By Mohammed Bougei Attah
The recent disclosure by the Leadership Newspaper of October 31, 2013 that the tenure of the current Director General of the Bureau of Public Procurement (BPP), Engr. Emeka Ezeh expired in January this year and the subsequent rejoinder credited to the Office of the Secretary to the Government of the Federation (SGF), as published in the same newspaper on November 1, 2013 to disprove that story is something that should worry Nigerians about the current government.
There is also a presumption in law that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the Latin maxim omnia praesumuntur rite esse acta. This presumption is commonly resorted to and applied especially with respect to official Acts – Shitta-Bey v AG Fed (1998) CLR 9(a) (SC).
While it is a fact that the late President Shehu Musa Yar’Adua appointed the present Director General of the Bureau with effect from July 27, 2007 in acting position, he was however illegally confirmed on January 29, 2009 for another four (4) years expiring by midnight of 22nd January 2013. By this, the tenure scaled above the statutory four years tenure prescribed in the Public Procurement Act (PPA) 2007.
The word duly extended as used by the Office of the SGF demonstrates lack of adequate knowledge of governance system. As a fact, the tenure was illegally and not dully extended as it did not follow due process of law. In other words, the term ‘Duly Extended’ cannot stand the content of provisions of the laws on the appointment of the DG. It is therefore important first to draw the attention of the public to this abuse in public offices.
The appointment or renewal of tenure of the Director General of BPP and their other principal staff is a POLITICAL Appointment but STATUTORY requirement which is to be performed by the President and the National Council of Public Procurement (NCPP) as prescribed by law. While the Council appoints the Principal Officers, it also conducts competitive selection process and makes recommendation to President for consent and approval. Thus the power of the President to appoint or renew the appointment of the Director General of BPP is derived from Section 7(1) of PPA and read together with Section 5(1) of the 1999 Constitution (as amended) and the appointment is strictly based on the recommendation of the Council after a competitive selection process.
Since the elongated tenure approved by late President Yaradua and inherited by President Jonathan expired by midnight of January 22 2013, the question now is whether it is proper or constitutional for President Jonathan to appoint a substantive Director General for BPP with effect from or to renew the illegal tenure of the Director General for another four years without the inauguration of the National Council on Public Procurement, that is required by law to advertise the position for a competitive selection process? The answer of course is NO.
The Supreme Court ruled in the case of Ogbonna V AG of Imo State(1992) CLR 2(b) on the 7th on February 1992 that non observance of a statutory provision on a substantive issue is not capable of being waived and when such non observance occurs, it renders the act illegal, null and void and of no effect.
Section 7(1) of PPA states unambiguous the procedure for the appointment of a DG for the Bureau. It states clearly that “There shall be for the Bureau, a Director-General who shall be appointed by the President on the recommendation of the Council after competitive selections” This therefore means that the DG of BPP as envisaged by law, cannot emerge before the NCPP. And the minimum qualifications established by law for the post of DG are also clearly contained in the PPA and other extant laws. The candidate is required to 1. Hold adequate professional qualification in procurement for a minimum of 15 years (see 7(2) (c) of PPA; 2. Also simultaneously hold relevant professional qualification in procurement for a minimum of 15 years (see 7(2) (C) of PPA; 3. Also simultaneously, be a member of CIPSMN qualified by examination (see 11(9) of CIPSMN Act 2007), 4. The CIPSMN Act also specified in Part IV Section 8 and Part V section 2 (b) (ii) that foreign trained professionals in Procurement who wish to practice in Nigeria are required to “within 12 months after the commencement of the Act, seek registration with the Institute to become members” and Section 5 of CIPSMN Act also confirm that such enrolment shall be after passing prescribed examination conducted by CIPSMN Nigeria.
Section 16(1) of PPA (under the Fundamental Principles for Procurement) states that ‘Subject to the prior review thresholds as may from time to time be set by the Bureau and pursuant to Section 7 (1).
This implies that if there is no DG appointed in accordance with section 7(1), procurement processes are not required to take place. A Court of competent jurisdiction thus may easily quash any administrative decisions of BPP on Bidders and MDAs in dispute on account of improper constitution of BPP /NCPP as required by law.
The order of Certiorari as we know, is basically an order which a court of superior record issues (in this case, the Federal High Court) or makes in the exercise of its supervisory jurisdiction and directed to inferior courts, tribunals or bodies entrusted with judicial or quasi-judicial functions in order to keep them within the limits of jurisdiction allowed to them by the enabling laws. The order of certiorari removes proceedings into the High Court for the purpose of being quashed. In the case of BPP this extends to any judgment, order or decision, made by them in respect of any dispute on procurement proceedings between Bidders and MDAs or between two bidders in any MDA, pursuant to Section 54 of PPA.
The above therefore implies that in line with the principles laid down in the case of Gabriel Madukolu & Ors vs Jonathan Nkemdilim (1962 1 All Nlr 1 and restated in the Case of Babale Vs Abdulkadir (1993) 3 NWLR (PT. 281) page 253, BPP will have no legal jurisdiction to take administrative decisions that will be binding on Bidders and MDAs in dispute without the proper constitution of NCPP and BPP as required by law.
It is on record that the two legislative chambers of the National Assembly are fully aware of this cases and illegality when they declared the Office of the DG of the Bureau and the activities of the Bureau illegal in July this year. Nigerians have not been informed of a reversal of this resolution. That virtue of the provisions of Section 4(2)(4)(a) and (b) read together with Part I, schedule 49 of the 1999 constitution, the National Assembly used the powers vested in them by the constitution to declare Purchasing and Supply (including Procurement, logistics, stores management, warehousing, supply) as a Professional occupation and established the Chartered Institute of Purchasing and Supply Management of Nigeria (CIPSMN) as the only body to determine required standards of knowledge, who is a professional in the field and to regulate the license for practicing purchasing and supply in Nigeria.
On the basis of the above submissions, it important to advise the President once again to constitutes and inaugurates the National Council on Public Procurement in accordance with Section 1 of the Public Procurement Act 2007, to help in promoting good governance especially in the economy, especially power, security, electoral process, security, infrastructure, and to encourage the fight against corruption.
Also, the National Council on Public Procurement so constituted should recommend to the President for appointment, an Acting Director General of BPP while advertising the position for Substantive appointment in accordance with Sections 7 (1), 7 (2)(c) of the Public Procurement Act and Section 11(9) of the Chartered Institute of Purchasing and Supply Management Act 2007. This will promote rule of law and due process in a procurement economy and also encourage the use of procurement technocrats and professionals as obtained in international best practices to improve budget implementation
Attah, National Coordinator, Procurement Observation and Advocacy Initiative
Procurement Observation and Advocacy Initiative (PRADIN) PRADIN is a select group of civil society actors trained under the Federal Government of Nigeria Economic Reforms and Governance Program (ERGP) with funding from the World Bank. The project was conceived by the Office of the Adviser to the President on Relations with Civil Society and with technical support from the Bureau of Public Procurement (BPP) and the Chartered Institute of Purchasing and Supply Management of Nigeria (CIPSMN)