PRESIDENT, FEC AND CONSTITUTIONAL BREACHES
The issue of the status of the President and or the Federal Executive Council (FEC) in contract awards and contract approvals has remained a burning debate in recent time, and systematically addressed by the professionals in the purchasing and supply chain management. First it was Alhaji Yusuf Maitama Tuggar, the House Committee Chairman on Public Procurement. In his interview published in the Sunday Trust of September 6, 2009 and my rejoinder also published in the same medium, Tuggar was quick enough to see and realized that pursuing his angle of argument that the President and/or FEC cannot approve contracts, especially as a member of the National Assembly making laws for the country, will lead him nowhere. Subsequently, he jettisoned the debate and accepted the constitutional provisions that guarantee the rights of the President or the FEC – at the discretion of the President – to give consent to contracts awarded by the Ministries, Departments and Agencies (MDAs) of the government when they are beyond certain thresholds approved by the National Council on Public Procurement (NCPP) in line with Section 2 of the Public Procurement Act 2007.
Secondly, I had also responded swiftly to Senator Ahmed Makarfi’s interview on the front page of the Daily Trust newspaper of June 14, 2010 where he also re-echoed Tuggar’s earlier statement, but this time with emphasis on contract approvals and not awards. My rejoinder on this issue no doubt generated a lot of concerns, particularly for those who will obviously benefit from the outcome of such position if the status quo is reversed.
The most recent of this issue was at the above mentioned book launch wherein some non-state actors (NSAs), pathetic to BPP were assembled again to give voice to the unending illegalities perpetuated by the Bureau. Though many Nigerians are aware that the September forum was stage-managed to push forth an agenda, it is important to sustain this engagement and advocacy to avoid the derailment of our procurement system by those entrusted with its management.
Ironically, all those said to be present at the book launch, including the Director General of BPP, Engr. Emeka Ezeh, have no professional qualifications in the field of procurement. At best, some of them could be described as sector specialists. They are professionally laymen in Purchasing and Supply Management (PSM) and it is on record that even those listed, as legal activists also have no record of litigation. On this ground, it would have been tolerable to forgive their errors as lack of adequate knowledge of the subject, but giving the fact that all their actions were tailored after the military foxholes, it will be damaging to the country to allow their inordinate ambitions override national interest.
To demonstrate their ignorance, they had all shifted their poles from the argument on ‘award of contracts’ to ‘approval of contracts’ in just few months after now realizing that in professional procurement, there is a difference between award of contract and approval of contract, and this is attributed to our sustained advocacy and education on the subject. And because they lack the expertise to engage the issue, they failed to understand the logics in procurement procedures and laws, and ignorantly applying the Public Procurement Act (PPA) 2007 independent of other Acts and the 1999 Constitution of Nigeria (as amended), which in all laws is supreme.
In my letter of June 8 addressed to the Minister of Justice and Attorney General of the Federation, copied to the Director General of BPP, I had explained and interpreted the procurement procedures as if affects the laws and the role of the President/ FEC on contract approval. In response to my letter dated July 1, the Director General, Engr. Ezeh conveyed his gratitude for the efforts and promised to share the information with members of FEC about the phenomenon and my guided exposition on same. Surprisingly and to the amazement of the public, Engr. Ezeh introduced a new twist to the issue when during the book launch he was quoted as saying, among other damaging statements which I will address under separate cover, that “In the absence of the Council, the President can approve contract since he is the Commander in Chief of Nigeria” This is to further buttress an earlier argument that the President or FEC has no business approving contracts.
The above statement has further compounded the already soured situation, or putting it rustically, e don add san-sand to garri’. From a layman’s understanding of the above, the statement is harmless and supportive of government’s action, but a professional view reveal very dangerous signal that could further undermine our laws and the procurement process. The interpretation of this comment by the Director General of BPP implies that since the Council (meaning the National Council on Public Procurement) is not inaugurated as provided for in the PPA, then the alternative is for the President or FEC to approve contracts. In other words, when the Council is finally inaugurated, the President and FEC will no longer have powers to approve contracts.
As the head of a procurement regulatory entity, and someone saddled with the protection of the public procurement process as it affects our laws, this is a most unfortunate statement coming from the DG. I think it is a deliberate or calculated attempt to deceive or threaten the Presidency and the FEC. Although there is nowhere in the PPA where the President or FEC are directly mentioned with respect to approval of contracts but the President or FEC at the discretion of the President can constitutional play a role in the procurement process, albeit approval of contract awards,The President in his oath of office swore/affirmed that he will be faithful and bear true allegiance to the Federal Republic of Nigeria and that as President of the Federal Republic of Nigeria, he will discharge his duties to the best of his ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Federal Republic of Nigeria; and that he will strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of the Constitution of the Federal Republic of Nigeria “and not to allow my personal interest to influence my official conduct or my official decisions ……”In the case of AG Ondo state V 35 Others (2002) CLR 6(d) (SC) it was decided that “Directive Principles” is another name for Instrument of Instructions and with respect to Chapter 11 of the 1999 constitution means instrument of instructions to the Executive and Legislature. Whoever captures power is not free to do what he/she likes with it. In the exercise of it he/she will have to respect these instructions called Directive Principles.Flowing from the definition of Directive Principles above, the oath of the President and the provisions of Chapter 11 of the 1999 constitution, it is evident that the President is under obligation to Nigerians not to approve any contract awarded by any procuring entity in Nigeria, if that contract does not guarantee the sovereignty, integrity, solidarity, well-being and prosperity of the Federal Republic of Nigeria or which does not preserve the Fundamental Objectives and Directive Principles of State Policy in sections 13, 14, 16 to 24 of the 1999 Constitution. This was clearly demonstrated in the cancellation of the N64.3bn Second Abuja Airport Runway Contract frauds and several others involving the Bureau and several entities. Imagine the President or the FEC looking the other way on any of the above frauds, and what we would be witnessing.
It is therefore wrong for the DG of BPP to give the impression that when the NCPC is inaugurated, it will stop the President/FEC from performing their constitutional duties of approving or rejecting contacts that does not guarantee sovereignty, integrity, solidarity, well-being and prosperity of the Federal Republic of Nigeria or which does not preserve the Fundamental Objectives and Directive Principles of State Policy concerning the economic, social, educational, foreign policy, environmental and political objectives as well as national interest as contained the Constitution of the Federal Republic of Nigeria. Or for anybody to say the President has no rights to approve contracts awarded by the MDAs and turn around to accuse government when there is failure in contracts. Whether the Council is inaugurated or not, the powers of the President and FEC to approve contracts remain constitutional, unchallenged and are not transferable to the NCPC.
All that the NCPC can do for the President/FEC is at best to set threshold of contracts that must be referred to the President/FEC from all Procuring entities in Nigeria for approval after the award of the contract has initially taken place in the procuring entity and submitted to the Minister for implementation in accordance with section 22(5) of procurement Act.The argument by some civil society activists that the President and the Federal Executive Council are not mentioned in the PPA as contract approving authorities, and that Chapter 2 of the 1999 Constitution is not enforceable, and since by virtue of the recommendations of the World Bank 2002 CPAR and the provisions of Section 4 (2) (4) (a) and (b) read together with section 5(1) of the 1999 Constitution, the President assented to the Public Procurement Act, that it is no longer possible for the President/FEC to approve or award contracts. My response is that this argument is not only blind but also untenable because we must always read any Act of the National Assembly side by side with the constitution. While I agree with these actors that by virtue of Section 6(6)(c) of the Constitution, those ‘rights’ which directly affect the poor, generally grouped as socio-economic rights, are not enforceable, I also believe that it will be legally wrong to penalise the President for enforcing them through rejection or approval of contracts that are not in line with Chapter 2 of the 1999 constitution, thus in view of the importance of public procurement in the social, economic well being of Nigerians and the direct major linkage with national security when it fails, it is a major responsibility of all Nigerians and particularly the President who has taken oath to promote it, to see that public procurement is properly budgeted for and carried out in line with the fundamental principles and directives of the 1999 constitution.
To further simplify this issue, it will be supportive to review our procurement process from planning to final audit in Nigeria, in accordance with the PPA read side by side with the Constitution. Procurement Planning begins with the constitutional formulation of budget by the Executive, that is, the President/FEC, flowed by the authorization of the National Assembly and the final approval/assent by the President to the authorized budget to produce an appropriation Act for the nation.
The yet to be inaugurated National Council on Public Procurement, whose Secretariat is the BPP is thereafter mandated by law to perform certain functions before the implementation of any procurement in Nigeria as contained in Section 2 and 16 of the PPA. Ironically this all-important body is legally absent in the procurement system of Nigeria, and thus creates a burden on all the three arms of government.
It is when the above three conditions are legally complied with that the BPP can now advise procuring entities on the constitution of Tenders Board while the Chief Accounting officer of each procuring entity will establish and inaugurate this Board together with Procurement Planning Committee (PPC) in accordance with sections 17, 20 and 21 of PPA. Thus procurement planning takes place for the year in line with the Appropriation Act and which must be approved by the Tenders Board as the approving authority for conduct of Public Procurement under the Chairmanship of the Chief Accounting Officer (CAO) in accordance with Section 18, 20 and 21 of PPA.
It is only after the above that implementation starts (in accordance with Section 19 of PPA) with adverts, inviting NGOs and private professional associations for observation of bid opening, bid evaluation takes place by the appropriate committees established by the CAO. While the Tenders Board is the approving authority for conduct of Public Procurement as captured in section 17 of PPA, it is also a concurrent approval authority for contract awards, as captured in section 16(22) I of the PPA. The first approval authority for contract award as defined in Section 60 (interpretation) of PPA is the CAO, thereafter contract award recommendations are therefore forwarded to the CAO and when approved it then presented to the Tenders Board for concurrent approval. Thus the two parties must approve before the award decision is sent to the Minister for implementation.
Taking into consideration the provisions of Section 22(5) of the PPA, the CAO cannot proceed further with contract process after an award decision unless he/she submits the decision of the Tenders Board to the Minister for implementation and which means that further procurement processes from this stage must be conducted by the CAO, including contract execution, announcement of winners, debriefing of bidders, decisions on performance guarantees, payment of mobilization fees etc with the approval of the Minister. The Minister is the representative of the President in the Ministry by virtue of Sections 5(1) and 148 of the 1999 Constitution.
The minister being a representative of the President and not a technocrat is required to ensure that all contracts that he/she is executing within the financial limits are in line with Chapter II of 1999 Constitution since Section16 (21) of the PPA provides that the CAO together with any officer to whom responsibility is delegated (in this case Section 22(5) of PPA) are responsible and accountable for any action taken or omitted to be taken either in compliance with or in contravention of the Act.
In the case of the National Assembly where there are no Ministers, contracts award decision are required by law to be sent to the Senate President or to the Speaker of the House of Representatives for assent before implementation. This can be supported by Supreme Court decision in the case of AG Ondo state V 35 others (2002) CLR 6(d) (SC) where it was decided that “Directive Principles” is another name for Instrument of instructions and with respect to Chapter II of the 1999 constitution means instrument of instructions to the Executive and Legislature. The Chief Justice of the Federation will approve in case of Judiciary when thresholds are beyond the limits of registrars of Supreme Court and or the head of other judicial bodies like judicial council etc
From the above reading of the PPA side by side with the constitution and the outlining of the procedures for public procurement with regards to the Minster in Section 22(5) of PPA, it is easy to see why the Minister submit memos to the President for an approval of any contract above certain thresholds which has been awarded by a procuring entity with the ‘No Objection Certificate of BPP before any implementation by way of contract execution and others can take place. And this must continue even after the inauguration of the National council on Public Procurement.
It is however disturbing that one of the biggest challenges that we have in the procurement process of Nigeria today is the refusal of the President to inaugurate the National Council on Public Procurement and the non-constitution of the Bureau of Public Procurement in accordance with section 7 of PPA and 11(9) of the Chartered Institute of Purchasing and Supply Management of Nigeria Act 2007. The result of the above is that the present unqualified Procurement professionals in BPP are engaged in acts that abuse the powers of their respective offices using their position as Procurement specialists in quote to emasculate the statutory professional Procurement institution in Nigeria.
What we have now is a situation where the DG of BPP who is not a professional in procurement now coordinating with the office of the Head of Service to organize supposedly educational and professional training for public officers and even conducting examinations to declare such officers procurement professionals or officers, contrary to Section 4 (2) (4) (a) and (b) read together with paragraph 49 Part 1 of the Second Schedule of the Nigerian Constitution which declared Procurement as professional occupation and established the Chartered Institute of Purchasing and Supply Management of Nigeria to among other duties educate, train, examine and certify persons wishing to become procurement professionals in Nigeria or abroad.
Therefore, some self-styled procurement activists with limited knowledge of the profession are being funded to misinterpret the law without a consideration of the constitution. Even though they had claimed at some public forum to be ‘monitoring’ the activities of MDAs including the Bureau under the PPA, their sustained patronage by the leadership of the Bureau is evident of this calculated attempt to deceive the country. And giving the obvious fact that Engr. Ezeh does not attend functions organized by other organizations or persons except the ones organized by Ezehs is a clear pointer to this fact.
If indeed these so-called ‘procurement activists’ are sure and confident of their claims, and giving their backgrounds in law, my expectation would be for them to challenge the current situation where the President and the FEC approves contract in the court of law, where perhaps some interested parties will ask to be joined.
One thing is certain; quackery cannot override professionalism just no Act can work against the constitution. The current tide where non-state actors are being used as avenue to subvert the constitution and other prevailing laws cannot and will not survive the test of time.
Mohammed Bougei Attah is a professional in purchasing and supply chain management, media practitioner and the Managing Editor of NGO Network, a general interest magazine, monitoring public procurement corruption in Nigeria.