Some senior lawyers have backed the appointment of Hannatu Musawa as Minister of Arts, Culture and Creative Economy, by President Bola Tinubu, saying the Nigerian Constitution also supports her appointment.
The lawyers argued that the Constitution is superior to the NYSC Act.
Musawa was among the 45 new ministers cleared by the Senate recently and sworn in by President Tinubu last Monday.
However, shortly after she was cleared by the Senate, many claimed that Musawa cannot be appointed as minister while she is still undergoing the mandatory National Youth Service Corps (NYSC) scheme.
NYSC’s Director of Press and Public Relations, Mr. Eddy Megwa also confirmed that the minister is a serving corps member.
Speaking on the legality or otherwise of a corps member serving as a minister of the Federal Republic of Nigeria, some senior lawyers argued that the Constitution backs such appointment.
Commenting on the issue, Mr. Norrison Quakers (SAN) commended President Tinubu, saying her appointment is a youth empowerment initiative.
“However, when you look at the provisions of Section 147 of the 1999 Constitution particularly sub-section 5, it states that 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.
“The question is what are the qualifications for election into the House of Representatives? This we find in section 106 of the 1999 constitution. You must be a citizen of Nigeria, you must have attained the age of 25 years, and you have been educated up to at least a school certificate level, or its equivalent. You must be a member of a political party and you must be sponsored by that political party.
“What is causing the conflict is as regards her status and a youth corps member that is still serving. I have looked at the law, and I have not seen any constitutional limitations. I have also looked at Section 2 of the NYSC Act, there is no law that says, she must have finished service before she can be appointed as a Minister of the Federal Republic of Nigeria,” he explained.
In his view, Dr. Abiodun Layonu (SAN) stated that since the constitutional requirement for those aspiring to become members of the House of Representatives is a school certificate, the requirement for ministerial nominees should not be more than a school certificate.
“House of Representatives’ candidates do not require a university degree. So, if the requirement for being a member of the House of Representatives and governor is a school certificate, then one will say that to be a minister, the requirement should not be more than a school certificate.
“To be appointed as a minister, the Constitution prescribes the same requirements for somebody contesting for the House of Representatives. The constitutional requirement for being able to contest an election as a House of Representatives candidate does not require a university degree. So, if the requirement for being a member of the House of Representatives and governor is a school certificate, then one will say that to be a minister, the requirement should not be more than a school certificate,” the senior lawyer explained.
A former Secretary of the Body of Senior Advocates of Nigeria, Mr. Seyi Sowemimo (SAN), also argued that being a serving corps member does not disqualify Hannatu Musawa from being a minister.
He said: “The President has the discretion as to who he wants to appoint to a position in national interest. I don’t see why she should be disqualified as a minister.
“Ordinarily, she should be posted out just as other youth corps members. However, if it turns out that there is a youth corps member that the President believes would best serve the nation in a ministerial capacity, I don’t see why he cannot do that. However, it is an unusual thing, and some justifications have to be given for deviation from the normal routine.
“It appears to me that the President may not be aware of that situation, otherwise she may not have been appointed. On the other hand, it may be that he is aware of it, and it’s a deliberate decision, meaning that there are more compelling reasons why she should serve the nation in that capacity, rather than being posted out in the normal NYSC manner.”
However, a human rights lawyer, Mr. Femi Falana (SAN) condemned Musawa’s appointment, stating that a serving youth corps member is not competent to be a minister in Nigeria.
Falana argued that any person who did not participate in the national youth service is not qualified to be a member of the House of Representatives, adding that the Constitution appears to have set the same standard for those to be appointed as ministers.
He submitted that Section 147(6) of the Constitution states that 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.
He said: “By virtue of section 2 of the National Youth Service Act, every citizen who has graduated at any tertiary institution in and outside Nigeria and is not 30 years old shall be mobilised for the one-year compulsory national youth service. Any person above 30 is not eligible to participate in the national youth service.
“Section 13 of the Act provides that any person who fails to report for service in the service corps in the manner directed by the Directorate or who refuses to make himself available for service in the service corps is guilty of an offence and liable on conviction to a fine of N2, OOO or to imprisonment for a term of 12 months or to both such fine and imprisonment.”
Also, Mr. Dayo Akinlaja (SAN), said “the appointment is indubitably not in consonance with the NYSC Act”.
He pointed out that the Act explicitly stated that a member of the service corps shall serve for a continuous period of 12 months.
“Having been mobilised, therefore, a person cannot veer into any other public or private engagement until the expiry of the twelve months and the award of a certificate of discharge,” he said.
Akinlaja noted that although there is a provision in the law for a reduction of the period of service, “that reduction and the attendant certificate of exemption must have been issued before a serving member can delve into another engagement.”
In addition, he emphasised that there are statutory procedures for the reduction of the period of service, which have apparently not been complied with in the case of the subject.
“The fact that the Directorate of the NYSC has acknowledged that she is a serving member of the corps, doubtless, attests to the fact that her service period has not ended by way of official reduction.
“All said, the appointment is inappropriate and must be brought to an end with promptitude to stave off more serious embarrassment for the government,” he advised.
On his part, the immediate past chairman of the Nigerian Bar Association (NBA), Abuja branch, Mr. Moses Ebute (SAN) stated that the law forbids a person from occupying two positions and earning salaries and allowances from two places at the same time.
He observed that the NYSC Act makes it mandatory for a graduate who is yet to clock the age of 30 years to serve the country as a Youth Corps member by way of primary assignment and would be entitled to a monthly allowance from NYSC/ Federal Government of Nigeria in addition to some stipends from the place of primary assignment.
“Therefore, the appointment of such a person is certainly an aberration and amounts to double employment/enjoyment of salaries and allowances from the same federal government.”
Another lawyer, Mallam Ahmed Raji (SAN), expressed doubt if it was possible to combine some appointments with the NYSC service scheme.
“There appears to be some fine distinction between being employed and being appointed. Discharge certificate may be a condition for employment,” he said.
“I am not sure (and of course barring any misrepresentation) the discharge certificate may be a condition for appointment.
“It is however doubtful if some appointments can be combined with service. Where such may not be combined, the lesser one may be suspended,” he added.
Alex Enumah in Abuja and Wale Igbintade in Abuja
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