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Buhari As Petroleum Minister: What The Lawyers Say

Posted: Oct 23, 2015 at 9:00 am   /   by   /   comments (0)
Muhammadu Buhari

Muhammadu Buhari

By Onche Odeh and Judith Eshemitan (Lagos)

The decision by President Mohammadu Buhari to oversee the Ministry of Petroleum Resources as minister has continue to generate debates among legal experts in Nigeria, causing a sharp division of opinions on the impact of the decision on the oil and gas industry.

Some have said holding such a critical post as president of Nigeria at this time would be a huge distraction, while others are of the view that it would not.

Ebun Adegboruwa, a legal practitioner thinks that Buhari appointing himself as petroleum minister might arrogate too much power to the ex-military ruler.

Adegboruwa said, though the president once served as petroleum minister and has vowed to halt corruption in the oil sector, keeping the portfolio of a petroleum minister for himself may divert attention from his presidential duties at a time when Nigeria needs to revive its economy.

He said, “Under the constitution of the federal republic of Nigeria, the president is an executive president, he is supposed to be the chairman of all the executive organs of government. To that extent the constitution does not allow him to hold any other executive position apart from being president.

“He cannot combine the position of the president to that of a minister. For you to be a minister of the federal republic of Nigeria, your appointment must be confirmed by the Senate of the federal republic. If the president wants to be the minister of petroleum, he has to forward his name to the Senate for the approval of confirmation and that will be a legal absurdity.

“However the president appoints a minister for petroleum and delegates functions, and still supervise that ministry as the president but there must be a substantive minister in charge of that department. It will amount to dictatorship, executive dictatorship and abuse of power for a single individual to allocate all power of the executive to himself.”

Concluding, he said, “When we voted the president in April, we voted for him as the president, so he cannot combine the position of a minister with that of the president. It is illegal.”

Former chairman, Nigerian Bar Association (NBA), Ikeja branch, Monday Ubani, sees it differently. He said: “There is nothing wrong in overseeing the ministry effectively, to ensure he has enough money to run the economy. He carries out the executive function of the presidency so he can assign any portfolio to himself. He is the one to assign ministers their responsibilities, so there is nothing wrong in him assigning the portfolio to himself to ensure proper and prudent management of the ministry.”

Continuing, Ubani said, “There will be a junior minister for the ministry. So whatever it is, the President is aware that we are at a very critical stage in our national economy. We generate most of our income from the oil sector, and we are aware that the sector has been mismanaged over the years.”

Lagos based human rights lawyer, Fred Agbaje, said, “If past experience is anything to go by, then he has done the best thing by making himself the minister of petroleum; otherwise, if he assigns the ministry to somebody else, particularly someone he does not trust, it will be another corruption galore.”

Agbaje who is in support of the President’s decision said: “During Former President Obasanjo’s administration, he held the position to himself too, this however does not mean there will not be corruption in the ministry, but it will be minimized. So I support the president wholeheartedly. That will give him the opportunity of knowing how much crude oil is being sold, and those who are stealing Nigeria’s crude oil can easily be detected.”

Experts in Petroleum Law are also divided over Buhari’s decision to oversee the petroleum ministry personally.

While Professor Yinka Omoriegbe, a former Secretary/Legal Adviser to the Nigerian National Petroleum Resources (NNPC) said there was nothing wrong with the president’s move, a senior lawyer, Jaji Ahmed said it may complicate the already slow processes in the sector.

Both experts spoke in Abuja at the public presentation of a book ‘Structuring of Innovative Finance Schemes for Petroleum Production in Nigeria: Legal and Tax”, written by Dr. Perisuo Dema.

Omoriegbe explained that it is a great idea due to the peculiarity of Nigeria.

He said: “He is not the first president to be minister (of petroleum). He is probably the first to openly say he will be minister of petroleum right from the beginning but (Olusegun) Obasanjo was the de facto minister of petroleum and so was President Umaru Musa Yar’Adua”.

But Ahmed, a Senior Advocate of Nigeria, said that, with Nigeria as a “domainal state and all her petroleum resources are by virtue of Section 44 (3) of the 1999 Constitution and Section 1 of the Petroleum Act owned by the Federal Government. Additionally, item 39 of the exclusive legislative list of Nigeria’s 1999 constitution vest the power to make laws for oil and gas ownership, licencing and devolution on National Assembly.

“Predicated on the foregoing provisions, what a petroleum upstream licence in Nigeria grants that licencee is possessory interest and not a title to the asset. If the licence is to be used by the licencee as bankable collateral the Nigerian Petroleum Act prescribes that the consent of the Minister of Petroleum Resources must first be sort and received by the licencee”.

He stressed that the process of getting consent if the president becomes the minister would become complicated.

“This maybe more complicated if the president assumes the role of minister of petroleum. He may delegate some responsibilities but you and I know what may become of it”, he added.

On his part however, Dr. Dema said President Buhari would act as a minister when he is needed to act as one and presidential when he needs to act as president.