Sacked Service Chiefs took loyalty to Jonathan too far -General Don Idada Ikpomwen

Simon Ebegbulem, Benin City
Brig. General Don Idada Ikponmwen is a former Provost Marshal of the Nigerian Army and also its former Director, Legal Services. Idada, who was involved in several legal battles in the Army, including the prosecution of three admirals over the missing African Pride oil tanker in 2003, expresses shock over the Federal High Court’s recent declaration which stripped the President of the sole power to appoint Service Chiefs.

FILE: PRESIDENT MUHAMMADU BUHARI WITH SERVICE CHIEFS DURING A MEETING AT THE DEFENCE GUEST HOUSE IN ABUJA ON TUESDAY

He notes, in this interview, that the declaration would not stand the test of time, just as he believes the step would politicise the armed forces and threaten the security of the nation. The erstwhile Army chief also speaks on the sack of Service Chiefs by President Muhammadu Buhari and the dismantling of military road blocks across the country.
Excerpts:
You condemned the comment by President Muhammadu Buhari that the names of the new Service Chiefs will be sent to the Senate for confirmation, but there is a court ruling on the issue which seems to strip the President of the sole power to appoint Service Chiefs?
I am displeased with such a declaration because it tends to turn the Constitution upside down. It is even more shocking that the court agreed with the argument that the Armed Forces Act, which was enacted during the military administration of General Abdulsalami Abubakar and was a replica of the 1993 Armed Forces Decree, was declared to be a law not in the category of the existing laws in Nigeria. The decision cannot stand the test of time. I don’t think we have seen the end of the matter. My worry is that many people, especially those who would not take the pain to read the Constitution in all its ramifications, may just get the impression that it is the position of our Constitution. I feel very disappointed about that judgement, and I think this is one of the reasons some people believe
there is lack k of thoroughness, lack of expertise amongst some of our judges.

What really makes you feel the court was wrong in its judgement?
The provisions of our Constitution with regard to the powers of the President in terms of appointments to high public offices including that of the Service Chiefs are very clear. Wherever the Constitution intends to have conditions placed on the President like the need to consult, have a nomination from certain bodies or the need for confirmation by the Senate, it is very clear on those points. Even a casual look at the provisions of Section 147 dealing with the appointment of Ministers, the provision of Sections 230 and 238 will show that the Constitution is not silent on the conditions necessary to appoint top officials to federal executive positions. Section 147 in particular, which deals with the appointment of Ministers, makes it clear that confirmation by the Senate is a pre-requisite.
Nobody becomes a Minister unless the Senate has approved the nomination. The same way with the appointment of the Chief Justice of the Federation. Section 230, Sub Section 1 requires not only that there will be a nomination from the Judicial Service Commission, but also that the nomination made by the President must be sent to the Senate for approval and confirmation. Same applies to the appointment of the President of the Court of Appeal.
On the nature of our Presidency, Section 130(1) says “There shall be for the Federation a President” and proceeds to add in 130(2): “The President shall be the Head of State, The Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation.” On the strength of these provisions, it is clear that the President is not a mere figure-head or ceremonial President. Added to this is the fact that he is elected from all the constituencies of the Federation and is thereby vested with grassroots support, which is greater than the mandate of all legislators put together. Sections 133 and 134 of the Constitution explain the power exercisable by the President and Commander-In-Chief. Section 218(1) says: “The Power of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the Armed Forces of the Federation” The provision that is directly relevant to the appointment of the Service Chiefs is Section 218(2) which says: “The power conferred on the President by Subsection (1) of this Section shall include power to appoint the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and Heads of any other branches of the Armed Forces of the Federation as may be established by an Act of the National Assembly.” From the foregoing, it is clear that the power vested in the President to appoint Service Chiefs is in no way fettered. If the Constitution had intended to place any restriction or condition, it would have said so unequivocally as it has done with regard to other positions created by the Constitution; for example Sections 230(1) relating to the Chief Justice and Justices of the Supreme Court of the Federation and the President of the Court of Appeal. In all these Sections, the Constitution, in no uncertain terms, spells out when either consultation with the Council of State or nomination from some other bodies or confirmation by the Senate is required. Section 218(2) is therefore unambiguous and does not lend itself open to any unwarranted debate or academic exercise.
Section 154(1) provides, in general terms, that the appointment to the above listed positions shall need the confirmation of the Senate in deserving and specific positions; whereas Section 154(2) proceeds to specify where confirmation shall not be required. Such positions not needing the confirmation of the Senate include: the Council of State, National Defense Council or the National Security Council. Section 154(3) states clearly that in the appointment of persons to the position of Chairman/Members of the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission and the National Population Commission, the President shall be required to consult the Council of State and no more. From these provisions and others earlier cited, it becomes obvious, on invocation of the doctrine of expressio unius exclusio alterius, that it is improper to drag in the requirement of confirmation from the Senate or even
consultation with any other body for the appointment of Service Chiefs in the Federation of Nigeria. Having come this far, it becomes necessary to take a look at the existing laws to see whether, indeed, the relevant portions of the Armed Forces Act, AFA, are in consonance with the Constitution.

What about the issue of existing laws?
In its ordinary meaning, the concept of existing law carries the meaning of any law, any enactment or instrument whatsoever which was in force before the promulgation of the Constitution. The Armed Forces Act, which was enacted as Armed Forces Decree (1993) during the military era, existed before the promulgation of the 1999 Constitution. The fact that CAP A20, Laws of the Federation of Nigeria (2004) altered the name of that law, with little or no modification, does not take that law outside the scope of existing laws under the 1999 Constitution. It is noteworthy that unlike the NYSC Decree 1993, the Public Complaints Commission Act, the National Security Agency Act and the Land Use Act, the Armed forces Decree/Act was not listed as one of the laws to be carried over in 1999 so as to enjoy the status of Constitutional provisions. On the strength of both Section 315(2) and 1(3) of the Constitution, which is the supremacy clause, the aforementioned
provisions of the Armed Forces Act, in so far as they are not consistent with the provision of Section 218(2), must be null and void to the extent of the inconsistency. Section 1(3) provides: “If any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law, shall, to the extent of the inconsistency, be void”. Whereas Section 218(2) empowers the President to appoint his Service Chiefs at his discretion, the Armed Forces Act, which, on the contrary, places restrictions on the exercise of the same power vide Section 18(1) and (2) of the AFA, makes the latter clearly inconsistent with the Constitution.
I am not aware of the provision of Section 218(4) (a) and (b) which provides that the National Assembly shall make laws for the regulation of the powers exercisable by the President as the Commander-in-Chief of the Armed Forces and for the appointment and disciplinary control of members of the Armed Forces of the Federation. It is seriously contended that the provisions in Section 218(4) (a) and (b) are general provisions aimed at ensuring that laws are made to guide against arbitrariness and abuse of power. While pointing out that even the National Assembly has never made any such regulatory laws, it must be emphasised that the general provisions in Section 218(4) cannot override the specific power granted the President in the same Section to appoint Service Chiefs without any restraint. We practised the presidential system from 1979, then there was a military administration again. If you add Shagari’s regime to the regimes we have had after Abdulsalami
handed over to civilians, you have a total of 18 years that we have practised the presidential system wherein the National Assembly is expected to pass laws to regulate the powers of the President in his exercise of powers as Commander of the Armed Forces. But there has never been such a law. So the discretion of the President is the law as far as appointment is concerned. However, because the President is a politician, his powers need to be regulated in terms of the use of the Armed Forces. That is the area that should be of concern to the National Assembly. But the National Assembly has not even passed a single law in all these years. From the foregoing analysis, the provisions of Sections 218(4) (a), (b) and 219 cannot constitute any justification to deny the President the discretion availed him by the same Constitution with regard to the appointment of Service Chiefs.

Politicizing the appointments of Service Chiefs
The declaration to the effect that the President cannot appoint his Service Chiefs without the confirmation of the Senate is manifestly wrong and dangerous for our nation as it will, inevitably, lead to negation of discipline, coherence in command and control of the armed forces which are predicated upon the existence of a unified command. The issue of command of the armed forces is a very serious, professional military issue which has very serious implications for the efficiency, efficacy and virility of the armed forces. Let me emphasize that the efficiency of the Armed Forces thrives on what we call unity of command. Discipline, promotion, deployment, everything that has to do with the armed forces must come under a unified Command where there can be no ambiguities, no conflicts as to responsibility, and this must be so because of strategic reasons. The moment you divide command in the armed forces, you divide loyalty and loyalty is supposed to be 100
per cent to the command of the armed forces. The command of the armed forces revolves around the Commander in Chief and officers commissioned into the armed forces that hold positions from time to time.
The moment you break or negate this unity of command, you don’t have an army. You will have a bunch of people who, for selfish reasons, are running from pillar to post, from senator to senator, trying to butter their own bread. Therefore, you cannot afford to make appointments in the armed forces an all- comers affair, and when I say all comers, it includes the National Assembly. The duty of the National Assembly is to make laws, conduct oversight functions and regulate. An attempt has also been made to highlight that a substantial part of the reason for the collapse of the First Republic was the absence of a powerful and clearly discernable leader, and that this phenomenon accounted for the choice of the presidential system. In the same breath, the point has been emphasised that the Command and control of the Armed Forces must not be allowed to be compromised on the altar of politics. This compromise would inevitably arise when the
Command of the Armed Forces, particularly in terms of appointment, becomes an issue for the National Assembly.

But don’t you think this will make the President dictatorial?
Let me tell you that where we are today, by virtue of the type of Constitution or the system we are running, is not by accident. This country was used to a parliamentary system of government for many years – both before and after independence, particularly after independence. We were running a Westminster type of government for five years before the military struck and pulled down the First Republic. What was the reason? I want to emphasize that one of the reasons why the parliamentary system was dumped in this country is because it was too amorphous, cumbersome, it lacked an identifiable leader who commanded the followership and support of the generality of Nigerians. It lacked grassroots support. It was bedeviled by the concept of collective responsibility. That is why Nigeria opted in 1979 for a President that will be powerful, who can make quick decisions, consult when it is necessary. So the President is deliberately a powerful
man by our structure. But that is not the end of the story. That is why you find Section 218, Sub section 4 talking about powers to regulate the powers of the President. The National Assembly is supposed to use its laws to regulate such powers, but like I said before, no such regulations have been made. In other words, the President, by default of the National Assembly, remains a man whose executive powers are not restricted to just the appointment of Service Chiefs, but the entire armed forces are at his discretion.

Do you think the recent change of the Service Chiefs will bring to the end of the Boko Haram insurgency?
Certainly, everybody in Nigeria knowns now that from what we saw in the greater part of the last administration that the military establishment has been very seriously compromised. It was obvious that, like most other public appointment holders, their loyalty was to the former President and his aides and it was also very clear that they were doing everything to sustain the former administration and to prevent change. The certificate issue was just only one of the measures that showed that bias and compromise became the name of the game. Besides this business of bias, incompetence and inherent corruption manifested in the way the fight against Boko Haram was carried out, most inefficiently, most unsuccessfully. The failure was so obvious that people were asking, is it that the military was not properly equipped or motivated? Some traced it to lack of equipment, soldiers were running away to face the enemies that were reasonably well equipped. Hundreds of soldiers were being court-martialed for unwillingness to fight because the officers believed they were on suicide mission. The Jonathan administration sent our soldiers on suicide mission because there were no equipment despite so much money being expended. It was also clear that the Minister of Defense had become nothing but a figure head with no powers, whereas it was the Service Chiefs and the NSA office that were spending the money contrary to existing rules and procedures. I don’t think the military had ever experienced this terrible situation in our history. And all of these were due to undue politicization of the military and corruption at the top level.

So obviously the change that was made a few days ago was the most desirable change, it is over due given the mood of the nation. I knew it will come and even the Service Chiefs knew they had to go, it was not a surprise to anybody. I honestly believe that changing the Service Chiefs is just the beginning of the re-organization and repositioning and re-orientation of our military. It is necessary at this stage to start making the military professional again and to redefine the concept of loyalty properly. That loyalty must be to the Constitution not necessarily to the individual ruler. When the leader is good, like I believe President Buhari is, there will be no problem or dichotomy, it will mean that loyalty to the President is the same thing as loyalty to the nation. Those who have been appointed are very well groomed, well trained officers. I believe they will be able to fashion out their policies and their modus operandi in line with the deals the President represents.

Fighting Boko Haram with new strategy

The way Boko Haram is going now, the group has resorted to guerilla tactics. It is obvious they are no more in the position to hold territories, they now run here and there, it is obvious that they are fast losing. Unless this trend is properly checked with the right methods, it could stay on for a long time, resulting in more damage of lives and property in this country. This time around, our strategies must change to emphasis on cooperation and support of the local populace and also give bite to intelligence gathering and speedy dissemination of information and intelligence. With tat, insurgents can be dealt with in their hide outs, in the areas where they assemble and manufacture their bombs; it will also be easy to identify who are their supporters and sponsors. We must also ensure that the welfare of the security operatives is enhanced, they must be motivated even as we are negating the propaganda of the
insurgents. Because the insurgents propaganda is saying that this government is bad, government must also make sure that they re-orientate our people to know that what these people are saying is not true. So the National Orientation Agency, the Ministry of Information must make sure that we turn our people against these terrorists. Public opinion must change in favour of our military and government and against the insurgents. And of course the military must be properly funded to meet their task.

Abolition of military check points
I have always said that the Constitutional role of the armed forces is not routine policing. We don’t want to turn our soldiers into traffic police and warders, there must be strategic and tactical value as regards to their deployment. Therefore if we must see road blocks mounted by the military, it must be areas where we have insurgency or serious insecurity.

Buhari will probe Jonathan’s govt – Presidency

By Levinus Nwabughiogu
There are many questions Nigerians are craving answers to concerning the Buhari administration. For instance, why hasn’t the government appointed Ministers six weeks after it was inaugurated? Why would President Muhammadu Buhari, as the leader of All Progressives Congress, APC, not intervene in the free- for- all at the National Assembly? Is he disappointing the South-West zone which massively voted for him at the polls?

Femi Adesina

Is the President anti-Igbo by leaving them out in the appointment of Service Chiefs? Will he probe past government officials? Is he corrupt himself? Why is he going to the United States of America, USA, when there is terrorism war raging in his backyard? From his office at the State House in the Presidential Villa, to a hotel room in Wuse 2, Abuja, I was able to finally, after two weeks, get hold of the workaholic Mr. Femi Adesina, Special Adviser to President Mohammadu Buhari on Media and Publicity and a staunch believer in the President’s cause, to provide answers to these questions during an interview on Thursday night. Excerpts:

It has been more than 30 days since the new administration was inaugurated. How do you assess it?
Well, I think that is a little bit unfair because you know how I will assess the administration since I work with the President. But then to be fair and impartial, I will say, yes, the President is on the right course, maybe because there are also some facts that are previously unknown, but I just know that the President is laying a foundation for a new Nigeria. If he can continue on the wind of change that he rode on to office and continue building on the same foundation, definitely change will come. But he is laying a completely new foundation and, when that foundation is fully laid and the country continues, you will see that change is truly here.

When you were announced to be the Special Adviser, how did you feel? Did you see it coming or you never expected it?
I was announced May 31, but if you remember, on May 20, ThisDay had speculated the story. The moment ThisDay speculated it, anything could happen. So, it was just a question of, will it happen or not? Since ThisDay speculated it, we knew anything could happen, but, before then, no. It could have gone either way anyway.

How does it feel settling down to work with President Muhammadu Buhari in this capacity?
It is a rare opportunity. Out of 170 million people you have been called to work for your country, it is a rare opportunity, and I will say it feels good. I have left positions that are eminent. I have been the Editor-in-Chief of a national newspaper, President, Nigerian Guild of Editors. I was satisfied in those positions, but then, coming to serve your country can’t be compared with anything. So that is why I left those positions to come and serve because I believe in the President. If it was another administration led by someone that I don’t believe in, I wouldn’t come, but I came because I had always believed in President Buhari.

Were you prepared for this assignment irrespective of the fact that you have occupied other positions?
If you had spent 29 years in journalism like I have done, then you are prepared for a lot of things including this assignment. If that is the question, yes, I have a background that prepared me for this assignment. But if your question means did I think it was going to come, I will say no, I didn’t think it was going to come. My mind didn’t go to it and I have always supported President Buhari since he was a military Head of State. I had admired him. In fact, the day he was overthrown was one of the worst days of my life. I felt very sad for Nigeria; very sad for him and his family, very sad about everything. I didn’t think that government should have been toppled. If that government had lasted, Nigeria wouldn’t have been where it is today. So, when he attempted to come through the ballot box since 2003, I had always supported him and, even when it seemed like he stood no chance, I still believed he was the best candidate. In 2011, I had always said we needed a correlation in order to get PDP out. So when that correlation came through the emergence of All Progressives Congress, APC, I felt there was a good chance in 2015 and it has happened. But to think that I was going to work for him, no, it didn’t cross my mind.

What are the attributes that really drew you to the President?
The first one is his simplicity. I just love his simplicity. He is a very simple man. Then I like the fact that he is very straight forward. I like people who know where they stand with anybody. It is either yes or no. When he says yes, it is yes; when he says no, it is no. Then, of course, integrity, to me, counts a lot. The fact that every man can testify that he is a man of integrity gets me because I love integrity and then transparency and accountability. A country like Nigeria where anything goes and then you see a man that has chosen to be transparent and accountable. Look at all the positions he has held in this country, yet he remains a simple man. I love that kind of person. Why can’t I support him? Why can’t I point Nigeria to that kind of person? He is good for our county? So that is why I did it.
But many Nigerians don’t really share these ideas. Some will be quick to dismiss all these, saying that beyond the facade, you may discover many others things when you dig deep.
Well, if they say that, they have a right to their own opinion but then we want to see the evidence to justify that. You don’t need to look far. Just look at the positions the President has held: governor of North-Eastern State, which is now six states: Borno, Yobe, Bauchi, Gombe, Adamawa and Taraba. Then he went on to become the Minister of Petroleum Resources and held that position for three and a half years. Can you hold such position and not have oil blocks? If anybody thinks President Buhari has an oil block, let him show it to us? After that, he became Head of State and he was there for 20 months; after that, he was Chairman, Petroleum Trust Fund, PTF, and we know all the achievements he made in that position and then today President. Not many Nigerians have this kind of pedigree and who are not going to be stinkingly rich. I am not saying President Buhari is a poor man, but then I don’t think he is stinkingly rich when he held all those positions. He should be stinkingly rich and it is only a very rare Nigerian that will not be stinkingly rich after holding those positions.

You said when he was toppled you were truly sad. Now he has another opportunity! What do you crave for? Or do you say he has changed from who he used to be and perhaps may not realize those things that he would have truly accomplished if his government then had continued?
Whether he has changed, yes, I would say he has changed in some areas and, in some areas, he remains the same. You know that age tempers a man. Age has tempered him but for good. Remember, after he was inaugurated, some officials of the former administration were about travelling out and the security officials and agencies were stopping them and, you will recall that a statement was issued that they shouldn’t be stopped. That shows you that the man is really temperate now rather the old Buhari. The military man would have packed all of them immediately he was inaugurated and they would be heading for jail and then you would be sifting the weeds from the shaft there after. So, that already shows that he is a different man, a more mature person, a more reflective person, a more contemplative person and that can only come with age. Again, you would see what played out in the National Assembly. You know he is a man who wants to respect the Constitution. That shows he is already different from the soldier that ruled this country. If he was a person that didn’t want to respect the Constitution, he would have interfered in the selection or the election of the leadership of the two chambers, but he left them and said anybody that emerged, he will work with. What he didn’t know is that not everybody was going to respect the rules and we saw what played out. In terms of whether he is a changed man, yes, he is a changed man. He is a true democrat now. There are so many things that have come up in just six weeks of the administration that show you that this is a man that respects the Constitution and will continue to respect it. So, he is a changed man in those areas, but then there are some areas like accountability, transparency, integrity; of course you know that he will never change in those areas and that is the reason he was elected. Imagine a man who was a military leader 30 years earlier getting elected just on the basis of integrity, transparency and accountability; you know that kind of man will never change that.

Some persons argue that if this man doesn’t exercise his authority, things might still go wrong because a leader is a leader. Being the President of Nigeria, he is the leader of the party in all ramifications. There is a proverb in my place that an elder doesn’t sit idly while the goat dies in tethers. He can’t be sitting while things are going wrong.
If you also permit me to quote another proverb or a saying that a tiger doesn’t proclaim its tigress. A tiger doesn’t need to come out and say ‘I am a tiger’. When he does that, go and check properly, he can be a cat, but when you see a tiger, you know it is a tiger. So, he doesn’t need to ride over everybody before they know that he is a leader and indeed he is a leader. He has the traits, the characteristics and all the potentials. He has everything it takes to be a leader. He doesn’t need to throw his weight around before everyone knows he is a leader.

Let me take you back a little to the issue of allowing the last government officials to travel. Does that mean that he has hands on probity, assuming there was something to probe?
He has said it that money in billions of dollars will be recovered. But you know the world is too small a place for anybody to hide if you are running from justice. The world is too small a place to hide. You will be fished out. So, there is no need that you say they should not be heading for jail if eventually the law goes after them. Very few countries can they hide in and how long will they hide? So, it doesn’t mean that anybody that has ill gotten wealth will not regurgitate it. They will. Remember when he went to Germany for the G7 summit, he met with President Obama and Obama told him to just give us information on where the loot is hidden and we will help you recover it and the government has been working on that. So, that shows that looters will never go free.

Is he going backwards? I mean where is he going to start to probe?
He can’t afford to go too deep into the past or else it will be destructive for his administration. There are some things you can’t close your eyes to while you don’t want to shine the torchlight into the dark recesses of our past; immediate past where things are evident. The Yoruba have a saying that the corpse we buried, the leg is sticking out and, if you bury a corpse and the leg is sticking out, you can’t pretend. When there are trails all over of the monies in billions and trillions, then a responsible government can’t close its eyes to that.

Let’s look at insecurity. In the last two weeks, the bombings have increased. People have expressed fear that the government’s efforts in the past one month and two weeks haven’t really paid off because I know that the President, immediately he was sworn-in, travelled to places and there was this assurance. But then it does appear much hasn’t been done in that direction?
Let me draw an analogy. One day, the world woke up to hear that Osama bin Laden had been killed by the US Navy Seals. But did you know how long it took to plan that operation? It took 24 months of painstaking planning. Drills, simulations, all that happened until they got him. I am not saying it is going to take 24 months before this government breaks the back of Boko Haram. I am just telling you that planning needs to be carefully done and that is what is being done. In his very first week in office, he went to Niger, Chad and why did he go? Because of this Boko Haram thing and one major reason he went to G7 is because of the Boko Haram issue because the leaders of G7 said ‘come and let us know what we can do to help’. After that, the leaders of Chad, Niger, Benin Republic, Defence Minister of Cameroon also came here under the Lake Chad Basin Commission. They are planning. Before the end of this month, after he comes back from America, he is going to Cameroon and why is he going there? Still on Boko Haram and you know there is a multinational task force they are contributing to and Nigeria has released 21 million dollars for the joint task force. That is money Nigeria can use in other areas but it has invested 21 million dollars in that joint task force. That shows seriousness and I think July 21 has been picked as a date for that force to swing into action. Nobody can fairly accuse this government of not doing anything about Boko Haram. It is doing a lot and, eventually, we will see the end of insurgency.

Let’s also look at the appointments so far made by the Buhari government. The government has been accused of lopsiding the appointments. It has been people from the North. That’s the impression out there.
Those people from the North, are they Nigerians? So, if they are Nigerians, they have the right to be appointed and then I am sure there could be up to 500 appointments still ahead. Federal Boards that just got dissolved alone had 601 appointments. They are going to be filled. The cabinet is going to be constituted. Other persons and aides are going to be appointed. As at the time they began to talk, only nine appointments had been made and they said eight northerners and one southerner. They forget that some of those appointments are statutory, the next in rank. They just have to be the ones that will take those positions and some of those again are security chiefs. Security is an area where you take the very best. It is not something you subject to emotional considerations or other primordial sentiments. Take the very best who can deliver particularly at a critical time like this. So those who have started counting, I think it is premature. There about 500 appointments left to be made and, when those appointments are made, that is when they can begin to analysis. Doing it after nine appointments, I think that is hasty and fault-line in our country. Nigerians are too suspicious of leadership, other ethnic groups, too suspicious of many things. If we are less suspicious, then this wouldn’t have come up yet.

There are still these feelings from the members of the public that President Buhari and his political allies in the South-West, people like Asiwaju Bola Tinubu, have fallen apart; that, in fact, the President has disappointed the South-West that massively voted for him at the polls. How do you address this sentiment?
I am glad that you used the word “these feelings” which is different from reality. Just a couple of days ago, Bola Tinubu himself came out to say there was no rift between him and the President. I think things that are unfolding are part of our political experience, political development. You will see that in the next dispensation, most of the things that happened now will not happen because the actors would have learnt. If the President in the next dispensation wants to leave the leadership of the chambers of National Assembly to elect their own leaders as President Buhari has done, the party will need to play its own part. Everybody involved will play his or her own part so that what has happened now will not happen again. It is part of the learning curve, but for anybody to say the West is disappointed, it is not true. A lot of people who voted for President Buhari in the West have been loyal to him. Even those who didn’t vote for him are beginning to see that he is a leader worthy of their support and they are giving their support.

Do you really believe in the Presidency of Mr. Buhari to radically move this country away from what it used to be, judging from the fact that he is an old man now? Won’t his age really affect him?
You have heard the saying that old wines are tastier. Buhari is like a wine that gets better with age. I said this earlier and, I repeat again, he gets better with age; sound, sober, contemplative, not rash. You see what is happening now, Boards have been dissolved. There are terminations and new appointments. You know he could have done that in the very first week and then he could have made mistakes, but this is the sixth week and he is doing all those things and I think, at the end of it, all Nigerians will be glad that they elected him. I don’t foresee failure; no, it will not happen, but it will demand that Nigerians will give him support and work with him but I believe in the change that was promised to this country.

Just before current appointments, you were a practising journalist and, ordinarily, you would have been worried that this government, after six weeks, hasn’t appointed even the Chief of Staff. We are talking about the time it has taken, yet no Chief of Staff, let alone Secretary to the Government of the Federation, SGF, and then Ministers. But I remember, before now, they repeatedly said they will hit the ground running after inauguration. What has happened?
One thing is clear, it is constitutional to have a cabinet because the Constitution says there must be a Federal Executive Council and Ministers must be appointed from at least one state each. I said earlier that the President respects the Constitution. So, that shows you that he is going to constitute a cabinet. Now, you can’t compare one administration with another.
Obasanjo appointed his Ministers in July. Yar’Adua also in July, but that is not a reason for any other government not to appoint earlier than July or even later than July. Each government responds to the situation and circumstances in which it finds itself. What this administration met on ground is an Augean stable and it needs to be cleaned up. I can tell you that Nigeria was left in a mess by the last administration and it needs some clean up and, without a clean up, you continue to build on a wobbly foundation and, one day, that structure will come down. So, why don’t you then take your time to lay a fresh foundation and build up on that foundation that is what President Buhari is doing.
The cabinet has not come but it will come and, when it comes, it will be building on a freshly laid foundation. You see that in the past few weeks, he has been taking briefings from Permanent Secretaries in different ministries. When the Permanent Secretaries conclude their own, chief executives of parastatals and agencies will also come to brief, so that we have a complete picture of what is happening in government and then, after that, anything can happen. When the Ministers themselves come, they will be glad that they are coming into a system that is cleaned up for them. If they had come immediately, this house cleaning won’t have been done because they would have occupied space and continued in the old fashion. So, let Nigerians, who trusted this President and gave him their mandate, continue to trust him that he is working for them and he is doing the best for them.

Some people in the South-East aren’t happy at the appointments of Service Chiefs because they feel that none of their sons was there. If we are talking of engaging the best hands, couldn’t you have found some of the best hands in the South-East?
Mark the word of Mr. President, all the Service Chiefs he appointed he never met anyone of them except the Chief of Army Staff that he met casually in Chad. He was the Commander of the Multinational Joint Task Force. So, all of them got appointed based on their service records. Now, are we going to say that we will subject efficiency to ethnic and regional balances? I am not saying that it is not constitutional. There is federal character in our Constitution, but there are some areas where you can’t sacrifice efficiency for ethnic or regional balancing. Get the very best that can do the job particularly at a time of crisis like we have in security. So, I don’t think it would have been proper shopping for people to fill positions as critical as Service Chiefs if they aren’t the very best we can get.

The President is going to the U.S. Let me say it is the mother of all visits. What should Nigerians expect from that trip?
Three key things are going to be on the table in America. They are more than three but these three will be key. First is the fight against insecurity. Nigeria is going to be asking for America’s assistance in terms of intelligence and in terms of equipment. If this succeeds and we get all that we want of course, we know it is going to make an impact on the war against insurgency; so that would be a key achievement of that trip. Again, something that would be on the table in America is the anti-corruption war. If we have money outside in billions of dollars, you know what that means in Naira. That is more than an annual budget.
If we recover that money, it is to the benefit of our country. Then the third thing will be the Nigerian economy. America used to buy 30 percent of Nigeria’s oil. Now, it is less than five percent because they discovered Shale oil and gas. So, in what way can America boost our economy? This will be a major thing and, at the end of it all, this will be to the benefit of Nigerians and, of course, a visit to America, like you said, is the mother of all visits and the fact that the American President has invited our President shows that they believe in what is happening in Nigeria. Don’t forget that the same Obama came to neighbouring Ghana and never came to Nigeria. The fact that he invited the Nigerian President shows that the acceptability rate of Nigeria has gone up in the international community.

Senators Saraki and Ekweremadu’s Elections Are a Nullity, By Jiti Ogunye

It is our considered view that the election of Bukola Saraki as the Senate President and Ike Ekweremadu as Deputy Senate President is illegal, unconstitutional, null and void. It is a sham. Put in another way, Bukola Saraki and Ekweremadu, are not, legally speaking, the Senate President and Deputy Senate President of Nigeria. They are impostors, who should stop parading themselves as senate president and deputy senate president. Asking Ekweremadu to yield up the office of the Deputy Senate President, as some partisans who have labeled him a PDP usurper have suggested, does not arise. De jure, he is not occupying the office of the Deputy Senate President from which he may resign. You cannot resign from an office you do not occupy. Why do we say so?

Since the National Assembly (NASS) erupted in crisis during its Eighth “inauguration” and the “election” of the leadership of the Senate and House of Representatives on Tuesday, June 9, 2015, a lot has been said and written about the issues in dispute in the crisis. Unfortunately, rather than subject the “election” in the NASS, in particular in the Senate, on that day, to a rigorous legal examination, in order to determine the legality of that election, many of the principal actors in the NASS leadership crisis or in the All Progressives Congress (APC) imbroglio, and a host of other interveners have been discussing the politics of the crisis and its “mishandling” by the APC leadership who, according to these interveners, were hell bent on foisting a leadership on the NASS. Many simple-minded gloaters have even reduced the serious issues thrown up by the crisis to a celebration of the “political defeat of Bola Ahmed Tinubu”, as if that alleged defeat was all that was needed to make the aberration that occurred in the Assembly acceptable. In this intervention, we seek to redirect the discourse. We argue that the NASS leadership crisis primarily should be discussed and resolved on the basis of enquiries about whether there has been a violation of the rule of law and the provisions of the of the Nigerian Constitution.
What transpired in the NASS on Tuesday, June 9, 2015 was a coup d’état. If it was merely a coup d’état by the treacherous members of the APC against their party’s choices for the offices that constitute the leadership of the NASS, we would not have been bothered. We are bothered because it was also a coup d’état against the Constitution of the Federal Republic of Nigeria, and the rule of law.

It would not have made any sense for the APC to have allowed its aspirant members to go on the floors of the Senate and the House to slugger it out amongst themselves. That is not the way a responsible party behaves. Strangely, some dubious partisans and jaundiced interveners have condemned the APC for striving to forge consensuses amongst its party members, insisting that the NASS should have been left alone to self-constitute its leadership, without the input of the parties of the respective members. This position that is being laundered as the correct approach that ought to have been adopted by the APC in order to guarantee the independence of the legislature is ignorant, plain dumb and silly.

On that day, while Senator Bukola Saraki of the APC, who has confessed that, like a typical coup d’état leader, he sneaked into the premises of the NASS at dawn, was “elected unopposed” as the Senate President, by 57 Senators, in the absence of 51 Senators, who were “ambushed” into a fence-mending and ranks-closing meeting that eventually turned out to be a hoax, Senator Ike Ekweremadu of the Peoples Democratic Party (PDP) “defeated” his opponent, Senator Ali Ndume of the APC by 50 votes to 24 votes (with one abstention) to clinch the post of the Deputy Senate President. Instructively, the APC controls the Senate with 59 (now 58) Senators, while the PDP has 49 Senators, meaning that 108 members ought to have congregated on the Senate Floor on the said date to constitute the leadership of the Senate. Alas, only 57 senators and 75 senators took part in the elections into the two offices.
In the run up to the “inauguration” of the Eighth NASS on June 9, 2015, after the initial intra-party horse-trading and compromises, two blocks within the APC, keenly interested in fielding candidates and contesting available positions in the NASS leadership, had emerged: The offices were those of the Senate President, Deputy Senate President, Speaker of House of Representatives and Deputy Speaker of House of Representatives. For the House of Representatives, there was the Femi Gbajabiamila and Yakubu Dogara blocks, and for the Senate, there were the Bukola Saraki and Ahmed Lawan blocks. To put its house in order, the APC, correctly and responsibly, in our view, conducted a straw poll amongst her elected legislators to determine the popularity and acceptability of the aspirants and adopt consensus candidates of the party for the positions. It would not have made any sense for the APC to have allowed its aspirant members to go on the floors of the Senate and the House to slugger it out amongst themselves. That is not the way a responsible party behaves. Strangely, some dubious partisans and jaundiced interveners have condemned the APC for striving to forge consensuses amongst its party members, insisting that the NASS should have been left alone to self-constitute its leadership, without the input of the parties of the respective members. This position that is being laundered as the correct approach that ought to have been adopted by the APC in order to guarantee the independence of the legislature is ignorant, plain dumb and silly.
At the end of the straw poll, which the Saraki and Dogara blocks boycotted and walked out of, obviously because they were in the minority and because they did not want the decision of the majority to bind them, the Lawan and Gbajabiamila blocks emerged victorious. Consequently, the APC directed all its legislators that were to participate in the NASS Leadership Elections to toe the party line and vote for the party’s candidates in the elections.

Saraki, Dogara, and Lasun, all defectors from the PDP, simply reached out to their kith and kin in the PDP. And it only took the infusion of Ekweremadu for the family reunion to be complete. Blood, as we know, is always thicker than water. It was an act of gross betrayal and misconduct.

Upon realising that they did not command the following of a majority of their party members, the Saraki and Dogara blocks surreptitiously hatched a conspiracy against their party’s interest and forged a coalition with the PDP against their party choices. That coalition led to the “defeat” of the APC choices in the elections, and the triumphs of the Saraki and Dogara blocks. In the House of Representatives leadership election, Dogara scored 182 votes to Gbajabiamila’s 174 votes. Given the result of the election, it was obvious that out of the 209 APC legislators in the House, about 36 of them leagued up with PDP legislators to defeat Gbajabiamila, their “party’s” candidate for the office of the speaker, and Monguno, their party’s candidate for the office of the Deputy Speaker. Saraki, Dogara, and Lasun, all defectors from the PDP, simply reached out to their kith and kin in the PDP. And it only took the infusion of Ekweremadu for the family reunion to be complete. Blood, as we know, is always thicker than water. It was an act of gross betrayal and misconduct.

Without any doubt, the leadership tussle in the NASS has shown clearly the fault lines in Section 50 (1) of the Constitution.

Was that act of betrayal illegal or unconstitutional? No, even if it is immoral. Section 50 (1) of the Constitution says so. It provides that “there shall be:- (a) a President and a Deputy President of the Senate, who shall be elected by the members of that House from among themselves; and (b) a Speaker and a Deputy Speaker of the House of Representatives, who shall be elected by the members of that House from among themselves“. By virtue of this provision, any member of the Senate or House of Representatives, be s/he of the majority party or minority party can be elected into any of the aforementioned positions, in so far as he or she is a member of the Senate or House of Representatives. It only stands to reason that if any legislator, regardless of the numerical strength of his party, can aspire to a leadership position in the upper and lower chambers, he or she can draw his electors from his own party or from other parties in the legislature. And any member can elect any other member of his choice to occupy any of the said positions, regardless of political party affinity or divide.
Without any doubt, the leadership tussle in the NASS has shown clearly the fault lines in Section 50 (1) of the Constitution. Section 50(1) needs an urgent amendment, such that the indubitable legislative intendment of having a majority party constitute the leadership of the parliament, while the minorities parties play the role of the parliamentary opposition can become more manifest and taken out of its current state of wooliness.

We are…not concerned about the moral wrong that the APC has suffered in the hands of her saboteur members, who, apparently fled a leprous PDP into the APC in the belief that staying back in the PDP in the 2015 general elections was going to harm their ambitions to get elected or re-elected into political offices. It was a mutation from one party to the other for political survival. It was “change”, indeed.

We have argued that the act of betrayal of the APC insurgents is not illegal or unconstitutional but immoral. But do we not all know that immorality, lack of integrity, opportunism and perennial power and money hunting are the hallmarks of a majority of Nigerian politicians? Lacking in scruples, values, principles and ideology, they change political parties, switch political allegiances and positions on any matter, based on their whims, caprices, political calculations and expectations, and pecuniary interests. Most of them are nothing but charlatans and political mercenaries. Lacking shame, noble comportment and decorum, but fixated on grabbing power for primitive accumulation and self aggrandisement, they do not mind dumping a “national conscience party”, “a national salvation congress”, or people redemption movement” for “a kidnappers party of Nigeria”, or “congress of Nigerian armed robbers”, regardless of the repugnance of such names, if the platforms give them an assurance of a short cut to power, and a shorter and surer route to the public till.
The APC that is now talking about party loyalty and supremacy, and is bellyaching about the treachery of the renegades within its ranks reeks of the vice of political prostitution, which usually is masked as patriotic expediency, political pragmatism, and free exercise of the constitutionally guaranteed right to freedom of association. We are, therefore, not concerned about the moral wrong that the APC has suffered in the hands of her saboteur members, who, apparently fled a leprous PDP into the APC in the belief that staying back in the PDP in the 2015 general elections was going to harm their ambitions to get elected or re-elected into political offices. It was a mutation from one party to the other for political survival. It was “change”, indeed.
As we have stated above, we are bothered because the events of June 9, 2015 have serious implications for Nigeria’s democracy, constitutionalism and the rule of law.

…by their own declarations and admissions, the organisers of the sham election on the floor of the Senate on June 9, principally the Clerk of the National Assembly and his cohorts, claimed that they organised that election pursuant to the Senate Standing Orders, 2015, as amended, which purportedly provides that elections into the two offices shall be by secret ballot, instead of the open ballot as provided by Orders 72 and 73 of the Senate Standing Orders, 2011. As it has now become glaring, there was, in fact, no such Senate Standing Orders, 2015.

It is our considered view that the election of Bukola Saraki as the Senate President and Ike Ekweremadu as Deputy Senate President is illegal, unconstitutional, null and void. It is a sham. Put in another way, Bukola Saraki and Ekweremadu, are not, legally speaking, the Senate President and Deputy Senate President of Nigeria. They are impostors, who should stop parading themselves as senate president and deputy senate president. Asking Ekweremadu to yield up the office of the Deputy Senate President, as some partisans who have labeled him a PDP usurper have suggested, does not arise. De jure, he is not occupying the office of the Deputy Senate President from which he may resign. You cannot resign from an office you do not occupy. Why do we say so?

As at the time of the dissolution of the Seventh National Assembly, on June 4, 2015, the operative Rules of the Senate were Senate Standing Orders, 2011. Between that dissolution and the inauguration of the Eighth Senate on June 9, the Senate was not in existence. It was a period of interregnum. The Senate leadership of the Seventh Senate went with the dissolution of that Senate. Therefore, that leadership, acting alone, or in concert with the generality of the members of the Seventh Senate could not have amended the Senate Rules to produce the Senate Standing Orders, 2015. By virtue of Order 110(5) of the Senate Standing Orders, 2011, two-thirds majority of the Senate shall decide proposed amendments and such amendments shall form part of the Rules of the Senate. This purported amendment is the act of forgery that is being alleged against David Mark, Ekweremadu and the Clerk of the National Assembly, which has now become the subject of police investigation.

First, by their own declarations and admissions, the organisers of the sham election on the floor of the Senate on June 9, principally the Clerk of the National Assembly and his cohorts, claimed that they organised that election pursuant to the Senate Standing Orders, 2015, as amended, which purportedly provides that elections into the two offices shall be by secret ballot, instead of the open ballot as provided by Orders 72 and 73 of the Senate Standing Orders, 2011.

While the crime of forgery that is alleged may lead to prosecution and conviction if investigation establishes a prima facie case, the effect of that forged or manipulated document on the election at the Senate is stark. Being the foundation of that election, the election is rendered illegal, null and void. No senate president or deputy senate president can be elected pursuant to a non-existent or forged Senate Standing Orders.

As it has now become glaring, there was, in fact, no such Senate Standing Orders, 2015. As at the time of the dissolution of the Seventh National Assembly, on June 4, 2015, the operative Rules of the Senate were Senate Standing Orders, 2011. Between that dissolution and the inauguration of the Eighth Senate on June 9, the Senate was not in existence. It was a period of interregnum. The Senate leadership of the Seventh Senate went with the dissolution of that Senate. Therefore, that leadership, acting alone, or in concert with the generality of the members of the Seventh Senate could not have amended the Senate Rules to produce the Senate Standing Orders, 2015. By virtue of Order 110(5) of the Senate Standing Orders, 2011, two-thirds majority of the Senate shall decide proposed amendments and such amendments shall form part of the Rules of the Senate. This purported amendment is the act of forgery that is being alleged against David Mark, Ekweremadu and the Clerk of the National Assembly, which has now become the subject of police investigation. While the crime of forgery that is alleged may lead to prosecution and conviction if investigation establishes a prima facie case, the effect of that forged or manipulated document on the election at the Senate is stark. Being the foundation of that election, the election is rendered illegal, null and void. No senate president or deputy senate president can be elected pursuant to a non-existent or forged Senate Standing Orders.
In underscoring the nullity of the Saraki and Ekweremadu’s presidency and deputy presidency, we find it very apt to use the analogy of a familiar legal principle.
“A court can only be competent, if among other things, all the conditions precedent for its having jurisdiction are fulfilled. In Madukolu and Ors. v. Nkemdilim (1962) 1 All N.L.R. (Pt.4) 587 at 594 Bairamian, F. J, (as he then was) stated the principles which, ever since, have been accepted in successive cases in the Supreme Court of Nigeria. ‘A court is competent, he said, ‘when – (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect being extrinsic to the adjudication.’ See Skenconsult(Mg.)Ltd, & Anor. v. Ukey (l98l) 1 SC 6 at 15.

…it does not matter that following the purported election of Saraki and Ekweremadu, they were subsequently sworn in and they later administered the oath to the other senators. All that is a grandiose nullity. And also it does not matter that following that farce of an election, Senators Saraki and Ekweremade have been receiving courtesy visitors, including the Nigerian Bar Association Leadership (a big shame!) and some funny civil society elections monitors. This sham of an election is incurably defective, and cannot be cured by this ineffectual showmanship.

For example, a judgment that is given without jurisdiction, or a judgment which is a nullity, which is liable to be set aside, cannot give birth to a good execution. It does not even matter that the Judgment sought to be set aside has been executed. In such a situation, both the judgment that is liable to be set aside and the execution that is predicated thereon will suffer the same fate. The oft-cited dictum of Lord Denning in the case of Macfoy v. U.A.C. Ltd (1961) 3 W.L.R. 1405 at p. 1409 P1] comes to mind here. He said: “any purported exercise of any function being without any legal or constitutional authority was null and void and of no effect. If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
Thus, it does not matter that following the purported election of Saraki and Ekweremadu, they were subsequently sworn in and they later administered the oath to the other senators. All that is a grandiose nullity. And also it does not matter that following that farce of an election, Senators Saraki and Ekweremade have been receiving courtesy visitors, including the Nigerian Bar Association Leadership (a big shame!) and some funny civil society elections monitors. This sham of an election is incurably defective, and cannot be cured by this ineffectual showmanship.

There can be no equivocation on the critical question of whether an act in constitutional or not. If politicians prevaricate, the law does not. It is either a constitutional process has taken place or it has not taken place.

Also, it does no matter that the APC and the APC Presidency have accepted the sham election in the Senate as a successful coup d’état. They said “a somewhat constitutional process has taken place” and that they are ready to live with it. No sirs. You are wrong. There can be no equivocation on the critical question of whether an act in constitutional or not. If politicians prevaricate, the law does not. It is either a constitutional process has taken place or it has not taken place. An unconstitutional act cannot become “somewhat constitutional” because of the disposition to condone and accommodate such an act, based on political expediency or naïveté.
It is thus our submission that consequently, any Nigerian, be he a senator or not, who is affected by that election and is aggrieved has a right under Section 6(6)(b) of the 1999 Constitution, as amended, to invoke the Court’s power of judicial review and the Court is empowered ex debito justitiae to nullify the purported election. Mercifully, before his glorious transition, Chief Gani Fawehinmi, (Senior Advocate of Nigeria, SAN and Senior Advocate of the Masses, SAM), of blessed memory had helped in liberalising the anti-public interest litigation rigidity of the legal principle of locus standi (standing or capacity to sue).
Secondly, even if the election in the Senate had been conducted on the basis of the Senate Standing Orders, 2011, it still would have been flawed, for not following the due process and for lack of compliance with the provisions of the Senate Standing Orders, 2011.

By reading the proclamation to a half empty Senate Chambers, the Clerk willfully committed an act of illegality. But this is not the only procedural error knowingly committed by the Clerk on that date. Upon reading the proclamation to a Senate Chamber that was half empty, the Clerk persisted in his aberration by not proceeding to the roll call and confirming the writs of election as well as declaration of assets and liabilities of the Senators-Elect…

Order 2 (Rules 1-3) in Chapter II of the Senate Orders, 2011, provides for the first sitting of the Senate as follows: “on the first sitting of a new Senate, pursuant to the proclamation of the first sitting of the President of the Federal Republic of Nigeria, Senators-Elect shall assemble at the time and place so appointed; (2) Senators-elect, having assembled, the Clerk to the National Assembly shall: (a) read the proclamation for the holding of the first session of the Senate; (b) call the Senate to order, and proceed to the roll call and confirmation of writs of election as well as declaration of assets and liabilities of the Senators-Elect in alphabetical order; and (c) after the roll call, but before their swearing in, preside over the election of the President and Deputy President of the Senate; (3) each Senator-Elect called shall present the writ of election and the receipt for declaration of assets and liabilities which shall be laid upon the table by the Clerk.”

We submit that having failed or refused to comply with the Senate Rules contained in Order 2 (Rules 1-3) in Chapter II of the Senate Orders, 201, the condition precedent to the election of the senate president and deputy senate president was not satisfied, and thus all the steps taken thereafter, including nominations, acceptance of nominations, declaration as being elected unopposed, voting, conducting the president-elect to the chair of the Senate President, administering of oaths, all are a nullity.

The above stated procedure for convocation and inauguration of the Senate was not complied with on June 9, 2015, when the election purportedly took place. All the senators-elect did not assemble before the Clerk and his cohorts committed their grand fraud. It is after the senators-elect (not 57 or 75 of them, but all of them, save those who may be unavoidably absent, for example in the case of death, illness, detention in police or prison custody, or deliberate, clear and willful abstention from or boycott of the inauguration) had fully assembled that the Clerk can legally proceed to read the proclamation. By reading the proclamation to a half empty Senate Chambers, the Clerk willfully committed an act of illegality.

Being part of a conspiracy to foist a fait accompli on the absent senators, the Clerk was in a hurry to consummate an infamy.

But this is not the only procedural error knowingly committed by the Clerk on that date. Upon reading the proclamation to a Senate Chamber that was half empty, the Clerk persisted in his aberration by not proceeding to the roll call and confirming the writs of election as well as declaration of assets and liabilities of the Senators-Elect (again, we posit, not 57 or 74 of them, but all of them, save those who may be unavoidably absent, for example in the case of death, illness, detention in police or prison custody, or deliberate, clear and willful abstention from or boycott of the inauguration) in alphabetical order. The Rules say each senator-elect called shall present the writ of election and the receipt for declaration of assets and liabilities which shall be laid upon the table by the Clerk. Being part of a conspiracy to foist a fait accompli on the absent senators, the Clerk was in a hurry to consummate an infamy.
We submit that having failed or refused to comply with the Senate Rules contained in Order 2 (Rules 1-3) in Chapter II of the Senate Orders, 201, the condition precedent to the election of the senate president and deputy senate president was not satisfied, and thus all the steps taken thereafter, including nominations, acceptance of nominations, declaration as being elected unopposed, voting, conducting the president-elect to the chair of the Senate President, administering of oaths, all are a nullity.
To the rabblerousing defenders of the illegality that took place in the Senate Chambers on that day, who are contending that a quorum was formed to constitute the leadership of the Senate with 57 Senators, and later 75 Senators being in attendance, we say that you are wrong.
These rabble-rousers bandy, in isolation, Order 10 (1) of the Senate Standing Orders (Quorum) to justify their contention that there was a quorum to elect the Senate leadership. But Order 10 (Rules 1, 2 and 3) of the Senate Standing Orders, 2011 provide thus: “(1) The quorum of the Senate shall be one-third (1/3) of members of the Senate; (2) if, at any time during the daily sessions of the Senate, a question is raised by any senator as to the presence of a quorum, the presiding officer shall within 15 minutes forthwith, direct the Clerk to call the roll and announce the result and these proceedings shall be without debate; (3) whenever after such roll call, it shall be ascertained that a quorum is not present, the President of the Senate may direct Sergeant at arms to request and, when necessary, to compel the attendance of the absent senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion except to adjourn or to suspend sitting shall be in order.”

When the provisions of Order 10 ( 1-3) of the Senate Standing Orders and the above-cited provisions of the Constitution are properly read and construed, it becomes clear that those provisions do not apply to the first sitting of the Senate, and in particular the election of presiding officers of the Senate. They do not. In constituting the leadership of the Senate, all senators-elect not only have the right to contest in the election, they also have the right to participate in the election. They have the right to vote and be voted for. Therefore, none of them can be excluded, based on the forced application of the “one-third (1/3) of members of the Senate” quorum clause.

Section 54 of the Constitution also provides more forcefully in subsections 1-4 as follows: “(1) the quorum of the Senate or of the House of Representatives shall be one-third of all the members of the Legislative House concerned.”; “(2) the quorum of a joint sitting of both the Senate or of the House of Representatives shall be one-third of all the members of both Houses.”; “(3) If objection is taken by any member of the Senate or the House of Representatives present that there are present in the House of which he is a member (besides the person presiding) fewer than one-third of all the members of that House and that it is not competent for the House to transact business, and after such interval as may be prescribed in the rules of procedure of the House, the person presiding ascertains that the number of members present is still less than one-third of all the members of the House he shall adjourn the House.”; and “(4) The foregoing provisions of this section shall apply in relation to a joint sitting of both Houses of the National Assembly as they apply in relation to a House of the National Assembly as if references to the Senate or the House of Representatives and a member of either Houses are references to both Houses and to any member of the National Assembly, respectively.”

Gathering to elect a leadership of the Senate may be a meeting or an assembly, but certainly not a sitting.

When the provisions of Order 10 ( 1-3) of the Senate Standing Orders and the above-cited provisions of the Constitution are properly read and construed, it becomes clear that those provisions do not apply to the first sitting of the Senate, and in particular the election of presiding officers of the Senate. They do not. In constituting the leadership of the Senate, all senators-elect not only have the right to contest in the election, they also have the right to participate in the election. They have the right to vote and be voted for. Therefore, none of them can be excluded, based on the forced application of the “one-third (1/3) of members of the Senate” quorum clause. The quorum clause applies to the ordinary sitting (or daily sessions) of the Senate, its committees or its joint sitting with the House of Representatives. It does not apply to the first sitting of the Senate, which, in the context of the Senate Standing Orders, is not a sitting, properly so called. At the inaugural first “sitting” of the Senate, all senators-elect are expected to assemble and participate in the election. Not one-third of them.
A sitting of the Senate, to which “one-third (1/3) of members of the Senate” quorum clause applies can only start or take place after the first “sitting” of the Senate, that is after the election of the Senate’s presiding officers, and not before. The Senate cannot sit without presiding officers. A court cannot sit without a judge or panel of judges presiding. Gathering to elect a leadership of the Senate may be a meeting or an assembly, but certainly not a sitting.
Order 5 of the Senate Standing Orders provides that after their respective elections, “the President and Deputy President of the Senate shall take and subscribe to the oath/affirmation of allegiance and membership prescribed in the Constitution before the Clerk to the National Assembly“. Order 6 of the Senate Standing Orders provides that “having been sworn, the President of the Senate returns his acknowledgment to the Senate for the honours confirmed upon him, thereupon takes the Chair, and then the mace (which hitherto lay under the table shall be laid upon the table).” Order 8 of the Senate Standing Orders provides that “every senate elect shall, before taking his seat, take and subscribe to the oath/affirmation of allegiance and membership prescribed in the 7th Schedule to the Constitution of the Federal Republic of Nigeria, before the President of the Senate.” And Order 11 (contained in Chapter III-Sittings of the Senate) of the Senate Standing Orders provides that “(1) the President of the Senate shall allocate a seat to each senator; and (2) a senator may only speak from a seat allocated to him, provided that the President of the Senate may change the allocation from time to time.”

Reading these orders and cited provisions of Sections 52 and 53 of the Constitution together, in relation to the “one-third (1/3) of members of the Senate” quorum clause, it should be very clear, even to the dull and unintelligent, that until the President and Deputy Senate President are sworn, take the Chair, the Mace of the Senate is laid on the table, every senator-elect is sworn and takes his seat, and the President of the Senate allocates a seat to each Senator, there can be no sitting or session of the Senate to which the “one-third (1/3) of members of the Senate” quorum clause can apply. At any sitting of the Senate, the President or Deputy Senate President must preside. A gathering of senators, where the President and Deputy President are yet to be elected, let alone presiding, is, thus, not a sitting for the purpose of applicability of the quorum clause.

In the same vein, and foundationally, Section 52. (1) of the Constitution of Nigeria provides that “every member of the Senate or the House of Representatives shall, before taking his seat, declare his assets and liabilities as prescribed in this Constitution and subsequently take and subscribe the Oath of Allegiance and the oath of membership as prescribed in the Seventh Schedule to this Constitution before the President of the Senate or, as the case may be, the Speaker of the House of Representatives, but a member may before taking the oaths take part in the election of a President and a Deputy President of the Senate, as the case may be, or a Speaker and a Deputy Speaker of the House of Representatives.
Section 52(2) of the Constitution provides that “the President and Deputy President of the Senate and the Speaker and the Deputy Speaker of the House of Representative shall declare their assets and liabilities as prescribed in this Constitution and subsequently take and subscribe the Oath of Allegiance and the oath of membership prescribed as aforesaid before the Clerk of the National Assembly.” And Section 53. (1)(a) of the Constitution provides that “at any sitting of the National Assembly – (a) in the case of the Senate, the President of the Senate shall preside, and in his absence the Deputy President shall preside;”

As every observer of the charade called an election in the Senate witnessed, the Senate Chambers was invaded by PDP cheerleaders, including PDP Governors, who stormed the Senate to “supervise the election”. This fact gives credence to our submission that no sitting or session of the Senate took place on that day to which “one-third (1/3) of members of the Senate” quorum clause could apply.

Reading these orders and cited provisions of Sections 52 and 53 of the Constitution together, in relation to the “one-third (1/3) of members of the Senate” quorum clause, it should be very clear, even to the dull and unintelligent, that until the President and Deputy Senate President are sworn, take the Chair, the Mace of the Senate is laid on the table, every senator-elect is sworn and takes his seat, and the President of the Senate allocates a seat to each Senator, there can be no sitting or session of the Senate to which the “one-third (1/3) of members of the Senate” quorum clause can apply. At any sitting of the Senate, the President or Deputy Senate President must preside. A gathering of senators, where the President and Deputy President are yet to be elected, let alone presiding, is, thus, not a sitting for the purpose of applicability of the quorum clause. Without a sitting, no sensible person can be talking about a quorum. Clearly, senators-elect, including aspirant presiding officers (who are yet to be elected) cannot sit until all the afore-stated protocols are completed. Quorum applies to a sitting of the Senate, and not to an assembly of senators who are gathered for the sole purpose of constituting a leadership that will preside over the Senate, so that sitting may commence. The Senate cannot sit before the election of presiding officers. And it is when the Senate does sit that the “one-third (1/3) of members of the Senate” quorum clause can apply.

Our third ground for reaching the conclusion that the election of Senator Bukola Saraki and Senator Ekweremadu as senate president and deputy senate president is a nullity is that the “election” was not in conformity with the spirit and letters of the Constitution. It did not pass the test of an inclusive and participatory democratic process under the Constitution. 57 senators or 75 senators cannot validly elect the leadership of the National Assembly, even if the Senate Rules were not doctored, save in the exceptional situations suggested above.

Order 17 (1) of the Senate Standing Orders, 2011 provides that “no person shall be admitted to the lobby or the floor of the Senate while in session, except the following and only by consent of the Senate.” The Order then provides a long list of current and former public office holders, who, with permission of the Senate, are eligible to be admitted into the Chambers. These include the president and vice president, former elected presidents and vice presidents, former president and former deputy presidents of the senate, former senators and senators-elect, judges of the Supreme Court, Governors of State and former elected Governors, et cetera.
As every observer of the charade called an election in the Senate witnessed, the Senate Chambers was invaded by PDP cheerleaders, including PDP Governors, who stormed the Senate to “supervise the election”. This fact gives credence to our submission that no sitting or session of the Senate took place on that day to which “one-third (1/3) of members of the Senate” quorum clause could apply. If the Senate was in session, its permission would have been sought and obtained before the admittance of those intruders. There was no “session” or “sitting” of the Senate on that day, and there was no leadership to give any consent to the invaders or strangers to come into the Chambers and participate in the sham process as observers. Even if we were to assume that the Clerk of the National Assembly allowed the invasion, the Clerk of the National Assembly is not the Senate. Thus, he, lawfully, could not have given any consent to the intruders to come in. If he did so, he acted unlawfully.

In electing the leadership of the Senate, the intendment of the framers of the Constitution is that all the senators, who are to be inaugurated and sworn in at that first “sitting” will assemble and be eligible to vote and be voted for. It affronts common sense for anyone to imagine that one-third members of the Senate can validly elect its leadership, under Section 50 of the Constitution…If it takes two-third majority of the members of the Senate to remove a senate president and his deputy once they are elected, why will one-third of the members be able to form an alleged quorum to elect the same officers?

Our third ground for reaching the conclusion that the election of Senator Bukola Saraki and Senator Ekweremadu as senate president and deputy senate president is a nullity is that the “election” was not in conformity with the spirit and letters of the Constitution. It did not pass the test of an inclusive and participatory democratic process under the Constitution. 57 senators or 75 senators cannot validly elect the leadership of the National Assembly, even if the Senate Rules were not doctored, save in the exceptional situations suggested above. Section 50. (1) of the Constitution provides that: “there shall be:- (a) a President and a Deputy President of the Senate, who shall be elected by the members of that House from among themselves.” Under Section 50, there is no provision stipulating “one-third (1/3) of members of the Senate” as the quorum for the first “sitting” of the Senate where the Senate leadership is elected. Thus, the one-third quorum cannot and should not be imported into Section 50.
In electing the leadership of the Senate, the intendment of the framers of the Constitution is that all the senators, who are to be inaugurated and sworn in at that first “sitting” will assemble and be eligible to vote and be voted for. It affronts common sense for anyone to imagine that one-third members of the Senate can validly elect its leadership, under Section 50 of the Constitution, when the same Section 50 provides in subsection 2(c) thereof that : “the President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office – if he is removed from office by a resolution of the Senate or of the House of Representatives, as the case may be, by the votes of not less than two-thirds majority of the members of that House.” If it takes two-third majority of the members of the Senate to remove a senate president and his deputy once they are elected, why will one-third of the members be able to form an alleged quorum to elect the same officers?

In that so-called election, save the threesome of Governor Fayose’s Senators from Ekiti State, an Ogun State Senator and two Ondo State Senators, the peoples of South-West Nigeria did not participate in constituting the senate leadership. Two-third of the people of Benue State did not participate, Senators George Akume and Barnabas Gemade not being there. And largely the people of Kaduna, Kano and Katsina States did not participate, their elected senators not being in the Senate. This is not the kind of senate leadership election that is envisaged by the Constitution.

Under our formulated third ground, may we point out that it is not only because 51 senators and later 33 senators were disenfranchised and thus could not participate in the said “election” that we are contending that the election is a nullity, but also because almost half of the people of Nigeria were shut out of that process. The National Assembly is the first arm or branch of government, and the Nigerian people participate in its affairs through their elected representatives. In a representative democracy, legislators perform the functions of representation, legislation, appropriation, passing resolutions, oversight, and governance. Being representatives, when the senators are electing their leadership, they are direct electors representing indirect electors in their respective senatorial districts. They are like an electoral college. Therefore, if a fragment of the Senate engages in a conspiracy and chicanery to elect the senate leadership, in the absence of other senators, the right of Nigerians, who are being represented by those shut out senators, to participate in the government of their country is violated. The right of a people to participate in the government of their own country is an internationally recognised civil and political right.

We refuse to move on. A terrible unconstitutional precedent wittingly or unwittingly must not be created because the actors prefer to cut a deal and settle their differences. A fundamental breach of the provisions of the Constitution cannot be allowed to pass because the dramatis personae have agreed to share offices.

Let us put it more graphically. In that so called election, save the threesome of Governor Fayose’s Senators from Ekiti State, an Ogun State Senator and two Ondo State Senators, the peoples of South-West Nigeria did not participate in constituting the senate leadership. Two-third of the people of Benue State did not participate, Senators George Akume and Barnabas Gemade not being there. And largely the people of Kaduna, Kano and Katsina States did not participate, their elected senators not being in the Senate. This is not the kind of senate leadership election that is envisaged by the Constitution. Constitutional processes governing compositions of arms of government must not be reduced to a game of power-grabbing stratagem in which chicaners use foul means, to win, and gleefully declare thereafter: “I have defeated you, let us move on.”

The Senate should return to the path of constitutionalism and rule of law. The first “sitting” of the Senate has not taken place. All that has taken place is a cocktail of illegalities.

We refuse to move on. A terrible unconstitutional precedent wittingly or unwittingly must not be created because the actors prefer to cut a deal and settle their differences. A fundamental breach of the provisions of the Constitution cannot be allowed to pass because the dramatis personae have agreed to share offices. Did the President and the Vice President and the dissatisfied senators not swear to protect, defend and uphold the provisions of the Constitution?. They sure did. And now this is the litmus test.
The Senate should return to the path of constitutionalism and rule of law. The first “sitting” of the Senate has not taken place. All that has taken place is a cocktail of illegalities. All the senators must properly assemble, pursuant to the relevant constitutional provisions and Senate Standing Orders 2011; and the proclamation must be read to all of them. Thereafter, a proper roll call must be made and an election of which all senators and the entire Nigerian people shall be proud must be conducted. This is the way to change and govern a country.
Jiti Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the Legal adviser of Premium Times.

NNPC under fire over $1.2b transfer

 

Udoh

Oil giant Nigerian National Petroleum Corporation (NNPC) is in the news again – over its bid to transfer $1.2 billion from commercial banks to the Central Bank of Nigeria (CBN).

The NNPC’s action is “panicky”, the All Progressives Congress (APC) said yesterday, alleging that it was all to cover up alleged sharp practices by the corporation.

The APC alleged that revenues belonging to the federation were fraudulently deposited in local banks to yield huge interests for the officials, who the party did not name.

It renewed its call on President Muhammadu Buhari to probe the whereabouts of the tax paid to the Federal Inland Revenue Service (FIRS) and dividends paid to the NNPC by the Nigerian Liquified natural Gas (NLNG) Ltd.

In a statement by its National spokesman, Alhaji Lai Mohammed, the APC said the Federal Government should probe the whereabouts of the dividends paid to the NNPC by the NLNG, as well as the taxes paid to the FIRS Federation Account prior to the latest payment in June 2015.

Mohammed said the call had become more urgent against the backdrop of published reports that the NNPC withdrew $1.2 billion from banks so it could place the money with the CBN.

He described the move by the NNPC as a panic reaction to the expose by APC that over $4 billion dollars was missing in past dividends paid to the NNPC by the NLNG.

The statement reads: ‘’Whereas NLNG’s dividends are paid to NNPC’s account with JP Morgan, from where they are supposed to be paid into the Federation Account, in accordance with the law, some unscrupulous officials of the corporation have apparently been moving such funds to local banks so they can collect huge commissions on them.

‘’Now that the cat has been let out of the bag, they have started moving the funds from the banks to the CBN. We believe what we are seeing now is just a tip of the iceberg, hence the need for the authorities to call the NNPC officials to give account of the paid NLNG dividends to date.’’

“Any delay in calling the officials to account for the dividends may give them enough time to cover their tracks, said the party, in addition to the dangers posed to the banks – and by extension the economy – by the sudden withdrawal of such a huge fund from the NNPC’s accounts with them.

‘’The top officials of the NNPC and others who met on Monday and decided to withdraw the $1.2 billion from the corporation’s account to the CBN must be asked a number of questions, including their motive for the decision and the whereabouts of the commissions paid on such funds.”

The APC’s spokesman said that notwithstanding the attempt to pull the wool over the eyes of Nigerians, the Federal Government must remain undaunted in unravelling what happened to the dividends as well as previous taxes paid by the NLNG, as part of ongoing efforts to plug all financial leakages, ensure the payment into the Federation Account of all funds and stop the looting of the treasury.

He said: ‘’It is not by accident that until the advent of the Buhari Administration that has decided to enthrone transparency in governance, no one has heard anything about NLNG dividends and taxes, while the funds therefrom have not been shared as they should have been. This is not right.

‘’A situation in which funds meant for all Nigerians are eaten up by a few will no longer be tolerated. Those who are opposed to the efforts by the Buhari Administration to clear the rot left behind by the past government and restore transparency to the system are enemies of Nigeria.’’

 

TheNation.

INVESTIGATION: At least ₦11.56 trillion Excess Crude Fund unaccounted for in 8 years

Joshua Olufemi and Richard Akinwumi

Finance Minister, Ngozi Okonjo-Iweala

Related News

Okonjo-Iweala used $1bn govt. money for Jonathan’s re-election — OshiomholeJuly 13, 2015

Oshiomhole attacks Okonjo-Iweala, says Minister destroyed Nigerian economyMay 27, 2015

Excess Crude Account: Okonjo-Iweala replies Oshiomhole, says attack “baseless”May 28, 2015

Update: Sanusi defends writing Jonathan, says N1.9 trillion now unaccounted forDecember 19, 2013

CBN Governor, Sanusi, accuses NNPC of kerosene subsidy fraud, says $20 billion unaccounted forFebruary 4, 2014

At least N11.55 trillion or $84.52 billion expected revenue into the coffers of the nation’s Excess Crude Account for the eight-year period from 2007 to 2014 are unaccounted for, according to findings by PREMIUM TIMES based on now available data from multiple government agencies not made public until now.
The ECA accounting has remained perhaps one of the most opaque public fund mechanisms in the country, puzzling even state governors who repeatedly challenged former Finance Minister Ngozi Okonjo-Iweala for lack of transparency and accountability regarding the organization of the fund.
After a recent National Economic Council meeting in Abuja, a committee of state governors angrily lashed at Mrs. Okonjo-Iweala, accusing her office, as supervisors of the fund, of arbitrariness and probably illegality in the management of a fund meant for the three tiers of government but which the ministry of finance apparently ran as a sole federal government fund.
PREMIUM TIMES arrived at its computation based on differentials between expected accruals and actual withdrawals from the ECA honey pot.
Based on their reporting, the Nigerian National Petroleum Corporation [NNPC] and the Central Bank of Nigeria [CBN] claim that for the eight years in review, no fewer than N23.79 trillion was deposited into the ECA fund.
In its own accounting, the Federal Accounts Allocation Committee [FAAC] reported that for the same period, N10.58 trillion was withdrawn from the fund.
Although no where in the FAAC reporting was the N1.3 trillion ad-hoc domestic infrastructural investment and capital-intensive spending on the National Integrated Power Projects [NIPP] indicated, PREMIUM TIMES accommodated it in its analysis to arrive at the N11.55 trillion unaccounted ECA revenue.
Our estimate can even be said to be conservative given that we did not compute what could have accrued to the ECA from crude allocated to the NNPC for domestic refining, but which almost always ended up being sold abroad because of the bad shape of Nigeria’s four refineries.
It is instructive to note that for the first 41 months from January 2007 to May 2010, there was no single public record of transfers into the ECA by FAAC.
After the questionable 41-month silence on ECA reporting, the FAAC curiously resumed reporting in June 2010 till the end of the review period during which N7.16 trillion accrued to the national coffers.
It remains unknown if this unaccounted funds were stolen or mismanaged and if federal law enforcement authorities are currently reviewing the process.
The spokesperson for the Economic and Financial Crimes Commission, Wilson Uwujaren, said he had no information about any ongoing investigation regarding the ECA.
But concerned by what appeared a lack of accountability in the management of the account, the National Economic Council [NEC] on June 29 raised a four-man committee to examine accruals into and withdrawals from the Federation Account and the Excess Crude Account from 2012 to May 2015.
Members of the committee are Governors Adams Oshiomhole of Edo State, Emmanuel Udom of Akwa Ibom, Ibrahim Dankwabo of Gombe and Nasir El-Rufai of Kaduna.
The panel’s report is still being awaited.
Repeated suggestions by the new Muhammadu Buhari’s administration that public funds were poorly and corruptly managed in the recent past appear to necessitate a deliberate, serious and careful look into the management of public funds by past administrations.
History of ECA
The ECA was created by the administration of President Olusegun Obasanjo in 2004 to act as a stabilization fund, closing budget deficits caused by oil price volatility.
The fund was designed to enable savings for the rainy day.
Since its birth however, the ECA has been bedeviled by controversy. One major challenge is the legal status of the body and the constitutional place of the Ministry of Finance in operating both the FAAC and the ECA. Another problem is the zero transparency exhibited by various agencies and officials of government charged with managing the funds over the years.
In recent years, the Ministry of Finance has refused to make public the detailed withdrawals from and accruals to the ECA, making it difficult to track budget spending and periodic status of the nation’s treasury.
The overarching constitutional provision demands a legislative buy-in and approval before any huge withdrawals are made from the FAAC. Likewise, the excess crude account and its administration recognize the three tiers of government as owners and decision makers regarding withdrawals from the account. The third means of checking the activities on ECA is the oversight performed by the National Economic Council (NEC).
All these have been consistently abused by the leadership of the Federal Ministry of Finance thus strapping Nigeria into penury, incessant contingency loans from International communities, and ultimately crippling the dividends that would have accrued to this stabilization mechanism.
In her bid to fend off criticism, Ms. Okonjo-Iweala made effort to give annual summaries of accruals and withdrawals from the Excess crude account for a period of 2011 to May 2015.
However, no clear highlights of monthly accruals and monthly disbursement of the funds to various quarters were provided to Nigerians.
Greater concerns about ECA
The discrepancies in reporting by the different agencies have been the most frustrating challenge on the ECA. Going by the NNPC report of actual oil production and monthly oil price within the period under review (2007- 2014), Nigeria is expected to have an inflow of ₦23.79 trillion ($166.87 billion).
In the same manner, the monthly FAAC reports by the Office of the Accountant General reported a total of ₦10.582 trillion ($73.93 billion) as withdrawals from the Excess crude account (ECA).
However, other reports indicate that the Federal and state governments agreed and made withdrawals of $8.425billion (₦1.308 trillion) as fund to implement National Integrated Power Project (NIPP) within the same period.
Cumulatively, total withdrawals of N11.89 trillion ($82.17 billion) was accounted for as withdrawals from ECA as FAAC distributions, funds for Sure P and NIPP.
Following this figures, the net expected balance in the ECA as at December 2014 should be ₦11.9 trillion ($84.52 billion).
However, the Ministry of Finance declared in May 2015 that the actual balance in the ECA as at December 2014 was $2,060,554,241 (₦344.85billion). If this figure is anything to go by, a difference of $82.46 billion (₦11.56 trillion) can be regarded as unaccounted amount expected to be in the Excess Crude Account.

FULL DETAILS OF UNREPORTED N11.56 TRILLION EXCESS CRUDE ACCRUALS

Annual Oil Production: Budgeted versus Actual Export
The annual benchmark values in barrels for crude oil production as indicated by appropriation laws during the period were 900million [2007], 882million [2008], 824.4million [2009] and 846 million [2010].
The benchmark estimate for the remaining years were: 828million barrels [2011], 892.8million [2012], 910.8million [2013] and 856.8million [2014].
However, the actual annual crude oil export as reported in the Nigerian National Petroleum Corporation (NNPC) monthly reports were 792million [2007], 724.5million [2008], 769million [2009] and 864.7million [2010].
The annual export for the remaining years were: 822million [2011], 830.8million [2012], 762milion [2013] and 796.7million [2014].
This is shown in the table below

Year	Benchmark Oil Production (bbl)	Actual Oil Production (bbl)
2007	900,000,000	791,826,519
2008	882,000,000	724,479,796
2009	824,400,000	769,195,205
2010	846,000,000	864,702,101
2011	828,000,000	822,082,224
2012	892,800,000	830,772,048
2013	910,800,000	762,045,201
2014	856,800,000	796,654,109
Total	6,940,800,000	6,361,757,203

Table 1: Annual Oil Production from 2007 to 2014
Annual Oil Price: Budgeted versus Actual
However, although the actual amounts of crude oil production were lesser than the benchmark value (except for 2010), the actual prices of crude oil were higher than the fiscalised (benchmarked) crude oil price making.
The benchmark prices set by the Federal government from 2007 to 2014 were $40, $53.83, $45, $67, $75, $72, $79 and $77.50 respectively.
Likewise, going by the data on monthly crude oil price by the Central Bank of Nigeria, the annual average price of oil were $74.48, $101.14, $63.9, and $80.92 for 2007 to 2010 while for 2011 to 2014, the average annual crude oil price stood at $113.76, $113.47, $110.99 and $100.35 respectively.

Year	Benchmark Oil Price	Actual Oil Price(Annual Average)
2007	$40.00	$74.48
2008	$53.83	$101.14
2009	$45.00	$63.90
2010	$67.00	$80.92
2011	$75.00	$113.76
2012	$72.00	$113.47
2013	$79.00	$110.99
2014	$77.50	$100.35

Table 2: Annual Oil Price from 2007 to 2=014
Annual Oil Revenue and Expected Accruals to ECA (in USD)
Going by the annual market prices, the benchmark (budgeted) prices and the annual oil production (Tables 2 & 3 above) the actual oil revenues were $59.24 billion [2007], $72.62 billion [2008], $49.79 billion [2009], and $70.08 billion [2010].
Also the actual oil revenue for 2011 to 2014 stood at $93.42 billion, $94.17 billion, $84.57 billion and $80.03 billion respectively.
In the same manner, the corresponding budgeted oil revenue for 2007 to 2010 were $36 billion, $47.48 billion, $37.1 billion, and $56.68 billion. For 2011 to 2014, the same revenue stood at $62.1 billion, 64.28 billion, $71.95 billion and $66.4 billion respectively.
With the figures stated above and in table 4 below, the total actual oil revenue for the eight-year period was $603.91 billion while the total budgeted oil price was $442 billion.
The annual excess crude proceeds (actual revenue minus budgeted revenue) are estimated to be $23.24 billion [2007], $27billion [2008], 13.96 billion [2009], and $13.39 billion [2010] respectively.
Also the annualized excess crude proceeds for 2011 to 2014 were estimated to be $31.32 billion [2011], $29.89 billion [2012], $12.61 billion [2013], and $15.46 billion [2014] respectively.
By these calculations, the Federal government, from 2007 to 2014 would have realised a sum difference of $166.87 billion as excess crude net expected balance in the ECA.
This is obtained as excess of actual revenue from crude oil ($603.91 billion) over the gross budgeted crude oil revenue ($442 billion).
This is shown in the table below.

Year	Actual Oil Revenue (a)	Budgeted Oil Revenue (b)	Excess Crude Account (c=a-b)
2007	$59,239,738,446	$36,000,000,000	$23,239,738,446
2008	$72,620,086,011	$47,478,060,000	$27,001,792,263
2009	$49,790,735,102	$37,098,000,000	$13,955,741,897
2010	$70,075,592,001	$56,682,000,000	$13,393,592,001
2011	$93,420,769,109	$62,100,000,000	$31,320,769,109
2012	$94,172,583,273	$64,281,600,000	$29,890,983,273
2013	$84,565,187,083	$71,953,200,000	$12,611,987,083
2014	$80,026,424,293	$66,402,000,000	$15,459,851,348
Total	$603,911,115,318	$441,994,860,000	$166,874,455,420

Table 3: Annual Oil Revenue and Expected Accruals to ECA (in USD)
Annual Expected Inflow to Excess Crude Account (in U.S. Dollars and Nigeria Naira)
The Nigerian National Petroleum Corporation (NNPC) sells its crude in U.S. dollars, and also remits to the Central Bank of Nigeria (CBN) in dollars. This explains why revenue accrual and excess crude funds figures are usually provided in U.S. dollars.
However, CBN deposits the funds into the Federation allocation account in Naira, leaving room for another level of computation to get the actual NNPC remittances to CBN in Naira.
The annual average exchange rate of $1 to a Naira, going by the CBN monthly data on international foreign exchange market (IFEM), for the period of 2007 to 2014 stood at ₦123.93 [2007], ₦117 [2008], ₦146.82 [2009], ₦148.31 [2010], ₦151.83 [2011], ₦155.43 [2012], ₦155.25 [2013] and ₦156.45 [2014] respectively.
By computing the corresponding Naira value of the actual and budgeted revenue as given in dollars, it was revealed that a total of ₦23.79 trillion is the expected inflow into the ECA as at December 2014.
This is arrived at by the sum of expected inflow into the ECA from 2007 to 2014 as ₦2.848 trillion, ₦3.129 trillion, ₦2.066 trillion, ₦1.988 trillion ₦4.755 trillion, ₦4.646 trillion, ₦1.958 trillion and ₦2.4 trillion respectively.
Table 4 below shows detail of the figures

Year	Exchange Rate (USD)	Expected Inflow to Excess Crude Account (USD)	Expected Inflow to Excess Crude Account (NGN)
2007	$123.93	$23,239,738,446	₦2,848,134,733,464
2008	$117.00	$27,001,792,263	₦3,129,147,007,076
2009	$146.82	$13,955,741,897	₦2,065,965,765,903
2010	$148.31	$13,393,592,001	₦1,988,126,673,193
2011	$151.83	$31,320,769,109	₦4,755,109,947,261
2012	$155.43	$29,890,983,273	₦4,646,453,215,411
2013	$155.25	$12,611,987,083	₦1,958,074,330,008
2014	$156.45	$15,459,851,348	₦2,399,926,504,881
Total		$166,874,455,420	₦23,790,938,177,198

Table 4: Annual Expected Inflow into ECA
Net Expected Balance in ECA
The reports by the Office of the Accountant General (OAGF) as well as reports by the Federal and state governments agreed that withdrawals for the National Integrated Power Project (NIPP) in March 2013 revealed that the annual withdrawals from ECA (actual withdrawals) for 2007 to 2010 were ₦708.93 billion, ₦1.637 trillion, ₦1.546 trillion, and ₦1.325 trillion respectively.
Also, annual withdrawals for 2011 to 2014 were reported to be ₦1.841 trillion, ₦1.606 trillion, ₦2.905 trillion, and ₦320 billion respectively.
Cumulatively, total withdrawals of ₦11.89 trillion ($82.36 billion) was accounted for as withdrawals from ECA as FAAC distributions, funds for Sure P and NIPP.
Following this figures, the net expected balance in the ECA as at December 2014 should be ₦11.900 trillion ($84.52 billion).

Year	Expected inflow to ECA(a)	Withdrawals from ECA FAAC Distribution & NIPP (b)	Net Expected Balance in ECA (c=a-b)
2007	₦2,848,134,733,464	₦708,934,242,999	₦2,139,200,490,465
2008	₦3,129,147,007,076	₦1,637,019,253,447	₦1,492,127,753,629
2009	₦2,065,965,765,903	₦1,546,424,383,686	₦519,541,382,217
2010	₦1,988,126,673,193	₦1,325,445,268,663	₦662,681,404,530
2011	₦4,755,109,947,261	₦1,841,078,872,301	₦2,914,031,074,960
2012	₦4,646,453,215,411	₦1,606,412,995,298	₦3,040,040,220,113
2013	₦1,958,074,330,008	₦2,905,100,000,590	-₦947,025,670,582
2014	₦2,399,926,504,881	₦319,943,121,223	₦2,079,983,383,658
Total	₦23,790,938,177,197	₦11,890,358,138,207	₦11,900,580,038,990

Table 5: Net Expected Balance in ECA
Summary of Unaccounted Amount in the Excess Crude Funds
Ms. Okonjo-Iweala through the Ministry of Finance published summary information on transfer to excess crude account from 2011 to May 2015.
The Minister claimed in the publication that the actual balance in the Excess Crude Account, as at December to 2014, was $2,060,554,241, which by the CBN IFEM figures, stood at ₦344.85 billion (₦344,848,470,446) as shown in Table 6 below.
Recalling from Table 5 above, the expected net balance in the ECA as at December 2014 was ₦11.901 trillion.
By calculating the difference between the net expected balance in the ECA (₦11.901 trillion) and the actual balance in ECA as at December 2014 (₦344.85 billion) i.e (₦11,900,580,038,990 – ₦344,848,470,446), it is clear that for the period of 2007 to 2014, a total of N11.56 trillion (₦11,555,731,568,544) was unaccounted for.

		USD	NGN
1	Total Expected Inflow to Excess Crude Account	$166,874,455,420	₦23,790,938,177,198	a
	Less:
	Withdrawals from ECA (NIPP by March 2013)	$8,425,000,000	₦1,308,012,289,474
	Withdrawals from ECA, (FAAC Distributions) to FG and States	$73,930,904,083	₦10,582,345,848,734
2	Total Withdrawals from ECA: as FAAC Distributions + Sure P and NIPP	$82,355,904,083	₦11,890,358,138,208	b
	Net Expected Balance in ECA as at Dec 2014	$84,518,551,337	₦11,900,580,038,990	c = a – b
	Deduct:
	Actual Balance in ECA as at Dec 2014	$2,060,554,241	₦344,848,470,446	d
3	Amount Unaccounted for in ECA	$82,457,997,097	₦11,555,731,568,544	e = c – d

Table 6: Summary of Findings
Authenticity of Data and Verification of Estimated Value
PREMIUM TIMES investigation relied solely on data obtained from relevant government agencies such CBN, NNPC, OAGF, Budget Office and Ministry of Finance. Moreover, in order to further verify and validate the analyzed data, FOI request were made to CBN, Ministry of Finance Revenue Mobilization and Federation Account (RevFAC) and the NNPC.

None of the FOI request to the four agencies gave the requested details as at the time of this report.
As much as these figures were concerned, it is believed from interrogating the available data from the Office of the Accountant General (OAGF), that no concrete coordination existed between the Ministry of Finance and the OAGF.
As identified by the Nigeria Extractive Industry Transparency Initiative [NEITI] report, the five major ministries, departments and agencies – CBN, NNPC, RevFAC, OAGF and Ministry of Finance — consistently gave conflicting figures, thereby confusing the public the more.
Conclusion
So far, PREMIUM TIMES investigation has shown that ₦11.56trillion that should have accrued to the Excess Crude Account is unaccounted for.
It remains to be seen whether the various agencies involved in the management of the account would open up their books and let Nigerians understand how they handled and disbursed the funds on behalf of the Nigerian people.

See the infographics below for more information.