Buhari joins Jonathan, Yar’Adua to violate Nigerian law on public procurement
Despite promises during the campaigns in the build up to the 2015 election, President Muhammadu Buhari has failed to inaugurate the National Council on Public Procurement, NCPP, as required by Nigerian law.
The Public Procurement Act 2007 was signed into law by late President Umaru Yar’Adua on June 4, 2007.
The Act provides for the establishment of the National Council on Public Procurement, NCPP, and the Bureau of Public Procurement, BPP, as the regulatory authorities responsible for the monitoring and oversight of public procurement as well as harmonizing existing government policies and practices. The act was put in place to put more transparency in and ensure public participation in government procurement.
Membership of the council according to the Act should comprise 12 members to be appointed by the president.
While six of the members are government officials, the other six are drawn from relevant professional organisations. Those from the government side, considered permanent members, include the Minister of Finance, who serves as chairman, and the Director General of the BPP as secretary.
Others are the Attorney General of the Federation and Minister of Justice, the Secretary to the Government of the Federation, the Head of Service, and the Economic Adviser to the President.
Those representing professional bodies are drawn from the Nigerian Bar Association, the Nigerian Institute of Purchasing and Supply Management, the Nigeria Chamber of Commerce and Industry, Mines and Agriculture, the Nigeria Society of Engineers, a representative of civil society organisations and that of the media.
NOT ONLY BUHARI
Although President Yar’Adua signed the Act into law in his first week in office, he however, failed to set up the council until his death in May 2010.
His deputy and successor, Goodluck Jonathan, who eventually served as president for five years also failed to inaugurate the council.
As a result, most of the functions of the council were carried out by the Federal Executive Council, FEC.
The FEC is made up the president, the vice president, all the ministers and some presidential advisers; meaning the president and his political appointees who are all less likely to question his decisions.
The inability of the government to set up the council has meant the FEC approves contracts to be executed by its members.
Mr. Buhari had in a document circulated during the 2015 campaigns titled ‘ My covenant with Nigerians’ promised to “inaugurate the National Council on Procurement as stipulated in the Procurement Act so that the Federal Executive Council, which has been turned to a weekly session of contract bazaar, will concentrate on its principal function of policy making”.
Although the president after assuming office disowned the document, a PREMIUM TIMES fact check showed the ruling All Progressives Congress did author it.
The document was authored by the policy and research directorate of the APC presidential campaign, headed by current Minister of Solid Minerals Development and former Governor of Ekiti State, Kayode Fayemi, when the party was trying to convince Nigerians to abandon the then ruling PDP.
COUNCIL COMING SOON
A top official of the APC administration who declined to be named because he is not permitted to speak to the media on the matter said the issue of NCPP ” just like other boards and parastatals will be set up at the right time.”
The official said he is aware the office of SGF is working on the composition of the boards of parastatals.
He however, said, “the truth is government has a lot more important matters to attend to at the moment and the issue of procurement council and all others will be attended to in due course.”
Several efforts to speak with the SGF, Babachir Lawal, were unsuccessful. Calls to his mobile phone could not be connected. He also did not respond to our text message at the time of publishing this story.
Presidential spokesperson, Garba Shehu, however, promised to “make inquiries and revert” to us. He said the administration is “working on it”.
In reaction to the failure of the Buhari administration to set up the council, lawyer Jiti Ogunye said it is unacceptable for successive administrations to fail to inaugurate the NCPP.
He said the inability of the Buhari administration to inaugurate the council has ” grave consequences” because the Act establishing the council was not meant ” to be observed in breach”.
“The executive is not at liberty to choose which law it could implement. It is not a discretionary matter,” he said.
Mr. Ogunye said both the federal and state governments are charged under Section 5 of the Nigerian constitution 1999, as amended to “govern the country and execute all the laws passed by the National Assembly”.
The human rights lawyer said he could not say if the actions of the FEC to carry out the functions of the NCPP is illegal because there is no legal pronouncement on the matter.
He said the best way to resolve the controversy is through “public interest litigation seeking an order of mandamus” asking the Nigerian government to ” do what the law says they should do”.
Mr. Ogunye said the NCPP is the citizens only chance to participate in the procurement process in the country.
“The business of the Federal Executive Council is to deal with policy issues. It is not a contract awarding body,” he said.
We need a court declaration to say the FEC “as a substitute to the NCPP is illegal, unlawful and unconstitutional. On the basis of arguments, we can say what they are doing is illegal, but there is no legal declaration to that effect.”