Presidency, NASS’ standoff on Oteh: Who does law side over budget impasse?

By STEPHEN UBIMAGO 

Oteh in the eye of the storm

The refusal by President Goodluck Jonathan to sign the appropriation bill into law, which had since been passed by the House of Representatives on December 20, last year, was reportedly founded on three grounds of dissent.  

Aside from the disagreement over the issue of oil benchmark, which the federal lawmakers had raised from $75 to $79 p.b., and the question of appropriation for constituency projects, resulting in the injection of an additional N63 billion to the N4.924 trillion originally proposed by the presidency, there was also the thorny issue of zero allocation for the Securities and Exchange Commission (SEC).

Whereas some compromise had ostensibly been achieved on the first two areas of disagreement, the problem of zero allocation to SEC has however, remained practically unresolved.

Recently, the House of Representatives gave the indication that as long as President Jonathan obdurately stuck to his guns of keeping Ms. Aruma Oteh as the director general of SEC, despite a resolution of the House to the contrary, so long will it maintain its position of zero allocation to the Commission.

A motion sponsored by the House’s Deputy Minority Whip Garba Datti, under Matters of Urgent Public Importance, had said this much. “The motion urging the removal of Ms. Arunma Oteh is hinged on the fact that her appointment as director-general of the SEC was a gross violation of the Commission’s Act as she does not possess the minimum professional qualification prescribed for appointment to that position,” the motion read. “Once again we urge Mr. President to implement the resolution of the hallowed chambers by removing Ms. Arunma  Oteh.”

This latest move against Oteh came barely 48 hours after the House received a request for an amendment to the 2013 budget from President Jonathan.

It will be recalled that the Ad Hoc Committee on the Investigation of Near Collapse of the Nigerian Capital Market, chaired by Hon. Ibrahim Tukur El-Sudi, for whom Hon. Herman Hembe was substituted as chair following Oteh’s bribery allegation against the latter, had last year passed a resolution urging President Jonathan to remove the SEC DG from office over incompetence. Her want of the statutorily prescribed professional qualification for the office formed the basis of the House’s contention that the woman was lacking in ability.

However, President Jonathan has remained unfazed, scarcely looking eager to show Oteh the way out; and not infrequently saying through his spokesperson Dr. Reuben Abati that the House resolution is merely advisory. In fact he has left no one in doubt of his displeasure over the House’s stance, declaring it’s frustrating the operations of SEC.

But the question to be asked is: ‘Has the president infracted any extant law in respect of its treatment of the House resolution concerning Oteh as only advisory?’ It is doubtful. Nor, on its part, does it seem the House has acted ultra vires for declining to make appropriation for SEC in the 2013 budget, irrespective of the pet object.

According to section 80 (3) of the 1999 Constitution (as amended) : “No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly.”

Also driving home the point, s. 80 (4) states: “No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly.”

From the above constitutional provisions, it goes without saying that no moneys may be appropriated for any purpose, which has not been so prescribed by the National Assembly in an Act of parliament.

Thus the federal lawmakers have the constitutional power to withhold funds for the operation of SEC.

To yet bolster the point, House Minority Leader Mr. Femi Gbajabiamila is said to have referred the president to Section 21 of the Fiscal Responsibility Act, which, according to him, empowers the National Assembly to appropriate funds to SEC. “The Act is very clear on this. It clearly says that the minister (finance) shall present the budget of SEC for appropriation by the National Assembly,” he stated.

According to the said s. 21 subsections (2) and (3) of the Fiscal Responsibility Act: 

(2) “Each of the bodies (SEC inclusive) referred to in subsection (1) of this section shall submit to the Minister not later than the end of August in each financial year: (a) An annual budget derived from the estimates submitted in pursuance of subsection (1) of this section; and (b) Projected operating surplus which shall be prepared in line with acceptable accounting practices.

(3) “The Minister shall cause the estimates submitted in pursuance of subsection (2) of this section to be attached as part of the Appropriation Bill to be submitted to the National Assembly.”

Arising from the above is an affirmation of the point that no appropriation of moneys, within any fiscal year, for the operations of any government agency as identified in the schedule to s.21 of the Act (referred to as “the Corporations”)  can be done devoid of the authorization of the National Assembly.

While the federal legislators, following their probe of the capital market, seemed to have zeroed on Oteh as the major problem, or rather a critical part of the problem, in the light of her alleged incompetence or lack of professional qualification as statutorily prescribed; the presidency seems to be saying, ‘the Investment and Securities Act (ISA), which grants it power to hire and fire the SEC director-general, provides for the warranting conditions and the rules as to how the SEC DG may be removed from office.

While s. 3 (1)(b) of the ISA provides for the Commission a Board to be comprised, among others, of the director-general as chief executive and accounting officer; s. 8 (1) provides that: “A member of the Board shall cease to hold office if he (a) becomes of unsound mind; (b) becomes bankrupt or makes a compromise with creditors; (c) is convicted of a felony or any offence involving dishonesty; (d) is guilty of serious misconduct in relation to his duties; or (e) is a person who has a professional qualification, and is disqualified or suspended (other than at his own request) from practicing his profession in any part of Nigeria by the order of any competent authority made in respect of him personally.”

From the foregoing provisions, it may safely be submitted that the question of “competence or professional qualification pursuant to s. 3(2) (a) of the ISA” does not prima facie feature among the conditions that could warrant dangling the guillotine over the neck of a SEC DG.

Besides, it is provided in s. 8 (2) ISA that “The President may at any time and upon the recommendation of the Minister remove a person to whom subsection (1) of this section applies: Provided no full time member of the Board of the Commission shall be removed from office without the approval of the Senate.”

A literal statutory construction of the foregoing provision is to the effect that, one, only the minister of finance, not the National Assembly, has the statutory power to recommend the removal of the Commission’s director-general.

Two, the only power statutorily granted the National Assembly in respect of a director-general’s removal is that of assent or approval or endorsement. In other words, unless and until the parliament approves the removal of a SEC DG, his/her removal cannot be perfected.

However, the argument has also been canvassed that the “and,” which appears in the phrase in s. 8 (2) to wit, “The president may at any time ‘AND’ upon the recommendation of the Minister remove...,” may indeed be construed as a disjunction, that is, an “AND/OR,” and not just a conjunction, that is simply “AND.”

In other words, the proper construction of the provision furnishes us two interpretative possibilities.

1. Either “The President may at any time remove the DG...;” or

2. “The President may at any time remove the DG upon the recommendation of the minister of finance...”

While the implication flowing from the second arm of the disjunction has been dealt with in the preceding analysis; it does seem that the plausible construction that may be afforded the second arm of the disjunction is that the president, without recourse to ministerial recommendation, may suo motu take action against a SEC DG if he’s satisfied that by virtue of the provisions of s. 8 (1), he/she is good for disengagement.

Head or tail, therefore, the National Assembly is in no place within the perimeters of the ISA to recommend to the president the sack of Arunma Oteh. It can only act when or after the job (of sacking) has been done by way of giving or staying assent.

However, the construction of s.8 (2) so as to pass as a disjunction, which, under its first arm, empowers the president to act suo motu pursuant to s.8 (1), can also mean he is at liberty to take non-obligatory advice from any quarter, including the National Assembly.

Nevertheless, members of the House may be right as it is a question of fact and not of law that based on parameters as provided in s. 3(2) (a) of the ISA, Ms. Oteh was at no time qualified for the office of SEC’s director general.

According to the said s. 3(2)(a), a candidate for the post of SEC’s DG must, aside from possessing a university degree, boast not less than 15 years cognate experience in capital market operations, a statutory qualification Oteh obviously lacks.

But such sudden discovery of the true state of affairs is apparently tendentious as it is belated, a crying over spilt milk.

It is a fact that Oteh was, on the floor of the National Assembly, cleared, being found fit and proper to assume the post of SEC’s DG when in 2010 late President Umaru Musa Yar’Adua, pursuant to s. 5(1), put her up for confirmation before the Senate.

Interestingly, the same parliament that had once found her fit and properly, having done its due diligence, would turn around to impugn her qualification.

The charge may therefore be apt that the lawmakers are at once approbating and reprobating over the competence of Oteh. And if the doctrine of estoppel is anything to go by, the parliament should be deemed estopped from further parading the woman as unfit having once confirmed her as competent by way of her clearance on its floor.

Clearly, whereas parliament has no power to recommend the sack of Oteh, it does obviously have the constitutional power to withhold budgetary allocation to Oteh’s SEC. The goal of using the move to muscle the president to sack her is by the way.

Nonetheless it is expected that in the exercise of their statutory powers, public officers in the country must act bona fide, judiciously and judicially, as any further delay in passing the appropriation bill into law may further hurt the national economy adversely.