In September 2015, months after he was sworn in as President of Nigeria, Muhammadu Buhari told select reporters in New York, USA: “I will remain Minister of Petroleum. I will appoint a minister of State for Petroleum.”
And true to his words, two months when Buhari allotted portfolios to his cabinet members, he named himself Petroleum Minister.
Buhari said he was taking the step as part of efforts to sanitise the oil industry, notoriously characterised by opacity and corruption in monumental proportions.
This appears, on the surface at least, a good enough reason, given that Buhari was voted into power by citizens who appeared fed up with the level of corruption in the country.
However, people who should know say the move is illegal, judging by the provisions of the constitution.
On Monday, Olisa Agbakoba, a Senior Advocate of Nigeria (SAN), filed an application urging the court to remove Buhari as Minister of Petroleum, saying his double portfolio is illegal.
Agbakoba quoted sections 138 and 147 of the constitution as the basis for his law suit, but what does the constitution say?
Section 138 of the 1999 constitution (as amended) states: “The President shall NOT, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever.”
The office of a minister is surely an executive one, since the Federal Executive Council (FEC) comprises all ministers and other key appointees of the President.
Also, Section 147 (1 and 2) of the constitution states: “There shall be such offices of Ministers of the Government of the Federation as may be established by the President. 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.”
Buhari did not undergo any senate confirmation before announcing himself as Petroleum Minister.
LEGAL EXPERTS’ OPINIONS
In the suit he filed before the Federal High Court in Lagos, Agbakoba insisted that it was unconstitutional for Buhari to hold two executive offices at the same time.
“I looked at Section 138 of the 1999 Constitution and I verily believe that it disqualifies the President from holding executive office, including that of the Minister of Petroleum, during his tenure of office as President,” he said.
“I also know that the President did not go through nomination process and confirmation by the Senate, before holding the office of Minister of Petroleum Resources.
“I again looked at Section 147(2) of the 1999 Constitution and I verily believe that it prohibits anybody from holding the office of a minister of the federation without confirmation by the Senate.”
Similarly, Ikechukwu Ikeji, a practising lawyer, agreed with Agbakoba that the constitution does not permit Buhari to hold another executive office while still a serving President.
For Ikeji, Buhari’s non-appearance at the Senate for confirmation as Petroleum Minister is secondary, because he is not qualified to be Minister in the first place.
Quoting section 138 of the constitution, Ikeji said it was clear that Buhari is not qualified to hold ministerial position.
“If you look at chapter six, part one of the constitution, it provides for federal executives; it is under this part that ministers are appointed,” Ikeji said on Monday during Channels Television’s Politics Today.
“And if you look at the makeup, the composition of the Federal Executive Council, you will agree with me that ministers are members of the Federal Executive Council, which means simply that ministers are members of the executive. In order words, a minister is holding an executive position.
“Having cleared that, the question is: ‘is the President holding an executive position if he is holding the position of Minister Petroleum Resources?’ I think the answer is clear and simple: yes.
“So I think that it is unconstitutional for the President to hold that executive position. It is clearly against the express position of this section 138.”
It is clear that Buhari’s dual position as President and Minister of Petroleum Resources is not in tandem with the provisions of Section 138 of the constitution. However, in the words of Ikeji, “it requires the court to so declare it”.