Dictatorship in democracy

By Ebun-Olu Adegboruwa, SAN

According to Wikipedia, ‘democracy’ is a Greek word that combines ‘demos’ (people) and ‘kratos’ (rule), meaning a form of government in which the people have the authority to deliberate and decide legislation (‘direct democracy’) or to choose governing officials to do so (‘representative democracy’). On November 19, 1863, President Abraham Lincoln delivered his historic address which later became known as the Gettysburg Address in these immortal words: “the government of the people by the people and for the people shall not perish from the face of the earth.” It became necessary to have a representative or chosen leadership to avoid the rule of the mob. In the same vein, such representation must emerge from the will of the people in order to prevent dictatorship, whereby the ruler imposes on the people that he is supposed to lead. Since everybody cannot lead at the same time, it became wiser and fashionable to entrust power or leadership to a set of people who are to be chosen by others in circumstances that guarantee free choice. Power in this sense is held in trust by the chosen and they become accountable to the rest of society through whom they derive their powers. This doctrine has been entrenched in the Constitution of the Federal Republic of Nigeria 1999 (as amended) in section 14 as follows:

“14. (1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.
(2) It is hereby, accordingly declared that:
(a) Sovereignty belongs to the people of Nigeria from whom the government through this Constitution derives all its powers and authority.”

Two basic points arising from these provisions is that power belongs to the people of Nigeria, they are free to donate that power to their chosen representatives and the latter can only exercise such power and authority in accordance with the provisions of the Constitution. This is why virtually all leaders must subscribe to an oath of office after election, to uphold the provisions of the Constitution, before they assume office. The Constitution then becomes the authority and foundation for leadership and governance. This is why in the commencement of the Constitution itself, it is stated in section 1 that:

“1. (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

The above is referred to as the doctrine of supremacy of the Constitution which we all hold as sacrosanct and binding. Man is very unique in character and unless there are guidelines for human behaviour, the rule of self will always seek to reign. In May 2015, President Muhammadu Buhari was sworn in for a four-year tenure. Six months down the line, there was no cabinet constituted to run the affairs of over 200 million people. I approached the Federal High Court to interprete the conduct of the President as to whether he could continue in office without appointing Ministers to help him pilot the affairs of the nation. To his credit and that of the 9thNational Assembly, President Buhari assented to the Constitution of the Federal Republic of Nigeria, 1999 (Fifth Alteration) Act (No. 23) 2023 by providing a maximum period of sixty days for the appointment of Ministers and Commissioners. It is stated in section 147 (1) that “there shall be such offices of Ministers of the Government of the Federation as may be established by the President.” What this means simply is that there shall be Ministers for the Government of the Federation but their offices and designation will be as determined by the President. When section 147 (1) is read in conjunction with section 147 (3), it means that the offices of Ministers to be established by the President must not be less than the number of States of the Federation. This is in line with the concept of proportional representation in a democratic setting in order to give a sense of belonging to everybody.

President Bola Tinubu took his oath of office on May 29, 2023 and he sent his list of Ministers to the Senate on July 27, 2023, containing names of 28 persons, contrary to the requirements of section 147 (3) which stipulate that the number of Ministers shall not be less than the number of States of the Federation. I truly do not see the need for the delay, considering that one of the high points of the President’s campaign was that he would hit the ground running. He also alluded to this in his inaugural speech. Granted that Nigeria is a large country with diverse interests, the general belief was that the President had prepared for this assignment well ahead of time, such as not to be boxed into this last-minute desperate move. There is no need to give in to speculative interpretations or create deliberate ambiguities in a matter as important and crucial as the appointment of cabinet members. This is the brain box of the government, for the implementation and execution of policies and it should have been tackled with the urgency that it deserves. The question arising is whether the President is permitted under the Constitution to send the list of Ministers in batches less than the minimum number stipulated under section 147 (3) supra. This will then bring into focus section 147 (7) (a) which states thus:

“147. (7) Notwithstanding the provision of subsection (2) of this section and section 42 of this Constitution –

(a) the nomination of any person to the office of a Minister for confirmation by the Senate shall be done within sixty days after the date the President has taken the oath of office:

Provided that the President may appoint a Minister at any other time during his tenure and such appointment shall be subject to confirmation by the Senate.”

In my own humble view, the intent of the Constitution is to get the President to appoint his Ministers within sixty days of his inauguration. These Ministers are required to be 36 in the minimum but they can be 70 or 80 as the President may deem fit to appoint. In other words, there is a mandatory requirement for the President to comply with the minimum number of 36 Ministers within sixty days of taking his oath of office. The proviso in section 147 (7) is that the President is at liberty to appoint other or additional Ministers after faithfully complying with the mandatory number of 36 within the first sixty days, but he must first comply by nominating the minimum 36 Ministers. Has the President complied with this? I think not. A person seeking to hide under his discretionary powers for the exercise of his constitutional powers must first show an abiding compliance with the area in which he has no discretion. It is that compliance that donates and indeed validates the subsequent exercise of discretion. Thus, for the President to have powers to appoint additional Ministers, he must first show that he has faithfully complied with the mandatory provision to appoint a minimum 36 Ministers. You cannot put something on nothing and expect it to stand. The legality of Ministers to be appointed subsequently is based on the validity of the original appointment of the mandatory 36 Ministers. In this case, the President appointed 28 Ministers, less than the 36 States of the Federation. It means that he has not complied with the mandatory provisions of section 147 (3) and 147 (7) (a) read together. In the eyes of the law, there is no discretion granted to the President for piecemeal nomination of the mandatory number of 36 Ministers.
As if taking a cue from the President, many State Governors did not comply with the constitutional requirement of sixty days. Some even claimed to have sent the list of their nominees without disclosing their names. It is always very important to pursue compliance with legal requirements than to leave matters in the realms of conjectures and speculations. In my mind, the reason why the Constitution prescribes a cabinet in the first place is premised on the doctrine of collective responsibility. The President and the Governors are individuals who need a team of experts and technocrats to help them in governance. For any of them to take the oath of office and then remain in office without a cabinet is to defeat the Constitution. In those sixty days, money will be spent, decisions will be taken and policies will be implemented. The argument of using existing bureaucracy does not hold water because everybody’s job is nobody’s job. It will be good to seek judicial interpretation of the action of the President and the Governors. More importantly however is the merit of the list of nominees, because it should not have taken the President six months to propose the names of people already known to him.

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