Ministers: Nomination and Appointment

Bunmi Ayoade

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulates that the President should appoint ministers to head ministries and report directly to him within sixty days of his inauguration. Ministers are first grade advisers who are also advised by their own advisers. In a way, therefore, ministers are advised in the process of advising the President, but their advisers are indemnified by convention. There is therefore a policy filtration process because the advice that ultimately lands at the President’s desk is ideally the product of the interaction between a minister and his advisers. This process speaks to the quality of the hiring process. Where the minister and his advisers are hired for reasons other than competence and experience, the quality of advice is adversely affected.

Governance is the business of businesses demanding the highest expertise that the polity can provide. This is why the United States enacted the 1967 Anti-nepotism Law forbidding federal officials from employing family members to certain governmental positions and the cabinet. Apart from the fact that appointment determines system performance, it also unduly and illegitimately extends the privilege and cover of the vote to the unelected. It, therefore, amounts to a political misdemeanor to willfully appoint people that are known and/or adjudged to be incompetent to such governmental positions. This is more so the case because governance is about the citizen who is arguably the most valuable and delicate factor in the governance chain. In fact, the citizen is the raison d’etre of government which, in turn, is an ingenious apparatus created by citizens for the ultimate peace and progress of citizens.

Democracy, which all nations claim at different levels of praxis and sincerity, is a genre and form of government. Its practice has become so elastic that the polar extremities cannot relate. The cabinet or Council of Ministers in a democracy is an extension of the democratic representative principle having been appointed by a popularly elected executive and confirmed by an elected legislature in a presidential system. The cabinet is therefore a meta-representative institution of the democratic electorate or, at worst, a by-product of the representation. It is connected to the people as a political derivative of the democratic process. In essence, therefore, it must be responsive to the people just as its principal is or must be responsive to the people. We shall return to the issue of the responsiveness of the cabinet to the people later on.

The justification for responsiveness is further embedded in the appointive process as enshrined, in this case, in the 1999 Constitution (as amended). The Constitution prescribes compliance with a representational template known as the federal character principle to the effect that the appointment of ministers, among other public officers, must have national representative spread just as, in principle, the votes of a successful President. The political parties are also required to demonstrate such representativeness to be registrable. The federal character clause of the 1999 Constitution is the refined product of the non-exclusion principle debate at the Constituent Assembly. It is to ensure inclusivity, politico-spatial equity, fairness, and representativeness.

However, as much as it attempted to be inclusive and equitable it falls short of its attainment. It sees inclusiveness and equity in only spatial terms which incidentally and only partially satisfies ethnic reality. It however fails to cover the gamut of socio-demographic parameters like gender, ideology, religion and the social generations. For example, it neither specifically nor explicitly attends to gender dichotomy not even its proportionality. This leaves women to continue to clamour or, more correctly, to beg for 35% representation. Mrs Beatrice Eyong, the UN Country Representative to Nigeria even wanted it at 50% just like Rwanda and Ethiopia where women and men are more nearly equal in their legislatures and cabinets. A similar lacuna exists in confessional and ideological representation. There is no mention of the representation of Christians, Muslims or traditional religions even impliedly. It can be argued that it would have been self-contradictory for a constitution that pronounces Nigeria a secular state to give recognition to religions at the same time. The silence is however both ominous and counter-factual because religion is extremely prominent and visible in daily national political discourse. Only a few months ago, same faith ticket generated heavy political brawling and attention.

To a large extent, federal character failed in what it attempted. It is neither fully inclusive nor completely equitable. In one breath, federal character wrongly equates arithmetic equality with content/substance equality. The 1999 Constitution stipulates that one minister must be appointed from each state of the federation. This condition unwittingly creates an unwieldy cabinet although it satisfies the federal practice of the equal representation of unequal states in the second chamber. The equality of unequal constituent states is aimed as a counterweight to the unequal representation according to population in the lower chamber. The ministers therefore represent unequal/varying number of citizens across the country. This differentiation is critical because it results in the paradoxical attempt to achieve unity by emphasising differences.  The survival of Nigeria therefore hangs precariously on this contradiction. The effect of the prioritisation of sub-national units is the prominence of sub-national loyalties. It is no surprise therefore that some ministers inadvertently or deliberately see themselves as state ministers at the federal level. Harold Lasswell’s definition of politics as who gets what, when and how is therefore interpreted in consumption terms as the ‘take home’ from the national cake.

The second instance of inequity resulting from the tying of the appointment of ministers to states is that the internal configuration of states, more or less, determines who gets nominated as minister in the states. This is because the state governors or the party leadership in the states, as the case may be, have a strong say in who gets the nod. In this case, the minorities in the states stand very little chance of nomination. Very pointedly, it can be said that minority Christians or minority Muslims would find it difficult to pass through the eye of the needle. The representative principle at the macro-level is therefore further undone at the micro-level. This is also compounded by the fact that the ministries themselves are neither equal in terms of power, political strategies or ‘juicy’, in the unfortunate commercial parlance and expectation of the Nigerian political class.

For many years, the Ministry of Internal Affairs appeared to be a regional preserve just as recently, the Ministry of Federal Capital Territory. It will be naïve to equate the Ministry of Petroleum Resources with the Ministry of Information no matter the extra-budgetary favour the President may dispense. In the absence of the quantitative and qualitative re-calibration of ministries, George Orwell’s insight is appropriate here because, by definition, all ministries are equal, but not in terms of socio-political substance and clout. Consequentially, ministers are not equal since the ministries are, to all intents and purposes, unequal. Critical as unity is, the federal character principle is unfortunately an ineffectual prescription of inclusivity and equity. We must get it straight also that unity is a positive derivative or consequence of good governance.

It is therefore a forlorn hope to expect that national unity can be wished into existence or ‘national loyalty’ commanded as S.14 (3) of the 1999 Constitution suggests.  It is behaviourally unrealistic and unrealisable. Citizens only voluntarily and freely release high doses of unity and loyalty when government delivers social services to make them feel good. Poor governance, unity and loyalty are incompatible and anti-polar. Unity should therefore not have been an item of the Motto on Nigeria {(S.15 (1)}, but a mission or goal to be intentionally and assiduously pursued.

The qualifications for the appointment of ministers vary from country to country. In Cabinet, Ministers, and Gender, Claire Annesley, Caren Beckwith and Susan Francechet offer the best classification of the qualifications. They classified the qualifications into three as follows: 1. affiliation criteria, 2. experiential criteria, and 3. representational criteria. The affiliation criteria deal with the nominee’s membership of personal networks of friendship, trust and loyalty. This includes associations, parties, and ideological leanings and the like. Experiential criteria are to the effect that ministrables (as Gerald Kaufman calls prospective Ministers) must demonstrate commensurate political experience and/or policy expertise, and possibly in their training. These are strongly prescribed conditions that may be broad, non-specific and flexible to accommodate several functional areas. The exception is that a barrister (or preferably a Queen’s Counsel in Britain) is required for the position of the Attorney General and Minister for Justice (i. e. Lord Chancellor in Britain). A Nigerian analyst, Edidiong Akpabio enumerates the experiential qualifications as competence, capacity and track records. In the same vein, Waziri Adio lists the same criteria as ‘caliber, antecedents and character’. However, the Nigerian Constitution is silent on the experiential criteria and is not mandatory to be included in the President’s submission for Senate screening. The third and final category of qualifications is the representational criteria, which is defined as membership in appropriate political, territorial or socio-demographic group that adds value to the legitimacy of the cabinet. This includes ethnic, racial or regional representation as in Canada, the US, Australia, Germany and the U K. There is also the possibility of gender representation as in Rwanda and Ethiopia on which the Nigerian Constitution is mute.     

In addition to compliance with federal character, to be ministerable, a candidate must be electable to the House of Representatives {(S. 147 (5)}. This requirement raises some questions. One of the hallmarks of a presidential government is the separation of powers and the doctrine of checks and balance. It is true that, in practice, there is more of fusion and collaboration rather than separation of powers, but in the election of the legislature and the executive, it is preferable that there is no conflation of requirements as different job contents and specification should normally logically require different qualifications. The very minimal convergence of functions does not justify the prescription of job qualifications. Two of the qualifications relate specifically to membership of the legislature rather than ministerial appointment. It contrasts with India where the prospective minister must be a Member of Parliament.

However, there are other qualifications at the level of bio-data like age, education and citizenship. A prospective minister must be a Nigerian citizen who must be thirty years of age {(S. 65 (1) (b)}. He must also be educated up to at least school certificate level or its equivalent {(S. 65 (2) (a)}. One would have expected a minister to have a higher educational level because of the heavy and complex executive responsibility.  This contrasts very sharply with the Australian counterpart where forty-two of the forty-four ministers are graduates of mostly University of Sydney, Adelaide University, and Monash University. It is said: “When it comes to being a minister in the Australian Parliament, degrees matter”. In fact, most of them hold double degrees in Arts and Law. Legal professionals constitute 10.6% of the Australian Parliament. It is even more surprising that the Nigerian Constitution does not prescribe any specific experience level for a would-be minister.

Ideally a presidential constitution is more relaxed about party membership because it places technical competence above party membership so that it can take advantage of the total socio-intellectual endowment of the polity.  The unsegregated partisan sitting arrangement of presidential legislatures is an attempt to deemphasise party over efficacy. It is unnecessary, therefore, to prescribe that the ministerial candidate should be a member of a political party and be sponsored by that party {(S. 65 (2) (b)} although this is what happens in reality. The system is not completely free to take advantage of the available non-partisan neutral professional and technical competence in the country. Equally superfluous is the requirement that the ministerial candidate must not have presented a forged certificate to the Independent National Electoral Commission because the separation of powers prescribed by the 1999 Constitution makes it redundant for the candidate to contest an election.  Even if he were a member of the legislature at the time of his nomination, he would be deemed to have resigned his membership. In fact after the amendment of the Electoral Act to include the punishment of election offences, this clause has been overtaken because any such forgery will be prosecuted and upon conviction automatically disqualifies any such candidate. Finally, for brevity, the electoral offence could have been subsumed under general misdemeanor that disqualifies a ministerial candidate.

A ministerial candidate is also supposed to be clinically ethically clean. The candidate shall be disqualified to hold a ministerial position if he voluntarily acquired the citizenship of a country other than Nigeria as he thus forfeits his Nigerian citizenship not being by birth {(S. 66 (1) (a)}. He must not be adjudged or declared a lunatic or of unsound mind {(S. 66 (1) (b)}. This is a very important condition, but no professional verification process is specified being not easily verifiable like the requirement that the candidate must not be under a sentence of death or imprisonment or fine for misdemeanor which is by a court of competent jurisdiction {(S. 66 (1) (c)}. The candidate must not have been sentenced for an offence involving dishonesty or contravention of the Code of Conduct {(S. 66. (1) (d)} nor must he be an undischarged bankrupt {(S. 66. (1) (e)} or a member of a secret society {(S. 66 (1) (g)} or been indicted for embezzlement or fraud by a competent body {(S. 66 (1) (h)}. The candidate must have vacated his position in the federal or state public Service at least thirty days before nomination {(S.66 (1) (f)}.  

The appointment of ministers in the Westminster model begins and ends with the Prime Minister. It is therefore less regulated except that the ministerial candidate must be a member of parliament. The Prime Minister therefore has the opportunity to assess him or her on the basis of legislative floor performance or appointment as a shadow minister if the candidate was one. That is why Gerald Kaufman, a former British minister and author of How to be a Minister, submitted that one of the qualifications is to “be noticed” as somebody to make “a mark”. Rowdiness in the parliament, frequent recognition by the Speaker, frequent deliberate acts of popularity, may all gain headlines and even lead to popularity in one’s constituency, but no guarantee of ministerial office. Genuine loyalty rather than sycophancy is valued and rewarded. All the ideological positions in the party are attended to for balance and to pacify the reasonably troublesome members. Competence in a requisite governance subject is respectable and reassuring. It earns bounteous dividends in ensuring electoral confidence that it is in safe hands.

In concluding this section on the qualifications of Ministers, it is important to mention that the nomination by the President is not final. The President is required to submit the list of ministers to Senate for screening. This therefore gives the Senate the final approval. Senate is, therefore, also culpable for the eventual poor performance be held responsible for any substandard performance of any minister. The legislature also has the constitutional responsibility of oversight of the ministries.  However, experience shows that there are systemic and personal constraints that militate against objective screening of ministers by the Senate.

First, it depends on the understanding of its role as a gatekeeper and quality controller in the governance chain. There were occasions when the Senate simply approved some ministerial candidates after just a bow. This is not the intention and stipulation of the 1999 Constitution without exception. There is however a lacuna in the screening process because the portfolios of the ministers are not attached to the list. It is a curious human resource hiring procedure to screen candidates for jobs without job specification. Any hiring process is tied to the requirements of the job, which the candidate’s qualifications must match. To hire a minister in a vacuum is to remove the criteria for the assessment of performance. This is further complicated by the fact that no job-related qualification is specified for the candidate. These are near fatal omissions. A journey without a pre-determined destination is a failed journey ab initio. The second part of this article will look at the organisation and performance of a cabinet.

Ayoade, an Emeritus Professor of Political Science, writes from the University of Ibadan, Nigeria