By Saturday May 30, Nigerians will start counting the days for the Gen. Muhammadu Buhari-led administration to monitor his party’s campaign promises and the mountain of hopes Nigerians have invested in the ‘great man’ of our time.
Among the key areas of campaign promises that will attract urgent attention include the pledge by the All Progressive Congress (APC) President, to accomplish certain feat in the first 100 days in office. The inaugurations of the National Council on Public Procurement (NCPP), a feat that three other Presidents before Buhari could not achieve, remain at the centre of that promise. Interestingly, procurement corruption accounts for over 60% of the total corruption in the public sector, according to a report released by NGO Network in the year 2010 in their review of Nigeria Corruption and Procurement Index.
Arguably the tasks before the new government are enormous, but corruption, particularly in the public sector tops the list. And public procurement corruption is the highest among reported cases. Since the public sector is largely responsible for the bulk of corruption cases (about 65%), then it will be correct to say that when public procurement corruption is tackled, corruption would have been reduce by at least that percentage.
Recognizing that public procurement corruption is the cankerworm destroying our economy, Gen. Buhari in his pledge to Nigerians during the campaign tour promised to lead the war against corruption. To buttress that point, he said “the Federal Executive Council (FEC) which had turned to a weekly session of contract bazaar would be made to concentrate on its principal function of policy making”. In other words, the NCPP will now have the statutory responsibility of driving the procurement process in Nigeria.
Civil Society Organizations, CSOs in Nigeria, Labour, the National Assembly and professional bodies and associations are the first to pick up the courage and confronted President Umaru Musa Yar’Adua and his kitchen cabinet, otherwise called ‘loyalists’ as early as December 2007, when it became obvious that the President had, on the advice of these groups, refused to inaugurate the National Council on Public Procurement (NCPP). Surprisingly, the function of the Council was hijacked by the President’s kitchen cabinet and loyalists as the defacto members of National Council for Public Procurement members.
The World Bank Country Procurement Assessment Report (CPAR) exercise carried out on the instructions of the then President Olusegun Obasanjo in the year 2000 investigated the procurement system in Nigeria, with the primary objectives of reviewing the country’s public sector procurement structure, including the existing legal framework, organizational responsibilities and capabilities, and present procedures and practices, including how these may differ from the formal rules and procedures; make possible a general assessment of the institutional, organizational and other risks associated with the procurement process.
Some of the World Bank’s observations in the assessment report indicated that Nigeria had no specific law or other Act of parliament regarding public expenditure or procurement in Nigeria. The Ministry of Finance, with the authority vested on it by the Constitution, issues “Financial Regulations” (FR) which regulate and delegate the responsibilities of public procurement and financial management at federal level. The FR is essentially an internal set of rules for financial and economic control of the Federal administration containing regulations concerning composition of Tender Boards (TB) and the limits of their jurisdiction, and regulations concerning the actual procurement process. The report observed then that at present the procurement regulations in the states consist mainly of local financial regulations based on the Federal FR, supplemented with circulars and guidelines from within each branch of administration in the state governments.
The weaknesses observed by the Bank in the then procurement and legal system include that the Financial Regulations (FR) of Nigeria is not a law or an Act of similar authority, but an administrative document, which could be amended by the Minister of Finance without regard to fundamental rights of the suppliers or contractors. Therefore, the rights of the suppliers or contractors with regard to the protective measures of for example open advertisement; public award criteria and so forth are only protected by the goodwill of the Government in power at any given time. In addition, the FR is superficial in their statutory regulation of the actual procurement process.
There were other observation in that report which include that the then regulations on public procurement have no permanent measures for surveillance and control, there is no permanent body outside the purchasing entities monitoring and controlling the procurement process, and that there is no central policy making entity in the area of public procurement as this is left to ad-hoc circulars issued by the Ministry of Finance and in some cases the Presidency. Others include issues of complain mechanism, thresholds, tenders boards as well as the absence of a Codified Contract Law (CCL) but a law of contract based on case law.
The World Bank reported that circulars and guidelines regarding procurement are issued by many administrative bodies both at Federal and State levels. This fact was repeated recently, precisely on October 11, 2013, when the Presidency issued circular No. SGF/OP/l/S.3/T.1/172, spelling out the ‘policy guidelines’ for federal administration. This includes an update of thresholds for different tender boards and a policy of open competitive tender whenever possible. There is a proliferation of circulars that have been issued at Federal and State levels by different public bodies with the purpose of clarifying elements of the FR. The large number of different circulars and guidelines is a symptom of the major shortcomings in the FR that are discussed in the following paragraphs. As a remedy, the introduction of a uniform system of procurement, together with a centralized body of control and monitoring was proposed.
The principle of award of contract for goods and works is a combination of price and quality and for services quality is the only criterion. Therefore, there is a need to restore and strengthen the professional procurement cadre and allow them to practice their profession. The procurement function should be carried out by these professionals. A number of actions need to be taken by the Government to restore this professional cadre who has been seriously relegated by successive governments.
These actions would include one, carrying out a needs assessment for procurement professionals for the public sector, two, increasing training resources for public procurement staff and introducing a certification system. As a consequence, a suitable position in the grade levels for civil servants who obtain the new procurement certificate should be defined. Three, establishing a specific code of conduct and ethics for procurement staff.
The eventual out come of the above report in Nigeria are the Public Procurement Act 2007 and the establishment of the Bureau of Public Procurement (BPP) to supervise and regulate public procurement processes within procuring entities, signed into law on 4th June 2007 by the late President, Umaru Musa Yar’Adua. Following on the above is the Act establishing the Chartered Institute of Purchasing and Supply Management of Nigeria with a Governing Council including government ministers to educate, train and certify persons wishing to practice procurement in Nigeria and abroad and to regulate the practice of the profession, also signed into law earlier on the 30th of April 2007 by the former President, Chief Olusegun Obasanjo.
Not a few inconsistencies, irregularities and waivers have been noticed in government circles since the signing into law and the gazette of these two laws. The non-inauguration of the National Council on Public Procurement and the waiver of rule of law and due process in the competitive selection of the Director General of the BPP in favor of a unilateral appointment by the President contrary to sections 1, 2 and 7 of the PPA 2007 and other relevant laws has continued to generate condemnation of the process, unsettled issues among procurement professionals, the civil society organizations and labour unions.
The series of misprocurement in the nation and the possible dismantling of the illegal procurement structure established by the government is now a perpetual fear among the loyalists of President Goodluck Jonathan. It is on record that the first law that was signed by Yar’Adua on assumption of office is the Public Procurement Act 2007, but the inherent corruption in the system has not allowed the law to be implemented.
Before the appointment of the current Director General of BPP and while the Council is yet to be inaugurated, the Presidency had attempted to justify their actions through the amendment of the Public Procurement Act 2007. But these proposals have been debated and thrown out at the National Assembly due to series of objections from Civil Societies organizations, particular Procurement Observation and Advocacy Initiative, a coalition of CSOs from across the country trained under the Federal Government and World Bank Economic Reforms Project. Labour unions, professional bodies and the media have also kicked against the proposal, describing it as anti-people agenda.
The presidency amongst other unrealistic requests for the amendment wants to replace the Minister of Finance as the Chairman of the National Council with any political appointee of the President, against section 5(1) of the 1999 Constitution which empowers the President to only exercise his executive powers through the Vice President, a serving Minster or other Public officers of the Federation, The Presidency and the ‘Kitchen Cabinet’ wants any politician appointed by the President as the Council Chairman for a more effective manipulation of the procurement system. They also want the appointment of the Director General of BPP to be in the dark by removing the clause which requests that it shall be through a competitive selection process organized by the Council. They also want the Federal Executive Council to be given legal backing as a contract awarding entity and to remove the clause which restricts advanced payment to contractors from 10% to 15%.
The Supreme Court of Nigeria gave judgment in the case of Ogbona v AG of Imo (1992) CLR 2(b) (SC) that the doctrine of waiver entails that there is a distinction between a non compliance with a rule and non observance of a statutory provision on a substantive issue. The Supreme Court further confirmed that while the former can be waived the latter renders the act illegal, null and void and of no effect and therefore is not capable of being waived”
This means that the following actions now in existence in the Procurement system of Nigeria where the statutory provisions of the constitution and relevant laws have been waived by the President are illegal, null and void and of no effect. They include the refusal of the President to constitute and inaugurate the National Council on Public Procurement, the decision of the President to approve the Contract thresholds as against the law vesting the powers on the yet-to-be-inaugurated Council and contrary to Section 2 of the Public Procurement Act,
Other areas include the unilateral appointment of the Director General of BPP by the President in violation of Section 7 (1) and 7(2 )(c ) of the Public Procurement Act 2007 and other relevant laws guiding the practice of Procurement in Nigeria, with respect to competitive process..
Other serious statutory breaches are the decision of the present government to transfer Procurement officers in the Civil Service of the Federation from the office of Head of Service to the BPP, contrary to the Constitution and the entire provisions of the Public Procurement Act 2007. The failure and inability of BPP to submit a bi-annual Public Procurement Audit report to the National Assembly and the involvement of the FEC in the actual award of contracts contrary to section 19 of the PPA rather than approval or consent which is their constitutional responsibility.
Interestingly, one other ways that the Buhari administration has promised to strengthen the anti-graft war, he said, “We will work with the National Assembly to strengthen the Independent Corruption Practices and other related Offences Commission and the Economic and Financial Crimes Commission by guaranteeing institutional autonomy, including financial and prosecutorial independence and security of tenure of officials. “We will also make the Financial Intelligence Unit of the EFCC autonomous and operational; encourage proactive disclosure of information by government institutions in the spirit of the Freedom of Information Act.”
Nigerians can only watch for this day to come.
* Attah is a purchasing and supply chain professional and National Coordinator, Procurement Observation and Advocacy Initiative (PRADIN)
