A Federal High Court, Abuja on Wednesday, described as “unlawful” the appointment of Federal Character Commission (FCC)’s Chairman, Muheeba Dankaka, and the Secretary, Bello Tukur, from the northern region by former President Muhammadu Buhari.
Justice Inyang Ekwo also held that the confirmation of Dankaka and Tukur from the same region by the 9th Senate was unconstitutional, null and void.
Justice Ekwo, who held that the former president had failed to comply with the provisions of the laws in the duo’s appointment, said the case of the plaintiff was meritorious.
“Therefore, I find that there has been failure of the 1st defendant to comply with the provision of Section 14 (3) of the 1999 Constitution (as amended), Section 4 (1) (a) of the FCC Establishment (FCCE) Act, 2004 and Section 4 of the Guiding Principles and Formulae for the Distribution of all Cadres of Posts,1997 made pursuant to Section 4 (1) (a) of the FCCE Act, 2004,” he said.
While Dankaka is from Kwara State, Tukur hails from Taraba State.
Buhari had, on April 28, 2020, appointed Dankaka as the chairman of the commission for a five-year tenure and was confirmed by the Senate on June 2, 2020.
Also, the former president had earlier approved the appointment of Tukur as FCC’s secretary on April 14, 2017 and was reappointed on March 12, 2021 for a term of four years.
A human rights lawyer and public interest advocate, Festus Onifade, had, in the suit marked: FHC/ABJ/CS/709/2021, sued President of the Federal Republic of Nigeria, Attorney-General of the Federation (AGF), FCC, Dankaka and Tukur as 1st to 5th defendants respectively.
In the originating summons dated and filed on July 19, 2021, the lawyer sought interpretations to two questions.
These include, whether by the combined provisions of Sections 7 and 8 (1) and (2) (a), (b), and (c) of the third Schedule, Part 1 of1999 Constitution (as amended) and Section 4(1) of the Subsidiary Legislation (GUIDING PRINCIPLES AND FORMULAE FOR THE DISTRIBUTION OF ALL CADRES OF POSTS) 1997 of the Federal Character Commission (Establishment,) Act 1995, the appointment of 4th and 5th defendants by the 1st defendant and the confirmation of the said appointment by the National Assembly as Chairman and Secretary of the FCC is not a violation of the constitution and therefore unlawful, unconstitutional, null and void ab initio.
“Whether by such appointment and continuous holding of office of 4th and 5th defendants is not inconsistent with the provisions of Section 7 and 8 (1) and (2) (a), (b), and (c) of the thud Schedule, Part 1 of 1999 Constitution (as amended), Section 4 (1) of the Subsidiary Legislation (GUIDING PRINCIPLES ANO FORMULAE FOR THE DISTRIBUTION OF ALL CADRES OF POSTS) 1997 of the FCCE, Act 1995 and so renders their continuous stay in office unlawful, unconstitutional of no effect.”
He, therefore, sought a declaration that the president (1st defendant) was bound to observe and comply with the provision of the Sections 7 and 8 (1), (2) (a) (b) (c) of the Third Schedule, part 1 of the 1999 Constitution (as amended) in the appointment of persons to the office of the chairman and Secretary of FCC.
He also sought an order directing the president to immediately dissolve and reconstitute the FCC’s board in accordance with the laws.
Onifade equally sought an order directing the president to immediately appoint other persons into these positions in compliance with the provisions of the constitution and the Act of National Assembly, among others.
The president and the AGF, in their joint response, argued that the 1st defendant (Buhari) had the constitutional powers to appoint individuals he deems qualified into extraministerial bodies like FCC, insisting that the simultaneous occupation of the position of chairman and secretary by Dankaka and Tukur did not violate the constitution.
They argued that the FCCE Act, 2004 referred to was an enactment of the National Assembly and the Guiding Principles and Formulae for the Distribution of All Cadres of Posts, 1997 was a subsidiary legislation.
On their part, Dankaka and Tukur submitted that after the chairman’s name was forwarded to the then Senate President, Ahmad Lawan, on March 24, 2020, she appeared before the Senate Committee on Federal Character for screening and was confirmed by the Senate as the FCC’s executive chairman on June 2, 2020.
They stated that Buhari also nominated 37 other persons as commissioners to represent the 36 states and the Federal Capital Territory respectively and they were validly appointed by him after confirmation by the Senate, hence, the issue of federal character did not arise.
According to them, the 1999 Constitution (as amended) is silent as to the mode of appointment of the secretary of the 3rd defendant (FCC) whose appointment is not subject to confirmation by the Senate.
“Contrary to Paragraph 14, the subsidiary legislation (Guiding principles and formulae for the distribution of all cadres of post) of the FCCE Act 2004) for the purpose of equitable appointments, states that the country is divided into six geo-political zones from which Kwara State which the 4th defendant hails from is under the North Central while Taraba State which the 5th defendant hails from is under the North East,” they argued.
The defendants urged the court to dismiss the suit.
Delivering the judgement, Justice Ekwo, who dismissed the arguments of the defendants that the issue of federal character did not arise, held that “this argument in my opinion is bereft of even the minutest tissue of reasonableness.”
“It is insensitive and unconscionable trend of thought which must be struck down forthwith.
“The 1st and 2nd, 3rd and 4th, and 5th defendants cannot say that they do not know that it is not the members that are in charge of the day-to-day administration and management of the 3rd defendant but the 4th and 5th defendants.
“The 4th and 5th defendants coming from the same part of the country is not a representation of federal character as required by law in the Federal Character Commission,” he said.
According to him, the whole essence of federal character principle is for posts distribution among the component parts, sections, regions, states, or tribes of the country in the government, its agencies and parastatals, and not a concentration of such posts in just one of such component part, section, region, state, or tribe.
“The fact that the Senate confirmed the appointment of the 4th defendant during the pendency of the office of the 5th defendant from the same part of the country does not by any stretch imply that the confirmation has over ruled the application of the federal character principle in the distribution of the two posts in the 3rd defendant as constitutionally and statutorily required,” he said.
The judge, therefore, held that Onifade’s case succeeded on the merit.
He consequently declared that the president was bound to observe and comply with the provisions of the laws in such appointment.
He also declared “that the appointment by 1st defendant and the confirmation of same by National Assembly of the 5th respondents is unlawful, unconstitutional null and void ab initio for non-compliance with,” the appropriate laws.
Justice Ekwo, however, did not grant the orders in prayers 3 and 5 of the originations summons.
The judge held that since Dankaka’s appointment was confirmed by the Senate on June 2, 2020 for a term of five years, and Tukur was reappointed on March 12, 2021 for a term of four years, the secretary would not be eligible for another term at the expiration of the said term.
“I will, therefore, allow their respective tenures to run to an end.
“This will allow the 1st defendant (president) sufficient time to comply with the provision of the constitution, statute and statutory instrument concerning equitable distribution of the appointment into the office of the secretary and executive chairman of the 3rd defendant (FCC).
“This is the judgement of this court”, he said.
