Procurement corruption: Can Buhari break the chain? (2)

A number of actions need to be taken by the government to restore this professional cadre which 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; and three, establishing a specific code of conduct and ethics for procurement staff.

The eventual outcomes 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 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 former President Olusegun Obasanjo.

Not a few inconsistencies, irregularities and waivers have been noticed in government circles since the signing into law and the gazetting 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 favour 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 are 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 was 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 its 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 society organizations, particularly 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 minister or other public officers of the federation. The presidency and the ‘kitchen cabinet’ want 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 DG 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 further want the Federal Executive Council to be given legal backing as a contract-awarding entity and to remove the clause which restricts advance payment to contractors from 10 percent to 15 percent.

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 Nigeria’s procurement system 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 DG 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. There is also the failure and inability of BPP to submit a bi-annual Public Procurement Audit Report to the National Assembly as well as the involvement of the FEC in the actual award of contracts contrary to section 19 of the PPA, and rather than approval or consent which is their constitutional responsibility.

Interestingly, the Buhari administration has promised to strengthen the anti-graft war by working “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”. The administration also said, “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.

Mohammed B. Attah