Three civil society groups, Procurement Observation and Advocacy Initiative, PRADIN, Civil Society Legislative and Advocacy Centre, CISLAC and Trade Union Congress of Nigeria, TUC have sent a joint to the House of Representatives Committee on Public Procurement, warning of the dangers in the proposed amendments to the Public Procurement Act 2007 now before the Legislatures.
In a letter dated June 28 and jointly signed by the National Coordinator of PRADIN, Mohammed Bougei Attah, the Executive Director of CISLAC, Auwal Musa Rafsanjani, and the representative of TUC, Comrade Aliyu Abdulhakeem, and titled ‘Joint Position and Memorandum by Coalition of Civil Society Organizations Working in the Areas of Sound Public Procurement System through Good Governance, Transparency and Accountability’ the groups warned that the House of Representatives’ Public Hearing of Tuesday July 19 and the Senate version on Thursday May 26have political undertone and that there are several inconsistencies in the proposed amendments to the Act.
The letter read in parts “We wish to put on record that this Memorandum and Joint Statement represents the voice of over 150 CSOs in Nigeria and as represented by Procurement Observation and Advocacy Initiative(PRADIN) and Civil Society Legislative and Advocacy Centre (CISLAC) and the Trade Union Congress (TUC). Thus, this letter is a follow up to the earlier Memorandum submitted to the Senate Committee on Public Procurement in response to the invitation to the Public Hearing and Call for Memorandum of Thursday 26 of May 2016 as advertised on Thursday May 24”
In particular, the groups noted that the subject of the Public Hearing, as advertised, and as contained on the schedule distributed by the Office of the Clerk to the Senate and House Committees are similar to the amendments proposed earlier in the last two dispensations of Presidents Umar Musa Yar’Adua and Goodluck Jonathan administrations. For the record, the group noted that this is the fourth time the Legislators have attempted to amend the PPA 2007 but failed due to inconsistencies and lack of genuine concern for the subject of transparency that the Act stands for.
Further, the groups pointed out certain flaws in the planned amendments which is as advertised reads “A Bill for an Act to Amend the Public Procurement Act 2007, by Adding a new Member to the Council, Amending the Procedure for Appointing the Director General of the Bureau and Extending the Application of the Act to Defence Procurement; and for other Matters Connected Therewith – HB. 16.03.475”
In a swift reaction to the above, the group argued that assuming but not conceding that the intention of the lawmakers – and by extension the Public Hearing – was to amend Section 1 (2) of the Principal Act by removing the Minister of Finance as the Chairman of the National Council for Public Procurement and replacing it with the President, Section 1 (2) (f) of the Principal Act by adding The Nigerian Institute of Quantity Surveyors as member of the National Council for Public Procurement, Section 1 (4) of the Principal Act by deleting ‘The Chairman and other members of the Council shall be appointed by the President’ to only ‘Other members of the Council shall be appointed by the President’ and Section 7 (1) of the Principal Act by making the appointment of the Director General of the Bureau of Public Procurement (BPP) a competitive selection on the recommendation of the Council but to be confirmed by the National Assembly, “the attempt to reinvent or reintroduce what has previously being debated and addressed under the 6th and 7th Legislative Assemblies make the process a self ridicule”
PRADIN, CISLAC and TUC pointed out that the proposal to make the President the Chairman of the yet-to-inaugurated National Council for Public Procurement violates Chapter VI, Part 1 Section 138 of the 1999 Constitution (as amended). The section states unequivocally that “The President shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever”. The wisdom here is that the President already holds such Executive Powers that are above what is currently sought. It is important here to note that the Minister of Finance as the Chairman of the Council (as in the Principal Act) is a representative of the President, much so other members of the Federal Executive Council (FEC).
In the letter, the groups averred that if they entertain the request and evaluate it against other standards, by making the President of the country as Chairman of the Council, it implies that the Executive body will now be the Alpha and Omega as well as presiding judge in their case while other arms of government and sector will be at their mercy. By this act also, any such statutory report, such as the bi-annual procurement audit report coming from the Council and the Bureau of Public Procurement (BPP) will be biased because it will be solely an executive affair. Again, the independence of the Bureau would have been compromised here because there are three arms of government and the Council is expected to recognize this. The crafters of the law are very conscious of the need for checks and balances such that it does not allow the Council to be at the mercy of one party. It was created in a way that it accommodates all the sectors – public, private and the non-profit sectors – as council members with equal powers.
It is logical from the above that making the President the Chairman of the procurement Council will amount to double standard, crossing from his role as implementer to monitor. It is clear that the executive (first party – implementers) cannot play the role of the National Assembly, CSOs, media etc (second party – oversight) or that of anti-corruption bodies (third party – review, investigation, audit etc). Those who argued against this common law may well as appoint the President as the Chairman of the Board of EFCC, ICPC, and the Police as above. This will not only violate public accountability principle, it will further promote corruption and lack of transparency in the procurement processes.
The proposal to make the appointment of the Director General of the Bureau of Public Procurement to be confirmed by the National Assembly is over ambition, the group added. The proposal if adopted will fail the statutory process of appointment into public offices. The group argued that there is no record in the history of Nigeria, including the National Assembly where the appointment of a DIRECTOR GENERAL is referred to the Legislatures for confirmation. This is purely an executive responsibility and does not require rigorous exercise of executive-legislature approval. The standards in public appointments are in two folds, either the President appoints and forward to the National Assembly for approval or a Council appoints and forward to the President for approval.
Therefore, the request to amend Section 7 of the Principal Act by allowing the Council to appoint after a competitive selection process, forward to the President and thereafter the President forward to the National Assembly for confirmation is not only cumbersome but contradictory.
The six (6) Part-Time members of the Council as currently listed in the Act are representatives of the public like the National Assembly – CIPSMN, Nigeria Bar Association (NBA), Civil Society Organizations (CSOs) among others – are all capable enough to represent the interest of the public. “In our opinion, there is nothing special or exclusive that the National Assembly will add to the process that these REPRESENTATIVES would not have done before forwarding the appointment to the President.
It is of special interest to note that earlier, in less than 30 days, the Senate had proposed amendment to same Section 7 of the Principal Act in line 2 of subsection 1 by deleting the phrase “after competitive selection” The CSOsviewed this proposal as an attempt to undermine the present anti-corruption efforts of the present administration. The main questions that should naturally follow this proposal are ‘Who is afraid of competition?’ and ‘What purpose will it serve the interest of the advocate if the word ‘competition’ is removed? To answer the questions, it will be helpful to state that as a policy, the motto of the BPP is ‘Competition, Transparency and Efficiency’. The core objective and provision of the PPA 2007 as contained in Section 4 include (a) The harmonization of existing government policies and practices on public procurement and ensuring probity, accountability and transparency in the procurement process; b)The establishment of pricing standards and benchmarks; (c) Ensuring the application of fair competitive, transparent, value-for money standard and practices for the procurement and disposal of public assets and services; and (d) The attainment of transparency, competitiveness, professionalism in the public sector procurement system. Thus it is clear that the core objectives of the PPA cannot be achieved without a competitive selection process, the group submitted.
The CSO group concluded their Memo by reminding the Legislators that this administration came on the hope of fighting corruption and save the country from total collapse, judging from previous history. The Public Procurement Act 2007 is one of the sunshine laws established under the recommendation of the World Bank in the year 2001 to help in achieving that agenda. Since 2007 when the law was established under the then President Umar Musa Yar’Adua, the Act has not been fully implemented as required by law. Central to fighting corruption is the establishment of Part 1, Section 1 of the Act –Establishments of the National Council on Public Procurement – as required in the Act. This Council has the responsibility among others to translate efforts to sanitize the public sector by applying the content of the law in full.