Office of Minister of State is largely redundant and a constitutional aberration – Festus Keyamo Labour Minister

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The minister faulted the concept and appointment of people into the position of “Minister of State.” 

The outgoing Minister of State for Labour and Employment, Festus Keyamo, has described the designation of “Minister of State” as a constitutional aberration, saying that it is practically not working for those appointed into the position. 

Keyamo said this in his valedictory statement titled “A Heart Full of Unquantifiable Gratitude to President Muhammadu Buhari and Recommendation to address the Constitutional Conundrum of Minister of State”.

The minister faulted the concept and appointment of people into the position of “Minister of State.” 

Part of his statement read, “What I am about to say, therefore, is not and should not be construed as an indication of ingratitude. Far from it. What I am about to say is just my own little contribution to our constitutional development as a relatively young democracy and to aid future governments to optimise the performance of those they appoint as Ministers.

“Mr. President, the concept or designation of “Minister of State” is a constitutional aberration and is practically not working for many so appointed. Successive governments have come and gone and many who were appointed as Ministers of State have not spoken out at a forum such as this because of the risk of sounding ungrateful to the Presidents who appointed them. However, like I said earlier, this is not ingratitude.

“As a private citizen, I am on record to have gone to court a number of times to challenge unconstitutional acts of governments for the sake of advancing our constitutional democracy, so it will be out of character for me to have gone through government and be carried away by the pomp of public office and forget my role as a member of the Inner Bar and my self-imposed role over the years as a crusader for democracy and constitutionalism.

“Mr. President, I crave your indulgence to explain this constitutional conundrum of “Minister of State”. Sections 147 and 148 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), deal with the appointments and responsibilities of Ministers of the Federation. The said sections state as follows:

“Section 147 “(1) There shall be such offices of Ministers of the Government of the Federation as may be established by the President.

“(2) 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.

“(3) Any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of section 14(3) of this Constitution:- provided that in giving effect to the provisions aforesaid the President shall appoint at least one Minister from each State, who shall be an indigene of such State.”

He further quoted Section 148 which provided, “(1) The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.”

Keyamo further stated that the 7th Schedule to the 1999 Constitution of the Federal Republic of Nigeria provides for the Oath of Office to which each Minister must subscribe, saying that “There are no different Oaths for “Minister” and “Ministers of State”. They all take the same Oath of Office.

“In addition to the above, the Ministers-designate appear before the Senate and are grilled and cleared AS MINISTERS, not as Ministers in some instances and Ministers of State in some other instances. It is at the point of assignment of portfolios that successive Presidents then reclassified some as “Ministers of State”.

“Some may want to justify this by saying the President is given the discretion by the Constitution to assign whatever responsibility(ies) he likes to Ministers. Yes, I concede Mr. President can do that, but not by a designation different from that prescribed by the Constitution. Simply put, it is akin to the President assigning responsibilities to the office of the Vice-President and re-designating that office as “Deputy President” under our present Constitution. That is clearly impossible. Why then should that of the Ministers be different?

“What is more, Ministers are appointed pursuant to Section 147(3) of the 1999 Constitution to represent each State of the Federation. Therefore, Ministers sit in Cabinet as the eye of Mr. President in each State of the Federation. It is therefore against the intendment of the drafters of our Constitution for a representative of a State to be reclassified as against another representative of another State.

“The Schedules of Duties of Ministers and Ministers of State that intend to cure some of these anomalies hardly help the issues. Firstly, the Schedules of Duties are observed more in breach by the Permanent Secretaries and Directors who really cannot be expected to serve two masters. And in any case, many of the roles of both Ministers are so ambiguous that the bureaucrats would always interpret them to satisfy the ones they see as the “Senior Ministers” or “main Ministers” for fear of being persecuted by them.

“Secondly, parts of the Schedules of Duties seem to suggest that the Ministers can delegate functions to the Ministers of State. This is a constitutional impossibility. It is only Mr. President that can delegate Presidential powers as one cannot delegate what he does not have (delegatus non potest delegare). In any case, how can someone who took the same Oath of Office with another delegate functions to that other?

“Thirdly, the Schedules of Duties leave so many gaping holes that bring conflicts between the Ministers and Ministers of State. In addition, the provision that “Ministers of State” cannot present Memos in Council, except with the permission of the Minister, is another anomaly. It means the discretion of the Minister of State is subsumed in the discretion of the Minister, yet both of them represent different States in Cabinet.

“It also follows that it would be difficult to assess the individual performances of the Ministers of State since their discretion is shackled under the discretion of the Ministers. Original ideas developed by a Minister of State are subject to clearance by another colleague in Cabinet before they can sail through for consideration by Council. The drafters of our Constitution obviously did not intend this.

“As a result, many Ministers of State are largely redundant, with many going to the office for symbolic purpose and just to while away the time. Files are passed to them to treat only at the discretion of the other Minister and the Permanent Secretary. Yet, the Ministers of State will receive either praise or condemnation for the successes or failures of such Ministries.

“I understand that when this practice first surfaced in the First Republic, it was used as a contraption to give a semblance of “Government of National Unity”, when in actual fact no “real power” was ceded to the opposition members co-opted into government who were mostly designated as the Ministers of State, so as to keep them in check under the leadership of the ruling Party’s Ministers.

“But, over time the custom has come to stay and now it has been established as a norm, even regarding Ministers from the same ruling Party. In fact, one political absurdity that has emerged from this is that some Ministers of State won more votes from their States for the party in power than the “main Minister”.”

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