At last, after a long lapse of five months, President Muhammadu Buhari has now, to the relief of Nigerians, appointed ministers, 36 in all, to help him administer the government of the country in a constitutional manner. But the assignment of duties or functions to the ministers is exciting some controversy among the public owing largely to misunderstanding of the constitutional position on the matter.
- One minister for each state, as provided by Section 147(3) of the Constitution, does not carry the implication of 36 ministries as a constitutional requirement
There is no constitutional requirement to have 36 ministries or, in the event of the creation of more states, such larger number of ministries as there are states. The controversy that has arisen on this issue is because of the error of equating “minister”, as used in Section 147(3), with ministry, as if they are one and the same thing or as if the one necessarily imports or implies the other as a synonymous or interchangeable term.
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, and he has told us that our economy is in such “battered” state it cannot support 36 ministries. At a time when we are all urging that the ratio of recurrent to capital budget should be kept at 60:40 per cent, it is our duty to back up his judgment that the economy cannot support 36 ministries.
- The establishment power
(i) Establishment of the non-political administrative machinery of government
The Constitution does not, in explicit terms, establish ministries or departments of government and offices in them nor does it expressly empower the President to establish them, but a power in the President to do so seems to arise by necessary or reasonable implication from the vesting of executive powers of the Federation in him, taking executive powers to “extend”, in the words of Section 5(1)(b), “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”. (emphasis supplied.) A power as extensive as this cannot possibly be exercised by the President alone and unaided. Necessity dictates that he must have the aid of adequate administrative machinery manned by a multitude of staff of various categories and grades.
The existence of ministries or departments, and the offices in them, is further implied by references made in various sections of the constitution to ministries, to the assignment to a minister of responsibility for a department of government, to the permanent secretary or other chief executive in any ministry or department of government, to the ministry or department of government charged with responsibility for external affairs, to the head of a division in a ministry, and to staff of a ministry or department of government.
The establishment power assures to the President a potent source of control over the administrative machinery of the government. It enables him to determine the policy governing the entire civil service and its administration, particularly rules of conduct, terms and conditions of service, staff complements and gradings, salaries and allowances. Every staff member in the ministries and departments is bound by his directive in this respect, and it is within these directives and general orders that the civil service functions.
The executive power vested in the President embraces as a necessary incident the appointment, promotion, removal and disciplinary control of the staff in the ministries and departments, but these incidents of the power are subject to limitations of various kinds contained in the Constitution, a discussion of which is inappropriate here.
(ii) Establishment of offices of ministers, i.e. political offices
The office of minister is, unlike the thousand and one non-political offices in the ministries and departments, established expressly by the constitution, Section 147(1) of which provides that “there shall be such offices of Ministers of the Government of the Federation as may be established by the President”. The provision is, however, not as free from interpretative difficulty as might be wished. The words, “there shall be …offices of Ministers of the Government of the Federation”, are the form of words appropriate for the establishment of an office or something else, as exemplified in the provision of Section 130 that “there shall be for the Federation a President.”
The interpretative difficulty comes from the words, “such offices of Ministers…as may be established by the President”. The effect of these words is to leave it to the President to establish, not the offices of Ministers in a generic sense which is already done by the subsection, but particular ministerial offices with specific functions or designations, e.g. minister of finance, minister of education or such other functions or designations as he may establish.
It is necessary to reiterate by way of emphasis that the establishment of the office of minister by Section 147(1) relates to the office only in a generic sense, and that no particular ministerial office, e.g. minister of information, is thereby established by name, except in the case of the Attorney-General, who is designated “the Chief Law Officer of the Federation and a Minister of the Government of the Federation”, (Section 150(1) without the words “and Minister of Justice” extra constitutionally super-added to the designation.
The provision in section 147(1) is silent on how the power it vests in the President may be exercised – whether by a formal instrument in writing or by mere word of mouth. The assignment of any part of the President’s executive powers or of any government business under sections 5(1) and 148(1), which is a form of delegation, is an act of state, and must be made by instrument in writing. In practice, a written instrument of delegation is issued by the President from time to time assigning specific responsibilities, with their scope carefully delineated, to the Vice-President, Ministers, Secretary to the Government of the Federation and other relevant officers in the public service in the form of Government Establishment Circulars under the title, Mandates of Ministries, Departments and Agencies and Responsibilities of Honourable Ministers Instrument or the Assignment of Responsibilities to Honourable Ministers, etc – see for example, Instruments of July 1999 and April 2007. The provisions of these Instruments, duly published in the Federal Government Gazette as Establishment Circulars, have the force of law and binding as such; they do not require to be proved by evidence, affidavit evidence or other kinds of evidence.
To be concluded on Friday
Prof Nwabueze is a Senior Advocate of Nigeria and a former Minister of Education