“The President shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever.”
– Section 138, Constitution of the Federal Republic of Nigeria, 1999.
Pursuant to the above quoted Section 138 of the Constitution of the Federal Republic of Nigeria, 1999, the President is expressly, definitively and unambiguously disallowed from holding any other executive position throughout the duration of his presidency.
As has become a customary, albeit most offensive, feature of his presidency, Mr. Buhari chose to formally inform his fellow citizens of his ill-advised intention to retain the coveted Petroleum Resources ministerial portfolio while on foreign soil, precisely during his recent visit to New York, in the United States of America.
Media sources have quoted the President’s spokesperson, Malam Garba Shehu, as citing the deisre to personally superintend the restructuring of the corruption-infested pertoleum industry, as the rationale for Mr. Buhari’s controversial decision.
The unstated precedence that may have encouraged the Mr. Buhari to do likewise, is the fact that his predecessor, former President Olusegun Obasanjo, also held the office of Petroleum Resources Minister throughout the latter’s tenure, from 1999 to 2007, in violation of Section 138 of the Constitution of the Federal Republic of Nigeria, 1999.
As we await the processing of President Buhari’s ministerial nominees by the Senate, pursuant to Section 147 (2) of the Constitution of the Federal Republic of Nigeria, 1999, it is pertinent to raise a clear alarm not only about an imminent infraction, but indeed to shed light on an ongoing illegality.
Since his assumption of office on May 29th 2015, President Buhari has been exercising the substantive power and authority of the Minister of Petroleum Resources; and is likely to continue to do so till the very hour of the publication of this piece. Perhaps he may even continue to do so thereafter if he is not advised to the contrary.
Based on the foregoing, it is indisputable that Mr. Buhari is in ongoing violation of Section 138 of the Constitution of the Federal Republic of Nigeria, 1999.
It is possible that former President Obasanjo and incumbent President Buhari may have relied, or may be relying, on the seemingly broad power of the office of the President, pursuant to Section 5 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 which states:
“Subject to the provisions of this Constitution, the executive powers of the Federation 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.”
However, I believe it is settled in law that where certain provisions of any grundnorm are ambiguous on a particular subject matter, the existence of any prohibitive provision effectively circumscribes and supercedes every other section which may suggest otherwise.
This means that the express prohibition provision as stated in Section 138 of the Constitution of the Federal Republic of Nigeria, 1999 effectively precludes President Buhari from appointing himself Nigeria’s Minister of Petroleum Resources and, therefore, also disallows him from exercising the substantive power and authority of the referred executive office.
Accordingly, the widely reported speculation that the President is likely to nominate Dr. Emmanuel Ibe Kachikwu, the Group Managing Director (GMD) of the Nigerian National Petroleum Corporation (NNPC) as the Minister of State, Petroleum Resources, should also be reviewed.
Going ahead with this plan is most likely to violate certain provisions of the Nigerian Petroleum Act, 1969 which clearly states the functions of the Minister of Petroleum Resources, the Board of NNPC, the GMD of NNPC, etc.
Furthermore, may I humbly suggest that the President reconsider this plan and allow the eminently qualified Dr. Kachikwu focus on the already onerous task of reconstructing the NNPC.
Since President Buhari has an established reputation as a dogged advocate for the rule of law, I hereby invite other more learned persons and constitutional authorities to weigh in on this very important subject matter, in order to prevent the President from perpetrating a constitutional breach which, as of today, is ongoing.
Nobody can convince me that in a country (i.e. Nigeria) that boasts of many leading authorities in Petroleum Resources engineering and administration, President Buhari is unable to find any competent and credible person to champion the much anticipated reforms in the petroleum industry.
Like millions of Nigerians and many well-meaning persons all over Africa and the world at large, I continue to pray that God grants President Buhari the grace and wisdom to enable him steer this nation aright. He needs our continued prayers, patience and understanding.
By Dr. Kolawole Kayode
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