Appointment of Clerk to The National Assembly: A Breach of NASC Act, 2014 By Haruna Mohammed
Editor's note: In this piece, Haruna Mohammed, a public affairs commentator writes on the controversy trailing the appointment of Ojo Amos Olatunde as the clerk to the National Assembly and the consequences of such an action.
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The organogram of the National Assembly bureaucracy and line of duties as captured in sections 6(1), 7(2) and 12(1) of the National Assembly Service Act, 2014 shows that Mr Sani Magaji Tambuwal is not qualified for appointment as Clerk to the National Assembly.
The Organogram of the National Assembly as shown in the Act shows that Magaji Tambuwal is number 6 in line and would not have been above the clerks of the Senate, House of Representatives and their deputies who are recognized by the Act before secretaries.
Source: UGC
The National Assembly Service Commission has once again assumed public media topicality based on its appointment of Sani Magaji Tambuwal as the acting clerk to the National Assembly on Friday, November 18, 2022. It is pertinent to note that Sani Magaji Tambuwal was the Secretary Directorate of Finance and Accounts until his current appointment.
The present scenario is a resonation of the same worrisome trend in which Ojo Olatunde Amos was appointed by the same commission from his position as the secretary Directorate of Procurement and Supplies to mount the saddle in July 2020, as Acting Clerk to the National Assembly.
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The National Assembly is an organ and institution of the Federal Republic of Nigeria which is clothed by the 1999 Constitution of the Federal Republic of Nigeria (As Amended) with the legislative competence of the entire federation.
It is in appreciation of the fundamental role of National Assembly with respect to its bureaucracy, that the constitution specifically created the office of the Clerk to the National Assembly and the National Assembly with respect to its bureaucracy, that the constitution specifically created the office of the Clerk to the National Assembly and the National Assembly Service Commission. Hence, section 51 of the 1999 constitution categorically stated as follows:
(5.1) There shall be a Clerk to the National Assembly and such other staff as may be prescribed by an Act of the National Assembly, and the method of the appointment of the Clerk and other staff of the National Assembly shall be as prescribed by that Act.
The marginal note to the above section is Staff of the National Assembly. The plain, simple and ordinary interpretation of the above provision of the constitution is that the Clerk as the principal administrator of the National Assembly and the other staff shall be appointed in line with the spirit and letters of the National Assembly Service Act 2014.
This extant Act on its coming into force June 30, 2014, validly repealed the 2000 Act and created the current legal regime for the operation and management of the National Assembly. Therefore in the eyes of the law, it is the only constitutionally and statutorily ordained legislation for the appointment of an acting or substantive clerk to the National Assembly.
What the law says
The National Assembly Service Act 2014, categorically expounded the provisions of section 51 of the 1999 Constitution on the same marginal note subject matter-Staff of the National Assembly vide section 12(1) provide as follows:
(1) The staff of the National Assembly shall comprise
(a) the Clerk to the National Assembly;
(b) the Deputy Clerk to the National Assembly
(c) the Deputy Clerk of the Senate;
(d) the Clerk of the House of Representatives;
(e) the Deputy Clerk of the Senate;
(f) the Deputy Clerk of the House of Representatives;
(g) Secretaries to the Directorates;
(h) the Directors; and
(i) holders of other offices that shall be created by the Commission on the recommendation of the Clerk to the National Assembly.
A community reading of sections 6 (1) (b), 7(2) and the above section 12 (1), will confirm beyond dispute, that it is the constitutional and statutory organogram of the National Assembly from whence the National Assembly Service Commission is bound to appoint an acting or substantive Clerk to the National Assembly.
In the exercise of its statutory mandate to appoint an Acting or substantive Clerk to the National Assembly, the National Assembly Service Commission cannot delegate that fundamental duty to any one person or authority. The provision of section 7(2) of the National Assembly Service Act, 2014 is vivid that:
(2) Notwithstanding sub-section (1) of this section or any other provision of this Act, the Commission shall not delegate any of its power in respect of offices of the Clerk to the National Assembly, Deputy Clerk to the National Assembly, the Clerk of the Senate, the Clerk of the House of Representatives, Deputy Clerk of the Senate, Deputy Clerk of the Representatives, Secretaries to the Directorates and such other staff not below Grade Level 07.
These circumstances raise salient issues of law. The National Assembly Service Commission is the regulatory body that is mandated to appoint an acting or substantive Clerk to the National Assembly in replacement of Ojo Olatude Amos. In this wise, the Commission failed in its constitutional and statutory duty by its failure to appoint a replacement for the outgoing Clerk in acting or substantive status.
In short, the instruction to the outgoing clerk to hand over the reins of the National Assembly to the most-senior-Secretary is a manifest departure from the provisions of section 7(2) of the Act that prohibits delegation.
More importantly, the constitutional injunction is that the National Assembly shall operate with a Clerk who shall be appointed as prescribed by the National Assembly Service Act 2014. The organogram as echoed by sections 6 (1) (b), 7(2) and 12(1), placed Secretaries to the Directorates as item (g).
Therefore, it is constitutionally and statutorily inconceivable that where there are bona fide staff on acting or substantive status occupying the positions of the Clerk of the Senate item (c) to the Deputy Clerk of the House of Representatives item (f) that a Secretary from the item (g) will leap to occupy that exalted position of the Clerk to the National Assembly –item (a).
The consequences of Olatude's appointment as the new clerk of the National Assembly
The constitutional provision is imperative that the method of appointment of the Clerk shall be as prescribed by the National Assembly Service Act 2014. The organogram that illustrated the constitutional dictate of section 51 on-Staff of the National Assembly is section 12 (1) of the Act on the hierarchy of the staff. It is beyond doubt that this ordained method as prescribed and upheld by the Act shall be followed. As was affirmed by the Supreme Court in the case of Inakoju v. Adeleke:
It is a good law that where the Constitution or a statute provides for a precondition to the attainment of a particular situation, the pre-condition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached.
In sync with the above verdict of the Supreme Court, the settled legal principle is that once the constitution or a statute has prescribed a mode of doing a thing, that method and no other method must be adopted and followed.
Another important facet of the ongoing controversy in the National Assembly is the President of the Senate's instruction to the Chairman of the National Assembly Commission to recall the former Clerk to the National Assembly. This ironic puzzle cannot stand in the eyes of the law. It is a decree to a statutory independent Commission which is ultra vires. Moreso, on the former Clerk’s formal exit from office, he became functus officio. The interesting query will arise from the legal source of his new role alongside the already contentious status of the appointment of a Secretary over and above officers in the statutory organogram.
It is most unfortunate that the commission charged with the responsibility to enthrone decorum, stability predictability and professionalism in the running of the bureaucracy of the National Assembly has since 2020 proved to be incapable of its mandate. The Long Title of the National Assembly Service Act 2014 is glaring as:
An Act to Repeal the National Assembly Service Commission Act Cap. N7 Laws of the Federation of Nigeria, 2004 and enact the National Assembly Service Act, 2014 to Reorganise the Management and Administrative Structure of the National Assembly for improved Service Delivery for Related Matters.
The commission is a corporate body with a legal personality. Thus, it can sue and be sued. In this context, a bona fide staff of the National Assembly with requisite locus standi can approach a court of competent jurisdiction and even apply for a writ of mandamus to compel the National Assembly Service Commission to act strictly in compliance with the Act for the appointment of an Acting or Substantive Clerk to the National Assembly. The leadership of the National Assembly can avoid legal action and attendant embarrassment by resolving this issue through reasonable prompting of the Commission to do the needful in line with the statutory organogram.
In the overall context, the Constitution is the supreme law of the land with the overriding superiority and supremacy over all authorities, persons and laws within the Federal Republic of Nigeria. Therefore, any law, action, policy or initiative that is contrary to the provisions of the constitution should be declared null and void to the extent of its inconsistency. This is the true position of our law and the National Assembly as our foremost law-making body should know better and resolve this anomaly with immediate effect.
This appointment must not stand as it will destroy the line of succession in the National Assembly.
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