A review of the proposed legislation passed by the Senate shows it can render the ICPC chair redundant and incapacitate the commission to fight corruption.
The Senate has passed a bill to amend the law establishing the Independent Corrupt Practices and Other Related Offences Commission (ICPC), which steeply cuts down on the power of the commission's chairperson.
If it gets concurrent approval of the House of Representatives and the assent of Nigeria's president, it may cripple the prime anti-corruption agency's capacity to fight corruption, a review of the proposed legislation has revealed.
The upper chamber passed the legislation on Thursday seeking profound changes to the administration of the anti-corruption agency by devolving powers and responsibilities which the commission's chairman wields for the day-to-day running of the agency to its board, which ordinarily meets periodically.
Responsibilities to board members
The bill seeks to create Commissioner (Investigative Matters), Commissioner (Legal Matters), Commissioner (Prevention, Systems Review and Financial Intelligence), Commissioner (Asset Recovery and Management), Commissioner (Anti-Corruption Education and Mobilization), and Commissioner, (Forensics and Emerging Technologies)--also, six other zonal commissioners representing the six geo-political zones.
The section added that "provided always that in assigning responsibilities to the commissioners, the president shall have regard to their geo-political zones and respective disciplines."
By assigning responsibilities and functions to the board members, the lawmakers are elevating them from their mere supervisory roles to being involved in the daily running of the commission, which many fear would create a bureaucratic snag in the commission's functioning.
Chairman's administrative order
Aside from assigning responsibilities to board members, whom the bill seeks to rechristen as commissioners, the bill also tries to strip the chairman of the power over "administrative order".
For instance, Section 7 of the Principal Act gives the power to issue administrative orders to the chairman, but the amendment seeks to provide the power of administrative order to the board.
"The Chairman may issue administrative orders to be called "standing Orders", which shall conform with the provisions of the general control, training, duties and responsibilities of officers of the Commission, and for such other matters as may be necessary or expedient for the good administration of the Commission and to ensure the efficient and effective functioning of the Commission," section 7 of the existing Act reads.
The new provision replaces Section 4(2) of the ICPC Act, which deals with the number of commissioners that constitute the quorum for board meetings.
Meeting without chairman
One of the amendments with the most far-reaching implications, the provision makes a meeting of the commission to be duly constituted with or without the chairman. It provides that "any five board members," replacing "Chairman and any four (4) members of the Commission" in the principal Act in attendance, shall appoint a chairman to preside over the meetings.
The bill also seeks to substitute "chairman" for the word "commission", a hazy description that may allow far-reaching decisions of the commission to be taken with little or no participation of the chairman.
It also means that, even when the commission's chairman is fully involved, he has to subject some expedient administrative functions to the bureaucratic decision of the board.
Political influence and other concerns
Furthermore, the bill seeks to amend section 70 of the existing Act by transferring the power to make rules from the chairman to the Commission.
"The chairman of the commission may make rules for giving effect to the provisions of this Act and without prejudice to the generality of these provisions may make rules," section 70 states.
However, by replacing the "commission" to take the place of the "chairman" in the principal Act, the Senate is seeking to give the board the responsibility of developing rules governing the operation of the commission.
"It will subject the ICPC to external political influence," Olanrewaju Suraj, the chairman of the Human and Environmental Development Agenda (HEDA), said while reacting to the designation of the members as commissioners.
He added that his organisation and several other civil service organisations recommended improving the commission, but not by giving operational control to political appointees, whose influence may be tainted by political considerations.
In addition, the bill also seeks to remove the power of the chairman of the ICPC to issue oral commands to the commission officers. The amendment to section 4(8) means that the ICPC chair can only give written directives to officers.
Lukman Adefolahan, an anti-corruption expert, while speaking with PREMIUM TIMES, said even though the ICPC has an SOP, however, for prosecution's sake, the Chairman of the commission should issue a written directive
"If the ICPC gives oral directive to officers that someone should be investigated--can you tender that in court? everything you want to do as far as investigation is concerned must be written.
Technical capacity
The new portfolios the amendment bill seeks to create require technical ability and qualification that the existing act did not capture, and the bill failed to provide clear requirements for qualification.
Section 3(3) of the Act provides that the board of ICPC must include; a retired police officer not below the rank of commissioner of police; a legal practitioner with at least ten years post-call experience; a retired judge of a superior court of record; a retired public servant not below the rank of a Director; a woman; a youth not being less than 21 or more than 30 years of age at the time of his or her appointment and a chartered accountant.
While the existing Act is clear regarding the technical skill required, the amendment did not clarify.
Limit of the powers of governing board
Although establishment Acts of various parastatals of government may have some peculiar provisions, governing boards are generally set up to provide guidelines and liaise with the supervisory ministries for effective monitoring.
But the day-to-day administration of the agency is handled by a chief executive who doubles as the accounting officer.
A former Secretary to the Government of the Federation, Boss Mustapha, had in 2018, during the induction of governing boards of parastatals, warned against the interference of the board in the day-to-day operations of agencies.
"A board shall not be involved directly in the day-to-day management of a parastatal or agency," he said in his speech. Adding that "a board must only operate on a part-time basis."
Despite the clear guideline, Section 3 (11) of the new amendment seeks to change "members of the commission" to commissioners who will be involved in the day-to-day running of the commission's activities, and the legislation seeks to give board members control administration of the agency.
Constituency projects
Many have said the new amendment bill was a way of the National Assembly getting at the current chairman of the ICPC, Bolaji Owasanoye, who has focused on exposing fraud and mismanagement of funds meant for constituency projects by federal lawmakers.
Mr Owasanoye, a professor and Senior Advocate of Nigeria, was appointed as ICPC chair in 2018.
On his watch, the commission has tracked over 4,000 constituency projects valued at over N200 billion through its Constituency and Executive Projects Tracking Initiative (CEPTi).
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The in-depth tracking of government-funded projects is a novel initiative by an agency that has existed since September 2000, about 23 years ago.
The tracking initiative, which is in its fifth stage, is said to have forced about 450 contractors to return to sites to complete abandoned projects. The projects are valued at over N45 billion.
As of 2019, an estimated N2 trillion had been budgeted for ZIPs since 2000, according to ICPC. Despite the enormous releases, citizens continue complaining about "shoddy completion, non-completion or outright non-existence of these projects in their locale".
The commission also revealed how some lawmakers' conduct in handling some projects denied "the public due and legitimate service of the projects."
The first phase of the constituency project tracking by the ICPC focused on the 2109 projects.
About 490 Zonal Intervention Projects (ZIP), also known as constituency projects, each costing at least N100 million, were tracked in the second phase of CEPTi in 2020.
The CEPTi report on 2020 projects revealed how three senators from Kebbi, Taraba, and Jigawa states allegedly abused their office and converted the public property to personal use in executing some multi-million-naira worth of constituency projects.
In its earlier report focusing on 2019 projects, the ICPC revealed that lack of adherence to the provisions of the public procurement law and regulations is a major reason for the persistent infractions in the execution of constituency projects.
It noted that although the roles of lawmakers in project execution were limited, "in practice, MDAs are not involved in the conception of ZIPs" and that "sponsors (federal lawmakers) nominate contractors and take physical custody of items procured by MDAs under the pretext that they would distribute to beneficiaries".
