Akpo Mudiaga-Odje
10 October 2008
The recent creation, or better still, purported establishment of a Ministry of Niger Delta by the President of the Federal Republic of Nigeria, Alhaji Umaru Musa Yar'Adua, has caused ripples in the Niger Delta specifically, and the nation in general.
These reverberations have necessitated a flurry of opinions and observations, some of which have led to this discourse.
Powers of the National Assembly under the 1999 Constitution: Section 4 of the 1999 Constitution, so far, as material for this discourse, provides that: "4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution. (3) The power of the National Assembly to make laws for the peace, order and good governance of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States..."
On the Exclusive Legislative List regarding the absolute powers of the National Assembly is Item 39 which relates to: "Mines and minerals, including oil fields, oil mining, geological surveys and natural gas."
On the procedure and authority of the House to make laws for the nation, Section 58 provides that: "58(1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President."
From the above provisions, it is axiomatic that the National Assembly, specifically from the construction of Section 4 and Item 39 of the 1999 Constitution, has exclusive and absolute powers to make laws in respect of any matter relating to mines and minerals, including oil fields, oil mining, geological surveys and natural gas. See the case of Attorney-General of the Federation Vs. Attorney-General of Abia State & 35 Ors. (No. 2) 2002 6 NWLR (pt.763) 264 at 485 paras. G-H per Uwais, CJN.
Ministry of Niger Delta relates to mines and minerals, including oil fields, oil mining, geological surveys and mineral gas: From the above, it is axiomatic that the Niger-Delta Ministry, as the name implies, relates solely to issues of mineral oil, oil fields, geological surveys and mineral gas as exclusively listed in Item 39 of the 1999 Constitution and exclusive to the National Assembly. This power flows from the doctrine of separation of powers which was ably propounded by Montesquieu, Charles-Louis de Secondat, Baron de la Brede ed de (1689-1755).
His classical work "Del'esprit des lois" (1748) sets out from the background of a dialogue of despotism, and recommended separation of powers among the Parliament, Executive and the Judiciary to forestall tyranny.
In that sequential order, the 1999 Constitution adopts that doctrine under Sections 4, 5 and 6 of the Constitution. For ease of reference and, so far, as material for our purpose, they provide thus: Section 4:
4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution."
Section 5: 5(1) Subject to the provisions of this Constitu-tion, the powers of the Federation - (a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws."
Section 6: "6(1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (6) The judicial powers vested in accordance with the foregoing provisions of this section - (a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law; (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966, for determining any issue or question as to the competence of any authority or person to make any such law."
It is based on the above that we strenuously contend that the purported creation of a Ministry of Niger Delta to deal on issues of oil and gas without an enabling law of the National Assembly is unconstitutional and ultra vires the powers of the Executive as personified by Mr. President under Section 5 above and a gross violation of the principles of separation of powers as firmly entrenched in the 1999 Constitution.
Powers of the President to establish a Ministry: Under Section 147 of the 1999 Constitution, it is pungently provided that: "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 Minster from each state who shall be an indigene of such state.
(4) Where a member of the National Assembly or of a House of Assembly is appointed as Minister of the Government of the Federation, he shall be deemed to have resigned his membership of the National Assembly or of the House of Assembly on his taking the oath of office as Minister. (5) No person shall be appointed as a Minister of the Government of the Federation unless he is qualified for election as a member of the House of Representatives.
(6) An appointment to any of the office aforesaid shall be deemed to have been made where no return has been received from the Senate within twenty-one working days of the receipt of nomination by the Senate."
By this section, without more, one is tempted to conclude that the President has the powers to establish the Ministry of Niger Delta clearly without a law from the National Assembly. However, the peculiarity of the Niger Delta Ministry relating to oil matters, as exclusively listed under Item 49 of the Exclusive Legislative List, excludes such a Ministry from the provisions of Section 147 of the Constitution.
In other words, by simply tagging it a "Ministry" does not confer powers on the Executive to use Section 147 to obviate the provisions of Section 4 and Item 39 of the Constitution. If that is allowed, the Executive will be at liberty to be encroaching on its authority and powers by simply tagging the agency as a "Ministry".
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