3 December 2012

Nigeria: President Grabs Ministers' Powers Over Contracts

President Jonathan is seeking to take over chairmanship of the procurement council from the Finance minister and to curb powers of ministerial tenders boards over contract awards, according to details of a new bill seen by Daily Trust.

The bill seeks to amend the Public Procurement Act which vests powers over government contracts in the National Council on Public Procurement to be chaired by the Finance Minister.

Based on the changes proposed by Jonathan, the President will assume chairmanship of the council and also have prerogative to approve contract mobilization fees above 15 per cent.

A new insertion under Section 35 of the law sets out strict control over payment of mobilization fees thus: "provided that all payments of mobilization fees in excess of 15 per cent must first be approved by the President."

Powers of contract approvals within certain thresholds will still reside in the ministerial and parastatal tenders boards under the amendment bill but the Federal Executive Council chaired by the President will determine the limits "from time to time."

Daily Trust has obtained a copy of the two-page bill, which was submitted to the lawmakers in July but its details not made public since then.

Non-implementation of the procurement law has been one of the sticking points in the frosty relationship between Jonathan and the House of Representatives, which passed a resolution in November 2011 urging the president to inaugurate the council.

The original law, enacted in June 2007 by then-president Umaru Yar'Adua, sought to stop the Federal Executive Council from its weekly contracts approval ritual by empowering the NCPP headed by the Finance Minister to handle all government procurements.

But Jonathan failed to inaugurate the council, and instead sent amendments to the National Assembly.

'Mutilating the law'

In the new bill, Jonathan is seeking amendment to section one of the principal act to replace the "Minister of Finance" with "The President of the Federal Republic of Nigeria" as "the chairman of the council with the inherent powers to delegate."

Jonathan also wants section 17 to be amended to make the Federal Executive Council the approving authority for contracts in excess of the thresholds instead of the National Council on Public Procurement as contained in subsection 1 (2) of the principal act.

Another major alteration is to delete the phrase "after competitive selection" from line 2 of section 7 subsection 1 of the law, thereby making the appointment of the Director General of the Bureau of Public Procurement at the pleasure of the President instead of through a competitive selection process.

Reacting to the amendments, executive director of the Civil Society Legislative Advocacy Centre, Auwal Musa Rafsanjani, said the changes being proposed amount to mutilation of the Public Procurement Act.

"It is about the third time he (the President) is sending such a request to the National Assembly all in an effort to mutilate the 2007 Act signed by late President Umaru Musa Yar'Adua," Rafsanjani told Daily Trust in Abuja yesterday.

"It was the first bill Yar'Adua signed and all major international organizations hailed the legislation because contract awards is the major source of corruption in Nigeria and such a law will help minimize corruption. This proposal negates the principles behind the law and undermines it.

"There are some powerful people who continue to undermine the law. It should be allowed the way it is. It is not good for a sitting President to preside over procurement council because it is subject to oversights and scrutiny and investigations by the National Assembly and it is not good for a sitting President to be subjected to such.

"He should rather appoint somebody who is credible to chair the council in accordance with the existing law. We as civil society organisation will join hands with the National Assembly to block the amendment because it is not in the best interest of Nigeria. It is not the job of the Federal Executive Council to approve contracts."

Long-drawn controversy

On November 29, 2011 the House of Representatives passed a resolution giving Jonathan 21 days within which to constitute the National Council on Public Procurement as required by the Public Procurement Act, 2007.

On March 27, a committee of the House recommended sanctions against the President over his failure to set up the council in spite of the resolution.

In July, the House suspended debate on the amendment bill submitted by Jonathan and asked its committee on Justice and Rules and Business to review the draft law considering the previous resolution passed asking the President to inaugurate the procurement council.

This was after Minority Leader Femi Gbajabiamila (ACN, Lagos) suggested a breach of section five of the 1999 Constitution regarding compliance with laws made by the National Assembly.

However, two days later the committees reported back saying that reading the bill the first time would not be in breach of any section of the constitution. Thus, the bill was read the first time but no further action was taken on it on the floor.

In an interview with the Guardian newspaper published earlier in the year, presidential spokesman Reuben Abati said the procurement council would not be inaugurated because the law subordinates the Federal Executive Council to the National Council on Public Procurement.

"The reason for this proposed amendment is that there is a contradiction in the law that set up the council that has a member of the Federal Executive Council, the Minister of Finance, as the chairman," he said.

"How can a council, headed by a member of the FEC, be more powerful than the FEC that produces the minister? There is a contradiction there that the proposed amendment seeks to remove for it to be functional."

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