This is the second part of Prof. Ben Nwabueze’s piece about President Muhammadu Buhari’s ministers and their assigned portfolios. You can read the first part here.
Enjoy…
Much of the controversy generated over this issue is caused by the word “portfolio” being injected into the public discussion on the matter. The word is nowhere used in our constitution, nor is it a term of art with a definite, universally accepted meaning. In any case, it does not, under our constitution, mean or imply the administration of a ministry or department of government. This follows indisputably from Section 148(1) which 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, including the administration of any department of government.” (the underlining is for purposes of emphasis). This provision makes it clear that what may be assigned to a minister is “any business” of the Government of the Federation, which may or may not include “the administration of any department of government”. Under Section 148(1), therefore, the office of minister or the appointment of any person to it does not carry with it the right to be assigned responsibility for the administration of a ministry or department of state, which is what is erroneously regarded as “portfolio”.
The discretion of the President under Section 148(1) is an unqualified one, in that it does not oblige him to assign to ministers, responsibility for any business of the government. This flows from the word “may” used in the subsection. He may choose not to assign to ministers, responsibility for any business of the government. His right or power not to do so is derived from, and is affirmed by, Section 5(1), which vests the “executive powers” of the Federation in him, and then goes on to provide that the executive powers so vested in him, i.e. the executive powers in their entirety, may be “exercised by him either directly or [BY HIM] through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation”. (emphasis supplied.) The word “BY HIM” in capital letters are interposed by me in order to bring out the meaning of the provision more clearly.
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.
The right of the President under Section 5(1) to exercise by himself directly, the entirety of the executive powers of the Federal Government vested in him must be taken subject to the duty cast on him to appoint ministers (Section 147) and to “hold regular meetings with all of them for the purpose of (a) determining the general direction of domestic and foreign polices of the Government; (b) co-ordinating the activities of the President, the Vice-President and the Ministers…; and (c) advising the President generally in the discharge of his executive functions…” (Section148(2)).
The distinction involved is between the vesting of power (i.e. the substance or title of power) under Section 5(1) and the manner and form for exercising the power under sections 147 and 148(2). Both are important, and attract the same sanction of nullity for any infractions of them; any violation of the power vested in the President by anyone, e.g. by the National Assembly, is unconstitutional, null and void; equally non-compliance by the President with the manner and form for exercising the power, as by failure to appoint ministers and to hold regular meeting with them for the purposes specified in section 148(2), is unconstitutional, null and void.
It is of no constitutional significance in this connection that some ministers are assigned responsibility for the administration of a ministry, department or agency of government, while others are designated ministers of special duties or ministers of state. The difference in the functions or duties assigned to ministers is no doubt important in terms of the power, prestige and influence they confer, but they do not confer on a minister in charge of the administration of a ministry, department or agency of government, a rank higher than that of other ministers. All ministers are equal in rank irrespective of the nature of the functions assigned to them.
The equal ranking of ministers flows from the fact that they are all full members of the federal executive council or cabinet, whatever it is called, with all the rights and privileges conferred by membership. We may here note in parenthesis the provision in Section 144(5) that the reference to “the executive council of the Federation” in subsection 1 of that section is “a reference to the body of ministers of the Government of the Federation, howsoever called, established by the President and charged with such responsibility for the functions of government as the President may direct.”
A minister’s membership of the executive council or cabinet derives inferentially from Section 144(1) above, but more directly and specifically from Section 148(2) which requires the President to “hold regular meetings with the Vice-President and ALL the Ministers of the Government of the Federation for the purposes” therein specified. The word “ALL” in Section 148(2) has the effect or implication of making every minister a full member of the executive council or cabinet, regardless of the type of duties, functions or business of the government assigned to him, whether minister in charge of a specific ministry, department or agency, minister of special duties or just a minister of state. The distinction, drawn in some countries, between ministers of cabinet rank and those of non-cabinet rank, is unknown to our constitution.
Concluded
Prof Nwabueze is a Senior Advocate of Nigeria and former Minister of Education