Understanding the position of the constitution on federal executive appointments is of public interest. Unfortunately, the constitution is very weak on this matter, reminiscing the gross manipulation by the previous executive office holders. My conclusion is that the President has incentive to fully exploit the weakness on the constitution.
It is no news that the recent executive appointments by President Buhari has generated much debate in the media. Opinions range between outright condemnation and calls for understanding. Some people have called on the constitutional lawyers in Nigeria to challenge these appointments in the court as unconstitutional. But what does the constitution say on the presidential executive appointments? This question is of public interest as the constitution is expected to represent the collective voice of the people. My conclusion is that the President seems to be exploiting the weakness of the constitution. As such, any court action will fail. Perhaps this may explain why constitutional lawyers are silent.
Firstly, Section 171 of the 1999 constitution vests in the President executive power on the appointments made so far (executive implies without the need to resort to the approval of the legislative arm of the government – Senate and House of Reps.). However, the President is actually exploiting the weakness of the constitution on this matter, which may weaken any court action. For example, Section 171.2 outlines five offices for which the President could make such appointments, but the fifth is very vague, relating to “any personal staff of the President” (meaning that he could make any number of appointments and positions considered personal staff). More importantly, despite the fact that the Office the Secretary to the Government of the Federation is top on the list (171.2(a)), followed by Head of the Civil Service of the Federation (171.2(b), subsection 171.3 is completely silent on how the President should make these two appointments. Rather, it jumped to the appointment of the third (Permanents Secretaries) and the fourth “ambassador/high commissioners”.
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Moreover, the basis for federal character on these appointments is contained in Section 171.5, which requires that the President, in exercising his executive powers, quote “IN EXERCISING HIS POWERS OF APPOINTMENT UNDER THIS SECTION, THE PRESIDENT SHALL HAVE REGARD TO THE FEDERAL CHARACTER OF NIGERIA AND THE NEED TO PROMOTE NATIONAL UNITY” ….unquote. Now here lies the confusion. Whilst there is a strong evidence to show that the appointments made by the President to date have been far from exhibiting the federal character, there is a question of whether the appointments can be considered as “promoting national unity”. This is a soft landing for the President because those who will challenge the presidential appointments in the court would need to proof that the appointments are NOT promoting national unity! How they do that is far from obvious. Section 171.6 of the constitution provides the last straw as it states, inter alia “…..shall be at the pleasure of the President…….” So the President is simply making appointments that gives him ‘pleasure’.
The issue comes down to the weakness of the constitution, which has resulted from the ineptitude of the previous National Assembly and the manipulation of the constitution by previous executive office holders for their personal or ‘pleasurable’ interests. The constitution should be clear on the federal character on executive appointments. This lop-sidedness does not start with the present administration. In as much as the separation of powers between the executive and the legislative arms of the government, manipulations of the executive will always prevail, even in appointments that require legislative approval. A task before the members of national assembly is to carry out a constitutional review on executive appointments with the aim of correcting the present weaknesses.
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