionship which compelled them particularly the Vice-Presidential candidate to remain together during election loosens, soon thereafter, and they would swim to certain extent separately. On his election, the Vice-President ceases to be the Vice-Presidential candidate of the sponsoring party but a Vice-President of the Federal Republic of Nigeria, so says Section 141 of the Constitution.
According to the apex court, the resignation of Atiku from the PDP was not enough to punish him as Obasanjo intended to do. In the words of the court:
It is manifest from the provisions of Sections 68(1)(g) and 109(1)(g) of the 1999 Constitution that the makers of the Constitution intended to and indeed made punishable the defection of a member of the Senate, House of Representatives or a House of Assembly from the political party that sponsored him to another political party before the expiration of the period for which the legislative house was elected by declaring the seat of such member vacant. However, no similar provision is made for the Vice-President or the President. In other words, if the makers of the Constitution had intended the vice-president or the President to suffer the same fate as a member of the Senate, or House of Assembly, they would have inserted such provision in the Constitution in clear terms.
Unlike the Ministers, the President cannot remove the Vice-President. The process of removal of the President or the Vice-President is provided for in Section 143 of the Constitution. It is through the process of impeachment which is to be conducted by the National Assembly as set out in that Section. Section 143 (10) of the Constitution specifically ousts interference of the Court from the proceedings leading to the impeachment of the holders of the two offices. See AG FEDERATION & ORS V. ABUBAKAR & ORS (2007) LPELR-3(SC); A.-G., Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1(SC).
Powers and Responsibilities of the Vice-President
The Vice-President is much more than an appendage of the President. He is the second-highest-ranking government official, ranking just below the President. He is that person who is ever standing by, eager and ready to step in and assume the presidency in case the President proceeds on vacation or is unable to discharge the functions of the office and, therefore, transmits a written declaration to the President of the Senate and the Speaker of the House of Representatives to that effect or upon a resolution made by a simple majority of each House of the National Assembly mandating the Vice-President to perform the functions of the President upon where the President is unable to transmit the written declaration or when the office of the President becomes vacant because of the death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason under Section 143 or 144 of the Constitution.
The position of the President-in-waiting can generate tension between the President and the Vice-President, and an impatient Vice-President can orchestrate a scenario that will accelerate the transfer of power to him by either the legislative organ or the military in the case of an ailing president who fails to hand over power to him.
Generally, Section 148 of the Constitution lists out the following executive responsibilities of the Vice-President and Ministers:
148(1) The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of Government.
(2) The President shall hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purposes of –
(a) determining the general direction of domestic and foreign policies of the Government of the Federation;
(b) coordinating the activities of the President, the Vice-President and the Ministers of the Government of the Federation in the discharge of their executive responsibilities; and
(c) advising the President generally in the discharge of his executive functions other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body.
The Constitution also assigns, but not vests, the following responsibilities to the Vice-President:
(1) The Vice-President shall be the Deputy Chairman of the Council of State which advises the President in the exercise of his powers with respect to the:
(a)
- national population census and compilation, publication and keeping records and other information concerning the same,
- prerogative of mercy,
- award of national honours,
- the Independent National Electoral Commission (including the appointment of members of that Commission);
- the National Judicial Council (including the appointment of members, other than ex-officio members of that Council), and
- the National Population Commission (including the appointment of the members of that Commission); and
(b) advise the President whenever requested to do so on the maintenance of public order within the Federation or any part thereof and on such other matters as the President may direct.
(2) The Vice-President shall also be the Deputy Chairman of the National Defence Council which advises the President on matters relating to the defence of the sovereignty and territorial integrity of Nigeria.
(3) The Vice-President shall be the Chairman of the National Economic Council which advises the President concerning the economic affairs of the Federation and in particular on measures necessary for the co-ordination of the economic planning efforts or economic programmes of the various Governments of the Federation.
(4) The Vice-President is also the Deputy Chairman of the National Security Council which advises the President on matters relating to public security including matters relating to any organization or agency established by law for ensuring the security of the Federation.
Besides the roles and duties enumerated above, the Vice-President is a regular representative of the President at local and international ceremonies and conferences. He is also a regular stand-in public speaker, presenter, and educator of government policies. He deputizes the President and Chairs Federal Executive meetings at the absence of the president.
Because the National Economic Council comprises the Vice-President, the governor of each state of the federation and the governor of the Central Bank of Nigeria, an ambitious Vice-President can use the regular National Economic Council meetings to ally with the Governors to wage a political war against the President.
The Relationship between the President and the Vice-President
The security of the tenure of the Vice-President and the roles specified for him in the Constitution do not derogate from the principle of a single executive. The functions of the Vice-President, including those enumerated above or those expressly stated by the Constitution are, as stated in Section 148 of the Constitution, performed at the pleasure of the President and dependent on the quality of the relationship and trust between the President and the Vice-President. The President can withdraw or suspend them without a substantive reason or at any time for any reason, except an illegal one, or for no reason without incurring legal liability.
So, although the President cannot sack the Vice-President, he can “tame” him.
The President can contain an overambitious Vice-President by not assigning duties to him. Although the 1999 Constitution specifically created the office of both the President and the Vice-President, it vests the executive powers of the federation in only the President. Although the President is required to exercise the executive powers conferred on 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, he is under no duty to assign specific roles and functions to them. In other words, even though the 1999 Constitution assigns some specific roles to the Vice-President, the amplitude or enabling environment for the performance of those roles has to be created by the President. The President can render the Vice-President redundant and no court can compel the President to enable him.
Each Vice-President brings into the office his unique style and policy or political drive. The underlying caution is that the office of the Vice-President is not an alternate or competing office to the office of the President. The Vice-President should be a trustworthy and dependable associate who is ever ready to serve the President to enhance the office of the President. A Vice-President who uses the office as a stepping stone for his political career or ambition is bound to work at cross-purposes with the President. The worst danger is that a rift between the President and the Vice-President will mean a rift in policy direction and implementation. In political terms, a rift between the President and his Vice-President is capable of dividing the cabinet along loyalty lines, and that will be catastrophic for the President. No President deserves to be inflicted with the malaise of a disloyal and overly ambitious Vice-President. Conversely, it is in the interest of the President to cultivate and nurture a symbiotic, positive and complementary relationship with his Vice-President. He must accord respect to his Vice-President and engender confidence in the Vice-President. A good working relationship between the President and his Vice will reflect and impact positively the overall image and performance of the government.
To ensure necessary, good and self-supporting and self-sustaining relationship, both offices must be weary of gossipers, rumour mongers, sycophants, hateful, jealous, malicious and destructive aides, associates, relations and acquittances. Both parties must establish channels or backend means of verifying rumours, gossip and tell tales and even malice that come in the form of concerns or advice. Focusing on the project that binds the two together will provide the energy and power that will burn and melt away destructive malice. It is also essential to have the two offices populated by professionals with specified duties and schedules. Hangers-on and indolent relatives and associates are prone to manufacturing stories to justify the space and time they take in the corridors of the two offices. Most gossip and false narratives that are fed to the public about the two offices are often generated by the idle crop of lay-abouts who populate the offices. The less the population of idle hustlers around the offices, the better the work conditions and health of the two offices. The less Aso Rock becomes a pilgrimage destination for hustlers, the better the governance performance of the two offices.
Aso Rock should be preserved as the symbol of the presidency and not a hangout for political jobbers and loafers. Its official hours must resonate the seriousness and enormity of state and government business.
The Ministers
A Minister, in this context, is an appointee of the President who serves as the Chief Executive and political head of a ministry or an arm of a Ministry at the pleasure of the President. All Ministries of the Federal Government statutorily have the Office of the Honorable Minister.
The office of Ministers is provided by Section 147(1) of the Constitution which provides as follows:
147(1) There shall be such offices of Ministers of the Government of the Federation as may be established by the President.
Qualification
By Section 147(5) of the Constitution, 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 qualification of a member of the House of Representatives, as provided in Section 65 of the Constitution, is that he must be a citizen of Nigerian who has attained the age of 25 years; has been educated up to school certificate level or its equivalent; and is a member of a political party and is sponsored by that party. The presentation of a National Youth Service Corps certificate is not a requirement and, therefore, not necessary. Technically, a primary six school leaver who has worked as a driver or gateman either in the public or private sector and has attended courses and training in institutions accepted by INEC, and can read, write, understand and communicate in English to the satisfaction of INEC is eligible for appointment as a Minister of the Federal Republic of Nigeria.
Appointment
Section 147(2) & (3) of the Constitution provides for the appointment of Ministers on the following terms:
(2) Any appointment to the office of Minister of the Government of the Federation shall, if the nomination of any person to such office is confirmed by the Senate, be made by the President.
(3) Any appointment under Subsection (2) of this Section by the President shall be in conformity with the provisions of Section 14(3) of this Constitution: Provided that in giving effect to the provisions aforesaid the President shall appoint at least one Minister from each State, who shall be an indigene of such State.
The process of appointment of ministers in Nigeria is initiated by the nomination of some persons by the President to serve as Ministers of Government and concluded by the confirmation of such nominees by the Senate. Each of the 36 States of the Federation and the Federal Capital Territory, Abuja, is to have at least a minister.
Writing in the Punch of 26 June 2023, with the title: “Appointing Ministers of the Federal Republic of Nigeria”, Eze Onyekpere remarked as follows:
By the foregoing, the number of Ministers is to be determined by the President as well as the portfolio to be assigned to each Minister. And the President is required to observe the federal character principle, including appointing one Minister from each state. The constitutional provision comes with a mischief in that it is after the nomination of the President has been confirmed by the Senate that the ministerial position will now be assigned by the President to the nominee. This mischief is what has guaranteed round pegs in square holes and persons with little or no knowledge of the subject matter of their ministries being appointed Ministers to oversee the sector.
Onyekpere had earlier in the article opined that:
From this provision, it is clear that the quality of governance expected from the President will to a great extent be determined by the quality of his team, including the Vice-President, Ministers, advisers and even the quality of the public service. It is also an aphorism that the quality of advice or service an adviser or Minister can render is dependent on the expanse and quality of knowledge available to him, including his life experiences, character, competencies and the nobility of his volition.
It is difficult to fault Onyekpere’s views except to say that he overlooked the political component in the exercise of the power of composing the Federal Cabinet. Unfortunately, the Constitution does not impose a cabinet of philosophers, experts and technocrats or ministries and departments with specific knowledge requirements. Besides the office of the Vice-President and the Attorney-General of the Federation that are constituted by the Constitution, the jobs or businesses of government that can be assigned to the Ministers are at the discretion of the President. The term “minister” is not a term of art that comes with its definition and description. What the minister does or can do is entirely dependent on what is assigned to him by his appointor.
Serving at the Pleasure of the President
The dogma, ‘serving at the pleasure of the President’ is derived from the single executive concept. It personifies the theory of the imperial president. In this context, serving at the pleasure of the President means that the ministers serve in their role at the discretion of the President and can be removed, transferred or demoted from their position by the President at any time, without giving any specific reason. Although the minister is a representative of a state, and his appointment is in fulfilment of the prescription of the Constitution and as a reward to the political party to which he belongs, his role in the cabinet and the government is subject to the President’s satisfaction and approval.
This “pleasing” or “pleasuring” or “satisfying” the President comes with its dilemmas. In the first place, it throws in the question of who the minister is meant to serve in performing the business of government that is assigned to him by the President. If it is the President, then it reinforces prebendalism, by which ‘government business’ means the President’s business. In this case, the necessary expertise of the minister for “good performance and effectiveness” is the ability to please the President who owns the office and its resources. Accountability to the public and sound technical and practical knowledge become secondary. They need not be responsive to public opinion or outcry and are under no moral pressure to resign in the case of public displeasure or rejection because serving at the pleasure of the President relieves them of the duty to be accountable to the people or justify their actions to them. They do not necessarily bear the burden of public trust, and it is of no moment that the public hardly notices the value they add to governance or they are rightly or wrongly viewed as vectors of corruption and waste.
In the second place, by the letters of Section 147 of the Constitution, the prescribed cabinet is not a dependable vehicle for the President to derive development. I will explain this: in the context of Section 147 of the Constitution, it may be harsh to say that the constitutional cabinet addresses the metaphor of the national cake, by which the states of the federation are meant to be equally represented in the management and distribution of the national wealth and income that are accruable to the Federation, but it will not be entirely out of place to say that the prescribed qualification and geographical spread of the appointments to President’s cabinet do not lend themselves to the concept of the cabinet being a vehicle with which the President can drive development. The composition of the cabinet lends itself more to the oligarchy patronage or prebendal system by which politicians and their agents in government believe that it is their birthright to share among themselves the resources of the state. The cabinet is understood by the political class to be the invaluable “prize” to a political party for winning the presidential election. Political parties contest presidential elections primarily to form the government by constituting the personnel of the government from among their rank and file. Vesting the power to recruit the personnel of the executive and legislative arms of government to political parties comes with the wrong belief that the resources and sovereignty of the state are surrendered to them. People talk more about the government of a political party than they do about the government of the federation. Although the Constitution seems conflicted, it is very clear that the sovereign authority vested in the President is national and the President is meant to be the President of the Federation and not that of the political party on whose vehicle he earned the mandate of the electorate. The President is expected to wear the national uniform the moment he takes the oath of office and anything short of that will, to my mind, amount to gross misconduct.
The President need not be conflicted or be in a dilemma about the purport of the oath of office he took during his assumption of office. He is elected and sworn in to be the President of the Federal Republic of Nigeria to direct and drive the country’s destiny and the suggestion to him by the Constitution to compose a cabinet and the personnel of Government bureaucracies from among the political parties does not distract him from his oath of office. Yes, there is nothing in the Constitution that prevents the President from appointing a person as Minister from an opposition party or the public. It may be a political suicide of the worst kind if he ignores the winning party that went to the polls to win the electorate’s mandate to constitute the Government of the day, but the higher duty of fidelity to the constitutions justifies such a risk.
It is the duty of the President to balance the jobs of being the chief executive of the federation, the presidential republic and representative democracy with a cabinet that is composed of men and women who are capable of accelerating development and building an enduring and viable nation-state. He is under no pressure to jettison merit for a cabinet that merely answers to the diversity of the country or his pleasure or that of his party or tribe.
Where subnational interests, as reflected in the quality and character of their representatives, do not coincide with the vision of the President, the cabinet can easily become counterproductive. The inability of Presidents to advise themselves wisely and surround themselves with a development and nation-building-driven cabinet has been one reason why the presidential system of government has failed to deliver sustainable and accelerated development and growth.
The Functions of Ministers
The Vice-President, Ministers and Special Advisers, and ex-officio members of strategic offices, in total, form the advisory cabinet of the President. As a cabinet, they hold weekly meetings to brief the President and other cabinet members about the affairs of their respective ministries and, where necessary, seek authorization for the implementation of policies and award of contracts. It is also at such cabinet meetings that the ministers, as an advisory body, advise the President generally in the discharge of his executive functions.
Because Section 148(1) of the Constitution speaks to the President assigning to any minister of the government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department, the scope of the functions of a minister regarding the ministry or department assigned to him is determined by his letter of appointment and the schedule accompanying it. The practice is for the Secretary to the Government of the Federation to issue schedules of duties to Ministers, especially for Ministries that have more than one Minister.
Because Section 147(3) of the Constitution insists on the President appointing at least one Minister from each State of the Federation, who shall be an indigene of such State, it has become a bad habit for the President to proliferate ministries. While emphasizing the point that there is no constitutional requirement to have as many ministries as there are ministers, Prof Nwabueze stated that:
A “Minister” does not imply a ministry; he (a Minister) is only an individual person holding or occupying a public office, i.e. the office of Minister, whereas a “ministry” is an institution of Government, established and regulated by law, and manned by a multitude of functionaries of whom a Minister is just one, and whose “activities are systematised, co-ordinated, machine-like and impersonal”. A Minister and a ministry are thus vastly different things, which cannot be equated one with the other. It could not have been the intention of Section 147(3) or of the makers of the Constitution that there should be as many ministries as there are States, say, 50, 100 or more than that! In terms of costs, the total personal emolument of a Minister is only a small fraction of the total recurrent expenditure of a ministry, with its multitude of functionaries.
What should be the appropriate number of ministries to have is a function, not of the number of States, but of the needs of the country and its ability to afford the financial costs. The President, as the Executive, is the best judge of this…
See “Assigning Duties or Functions to Ministers” published in the Nigerian Law Guru.
If a minister of the government of the federation is a person whom the President may, in his discretion, assign responsibility for any business of the government of the federation, including the administration of any department of the state, the question is: what is the justification for the office of minister of state, when a minister is, within the context of Section 147(3) of the Constitution, a representative of a state? The importance of this question is highlighted by the fact that ministers of state are regarded as junior ministers in the Nigerian cabinet and are normally the principal deputies to the minister in a federal ministry. A minister of state may, in some cases, be the head of a special department in the President’s Office. The Ministers of State (Gas) and (Oil) who, in theory, deputize the President, who is the Minister of Petroleum, are, in reality, senior ministers since they administer their respective ministries.
However, the general trend is to subordinate the ministers of state to substantive ministers and be assigned deputizing or less regarded roles in the administration of Ministries. This trend has its legal implications. In OBI & ANOR V. INEC & ORS (2023) LPELR-61532(SC), the Supreme Court emphasized that the underlying egalitarian principle of equality of persons, votes and the constituent territories of Nigeria is a fundamental principle and purpose of the Constitution. Section 14(3) of the Constitution, which Section 147(3) of the Constitution is meant to implement, provides as follows:
14(3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to 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.
The Federation consists of 36 States and the Federal Capital Territory. By the combined effects of Sections 147, 148 and 318 of the Constitution, a minister to each state shall be a substantive minister and not a junior minister. Irrespective of the business of the government assigned to a minister, such a business should not be reflected in the grading of the minister. All ministers should be equal and should participate in federal executive meetings as equals. Assigning only a junior portfolio to a state whilst others have two ministers may not accord with the spirit and letters of the Constitution. Besides, such an act may hurt the relationship between the President and the affected state(s). Being an effective tool and weapon for the winning of the hearts and souls of the electorate of a state, appointment of ministers should be done with all circumspection and due diligence. If I were in a position to advise the President, I would urge him to take full charge of the appointment of ministers and the assignment of schedule of duties to them. No State should be taken for granted.
Besides the responsibilities stated in Section 148 of the Constitution, the responsibilities of ministers are generally specified in their instruments of appointment and may include the following:
(1). Providing political leadership to the ministry in line with government objectives towards the attainment of its goals. In heading a government department or departments, ministers are responsible for the effectiveness and efficiency of the agencies within their portfolio. Besides the latitude provided for them by the appointor and the budget available to them, their effectiveness can also be influenced by their relationships with the appointed heads of the agencies they supervise or preside over. The effective implementation of government policies and assignments requires a good work relationship with the heads of all the departments that constitute his portfolio. They require the honest and professional advice of the agencies in the development of budgets, policies and new empowering legislations, where necessary. Each minister will have statutes (laws) that they and their departments administer and must work within. Where, by statutes, they are authorized to make regulations, they require legal advice to make and implement those regulations.
(2) Developing and implementing projects and programmes for the overall effective service delivery of the ministry.
They also develop solutions for problems and challenges facing their respective areas of assignment.
(3) Providing overall guidance in the formulation and implementation of policies necessary for the realization of the mandate of the ministry.
(4) Providing oversight functions and coordination of the activities and businesses of the departments and agencies of the ministry.
(5) Preparing and defending the budget of the ministry. This involves determining funding priorities, allocating resources, and ensuring funds are utilized properly. They balance the needs and demands of different departments and programmes.
(6) Reporting to and advising the President and cabinet. They keep the President informed about the ministry’s work and provide input on larger Government decisions and policies.
(7) Representing the ministry both domestically and internationally and engaging with stakeholders, lobbying support, and promoting the ministry’s agenda at conferences and events.
(8) Overseeing the drafting and passage of bills related to their ministry. They work with lawmakers and legal experts to create legislation aligned with the goals of their ministry.
(9) As a member of the cabinet, a minister forms part of the policy and decision-making process that is central to government action.
Individual and Collective Responsibilities of Ministers
Ministers are accountable to the public and the President for the efficiency and effectiveness of the agencies within their portfolio. They take full responsibility and are sometimes proper parties in suits against their respective ministries and agencies within their portfolios.
Ministers are collectively responsible and blamable for the policies of the government. The entire cabinet is responsible and accountable to the public for each and all the actions or inactions of the government.
The Ministers’ Statutory Powers and Duties (Miscellaneous Provisions) Act
There is a Ministers’ Statutory Powers and Duties (Miscellaneous Provisions) Act which provides for the transfer of Statutory Powers and Duties to Ministers, and to make miscellaneous provisions for the manner of exercise and signification of such functions. That Act does not, however, assign duties and functions to specific ministers. Rather, it speaks to the transfer of powers and duties from one minister to another.
Under Section 2 of the Act, the President may, either by law of the National Assembly or by Executive Order, modify using addition, substitution or deletion, as he may think fit to transfer to a minister any of the powers and duties which are, by such law, directly or indirectly conferred or imposed on the President or any public officer or which are conferred upon any other minister. The President can also make provisions consequential or incidental to any such transfer. An Order made under this Section may include directions (either general or about any particular matter) for the carrying on and completion by the minister to whom a power or duty is transferred, of anything commenced by the authority from whom it is transferred. The limitation to this power is that the President cannot transfer to a minister any power or duty –
(a) which relates to any matter for which, under the Constitution of the Federal Republic of Nigeria, 1999, a Minister may not be charged with responsibility; or
(b) which is conferred by law upon a judge, magistrate, justice of the peace or other officer exercising functions related to the administration of justice, or upon the Auditor-General for the Federation.
Under Section 3 of the Act, (1) Where, by any law enacted by the National Assembly or taking effect as if it had been so enacted, a minister is empowered to exercise any powers or perform any duties, he may, by a delegation notified in the Federal Gazette, depute any of the following officers by name or office to exercise those powers or perform those duties, subject to such conditions, exceptions and qualifications as the minister may prescribe –
(a) the Permanent Secretary having supervision over a department of government with which the minister has been charged with the responsibility or any officer who comes directly under the authority of such Permanent Secretary;
(b) any officer of any such department of Government;
(c) any officer of the police with the consent of the Nigerian Police Councilor of the Police Service Commission of the Federation, as the case may require;
(d) any other public officer with the consent of the Minister charged with responsibility for the functions exercised by such officer; or
(e) any officer in the public service of a State with the consent of the Governor of the State.
(2) No power to sign warrants, or to make regulations, rules, bye-laws or orders shall be deputed under this Section.
(3) Any delegation made under the provisions of this Section shall be revocable at will and no delegation shall prevent the exercise of any power by the Minister concerned.
In OKOLI V. MINISTER OF FCT, ABUJA (2022) LPELR-58032(CA), the Court of Appeal held that the conditions in Section 3 of the Act must be fulfilled before powers can be delegated by a minister under the Act.
We shall conclude this part with a special treatment of the office of the Attorney-General of the Federation, AGF.
The Office of the Attorney-General of the Federation
The powers and functions of this office cannot be transferred to any other minister. Section 150 of the Constitution provides as follows:
150(1) There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.
(2) A person shall not be qualified to hold or perform the functions of the office of the Attorney-General of the Federation unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than ten years.
An Attorney is a person designated to transact business for another – a legal agent with the authorization of a principal to do what the principal can lawfully do. The expression Attorney-General was originally used to refer to any person who holds a general power of attorney to represent a principal in all matters. In modern usage, Attorney-General refers to the Law Firm of the State. Its origin or basis is said to have been that, as the Sovereign – President, Prime Minister, Governor, et cetera, as the case may be – could not appear in person in his/her own courts to plead in a case in which he/she had an interest, an Attorney appeared on his/her behalf. The complexities and expansive nature of the functions of modern constitutional sovereigns have not only widened the role and duties of the Attorney-General, but have also made the office very burdensome and controversial. The scope of the office has since gone way beyond the maintenance of the interest of the sovereign in the courts of the land and/or advising the sovereign and all offices, institutions, agencies and departments, and authorities and persons exercising legislative, executive and judicial powers with a view to having them conform to, observe and apply the provisions of the Constitution. The Attorney-General’s Office is also responsible for the drafting of legislation and vetting of all contracts or agreements of which the government is a party, including international agreements, treaties or conventions. In most modern democracies, the Attorney-General’s Office is made permanent by their constitutions or laws and, in some other cases, executive functions of a cabinet grade are added to the office.
In the case of Nigeria, the Constitution creates the Office of the Attorney-General who shall be the Chief Law Officer of the Federation and a minister of the government of the federation who must be qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than ten years. By virtue of the Constitution, the Attorney-General of the Federation (AGF) also serves as the Minister of Justice – concerned with questions of policy and their relationship to the justice system. According to Abubakar Malami, SAN, immediate past Attorney-General of the Federation and Minister of Justice, one of the major challenges militating against the effective administration of justice in Nigeria is the lack of a clear and coherent National Policy on Justice leading to absence of a mechanism for coordination and development of the sector. He declared that the Ministry has responded by initiating reforms and consensus building among justice sector institutions and practitioners, to collectively address the challenges hindering effective justice delivery in the country.
In order not to mistake the Federal Ministry of Justice for an appendage to the Attorney-General’s Office, a historical narrative to the ministry is expedient. I cannot do better than the following historical perspective by the late jurist, Niki Tobi, in an article titled, “The Federal Ministry of Justice as Government’s Legal Adviser to the Ministry of External Affairs in Nigeria”, published in Dalhousie Law Journal, (1979) 5:1 DLJ 199:
Before the establishment of the Federal Ministry of Justice, there was in existence the Colonial Legal Department, which was headed by a Briton. He was the Registrar and Taxing Master of the then Supreme Court between 1863 and 1901. In addition to this duty, he functioned both as the Queen’s Advocate and the Queen’s Proctor.
The exact date in which the Office of the Attorney-General was created is not known, but there is evidence that it was created during the era of Lord Lugard. The first incumbent of the Office of the Attorney-General was Sir Donald Kingdon who was in office for almost twenty years. He vacated the office in 1943 to become the Chief Justice of Nigeria.
The Law Officers Act made provision for the offices of the Attorney-General, Solicitor-General and Crown Counsel, who were designated as Law Officers of the Federal Government. The Attorney-General and other Crown Counsel(s) had the right to practice ex-officio as ‘barristers, advocate and Solicitor’ of the Supreme Court of Nigeria. They also had the right to appear in court in all parts of the country as counsel.
The Federal Ministry of Justice was formally established on October 1, 1960, when Nigeria attained independence. The first incumbent of the office of the Attorney-General was Mr. Justice T.O. Elias.
The Ministry was then divided into three departments, viz: the Departments of the Solicitor-General; Administrator-General and the Director of Public Prosecutions. The developing economy of the country necessitated the expansion of the Ministry in the early sixties. In a reorganization exercise, the Ministry was divided into five divisions. These are the Divisions of the Solicitor-General; Industrial and Mercantile Law; Research, Law Review and Law Reporting; International and Comparative Law; Constitutional and Administrative Law and Director of Public Prosecutions.
In April 1968, following the creation of States, the Ministry lost to the Lagos State Ministry of Justice the Department of Administrator-General which dealt with the administration of estates of deceased persons within the former Federal Territory of Lagos.
In July 1977, the Ministry was again re-organised.
The Attorney-General is the chief law officer of the Federation. The Attorney-General of the Federation is complemented by the Offices of the Solicitor General and Director of Public Prosecution (DPP). Although the prosecutorial powers of the Attorney-General are exercised by the Director of Public Prosecutions and staff, the Attorney-General maintains formal control, including the power to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by an Act of the National Assembly, and can take over and continue such criminal proceedings and terminate public prosecutions. Certain offences require the individual consent of the Attorney-General. This is generally said to be for offences whose illegality is somewhat controversial or where there is perceived to be a significant risk that prosecutions of a political nature may be embarked upon. The Attorney-General also has the power to issue a nolle prosequi with respect to a case, which authoritatively determines that the state (in whose name prosecutions are brought) does not wish to prosecute the case, so preventing any person from doing so.
The English jurist and philosopher Sir Francis Bacon, known to be a master of the English tongue, once said that the Office of the Attorney-General was the “painfullest task in the realm.” Another English occupant of the Office, Sir Patrick Hastings, is recorded to have said that to be an Attorney-General is to be in hell. The Office is by its nature bound to be that onerous and challenging. It is the job of the Attorney-General to advise the Government on the constitutionality of policies and actions taken or embarked upon by the Government. It is his job to give or proffer justifications for the actions, policies and laws of the Government. It is the Attorney-General who advises the President on whether proposed legislations by the National Assembly comply with the provisions of the constitution or treaties freely entered into by the Federal Government. The Attorney-General is adviser to all Federal Executive Council Meetings and that invariably makes it imperative for the Office to be abreast of all Memoranda slated for consideration at such meetings. As the legal adviser to each and every Department or Institution of Government, the Office has its reach and hands on every sector of the Government. Besides the highly technical job of drafting statutory instruments and conveyancing instruments concerning national and transnational businesses, the Attorney-General is the defender of the Government’s interests in all of such transactions.
Coordinating the personnel or legal officers across the length and breadth of all Federal departments and bodies, the Office of the Attorney-General is arguably the most engaging and busiest Office in the Federation. This may also explain why Nigeria has never had a popular Attorney-General.
Theoretically, the Attorney-General is not subject to any control while discharging his constitutional responsibilities. The Courts have laid the firm precedent that, as the Chief Law Officer in whom is vested the Constitutional responsibility for bringing and defending actions on behalf of the State, the Attorney-General is not subject to any control, and that no other functionary or institution of the State can exercise such powers without its authorization.
Who then is the Master of the Attorney-General and Minister of Justice?
According to the book of (Matthew 6:22-24): “ If your eye is pure, there will be sunshine in your soul. But if your eye is clouded with evil thoughts and desires, you are in deep spiritual darkness. And oh, how deep that darkness can be! According to the Bible, “You cannot serve two masters: God and money. For you will hate one and love the other, or else the other way around”
The relationship between the government and the people is spelt out in the section of the constitution that provides that sovereignty belongs to the people of Nigeria from whom the government through the Constitution derives all of its powers and authority. By that section, the people are the owners of the supreme power of the state and the government and its officials are responsible and accountable to the people. The government and all authorities and persons exercising legislative, executive or judicial powers are meant to conduct their public functions or businesses for the security and welfare of the people.
As has been illustrated, the role of the Attorney-General and Minister of Justice is beyond that of a lawyer, advisor, and minister to include administrative and investigative duties. It is the job of the Attorney-General and Minister of Justice to advise the government and its officials to act and conduct their businesses within the limits of the powers allocated to them by the Constitution. It is, therefore, natural to blame the Attorney-General and Minister of Justice for acts of lawlessness or abuse of power by government and/or public authorities and persons.
The Attorney-General and Minister of Justice also serves as a border guard or immigration officer to the boundaries and spheres of influence allocated to the three arms of government under the principles of separation of powers. The office is also supposed to provide buffer zones not only between the people and public authorities and persons but also between the people and the individual. In that respect, the Attorney-General and Minister of Justice should not only be a champion of the rule of law but a maintainer and protector of the Fundamental Rights of the individual.
As the chief law officer of the nation, the Attorney-General enables the President to fulfil his obligation to be faithful and bear true allegiance to the Federal Republic of Nigeria and to execute and maintain the Constitution, all laws made by the National Assembly and with respect to all matters with respect to which the National Assembly has the power to make laws. The President depends on the advice and opinions of the Attorney-General with respect to the executive powers vested in him in accordance with the Constitution and laws made by the National Assembly. It is also the unenviable job of the Attorney-General to ensure that the President exercises his powers in the spirit of that necessary balance prescribed by the fundamental objectives and directive principles of state policy. It is, therefore, incumbent on the Attorney-General to not only be knowledgeable in the law but must also, as of necessity, be attuned with the policy direction of the government. In sum, the Attorney-General is not only the chief law officer of the government of the Federal Republic of Nigeria for law enforcement purposes; he is a member of the cabinet and must be available to advise the President as a counsellor on matters involving policy as well as law. Whereas the laws are written and clear about their purposes, policy agendas on which a President is elected by the electorate are not definable only within the overall purpose of attending to the security and welfare of the people.
Although there is no constitutional or statutory provision spelling it out in black and white, it is the job of the Attorney-General to vet bills requiring the assent of the President to ensure that such bills conform with or are not in conflict with the Constitution. This is an obvious area of friction between the office of the Attorney-General and Minister of Justice and the National Assembly. The legislative powers of the Federal Republic of Nigeria are vested in the National Assembly and Section 58 of the Constitution of the Federal Republic of Nigeria, 1999, provides a very rigorous mode of exercising that power. It is, therefore, not a palatable duty to have the power to advise the President not to assent to a bill that has gone through such rigours. Because of their numbers and representative capacity, there may be moments when members of the National Assembly are tempted to be adventurous and go into overdrive with the powers to make laws. It is for the Attorney-General to set such adventurous bills or motions against the letter and spirit of the Constitution and extant statutory-backed policies and advise the President accordingly. But the Attorney-General should in this regard be at material time reminded of the fact that he is a political officer charged with legal and not political duties. His judgments in the form of pieces of advice and opinions must not be swayed by political considerations but by the law and nothing but the law. For the effectiveness of his office, the Attorney-General must bear in mind that the office is accountable to the National Assembly and that the National Assembly can clip its wings through its funding and oversight powers.
There are moments when conflicts arise between the presidency and another arm or organ of government, and the question will therefore be: to which of the two arms should the Attorney-General place his loyalty? The office of the Attorney-General is as political as any of the cabinet offices created by the President, as the President can sack him at will. There is, therefore, no need to emphasize the point that the Attorney-General must, as a necessity, maintain the confidence of the President.
It has been argued that, as the lawyer for the President, the conduit through which the President faithfully executes the law, a close political and legal advisor to the President, and a cabinet member, it would seem that the Attorney-General’s duty of loyalty is to the President. But such loyalty should not undermine the Constitution and laws made by the National Assembly. It is, therefore, better to say that in his capacity as the chief law officer, his ultimate duty demands fidelity to the Constitution and public interest. It is in this spirit that the point is made that the Attorney-General assumes a public trust, for the government, over-all and in each of its parts, and is responsible to the people in our democracy with its representative form of Government. Each part of the government has the obligation of carrying out, in the public interest, its assigned responsibility in a manner consistent with the Constitution, and the applicable laws.
The call for the depoliticization of the office is nothing more than a claim that by its nature, the office is incapable of rendering unbiased, objective and reasoned legal advice. Such claims are also most times not founded on unbiased, objective and reasoned considerations. Many a time, they are made upon the failure to influence the Attorney-General to abandon legal advocacy for political and moral advocacy.
