Senior lawyers have disagreed on the likely impact of an Abuja High courts declaration that President Muhammadu Buhari cannot hold the office of Minister of Petroleum while still being president of the country.
Buhari had at the inception of his administration in 2015 declared himself Minister of Petroleum and later appointed Ibe Kachikwu as the Minister of State for Petroleum Resources, which is a deputy minister position.
But a Federal High Court, Abuja delivered judgement on November 15, 2018 in a case filed by a prominent lawyer, Olisa Agbakoba SAN, which had challenged the legality of President Buhari occupying the position of both president and the minister of petroleum at the same time.
The former president of the Nigerian Bar Association asked the court to determine the constitutional qualification of the president to hold executive office as minister of petroleum.
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The basis of the Agbakoba’s legal challenge was that sections 138 and 147(2) of the constitution of the Federal Republic of Nigeria states that the president cannot hold any other executive office or be involved in a paid employment.
But delivering a judgment, Justice Ahmed Raji Mohammed said there would have been a violation of the constitution, if Buhari had not appointed Kachikwu to oversee the day-to-day running of the Ministry of Petroleum Resources.
Justice Mohammed held that there was no violation of Section 138 of the Constitution.
The judge maintained that: “the phrase ‘hold’ as contained in S. 138 meant to preside, act, to possess, occupy or conduct the actual day to day running of the office.
He said: “That merely proclaiming/announcing that he (the President) was the Minister for Petroleum was not enough to conclude that he holds the office of Minister.”
“That if the president had not appointed anybody to see to the day to day running of the office, the court’s decision would have been different.”
The court further held that: “Unless it can be shown that the President is directly conducting, directing, occupying the office of the Petroleum Minister then, it cannot be said that the President actually holds the office of the Petroleum Minister.”
Section 147(2) of the Nigerian constitution also lays emphasis on the need for confirmation of anybody that will occupy a ministerial position by the senate, the judge said.
In his suit, Agbakoba had said that the basis for filing the suit was because of the management crisis in the NNPC.
Both the Minister of State for Petroleum, Ibe Kachikwu and the Managing Director of the NNPC are constantly at loggerheads.
He believes that this would not have been the situation if the President was not also acting as the Minister of Petroleum. He noted that the sector generates 90 percent of the country’s income and the country will suffer for it if it is not properly managed.
But lawyers have expressed different views on the possible impact the judgement will have on any document signed by the president in his capacity as petroleum minister.
Agbakoba, said the ruling invalidated previous document signed by Buhari, stressing that it was Kachikwu that that is recognized by law.
“The judgment said it was improper for Buhari to proclaim himself the Minister of Petroleum without carrying out the function attached to such office and since it is Kachikwu that was appointed by him and has been carrying out that function, he is the one recognized.”
“He may have proclaimed himself but I agree with you, document signed by Buhari are invalid, anything like that are invalid and unconstitutional,” Agbakoba said.
Akeem Kolawole, Head of Chambers of Siji Soetan & Co, backed Agbakoba’s position.
“Anything done by him as Minister of Petroleum are illegal. My reason for this is clear, the constitution already spelt it out that he cannot be a president and still be under a paid employment /position. Anything done in the capacity of a minister of petroleum by him is therefore null and void as you cannot place something on nothing and expect it to stand.”
But this view was countered by Jhon Bayeshia, Senior Advocate of Nigeria (SAN), who stated that the judgment was not specific on invalidating previous document signed by the president. Bayeshai stressed that such situation could create unnecessary chaos in the country, stressing that the president carried out the previous function because it was presumed he had the powers.
“I do not believe that the judgment would invalid all that he has done before because it would cause chaos, it may however; mean that he cannot sign again. It was presumed that the president has the power to do that, moreover the ruling is subject to appeal.”
“If you invalidate all he has signed it would affect international contract entered by the country. In law we believe that there is a relief in a judgment until the judgment is specific that previous action is invalid.”
“I believe previous document would be preserve until when the judgment is specified,” Bayeshai said.
Adetola Adeleke, lead partner of Crowncourt Attorneys and former 2nd Assistant Secretary General of NBA Lagos branch, also said he does “not take the view that all actions taken in the capacity of a Minister automatically becomes a nullity. This will create a chaotic situation, and this is the essence of the doctrine of necessity, whereby validity can be given to some acts of a nullified appointee during the period of his control of the office.”
ODUNAYO OYASIJI & INIOBONG IWOK
