01 Mar 2004 |
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| On Sunday, February 22, 2004, The Sunday Guardian reported what it termed an explanation by the Federal Government for its decision to pay the Minister of Finance, Dr (Mrs) Ngozi Okonjo-Iweala and the Minister of Foreign Affairs, Ambassador Olufemi Adeniji in dollars. The explanation reportedly contained in a written response to inquiries by the newspaper came from the Secretary to the Government of the Federation, Chief Ufot Ekaette, who revealed that these dollar payments are far in excess of the amount stipulated by law as remunerations for these officers. Obviously, the Federal Government believes that these officers are doing Nigeria a favour by receiving lesser than they would have received if they had remained in their previous international positions. Under the arrangements approved by the President, Chief Olusegun Obasanjo, Dr Okonjo-Iweala is reportedly being paid $247, 000 (about N36 million per annum), while Ambassador Adeniji receives $120, 000 (about N17 million per annum) making a total of about N53 million for both Ministers, an amount enough to pay 66 Ministers at the rate stipulated by the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc) Act No. 6 2002, which is the law governing the remuneration of Ministers. The strategic security reason, economic sense or consideration for cabinet solidarity that necessitates such dastardly and questionable differentials in salaries is yet to be explained to the Nigerian people. By today, Monday, March 1, 2004, it would be eight days since the story broke, but neither the President nor the two Ministers have said anything yet. In fact, no one at any level of the administration is saying anything! Another troubling aspect of the whole story is the claim by the Federal Government that the idea of these payments was worked out between it and the United Nations Development Programme (UNDP) and that a trust fund - The Nigerian Diaspora Trust Fund - is being presently operated to facilitate the payments. That Fund, the explanation goes, is being managed by the UNDP with contributions from the Nigerian Government and international donors. And, of course, what we are not being told is the exact amount each party/donor is contributing to the said Fund, quite apart from the fact that those who know the workings of the UNDP and its status as one of the most credible international agencies within the United Nations system, would worry at this claim that they're involved in such a terribly ill-advised arrangement. I am actually taking the claim with a pinch of salt. In fact, today's Guardian top story, titled, "Nigerians abroad petition UN over ministers' dollar pay", further supports this scepticism. At least, if such an ostensibly important Fund exists, why would the same UNDP's top officers not know about it? Why the secrecy, bearing in mind that Nigerians only came to know about this as part of some latter-day revelations? Nonetheless, the core issue for us as Nigerians is whether the President exceeded his powers in entering into a contract of the sort he did with Okonjo-Iweala, Adeniji and the UNDP (if they are truly involved), where the Constitution specifically apportions such powers to another statutory body and the National Assembly. In other words, where presidential power is expressly excluded in the matter in question, would any act performed by the President in excess of his powers be valid? The obvious answer is NO! His actions will be invalid to the extent of that inconsistency with the Constitution. That law we are talking about here, as pointed out above, is the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc) Act No. 6, enacted on the 13th day of December 2002, but which is deemed to have come into force since 29th of May 1999. This law specifically fixes, in Naira, the salary and emoluments of certain political and judicial office holders, including Ministers (N794, 085), and it is a direct response to a constitutional mandate given the Revenue Mobilization Allocation and Fiscal Commission as a Section 153 (1) statutory body, whose powers are as contained in Section (32)(d), Part 1, Third Schedule of the Constitution of the Federal Republic of Nigeria (1999), which clearly gives the power to "determine the remuneration appropriate for political office holders, including the President, Vice-President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in sections 84 and 124 of this Constitution" to the said Commission. In other words, the Commission is the body specifically designed for that purpose by the Constitution. It does not give the President the power to singularly or jointly with any other person, home or abroad, negotiate what they think is right for any person occupying any of the offices mentioned here. So, whether it is the President or the UNDP or both that is/are trying to negotiate or that have negotiated such salaries for officers and persons mentioned in these sections, the Constitution makes it clear who has the authority. It is only the RMAC and the National Assembly through an Act of parliament that can exercise such powers. Obasanjo therefore clearly exceeded his powers to negotiate some independent salary scales for those two Ministers. He cannot exercise powers that he does not have. It does not need any complex legal rigmarole to understand this; it's the basic fact. The only condition under which the President as Chief Executive can begin to enter into a contract to pay salaries is where it concern(s) a position or positions not specifically mentioned by the Constitution as not within his powers. So, if we were talking of Mrs Okonjo-Iweala as a consultant, for instance, as opposed to being a Minister, this would be a no-brainer; the President would have been held to have acted within his competence and powers, because the Constitution did not say the Revenue Mobilization Allocation and Fiscal Commission and/or the National Assembly should do so. In that case, his powers as the Chief Executive who can hire and fire and use his discretion and the requisite advice he receives, professional or otherwise, to pay any amount he deems fit for such a position will not be questioned. In any case, Chief Gani Fawehinmi (SAN) has gone to court to challenge this act. While one is not in the business of pre-empting the court, it is worth pointing out here without fear that Nigerians everywhere are watching this case very closely, especially after the inexplicable ruling of Justice Chinyere Chikere of the Abuja Federal High Court that Gani had no locus standi to challenge one of those horrible decrees hurriedly and surreptitiously passed by the Abdulsalami Abubakar administration as it was on its way out. It is instructive that the said case is also a challenge of the issue of remuneration, this time, as it concerns the arrantly unfair, unjust and unconstitutional provisions of the Remuneration of former President and Heads of State (And other Ancillary Matters) Decree No 32 of 1999, promulgated on May 10, 1999, two weeks before Abubakar left office. Perhaps, it is important to say a few words here about this use of the locus standi rule by our courts. Yes, it is a needful rule, but the question is how the Nigerian courts are applying this, especially when it comes to issues they think will embarrass the government of the day. As far as I'm concerned, the interpretation of the locus standi rule by our courts, from the lowest to the highest level, leaves much to be desired. It has since become the refuge of judicial and administrative scoundrels eager to deny qualified and competent litigants a forum to expose administrative excesses. It's been used against Gani so many times that it's safe to say he himself would have lost count. It is a way of them trying to tell you, yes, the act you're complaining of is illegal, unlawful, but go away; you're just a general busy-body, wetin concern you? But in a situation where there's no established judicial review mechanism in the Nigerian court process to address questions of administrative or constitutional excesses, why should the court be denying any citizen the right to appear before it to challenge an act of government? Besides, there are many procedural rules that can take care of vexatious litigants, rather than relying on questionable locus standi rulings to keep out competent complainants like Gani. Now, isn't it absurd that a court of law would deny another citizen the standing to challenge the outrageous thievery that's going on in the name of entitlements to some class of former rulers and their families as in the case of Decree No 32 of 1999? If the principle behind the rule of law and public accessibility to justice is that the courts should arbitrate in conflicts between public good and private gains, what was Justice Chikere scared of to deny Gani the chance to stand before the court and argue his case? What other locus standi does Gani need besides being a Nigerian affected by public issues; a tax- payer, not just any tax payer, a huge one considering his businesses and practice, all within Nigeria? What other locus standi did he need besides being one of the foremost constitutional lawyers in the country and a Senior Advocate of Nigeria? So, if we follow the judge's logic, who else has locus standi in the whole of Nigeria in this issue besides the beneficiaries of these outrageous entitlements, who by their very nature as beneficiaries are not very likely to go to court to challenge the unconscionable and unconstitutional benefits coming to them? If the courts cannot protect the public from excesses of individuals who, by hook or by crook, happen to hold government positions at one time or the other, where then lies the hope of the ordinary person? But, of course, the real reason the Court came up with the lack of locus standi ruling is because it feared that to give Gani an opportunity to make the case would likely result in him using the court to make a political statement. The strength of his argument will be persuasive and it will expose the ridiculous, unconscionable and unconstitutional nature of this decree that was surreptitiously made two weeks before that regime handed over to a civilian administration. It would also raise questions as per the role of the national legislature and all relevant oversight agencies since such unconstitutional payments were being made and are still being made till this day, because the decree in question is in direct conflict with Section 84 (5) of the Constitution of the Federal Republic of Nigeria, which states: "Any person who has held office as President or Vice-President shall be entitled to pension for life at a rate equivalent to the annual salary of the incumbent President or Vice-President, provided that such a person was not removed from office by the process of impeachment or for breach of any provisions of this Constitution". So, it is clear from this provision, the spirit and intendment of the Constitution that it does not wish to reward criminals and coup-plotters who seize government by force, which invariably rules out all our past military rulers. It certainly has no provision for allowances or benefits to any relations or family members. Decree 32 of 1999 is therefore inconsistent with Section 84 (5) of our Constitution and ought to have long been abrogated, failure of which the court has a duty to declare it inconsistent with the Constitution and therefore null and void; but rather than taking that challenge, Justice Chikere ran Gani out of her court and left the nation still picking up a N2billion bill yearly in payments to undeserving persons. But she may have only bolted the door after the horses have bolted away. At a time Nigerians are waking up to the outrage of the ministerial dollar salary affair, the case has made Nigerians just more vigilant about such judicial antics. Besides, by bringing the case to court at all and by having it thrown out so spectacularly for this less than brilliant excuse of no locus standi, Nigerians at least now know that such costly decrees indeed are still in our law books, even where they've been effectively rejected by our Constitution. These people came to government, stole us blind and retire on a N2 billion pension! It doesn't matter what the Court says; it's there for all to see and feel the effect. When we are ready as a people, we will wake up and smell the coffee. For now, Gani is a man of the law and all he's doing is using it to enlighten people and put some conscience back into even the evidently compromised judiciary. It is to be hoped that the new case against these dollar salary payments does not suffer the same fate, otherwise that would be taking one mickey too many out of Nigerians. Now having talked briefly about locus standi and Gani's case against Decree 32 1999, let us now return to the issue at hand. It is pertinent at this stage to note that the constitutional infractions in the ministerial dollar salary affair go beyond those already mentioned, which, as I said earlier, are already subjected to the judicial process through the regular courts, thanks to Gani. These next categories of infractions are contained in Part 1 of the Fifth Schedule, as part of the Code of Conduct provisions of the Constitution. Below are the sections to consider regarding this case: 1. A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities. 3. The President, Vice -President, Governor, Deputy Governor, Ministers of the Government of the Federation and Commissioners of the Governments of the States, members of the National Assembly and of the Houses of Assembly of the States, and such other public officers or persons as the National Assembly may by law prescribe shall not maintain or operate a bank account in any country outside Nigeria. 9. A public officer shall not do or direct to be done in abuse of his office an arbitrary act prejudicial to the rights of any other persons knowing that such act is unlawful or contrary to any government policy. 13. A public officer who does any act prohibited by this Code through a nominee, trustee, or other agent shall be deemed ipso facto to have committed a breach of this Code.With regard to Section 1 above, it is fair to say that the idea of collecting dollars as salary runs contrary to the legitimate expectations of Nigerians that part of the duty of their Finance Minister must be to protect the naira. It goes without saying that the Finance Minister was brought in to put policies in place to stabilize the national currency; but obviously her personal interest in taking her pay in dollars runs contrary to this idea of making the naira attain better value. In fact, the overall effect of what she has done can be properly labeled as economic sabotage. So on that count, she and the President who should know better are in violation of this section, ditto the Foreign Ministers, whose duty as part of the cabinet must necessarily include avoiding actions that can be construed as economic sabotage as well. Section 3 is speculative, but it must qualify as reasonable speculation because no one would be expected to collect such huge salaries in dollars and keep them locally. It may well be possible, after all, banks in Nigeria operate domiciliary accounts; but it is doubtful in the case of these Ministers, especially when we are being told in their defence of commitments such as mortgage payments abroad, children's school fees, etc. This would therefore depend on what the investigations unravel. The question is where are the dollars being paid into? Are they paid into accounts in Nigeria or abroad? If outside the country, they'd be deemed guilty under this section. Section 9 holds the President guilty of abuse of office and the Ministers guilty as well for conspiring with him to do so. By arbitrarily arrogating to himself the power to make such deals, the president has collared himself with that charge and by accepting and benefiting from such an act, and, considering their positions, the two Ministers are guilty as well. These acts, of course, are prejudicial to the rights of other cabinet members earning the lawful salary especially and also prejudicial to the rights of the ordinary Nigerian taxpayer who does not expect to be shouldering such burden by virtue of what the law has stipulated as salaries for all Ministers. The President cannot claim lack of knowledge, as he has an Attorney-General to advise him on such matters and by virtue of his position really, he's deemed to know. Section 13 talks about a breach if these prohibited acts are done through a nominee, trustee or other agents, which is exactly what is reported and admitted to have been done in this case, if it is true that such monies are being paid through the Nigerian Diaspora Trust Fund. That is a direct breach and it does not matter whether the UNDP or other donors are involved. The Constitution is very clear as to what constitutes a breach here and leaves no room for exemptions by emphasizing that there is a breach ipso facto, that is by that very act. It is the equivalence of a strict liability offence to which you cannot plead any defence. The very fact of the act done is conclusive proof of guilt. However, all the charges under the Code of Conduct provisions are specially adjudicated as the Constitution again empowers a body, another Section 153 (1) statutory body, which is the Code of Conduct Bureau (in fact, it is the first on the list of such Federal Executive bodies listed in that section) to deal with matters that fall under the Code of Conduct provisions. Section 3 (e), Part 1 of the Third Schedule of the Constitution empowers this body to "receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal". The Code of Conduct Tribunal is a special court with powers to determine issues brought to it by the Bureau under these provisions and with appeals from its rulings going straight to the Court of Appeal. Its powers are spelt out in Part 1 of the Fifth Schedule of the Constitution. But then, how many Nigerians know the members or the Chairman of the Code of Conduct Bureau? I mean, here we are, in a country second to none in barefaced public service corruption and a group of people sit down somewhere as a constitutionally empowered oversight agency, complete with a special court of their own, with huge powers, and all we get from them is this mighty silence! Yes, Navy Capt Effiong Eyo Nsa (Rtd) and his men, I'm sorry to say, are just sitting down there in their plush offices at the Federal Secretariat Complex, Maitama, Abuja, collecting salaries and looking the other way while our nation is raped and pillaged repeatedly! The first time I heard of Navy Capt Nsa was about this time last year, when Nigerians, in the run-up to the elections were choking from the stench of corruption oozing from every pore in the nation's political establishment. Out stepped the Captain, brandishing a long list of names that he said he'd sent for trial at the Code of Conduct Tribunal! Nigerians cleared their faces and blinked repeatedly to ensure they weren't dreaming. In a highly-publicized ceremony, the names were released - Senator Francis Arthur Nzeribe for his various Ghana-Must-Go escapades at the National Assembly; Governor Ahmed Tinubu, for operating foreign accounts; Governor Alamieyesegha for operating foreign accounts as well; Governor Adefarati for abuse of office, along with four of his Commissioners; Governor Bafarawa for abuse of office and Victor Attah for involvement in the management of a private company. Littered amongst them were some four local government Chairmen, some local government officials and even one member of the House of Representative, Prince Uche Nwole. But before Nigerians could say "Thank God!", we returned to silence as usual. In spite of this show and the subsequent noise of Nsa's ICPC counterpart, Justice Akanbi, that none of those Governors were going to be allowed to seek re-election, we all knew what happened. They got re-elected; Mr Nzeribe got re-elected and everybody on that list walked! No one on Nsa's list saw the four walls of a Tribunal hearing room; they simply ignored him! The Ministerial dollar salary affair is another test for Nsa and the Bureau; but would they move? Only time will tell. But before we finish burying Nsa and his Bureau, I think we must also ask ourselves some serious questions. Now, let's be frank with ourselves, as ordinary citizens, we've failed Nigeria. While it is trite to begin to blame leaders for almost everything that goes wrong with the country, we cannot deny that such a state of affairs has come about and has subsisted because we as citizens have been less vigilant than we should be. Okay, we're quick to brandish the red card against military rule, but here we are under a democracy and yet we've continued to act within this milieu as though we're still under the military. True, those in charge still operate with dangerous military mentality and there's the huge question of a less than transparent electoral/succession system, but how then do we hope to make progress if we abandon the democratic space to morons? How do we hope to change things if we do not exploit the various avenues available within the Constitution to change things? The excuse may be that nobody at the top there is really keen on obeying the law, but I counter that by saying nobody below is keen on its enforcement either. And there's no greater proof of this than the people's relationship with the Code of Conduct provisions in the Constitution, the Code of Conduct Bureau and the Code of Conduct Tribunal. For instance, in all the cases above, if Nigerians had simply insisted on knowing what was going on, bombarding the Bureau with questions (incidentally, the Bureau is billed by the Constitution as the most accessible of all these bodies), Capt Nsa and his fellow travellers would not have been snoring away that comfortably and if they had impediments, they would have been forced to shout out! And here we are again, another outrageous revelation, but not one commentator has mentioned the Code of Conduct Bureau! This is the time to rouse the Bureau and force it to do its job, but, like everything Nigerian, we think complacency is virtue! It's time for Nigerians to take action; to do the kind of simple things that can have seismic effect and change things for the better or at least make those in authority who are always taking us for granted realize that the party is over. Complacency is Christmas gift to them and we must not let them see that anymore! Let's begin the move; the right move, the legitimate democratic move to get answers to questions raised. On this ministerial dollar matter, an initiative is already in place. The first thing we as Nigerians want to know is whether it is true that the United Nations Development Programme (UNDP) is involved in the arrangement as claimed by the Secretary to the Government of the Federation on behalf of the Federal Government. As we speak, a group of concerned Nigerians are involved in a signature drive on the internet for a Petition to the UNDP. We are not accusing the UNDP of anything; we are not accusing anybody of anything; what the Petition simply demands is information. We are demanding that the UNDP make a public statement regarding its role in the matter. We are pleading with Nigerians everywhere to take this seriously; to mobilize ourselves everywhere and sign this Petition en mass, because it is important for our numbers - the numbers of those who feel this outrage at the rape of the nation - to be heard at the United Nations Plaza, New York! We are addressing the Petition to the third highest man in the UN hierarchy, Mr Mark Malloch Brown, the UNDP Administrator. We are copying the UN Secretary-General and various other officers within the UNDP system, including Mr Tegegnwork Gettu, the UN Resident Coordinator and the UNDP Representative in Nigeria. This effort is reported today, Monday March 1, 2004 as the top story in The Guardian newspaper in Nigeria. In fact, I've received calls and emails from various sources, some non-Nigerians, encouraging us to carry on. Please think hard about what future you want for your country; your children and how callous politicians and public servants are taking that future away from you! We are not calling you to bear arms; we are calling on you to exercise your right to know by first signing this Petition. Below is the link to that Petition. Go there now and sign and tell other Nigerians that you can reach to go there, read and sign if they agree with the aim: http://www.petitiononline.com/UNDP/petition.html http://www.petitiononline.com/UNDP/petition.html http://www.petitiononline.com/UNDP/petition.html GO ONLINE NOW AND SIGN THE PETITION! NIGERIA EXPECTS! PS: Below is some information from a Code of Conduct Bureau Handbook: The Bureau on its part expects the public to show wholehearted commitment in this campaign by reporting cases of corruption promptly and forming a network against corruption. LODGING COMPLAINTS WITH THE BUREAU:Whistle Blowing The Public may be uncertain about the seriousness of the Bureau in dealing with complaints and petitions. This is likely to account for the hesitation often experienced by the public in reporting cases of abuse of office to the Bureau. The public is fearful of revenge. However, every complaint lodged with the Bureau is treated with strict confidence. The public can make a complaint to the Bureau by personal visit to its office premises at the:- Annex III, 5th Floor Federal Secretariat Complex, Shehu Shagari Way, Maitama. Abuja OR, By letter to: The Chairman, Code of Conduct Bureau, Private Mail Bag 155, Abuja. OR, By telephone and / or FAX using the following numbers:- (09) -5231320 or 5231608 For callers from Nigeria; and:- 234-9-5231320, or 234-9-5231608 For international callers. *GO SIGN THE UNDP PETITION NOW! *CALL THE CODE OF CONDUCT BUREAU OR MAIL YOUR COMPLAINT * WHAT WOULD THEY DO WHEN THERE'S A DELUGE OF COMPLAINTS COMING FROM NIGERIANS, DEMANDING ANSWERS? *DO NOT GIVE UP YOUR DEMOCRATIC AND LEGAL RIGHTS TO LEGITIMATE EXPECTATIONS: DO THE RIGHT THING - SIGN THE PETITION AND COMPLAIN TO THE CODE OF CONDUCT BUREAU NOW! I've signed the Petition to the UNDP and I've called the Chairman of the Code of Conduct Bureau, Capt Nsa today from London by telephone and made a verbal complaint about the issue to him personally. I've made him understand that we are not happy with their silence. In fact, we discussed at length. When I asked what his handicaps were and why they are not moving immediately such a story broke, he responded that the political pressures are enormous and that the funds are simply not there; that nobody considers their job important enough to fund it. This immediately struck a cord, because just yesterday, I was reading the Special Report on Nigeria in the February 24 issue of the London Financial Times and I came across the story of the Economic and Financial Crimes Commission requesting N4.8 billion of government funding for 2004 and how the Finance Ministry is recommending only N300m! I mean, N300m for an organization that is supposed to fight private sector corruption, an almost brand new agency, trying to find its feet, without any infrastructure, etc? What is it going to use N300m for? Would that even be enough for salaries, engaging prosecutors, funding investigations, etc? It's a joke! Yet Capt Nsa assures me that their own fate is even worse! I advised him that they should make their case to Nigerians; people must know what their handicaps are; but more importantly, they should begin to pull their weight, whatever the resources available. As I said, we talked at length and he advised that I formalize my complaint in writing (I'm writing on behalf of the Nigerian Consultative Forum International) and send this through the courier service (which I shall be doing immediately I post out this message). He also advised that a copy of such a complaint should be addressed to the ICPC Chairman. Please use the addresses or modes of communication indicated above to get in touch with the Code of Conduct Bureau, and, if you still can, the ICPC. Complacency is no virtue! ARISE NIGERIANS! YOUR NATION EXPECTS! Kennedy Emetulu, London
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