These are interesting times. On
In December, 2013, the two Ministers and the NNPC had pledged that the
The NNPC Group Managing Director,
The documents the NNPC produced before the
When reportedly asked if she could vouch for the authenticity of the accounts rendered by the NNPC, the Finance Minister Mrs. Okonjo-Iweala said her Ministry lacked the "capacity and expertise" to guarantee the authenticity of documents, and that her Ministry would prefer an independent forensic audit to "satisfy Nigerians", saying that "we believe in transparency; that is why we are seeking an independent forensic team for this to satisfy Nigerians." Consequently, the
In his presentation earlier submitted to the Committee, the CBN Governor, SLS, had maintained that payment of subsidy on kerosene between
But, as the
Perhaps, the most shocking assertion before the
In this intervention, we address three issues: whether it is legal for NNPC to have claimed, as refunds, subsidy payments without appropriation?; whether a presidential directive to the NNPC that is not published in an official gazette of the Federal Government of
The resolution of the first poser can be found in Section 80 (1-4) of the Constitution of the
(2) No moneys shall be withdrawn from the
(3) No moneys shall be withdrawn from any public fund of the Federation, other than the
Since there is no provision in the NNPC Act that authorizes the NNPC to earn oil revenue on behalf of the Federation, withhold it, refuse to remit it into the consolidated revenue fund of the Federation kept with the CBN, and spend from it "on behalf of the Federation" without appropriation, before remitting the balance to the Federation, we submit that a clear and indefensible constitutional violation has been established..
In dealing with the second poser, which is on the validity or invalidity (effectuality or ineffectuality) of ungazetted presidential directives, we shall refer to certain provisions of the
Before doing so, we make haste to say that we are aware of the provision of Section 6 (1&2) of the Petroleum Act, Cap P10, Vol. 13, LFN, 2004 which provides as follows: " (1) The Minister may, by order, published in the
We contend, however, that the statutory power of the Minister of
Now, Section 5 (2) of the NNPC Act ( General Duties of the Corporation) provides that " it shall be the duty of the Corporation, from time to time, when the President so requires, or the Corporation considers it appropriate to undertake a general review of the affairs of the Corporation and of any subsidiaries thereof for the purpose of determining how the management of the activities of the Corporation or any subsidiary thereof can most efficiently be organized and, where appropriate, to make a report to the President, upon the Corporation's conclusion arising from the review.".
Section 6 (1) of the NNPC Act ( Powers of the Corporation) defines the powers of the Corporation, providing that the "corporation shall have powers to do anything which in its opinion is calculated to facilitate the carrying out of its duties under this Act."
Very instructively, Section 6 (2) of the NNPC Act provides that " notwithstanding Subsection 1 of this Section, any contract relating to any project of a value of more than N 5,000,000.00 ( or such higher limit as may be directed from time to time by the President) shall be referred by the Corporation to the President, for approval before the award of any such contract is made by the Corporation."
It is submitted that payments of the
Section 7 (1,2& 5) of the Act ( Financial Provisions) provides that " (1) the Corporation shall keep proper accounts and proper records in relation thereto in a form which shall conform with the best commercial standards; (2) the Corporation shall as soon as may be after the end of the financial year to which the accounts relate cause its accounts to be audited by auditors, appointed by the Corporation, with the approval of the President, from the list of auditors and in accordance with the guidelines laid down by the auditor-general for the Federation; and that (5) the Corporation shall submit to the President not later than three months before the end of each financial year estimates of its expenditure and income relating to the next following financial year."
Section 8(2) of the Act ( borrowing powers) provides that "the Corporation shall not without the approval of the President, borrow any sum of money whereby the amount in aggregate outstanding on any loan or loans at any time exceeds such amount as is for the time being specified by the President."; and Section 9 of the Act ( disposal of surplus funds) provides that "the President may issue to the Corporation such directions as he may think necessary as to the disposal of any surplus funds of the corporation, and subject to any such directions, the Corporations may invest its funds and maintain a general reserve."
Section 7 of the PPPRA Act defines the functions of PPPRA, and these include: "( a) determining the pricing policy of petroleum products; (b) regulating the supply and distribution of petroleum products: and (d) moderating the volatility in petroleum products prices, while ensuring reasonable returns to operators"
Now, Section 12 of the PPPRA Act states that "(1) the Agency shall not later than 30th September in each year, submit to the President an estimate of its expenditure and income ( including payments to the Agency) for the next succeeding year; and that (2) the Agency shall keep proper accounts in respect of each year and proper records in relation to those accounts and shall cause its accounts to be audited within six months after the end of each year by auditors appointed from the list and in accordance with the guidelines supplied by the Auditor-General of the Federation"
Section 13 of the PPPRA Act provides that " the Agency shall prepare and submit to the
Section 15( 2 &3) of the PPPRA Act states that "the Agency shall not, without the approval of the President, borrow money which exceeds, at any time, the amount set by the President; and (3) notwithstanding subsection 1, of this section, where the sum to be borrowed is in foreign currency, the Agency shall not borrow the sum without the prior approval of the President"
Section 23 of the PPPRA Act provides that "the President may give to the Agency or the Executive Secretary such directives of a general nature or relating generally to matters of policy with regard to the exercise of his functions as he may consider necessary and the Agency or the Executive Secretary shall comply with the directive or cause them to be complied with" and Section 24 of the Act provides that " the Agency may with the approval of the President, make such regulations as is in its opinion are necessary or expedient for giving full effect to the provisions of this Act and for the administrations of its provisions"
From the forgoing provisions of both the NNPC and PPRA Acts, it is very clear that at every turn and bend, the NNPC and PPPRA must have recourse to the President. The question then is, when the President gives a directive to either the NNPC or PPPRA, and when both submit reports to or seek approvals from the President, is it legally required that this must be done through a gazette? The answer, of course, is no. There is no provision in the two legislations to back such a tellingly erroneous assertion.
We make bold to assert that unless a particular declaration, notice or communication of government directive, business or transaction is compelled by law to be published in an official gazette, such requirement cannot be mischievously imported to attempt the invalidation of the directive, business or transaction. A presidential directive is not a proclamation of a state of emergency that must be published, as mandated by the Constitution.
In any case, by virtue of Section 130(2) of the Constitution, "the President shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the
Unpalatable as it may appear, a President can function without a Minister of
We now deal with the third and final issue, which is whether the
We say yes they can, and we say so because of the clear and unambiguous provision of Section 85 of the Constitution which provides as follows: "(1)There shall be an Auditor-General for the Federation who shall be appointed in accordance with the provisions of section 86 of this Constitution; (2) The public accounts of the Federation and of all offices and courts of the Federation shall be audited and reported on to the Auditor-General who shall submit his reports to the
(3) Nothing in subsection (2) of this section shall be construed as authorising the Auditor-General to audit the accounts of or appoint auditors for government statutory corporations, commissions, authorities, agencies, including all persons and bodies established by an Act of the
The law, from the literal reading of Section 85, is that the Auditor-General of the Federation does not have the power to directly audit the accounts of or appoint auditors to audit the accounts of statutory corporations or agencies; he only has power to conduct checks of these agencies and corporations. The directive by the
Under Section 88 (1) of the Constitution, "each
And Under Section 88(2) of the Constitution, "the powers conferred on the
NNPC and their spin doctors should realize that Nigerians are no fools. Let the guilty own up, and as it is the practice, let charges be preferred, let their plea-bargaining arrangement be made, let them be discharged and acquitted and in the unlikely event that a slap on the wrist is handed down, let us have a presidential pardon.
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