In discussing this paper, several factors ought to be taken into consideration if the goal of the Roundtable is to be achieved. First, there are many unanswered questions in the released House of Representatives’ Committee Probe Report on Oil Subsidy regime in Nigeria . second, there have been mixed reactions including official statements on the subject as well as legal implications that we should be conscious of when considering the recommendations.
Let me acknowledge the paper before this that dealt on the ‘Analysis of the Report of the House of Representatives ad-hoc Committee on Fuel Subsidy’ Therefore, I will not bore you with the details of the recommendations or the entire Report itself believing that the first speaker, Dr. Otive Igbuzor has done justice to it. My duty therefore as a professional is to ‘Identify areas of procurement lapses vis-à-vis the relevant procurement laws of the Federal Republic of Nigeria and the NNPC’ as contained in the Terms of Reference (TOR), and to ‘mobilize public interest in the Report’ as well as discuss the possibility of ‘enforcing the recommendations in the Report’.
Preamble
Flowing from the above tasks therefore, I have decided to make my presentation in three parts. They include, one, to take my audience through the statutory provisions and legal implications in the Report by identifying areas of procurement lapses vis-à-vis the relevant procurement laws of the Federal Republic and the NNPC, two, identifying ways to implementing the Report by CSOs and other stakeholders, and three, to mobilize concerted public interest in the Report.
Before addressing the issues above, it is instructive to review the proceeds from the recent National Symposium organized by a group of concerned Nigerians called N-Katalyst in Abuja on 30 April 2012 with the theme: Mega-Corruption in the Fuel Subsidy Regime-Charter of Demands. The Symposium that paraded such personalities as Dr Otive Igbuzor who reviewed the report of the Ad Hoc Committee, Prof Chidi Odinkalu, Chair of the National Human Right Commission(who was represented), Dr Hussaini Abdu of ActionAid Nigeria, Dr. Jibrin Ibrahin of Centre for Democracy and Development (CDD), Ayo Obe, a seasoned lawyer and Yemi Candide-Johnson, a Senior Advocate of Nigeria, SAN who reviewed the role of the judiciary and anti-corruption agencies among others, claimed that “Already, the Attorney-General of the Federation and Minister of Justice, Mohammed Adoke (SAN), has described the report as mere “fact finding”. Though I did not have copies of the presentations by these respected individuals to better appreciate their action, I recommend that the concern raised over the statement credited to the Attorney General should be critically examined.
Also I am yet to review the 210-page Report, I have read the 61 point recommendations and my first concern is the title of the Report as is commonly called today – Fuel Subsidy Probe Report. From a professional viewpoint, the subsidy report, according to international standard can be technically understood to mean House of Representatives Committee’s Report on Conformity Assessment on the contracts for the supply of refined petroleum products to Nigeria through the Nigeria National Petroleum Corporation (NNPC) and Petroleum Pricing Regulatory Agency (PPRA), and the disposal of the oil for local consumption in Nigeria. It also includes the guidelines detailing operational principles and organizational modalities to be adopted by all procuring entities engaged in the disposal of public property.
On the basis of the above definition, it is very clear that the entire Report covers an aspect of a procurement process within certain departments and agencies of the Federal Government of Nigeria. Thus, the Report is an outcome of a review in a public procurement dealings covered under Section 55 of the Public Procurement Act. See the article published on NewsDiaryOnline.com of April 10 titled ‘Oil Licensing Guidelines Beyond NNPC Powers’ and ‘Questions Over New Oil Licensing Round’ published on page 52 of the Daily Trust newspaper of March 20, 2012
Another concern is the second objective of this Roundtable, which is to seek way of enforcing the recommendations contained in the Report. While I commend the organizers of this event for their commitment to the fight against corruption, I should also warn that this aspect of the focus will be a hard nut to crack except we have the support and cooperation of the anti-corruption agencies in Nigeria. It is heart-warming to know however that they have been invited to this Roundtable.
Public Procurement Projects Conformity Assessment System in this sense is a term used to describe the steps taken by executive arm of Government represented by the Ministries, Departments and Agencies (MDAs), in this case NNPC, PPRA, Federal Ministry of Finance, Customs, CBN etc, and the general public (represented by the National Assembly, Civil Societies Organizations (CSOs), and other parties, to evaluate whether public procurement projects on goods, works, services, processes, systems, or personnel adhere to the requirements identified in a specified standard and law.
Conformity assessment activities such as testing, certification, and accreditation are closely associated with standards and provide the consumer or end user or the general public with a measure of confidence in the public procurement projects, such as goods, works, and services being carried out. For this reason, conformity assessment has become a significant aspect of conducting public procurement business in the global economy.
The role of the National Assembly in conformity assessment includes accreditation of organizations that certify the Procurement processes, and the outcome, products and personnel meet the laws and standards .These include the PPA and all approved standard tender documents and with respect to products the appropriate international standards. The greater the perceived risk, the more oversight and independent project conformity assessment system would typically be.
It is generally recognized that over-design of project conformity assessment requirements for a given project may increase costs and cause delay to procurement project and process, while under-design will result in too little confidence in the project and process compliance and may impede the acceptance of the result of the assessment by the general public and the legal requirements. Across the world, several relevant approaches to procurement projects conformity assessment are used in order to increase public or user confidence in projects, processes, systems, or personnel. These approaches as applicable to the Petroleum Subsidy Report include, a First Party Conformity Assessment – Performed by persons or organizations that conduct the procurement activity, such as the MDAs or suppliers, contractors (NNPC, PPRA, CBN, Customs etc), Second Party Conformity Assessment – Performed by the persons or organizations that has a user interest in the procurement process such as the general public represented by the National Assembly and Civil Society Organizations (CSOs) etc and Third Party Conformity Assessment – This type of project conformity assessment is performed by persons or bodies that are recognized by law as being independent of the persons or organization that engages in the procurement process, as well as the user (the general public). The parties in this category include the Independent Corrupt Practices and Other Related Offences Commission (ICPC), Economic and Financial Crimes Commission (EFCC), the Nigeria Police, Bureau of Public Procurement (BPP), Code of Conduct Bureau (CCB) and Standard Organization of Nigeria (SON) among others. Thus Procurement Projects Process Conformity Assessment approaches include Declaration of Conformity, Project Testing, Inspection, Certification and Accreditation.
Where the first party is only involved with declaration, testing and inspection, the second party is involved with project testing only. The third party is however involved in all the approaches except declaration of conformity. From this point, first-Party Conformity Assessment Approaches include Testing, Inspection and Supplier’s Declaration of Conformity (SDoC).
First-party testing may occur in a procurement process at the end of the procurement plan or cycle, whereby the responsible party (e.g. the MDA, supplier, or importer) takes the necessary steps to determine that one or more characteristics of procurement project, process comply with the appropriate and technical standards and requirements of the project in accordance with the law.
First-party procurement project inspection is a series of examinations of a procurement Plan, the outcome of the Procurement plan, the process, or installations that determine its conformity to specific project requirements performed directly by the responsible party (e.g. the MDA, supplier/contractor, or importer).
The MDAs, Suppliers and Contractors Declaration of Conformity (SDoC) is the procedure by which a first party or supplier or contractor conveys assurance that the objects of conformity in a project fulfills specified requirements or that the procurement process satisfies the objectives of public procurement which include ensuring the application of fair, competitive, transparent, value-for money standard and practices for the procurement and disposal of public assets and services; as well as the attainment of transparency, competitiveness, professionalism in the public sector procurement system
Second-party testing occurs at the end of the procurement plan or production cycle, whereby a person or organization that has a user interest in an object (e.g. the House of Representatives, the Senate, Civil Society or users generally take the necessary steps to determine that one or more characteristics of procurement project comply with the appropriate procurement plan, technical standards and requirements. Testing carried out by a second party may, under certain circumstances, serve as the basis for other forms of third party conformity assessment, including product, process, certification and inspection.
Also, second-party inspection include series of examinations of a procurement plan, the outcome, process, or installation in order to determine its conformity to specific requirements of a person or organization that has a user interest in an object, process (e.g. the procurer, purchaser or user). For example MDAs will often inspect the critical components, supplied by an outside source that will be used in their own work plan. This usually occurs after the first and second party assessment. In this case, it involves Testing, Inspection, Certification, Registration and Accreditation.
The last grouping is the Third-party testing that will occur at the end of the Procurement plan, proceedings or procurement cycle, whereby an independent procurement consultant, firm, testing laboratory – in the case of products – takes the necessary steps to determine that one or more characteristics of a procurement project or object comply with the appropriate, procurement plan, technical standards and requirements. Independent Procurement Auditors, consultant, firm, Testing Laboratories are qualified as independent in that they do not possess an interest in the person or organization that provides the Project, process or object for conformity assessment. Examples are the NAFDAC and SON.
Third-party Inspection involve series of examinations of a procurement plan, the outcome of the procurement plan, process, or installation that demonstrates its conformity to specific requirements and that is performed by an independent Auditor or inspection body. Procurement Auditors and Inspection bodies are considered independent when they do not possess an interest in the person or organization that provides procurement project or object for conformity assessment or any user interests in that object.
Third-party inspection bodies may typically inspect against a wide range of functions (e.g. the outcome of the procurement plan, services, materials, installations, plant processes, work processes, etc.) and parameters (e.g. quality, quantity, safety, fitness for use, etc.).
Third-party inspection may be an appropriate conformity assessment approach when the law or public demand for it, the risks associated with non-compliance are high, the first party and/or second party would like to provide users with an added level of confidence in the Project or object of conformity assessment and when the first or second party wish to rely on an independent entity to determine and/or share tasks related with compliance.
Certification is a third-party attestation declaring that specified requirements pertaining to a procurement plan, person, process, or management system have been met. In addition to being conducted by an independent party, a characteristic of certification is that it often involves an element of surveillance. Once something is certified as compliant, it may be subject to the continuing verification (Monitoring and Evaluation) by the certifier of its compliance both before and after product or outcome of procurement plan/process reaches the general Public. Certification may be an appropriate Procurement project conformity assessment approach when the Public, law demands or allows it, and when the risks associated with non-compliance are high.
Accreditation is a statement from an accredited body – an independent entity – declaring that specified requirements related to conformity assessment bodies have been met and that the accredited body or person is competent to perform certain functions. Independent Procurement Auditors, Testing laboratories, certification bodies, and inspection bodies have to be accredited in order to provide clients and other stakeholders (e.g. NGOs, the public, suppliers, users, governmental and regulatory agencies, etc.) with additional confidence in their assessment.
Typically, the conformity assessment system consists of public and private-sector players who work together to achieve shared objectives. Accrediting bodies recognize the competence of conformity assessment bodies (testing labs, inspection bodies, Procurement Auditors, certifying bodies, etc.), ensuring that these bodies are legal entities, independent and free from conflicts of interest, employ qualified people, and have proper oversight. Accreditation programs do not verify scientific or technical accuracy of conformity assessment results, but instead examine the process of certification, testing, or inspection bodies.
While the National Conformity Assessment Principles of some countries identify inspection as an activity which is distinct from other types of conformity assessment practices, most other activities involve inspection to some degree.
To address the resolution of the N-Katalyst on the statement of the Attorney General, this section will now provide the basis to discuss the second or third Party Public Procurement Audit/investigation indictment as it affects the First Party which is referred to an adverse opinion in a report of Second Party or Third Party against any person in the First Party and means no more than an accusation (otherwise called ‘fact-finding’ and once this has happened in a final Public Procurement Assessment Report, it is required to send such a report to the Police, EFCC, ICPC (See Section 53 of the Public Procurement Act (PPA 2007) to carry out further investigation, which if further established by way of preliminary evidence, will have the responsibility to take the matter to the Federal High Court where the opinion of the second or third party or any other audit indictment can be ventilated in the court of law and where the accused first Party would be sure of getting a fair hearing in accordance with Section 36 of the 1999 constitution as amended.
The House of Representatives being an arm of government representing the people is not expected to act in strict practice and procedure as a Court of law during public hearings. What is important is that it acts in good faith and fairly listens to both sides before taking any decision. The second or third Party can obtain information in any way they think best, always giving opportunity to those who are parties in the controversy to correct or contradict any relevant statement prejudicial to them. A good example in place today is not only the subsidy probe but the Capital Market probe.
It may sound paradoxical but it is the truth of the matter and very important to second or third Party to know that while it is a fact that evidence or opinion of either the third Party on matters of Public procurement investigation, by the provision of Section 58 of Evidence Act 2011 which is admissible in court, it is also a fact that evidence will only be vital in a case where the third Party can furnish the Court with scientific and or other sufficient information regarding to the report at stake and which must be of such a technical nature that is likely to be outside the experience and the knowledge of a judge .
To address part two of this paper, which is the main objective of this Roundtable, let us therefore review the statutory roles of some legally constituted bodies and anti-corruption agencies in Public Procurement Conformity Assessment. The attempt here is to provide a platform for engagement by CSOs in their advocacy to ensuring the recommendations in the probe report are implemented.
Under the law, there are certain organizations, be in executive or professional in Nigeria that is empowered to conduct investigations into procurement proceedings, without necessarily seeking approval from the Executive arm of government. This group, as enumerated above is classified under Third Party in assessment of public procurement conformity. CSOs can therefore begin advocacy through these organs using the provisions of the law.
Bureau of Public Procurement – by virtue of Section 85 of the 1999 Constitution and particularly sub-sections 3 and 5, financial audit by the Auditor General of the Federation and the financial statement are submitted by the Accountant General of the Federation. Also by the provisions of Section 5(p) and 55 (2) of the Public Procurement Act 2007, the National Assembly conferred on the Bureau of Public Procurement (BPP) the powers as the official Public Procurement Auditor for all procuring entities (acquisition or disposal of assets) in Nigeria. The relevant sections of the 2007 Public Procurement Act that deals with these issues are Sections 5 (p) of the Public Procurement Act 2007 in addition to Sections , 31, 5,53 38,53 and 54.
Thus the BPP has powers to conduct a procurement audit opinion on all the MDAs concerned while reviewing the Report for possible prosecution through the EFCC, ICPC, The Police, Code of Conduct Bureau, Standard Organization of Nigeria (SON) etc.
The Role of Federal High Court in the Resolution of Public Procurement Audit Disputes includes two major areas: Primary Jurisdiction on Criminal Public Procurement Offences and Appellate Jurisdiction on Civil Procurement Offences. The Federal High Court was established by Section 251(1) of the 1999 Constitution, and in accordance with section 58(2) of the Public Procurement Act 2007, it is charged with the responsibility amongst others, to settle all disputes arising out of the implementation of the Public Procurement activities as contained in the Public Procurement Act 2007 including those arising from Public Procurement Audit Report prepared in compliance with the provisions of the Act by the BPP or any other person or organization duly authorized to so perform the Public Procurement Audit (See Section 53 and 54(5), (6) and (7) of Public Procurement Act 2007.
However under the law, petitions arising from Public Procurement proceedings are not to be sent to the Federal High Court directly on primary jurisdiction by virtue of section 53 and 54 of the Public Procurement Act 2007 unless the issues involved are of criminal nature and in which case it requires the EFCC, ICPC investigation based on the review by the BPP and recommendation made for investigation. This does not in my view mean that the primary jurisdiction of the Federal High Court for trial of procurement issues has been ousted by section 53 and 54 of the Public Procurement Act, until the courts say so.
The Bureau of Public Procurement as an administrative body is empowered to settle public procurement dispute which can be sent to the Federal High Court in Appellate Jurisdiction is not expected to follow strict practice and procedure as a Court of law. It is enough if they act in good faith and fairly listen to both sides before taking a decision. The Bureau can obtain information in any way they think best, always giving opportunity to those party in the controversy to correct or contradict any relevant statement prejudicial to them.
Since by virtue of section 153 and also item D of Third Schedule of the 1999 Constitution, it is the responsibility of the Federal Civil Service Commission and the Head of Service to appoint persons in the Federal Civil Service and to post and supervise such officers including procurement officers, it means that the quality of persons appointed and the nature of the Scheme of Service produced for procurement officers will have a direct bearing on the quality of execution of public procurements activities, usually undertaken by the executives and procurement officers/professionals in the procuring entities, and has a direct bearing on the quality of records of Procurement proceedings kept on all types of system applied. This usually should be in compliance with the Constitution, the Public Procurement Act 2007, the Chartered Institute of Purchasing and Supply Management (CIPSMN) Act 2007 etc and submitted to the Bureau for audit.
In the same vein the Commission shall without prejudice to the powers vested in the President, the National Judicial Council, the Federal Judicial Service Commission, the National Population Commission and the Police Service Commission, have power – (a) to appoint persons to offices in the Federal Civil Service; and (b) to dismiss and exercise disciplinary control over persons holding such offices. (2) The Commission shall not exercise any of its powers under sub-paragraph (1) of this paragraph in respect of such offices of Heads of Divisions of Ministries or of Departments of the government of the Federation as may, from time to time, be designated by an order made by the President except after consultation with the Head of the Civil Service of the Federation. Thus the Commission also reserves the powers to implement certain recommendation of an audit, either financial, procurement or processes.
To bring this paper to the current focus, let us now review the role of EFCC and ICPC in Public Procurement Audit. The two bodies are created by the Acts of Parliaments, and thus they are empowered in Section 6 of the EFCC (Establishment) Act 2004 and in Section 6 of the ICPC Act 2000 to carry out criminal investigations based on preliminary audit reports of the BPP and the National Assembly assessment reports. Implicitly these two bodies do not need a further review or appraisal of the Report by other organs, such as the Presidency to carry out prosecutions. While the EFCC can act on the Report independently, the ICPC can also consider the Report as a petition to commence investigation and prosecution, just as the Police may act if they receive the Report officially. Thus the three bodies are good advocacy partners to CSOs in the implementation of the Report.
As one the anti-corruption strategies, the the Chartered Institute of Purchasing and Supply Management of Nigeria (CIPSMN) is saddled with the responsibility to educate, train, certify and discipline accredited procurement/supply chain management professionals and institutions in Nigeria. As contained in Sections 1 ,5, 11(9), Section 14 ,15, 16 13,18 20, etc of the Chartered Institute of Purchasing and Supply Management of Nigeria Act 2007. Here also, the Institute is a good advocacy tool for CSOs in the implementation process.
The National Assembly has the power to review audit reports submitted to National Assembly bi-annual by the BPP and to advise the executive accordingly. Also by virtue of Section 88 and 89 of the 1999 Constitution each House of the National Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the Federation to direct or cause to be directed investigation into – (a) any matter or thing with respect to which it has power to make laws, and (b) the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for – (i) executing or administering laws enacted by National Assembly, and (ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly.
It is important here to note that these powers conferred on the National Assembly under the provisions of the Sections above are exercisable only for the purpose of enabling it to – (a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and (b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
The Code of Conduct Bureau is also an independent organ of government that can utilize the recommendations in the Farouk Lawan’s Committee without recourse to executive directives. CSOs can draw the attention of the Commission to the provisions of the law that empowers them to (a) receive declarations by public officers made under paragraph 12 of Part I of the Fifth Schedule to this Constitution; (b) examine the declarations in accordance with the requirements of the Code of Conduct or any law; (c) retain custody of such declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe; (d) ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct of any law relating thereto; (e) receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal; and (f) appoint, promote, dismiss and exercise disciplinary control over the staff of the Codes of Conduct Bureau in accordance with the provisions of an Act of the National Assembly enacted in that behalf.
In the same vein as the Code of Conduct Bureau, the Federal Character Commission is empowered to investigate issues around corruption as they affect the public service. The powers to do so are contained in section 14(3) and (4) of the 1999 Constitution. Thus the Commission shall have the power to: a) work out an equitable formula subject to the approval of the National Assembly for the distribution of all cadres of posts in the public service of the Federation and of the States, the armed forces of the Federation, the Nigeria Police Force and other government security agencies, government owned companies and parastatals of the states; (b) promote, monitor and enforce compliance with the principles of proportional sharing of all bureaucratic, economic, media and political posts at all levels of government; (c) take such legal measures, including the prosecution of the head or staff of any Ministry or government body or agency which fails to comply with any federal character principle or formula prescribed or adopted by the Commission; and (d) carry out such other functions as may be conferred upon it by an Act of the National Assembly.
The posts mentioned in sub-paragraph (1)(a) and (b) of this paragraph shall include those of the Permanent Secretaries, Directors-General in Extra-Ministerial Departments and parastatals, Directors in Ministries and Extra-Ministerial Departments, senior military officers, Senior Diplomatic posts and managerial cadres in the Federal and State parastatals, bodies, agencies and institutions. And notwithstanding any provision in any other law or enactment, the Commission shall ensure that every public company or corporation reflects the federal character in the appointments of its directors and senior management staff.
The Fuel Subsidy Probe Report in its present form is a huge 210-page document that requires deep understanding and interpretation by elite for the common man to understand. Since one of the focuses of this Roundtable is to mobilize public interest in the Report, there is the need to ensure the promoters understand the issues regarding the Report for onward transmission to the general public. In this wise, the organizer could engage experts or seasoned administrators to carry out the following roles:
- Simplify and summarize the Report in pamphlet form for easy reading and application.
- Design messages for posters and handbills
- Develop pull outs from the Report that could be used in newspaper articles, media releases
- Translate the summary Report into local dialects
C. EXTENSIVE MEDIA ADVOCACY
Traditionally the media and NGOs are partners in development. And in most cases, NGOs have remained the best source of information channels for media outlets and thus they enjoy a reasonable partnership in working for the good of the people. NGOs should therefore use this opportunity to engage the media in extensive outreaches such as:
- Sustained media articles and releases
- Roundtable discussion like this one with media organizations
- Advocacy Visits to Chief Executives or Editors of media organizations
The primary work of NGOs evolves around advocacy while serving as pressure group to ensure good policies are implemented. Therefore, we should consider strongly of being ‘partners’ with the government in ensuring that the recommendations in the probe report are considered. The biggest challenge that will be faced by the anti-corruption agencies and other independent organs mentioned above is the political will to take action against persons of high authority that are indicted in the Report. As such NGOs can serve as pressure group by mobilizing themselves and using available channels to meet with those concerned with the implementation of the Report.
In this instance, rather than be an opposition to government in this trying period, we can be partners in the promotion of our common good. Such offices as the Office of the Attorney General of the Federation and Minister of Justice should be visited. There are others such as the Secretary to the Government of the Federation and the President
At present, there are certain lapses in the application of our laws that give room for executive handedness. Every government bodies that are established by law have Governing Council that monitor their activities and policies daily. And the Councils are headed by government appointees which in some instances do not create room for independence. It is often difficult for a body such as an anti-corruption agency to prosecute their Board members. Even if they do, in most cases, there is always the element of bias. For example, the EFCC may not effectively prosecute some Board members of the Capital Market that may be indicted in the ongoing assessment by the National Assembly. The Central Bank Governor and the Director General of the Security and Exchange Commission are members of the Board of the EFCC, so also are others in the Board of ICPC, Police and other anti-corruption organs.
Adequate monitoring by NGOs can help expose these issues while at the same time such sentiments can be introduced to assist the larger public to be interested in the issue.
While commending the efforts of the House of Representatives Committee on the Probe Report, I wish also to observe that similar Reports were made available in the past through concerted efforts that are not implemented. This is dangerous to our economy and for the survival of our democracy. Therefore ANEEJ should as a matter of necessity set up an ad-hoc coalition to help in monitoring and evaluating the progress. This also will demand for the creation of a listserv among CSOs in this thematic area for the purpose of harmonizing the activities.
Being the text of a paper by Mohammed Bougei Attah, National Coordinator, Procurement Observation and Advocacy Initiative (PRADIN) at a One-Day Roundtable on the Enforcement of Recommendations of The House of Representatives Committee’s Probe Report on Petroleum Subsidy – Wednesday May 23, 2011 in Abuja, Nigeria