Public procurement law: Let 9th assembly learn from history
The greatest worry coming from the Red Chambers in the last sixteen years has been nothing but distortion and misleading information about the Public Procurement Act. Successive Legislators these past years have not only misunderstood the law, they had deliberately or otherwise been chasing shadows when the real problem is staring us in the face. It is a fact of history that since June 4, 2007 when the Bill was passed into law under the then President Umar Musa Yar’Adua, the Act has not been implemented as required by law. It is therefore a somersault of a kind to accuse a law of errors when indeed it has not been tested to the fullest.
Central to fighting corruption in Nigeria is the establishment of Part 1, Section 1 of the Act – Establishments of the National Council on Public Procurement – as required by law. This Council has the responsibility among others to translate efforts to sanitize the public sector through application of the content of the law in full. This Council was established in 2007 by the National Assembly and the Executive with the consent of the President, pursuant to Sections 5(1), 148(1) 4(2) and 4(3) of the 1999 Constitution. From inception of the Public Procurement Act (PPA) 2007 till date, of which President of The Senate, Senator Ahmed Lawan was a player in the transition, the Council has not seen the light of the day. This is despite several warnings that the absence of the Council in the face of implementing other parts of the law is illegal and renders all actions carried out under the Act null and void. But this is Nigeria!
Mr. Senate President, this administration came on the hope of fighting corruption and saving the country from total collapse, judging from previous history. Therefore, the Public Procurement Act 2007 is one of the sunshine laws established under the recommendation of the World Bank in the year 2000 to help in achieving that agenda.
Since passing into law the Public Procurement Act No. 14 of 2007, attempts have been made to amend several sections of the law, starting from President Umaru Musa Yar’Adua to now President Muhammadu Buhari’s regimes. It is instructive to note that all these attempts have failed because they do not stand the test of law. It is therefore important that the 9th Assembly should not repeat the errors of previous administrations, but to uphold the Rule of Law and allow the Act to function.
Until the National Council on Public procurement (NCPP) is constituted and inaugurated by the Government, there is no meaningful achievement that can be realised in the fight against corruption in the public sector, as it is clear evidence that all these plans and attempts to amend the law are efforts to undermine transparency and accountability.
Quite interesting but incompatible, on Tuesday February 5, 2015, former President Goodluck Jonathan inaugurated the first National Competitiveness Council of Nigeria (NCCN) to improve Nigeria’s ranking in terms of doing business. This was in response then to the placing of Nigeria in 133rd position out of 183 countries evaluated in the 2012 World Bank Global Doing Business Report. This is a clear case of inconsistencies in policy direction of government.
And only recently, the Nigeria government reacted angrily to the rating of the country as one of the most corrupt nations by several accountability initiatives, including the Mo Ibrahim Foundation, Transparency International (TI) among others. Unfortunately, the government often forgets that these types of proposals to diminish an existing law and render it distorted are used as part of the evaluation processes by global watchdogs.
Another sad example is the Petroleum Industry Bill (PIB) that did not see the light of the day from the 7th to the 8th Assemblies. Section 149 states that “The National Oil Company (NOC) shall not be subject to the PPA and Fiscal Responsibility Act (FRA) 2007 respectively. We see this singular action as a deliberate attempt to legalize corruption through shady procurement practices in the NOC. This is not only against the spirit of transparency and accountability that the initiators of PIB seek to achieve; it rubbishes the efforts of the Nigeria Extractive Industry Transparency Initiative (NEITI) to redeem the poor image of Nigeria by cleansing the oil sector of its rot.
In disagreeing with the Senate President that “the loopholes embedded in the Legislation makes the Act susceptible to be exploited for corrupt practices,” I think the problem of the Act is not the Legislation itself but the practice and implementation of the Act. While it is a fact that no law is perfect, we must also acknowledge that the human blunder is the actual problem.
The above takes me to another fundamental area in the Act that we expect should draw the attention of the Senate President and lawmakers, rather than award of contracts. Part 1, Section 1, Sub-Section 2 (g) of the PPA 2007 states that ‘The Council shall consist of the Minister of Finance as Chairman, The Attorney General and Minister of Justice of the Federation, The Secretary to the Government of the Federation, The Head of Service of the Federation, The Economic Adviser to the President. The Council also include: six part time members to represent the Chartered Institute of Purchasing and Supply Management of Nigeria, Nigerian Bar Association, Nigeria Association of Chambers of Commerce, Industry, Mines, Nigeria Society of Engineers, Civil Society; and the Media, while The Director General of the Bureau shall be the Secretary of the Council. And that ‘The Council shall consider, approve and amend the monetary and prior review thresholds for the application of the provisions of this Act by procuring entities;
What we have in Nigeria today are persons not qualified as procurement professionals manning the procurement cadres across the Ministries, Departments and Agencies, MDAs of government. Though the law is very clear as to the qualifications of those to function as heads of these entities, from the Director General of the Bureau for Public Procurement (BPP), Directors in the Bureau and across other parts of the public sector, the story is the same. Could this be what the Senate President meant to say when he was quoted as saying the loopholes embedded in the Legislation makes the Act susceptible to be exploited for corrupt practices?
Though the signal is on again, before any attempt is made to commence any form of amendment to the PPA 2007, it is instructive to advise the Senate and the House of Representatives to read an abstract of an upcoming book titled ‘History of PPA Amendments in Nigeria’ and note the dangers inherent in such move. I think our legislators should as a matter of national interest first consider the need to constitute and inaugurate the National Council on Public Procurement.
The attempt to amend the PPA 2007 is legendary. Just over a year after its passage into law by the late President Umaru Musa Yar’Adua, a Bill was sent by the Executive for its amendment including several interests that have frustrated the full implementation of the law and the inauguration of the National Council for Public Procurement (NCPP). Before his demise, President Yar’Adua had set in motion the process of meeting all the requirements including the inauguration of the Council. He did not only announce the membership of the Council, a formal ceremony for the swearing-in ceremony was scheduled at the Presidential Villa for the inauguration. The event could not hold because it was learnt that the representative of the Chartered Institute of Purchasing and Supply Management of Nigeria (CIPSMN), one of the six part time members was replaced by a power clique at the Villa without the consent of the President.
It was a shocking President Yar’Adua on learning the truth that later suspended the ceremony till a later date with a promise to get to the root of the matter. He could not, and since then the struggle to make government see reason for the inauguration of the Council has consistently been frustrated by a few unpatriotic elements within the corridors of power. This incident paved way for the reintroduction of the Amendment Bill at the National Assembly tagged SB125 and HB 87 of 2008, the Harmonized version, which was passed on November 4, 2009 by the two legislative arms.
In a Special Memo of November 6, 2009 forwarded to the Minister of Justice and Attorney General of the Federation, Mohammed Bello Adoke SAN, and copied to President Goodluck Ebele Jonathan, procurement professionals warned of the danger in assenting to the Harmonized Version on many grounds. The arguments were backed by laws, facts and professional knowledge of procurement processes as it affects the economy.
Another signal came in 2012 from the Chairman of the Senate Committee on Appropriation, Senator Zainab Kure, while granting an interview to media after the last Senate plenary of December 2012. In her words, she said “there’s need to amend the procurement law because it is too cumbersome.” Not long after, President of the Senate, David Mark announced during their first sitting after the December-January recess that the Public Procurement Amendment Bill 2012 is among four (4) Executive Bills currently before the Senate, and indeed the National Assembly for consideration.
The Bill before the Senate then were numbered SB 182 of October 2012 with proposal to amend Section 1 subsection 2, Section 7 subsection 1 and Section 17. Others are Section 35 subsection 2 and 3, and Section 54 subsection 2. In summary, five sections were proposed for amendment with the Explanatory Memorandum as follows: The Bill seeks to amend the Public Procurement Act 2007, by making the President the Chairman of the National Procurement Council, introducing additional tier of approving body, the Federal Executive Council etc.”
Three years on, and with President Jonathan still at the helm of affairs, yet another new Bill was introduced with new provisions that did not only reflect the agenda of a few, but unwittingly embedded a can of worms that will embarrass the President and make him accountable for all procurement illegalities if passed into law as requested. Before the National Assembly commenced debate on the Bill, again, as key stakeholders, procurement professionals drew the attention of the Legislators, as well as the general public to the unlawful intent of this clique to embarrass the President, ridicule the Legislators and further enslave the Nigeria populace.
The candid advice to Senator Ahmed Lawan and his colleagues, therefore, is not to reinvent history but to be guided by past developments that have brought public procurement to this sorry state. Let the law take its full course, tested before an amended can be proposed. Until this is done, there is the likelihood, that like all other efforts, any new proposal to amend will be fruitless.And without debating the subject of whether the PPA 2007 is best or worst among countries of the world, there is a conviction that implementing all the provisions of the Act will be the antidote to those areas of corruption that the Senate President alluded to.
• Attah is a certified procurement professional and National Coordinator of Procurement Observation and Advocacy Initiative, PRADIN.
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