A couple of weeks ago, I presented a position paper on the controversies surrounding the Finance Act 2020 as it affect the term ‘Confirmation of Tenders Board Decisions’ by the Political Head of respective procuring entities. In that submission titled “Confirming Tenders Board Decision is a Statutory Responsibility” it laid the dust on the controversies to rest.
From the summary, having provided series of argument, arising from Supreme Court judgments, I concluded with a remark that ”Consequently, the above submission implies that the Tenders Board lacks absolute autonomy, and which mitigates and contravenes with the cardinal principles of Transparency, Accountability and Open Competitiveness as enshrined in the PPA 2007. Therefore, the failure of the political heads of procurement entities to comply with the provisions of the new Finance Act 2020 amendment in Section 22(5) of Public Procurement Act (PPA) is liable to breed corruption and breech ‘Due Process’ as a result of the sway of influence that these Political heads wields”.
Though the issue about approval is now laid to rest, another controversy about who is actually are the political heads of respective MDAs appeared, with calls from several professional colleagues, public sector servants and civil society experts requesting my position on the issue and in the procurement logjam.
In particular, my attention was drawn to a part in my last statement that “the failure of the Political heads of procurement entities to comply with the provisions of the new Finance Act 2020 amendment in Section 22(5) of Public Procurement Act (PPA) is liable to breed corruption and breech Due Process as a result of the sway of influence that these Political heads wields” This is the position of the law and the controversies are expected in view of the history of procurement practice over the years, and I felt duty bound to provide some variety of explanations as we continually engage the subject of procurement transparency in the Nigeria economy.
The submission below, which is a follow up to the above are in two parts, one detailing and explaining the position of the law and the interpretation of the provision of the Finance Act 2020, and the other, a detailed analysis of the implications as it affect the application of procurement laws in the country.
Below therefore is a narrative table providing in summary, some of the positions of the Finance Act 2020 with respect to Tenders Board in Procurement Entities and the issues arising thereof about the political heads of the entities. It is expected that this subject and submission will receive acknowledgement and reviews by experts, professionals and practitioners in the field while hoping that the Bureau of Public Procurement (BPP) with the statutory responsibility of interpreting these provision will also make a formal position known on the subject.
Starting with a basic understanding, and depending on the value of contract, and the arm of Government where the procurement is taking place, the respective Political Heads as contained in the 2020 Finance Act are to CONFIRM DECISIONS of Tenders Board. The question begging for answer that I urge the BPP, independent procurement experts or other statutory body like the Chartered Institute of Purchasing and Supply Management of Nigeria (CIPSMN) to provide an answer is ‘Who are the Political Heads of the respective procuring entities/Tenders Boards in the Executive, Legislature and Judiciary.
This question is very important because of the following:
It is well known fact globally that the legislature takes its pride as the first arm of Government, hence most constitutions place it as it relates to its existence and functions first, before the other two arms of Government, which are the Executive and the Judiciary. The importance of Legislature in every society is so important that His Lordship, Justice Tobi J.S.C while delivering the lead judgement in the case of Inakoju Vs. Adeleke (2007) All FWLR (Pt 353) 3 at 123 S.C held that the legislature is the custodian of a country’s constitution in the same way that the executive is the custodian of the policy of government and its execution, and also in the same way that the judiciary is the custodian of the construction and interpretation of the constitution. One of the major roles of a custodian therefore is to keep under lock and key the property so entrusted with him so that it is not desecrated or abused. The legislature is expected to abide by the provisions of the constitution like the way the Pastors abide by the Bible and the Imams abide by the Qu’ran.
The Nigerian constitution like the American presidential system envisages a single executive for which the President is the head and in whom the executive powers are vested. Article 11 of the Constitution of United States of America, just like Section 5(1) of the Nigeria constitution, provides that “the executive powers shall be vested in the President“. The principle implies that the preclusion of a concurrent vesting of the executive powers in two or more persons of equal authority.
The Executive President, by interpretation, the President of Nigeria, like the American President may enter into “Executive Agreements “which will bind all persons in the country (See Attorney General of the Federation vs Abubakar (2007) 10 NWLR(Pt.1041) 1at 85 S.C .
The Table below is therefore divided into four (4) parts to serve as the guide in the presentation of the Finance Act 2020 and include:
1. DESCRIPTION OF BODY, 2. CHAIRMAN OF TENDERS BOARD, 3. SECRETARY OF TENDERS BOARD and 4. POLITICAL HEAD OF TENDERS BOARD AS CONTAINED IN THE FINANCE ACT 2020 FOR THE PURPOSE OF PUBLIC PROCUREMENT, BUT NOT SPECIFIED IN THE ACT
Starting with the Federal Executive Council (FEC).This is the highest policy making organ of government that also gives approvals to contracts awarded by the Tenders Board in all arms of government based on the provisions of the Constitution and the limits set by regulations. It is not a Tenders Board and therefore has no chairman. The President is the head of FEC and the chief policy maker of the country while the Secretary to the Federal Government, which is the SGF is the Secretary.
Next to the above is the Ministerial Tenders Board with the Permanent Secretary as the Chairman of Tenders Board and the Director of Procurement as the Secretary. At the Ministry, the Minister is the political head because a Ministry is a high government body headed by a Minister (representing the President in the Ministry) that is meant to manage specific sector of the public administration. Ministries are immediate subdivision of the Cabinet (The Executive branch of Government) and subordinate to the chief executive which in Nigeria is the President.
In the case of Extra Ministerial Department Tenders Board in the executive arm of government, the Director General or officer of coordinate jurisdiction is the Chairman of the Tenders Board while the Director of Procurement serves as the Secretary. In this case, Minister is the political head if such Extra Ministerial Department is under the supervision of a Ministry but when under the supervision of the Presidency. it is the President.
The Extra Ministerial Departments or Parastatals are set up by government as implementing organs for specific objectives which are not easily achieved under a ministerial setup. Each of them is under the supervision of the Presidency, or Ministry. Each Parastatal therefore has a Governing Board or Council headed by a Chairman who is to provide policy guidelines and liaise with the Minister. Both the Chairman and the members are appointed by the President. The Permanent Secretary or his representative is a member of the Board for effective monitoring and policy guideline. He is also responsible for ensuring that effect is given to government decisions relating to mandate of the Parastatal. The Parastatal also has a Chief Executive appointed by the President, usually on the recommendation of the Minister. He is responsible for the day to-day-administration of the Parastatal as the Chief Accounting Officer.
Next is the Parastatal Tenders Board under the Supervision of the Presidency in the executive arm of government. The Director General or officer of coordinate jurisdiction is also the Chairman of the Tenders Board while the Director of Procurement serves as the Secretary. In this case, the President is the political head as such Extra Ministerial Department is under the Supervision of the Presidency. A good example is the BPP.
Now to address the gaps in the Financial Act (FA) 2020, let us evaluate the same yardstick for the National Assembly Tenders Board, which is the legislative arm of government. The law is clear as to the fact that the Clerk of the National Assembly is the Chairman of the Tenders Board while the Secretary is Director of Procurement Works and Estate. The law did not specify the political head here, and since the President has not assigned the responsibility to Vice President or any of his Ministers in the Executive, by implications and by virtue of Section 5(1) of Nigerian Constitution, the President is.
The same condition above applies to the Tenders Board of each parastatal under the National Assembly and the National Judicial Council Tenders Board for Judicial Arm of government. While the Chief Justice of the Federation or his representative has been named by the FA 2020 to serves as Chairman of the Tenders Board, the Executive Secretary of the National Judicial Council, NJC is the Secretary. But the big question again is ‘Who is the Political Head at the judiciary?’ And I say it is the President by virtue of Section 5(1) of the Nigerian Constitution. Can we say that this is correct based on the principle of “not being a judge in your own case” for the Chief Justice of the Federation who has no constructional responsibility and who is not even a party to public Procurement, to be the Chairman of Tenders Board?
It is important to note that the constitutional function of courts of record is well circumscribed and defined. It is simply an arbiter. It is for parties to present their case and it is for the court to decide the matter as presented by them. The judiciary is the custodian of the construction and interpretation of the constitution. The judiciary or judicature is the third arm of government imbued with constitutional and other statutory powers to use the judicial process to pronounce on the rights and liabilities of all persons before it and on all issues submitted to it for adjudication, save when there are constitutional and statutory limitations placed on the way.
I have also argued several years back, in my series of lecture on ‘Parties to Procurement Process” that for administrative, constitutional and legal purpose, the judicial arm of government is not a party to public procurement process, but instead, it is constitutionally charged with the responsibility to settle all disputes arising out of the implementation of the public procurement, be it public or private.
The same conditions and principle applies to the Judicial Bodies and Courts Tenders Board under the judicial arm of government (not courts) as well as judicial bodies and Court’s Tenders Board under the judicial arm of government (Courts)
As stated at the opening statement, the above is the first in the two parts. I sincerely hope those concerned will find time to interrogate this submission and assist with further explanations for or against the positions.
Attah is a procurement professional and National Coordinator of Procurement Observation and Advocacy Initiatives. He can be reached via [email protected] or 08034537392