Â There were two topics that took centre stage last week, the Magu/Senate/Presidency saga, which has reared its ugly head again, and the Voluntary Asset and Income Declaration Scheme. In fact, the players involved in the Magu matter, seem to be so passionate about it, that the issue of Restructuring of Nigeria seems to have been temporarily relegated!
The Issue of Magu
So I decided to consider the Magu situation, a bit more closely than I had done in the past. I remember that I had mentioned in passing in one of my previous columns, that Section 171 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2010) (the Constitution), is not applicable to the Economic and Financial Crimes Commission (EFCC), because the EFCC is a creation of statute. But was I right? I am not so sure. Even if the EFCC is a creation of statute, statute is subject to the Constitution.
Lack of Federal Character
Personally, I have nothing against Mr Magu. The only thing that I have against his candidature, is that it is my considered opinion, that appointment to the position of Chairman of the EFCC, seems to be the preserve of a particular section of the country (since its inception), which I believe is against the federal character provisions of the Constitution. The pioneer Chairman of the EFCC was Nuhu Ribadu (Adamawa State). We also had Farida Waziri (Benue State), Ibrahim Lamorde (Adamawa State) and now, Ibrahim Magu (Bornu State).
My question is, are there no other people from other parts of the country, that are qualified to do the job? These are the types of steps that Government takes, which causes disaffection and bitterness amongst the people, resulting in all the various types of agitation and palaver that we are experiencing today. For every competent Mr Magu, there is an equally competent Mr Akpan, Mrs Okoro, Mr Obaseki, Mrs Adeyemi or Mr Amachree. These appointments need to go round. The spirit of federal character and national unity, provided for in Sections 14(3), 15(2) & 15(4) of the Constitution, has certainly not been portrayed in the EFCC headship. I am sure that there are also other institutions, which always have headship from a particular area, excluding the North too. This is wrong.
There is a Federal Character Commission, established by virtue of Section 153(c) of the Constitution. Its role is to â€œimplement and enforce the federal character principle of fairness and equity in the distribution of public posts and socio-economic infrastructure among the various federating units in Nigeriaâ€, including extra-ministerial agencies, as provided for by Section 8 of the third schedule to the Constitution. Clearly, the Commission is not playing its role at all.
Section 171 of the Constitution
Section 171(1) of the Constitution, gives the President power to appoint persons to hold or act in certain offices (and remove them). Section 171(2)(a-e) lists the offices that fall under the purview of this provision. I suppose the Presidency is relying on Section 171(2)(d) which includes the â€œ….Head of any Extra-Ministerial Department of the Government of the Federation….â€.
What is an extra-ministerial department? It is a unit of government, whose function is independent of any ministerial oversight. Is the EFCC independent of ministerial oversight, unlike the parastatals? If the answer to this question is in the affirmative, then the President need not have sought Senate confirmation in the first place, even if the EFCC Act provides for it. This could be the crux of the matter. However, some lawyers are of the school of thought that, whether the EFCC is an extra-ministerial department or not, is a question for the court to decide, and neither the Senate nor the Executive, has the power to make that decision.
On the other hand, it follows from the above argument that, if the EFCC is not an extra- ministerial agency, then Section 171 of the Constitution is not applicable, Section 2(3) of the EFCC Act kicks in, and Senate confirmation is required. Lawyers, what do you think? Is the EFCC an extra-ministerial department or not?
The Senate, however, must be placing reliance on Section 2(3) of the EFCC Act, which provides inter alia, that the Chairman of the EFCC shall be appointed by the President, subject to the confirmation of the Senate; or that nominations in other agencies established in the same manner as the EFCC, are sent to the Senate for confirmation, so why should the case of the EFCC be different?
However, apart from Section 1(1) of the Constitution declaring that its provisions are supreme and binding on all authorities and persons throughout Nigeria, Section 1(3) clearly provides that where any law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and the inconsistent law shall, to the extent of its inconsistency, be void.
Simply put, if the EFCC is an extra-ministerial agency, it is the Constitution that permits the President to appoint Mr Magu to hold or act; Since Section 171, which confers those powers of appointment on the President, does not provide for Senate confirmation, the Constitution being the supreme law of the land, overrides the provisions of the EFCC Act. In fact, by virtue of the foregoing, Section 171 allows Mr Magu to be not just the Acting, but the substantive Chairman of the EFCC.
I must make mention of the fact that Section 171(5) of the Constitution directs the President to have â€œ..regard to the federal character of Nigeria and the need to promote national unityâ€ in exercising his powers of appointment under Section 171. I do not believe that this provision has been adhered to in the case of the EFCC.
The Voluntary Asset and Income Declaration Scheme
One of the reasons given by the Finance Minister on the need for this new tax measure, is the need for more revenue to come into the purse of Government. Apparently, only 14 million Nigerians pay taxes, while only 214 people pay taxes in excess of N20 million every year. Nigeria’s tax regime is about 6%, one of the lowest in the world, because majority of the people evade and avoid paying taxes.
We all know that the reason for paying tax, is for Government to raise revenue to do several things, including paying its workers. However, the largest use of tax revenue, is meant to be for the provision of amenities and development of infrastructure for the people, like roads, medical facilities, schools, and the like.
This new tax initiative taken by Government, is to checkmate tax evasion. The Scheme will run from July 1, 2017 till March 31, 2018, offering tax defaulters a one time opportunity, to come clean and regularise their positions. No penalties or interest will be paid on outstanding unpaid taxes. Also, tax defaulters will receive immunity from prosecution, and all information provided to the authorities will remain confidential (hmmm, tell that last confidentiality aspect to the Marines).
My question is, with the huge oil revenues that successive Governments have received over the years, what amenities did they provide? The hospitals are filthy, outdated death traps, the public transport system is zero, the standard of education is appallingly low, the roads are largely impassable, and security is not that great. The list of amenities that are lacking, is endless. This is one of the reasons why people avoid paying taxes. Why would anybody want to pay taxes, when the revenue ends up in private pockets, instead of being put to good use, for the benefit of the people? Most households are a local government on their own, providing their alternative sources of electricity, via ‘I better pass my neighbour’, generators, inverters, and solar panels; water, via wells, bore holes and water treatment plants, private security, sending their children to private schools and so on. Naturally, they prefer to keep their money to provide these services for themselves, since Government has failed them.
The Finance Minister however, believes that when people pay taxes, Government will be held more accountable for its expenditure. How? Being accountable is not just about going to Town Hall Meetings for question and answer sessions. It is about being able to compel Government to do the needful. I say that if Chapter 2 of the Constitution is made justiceable, that way, Government can be held accountable.
I wish Government the best of luck in its new tax drive. I would however, suggest that Government must, as a matter of urgency, start to inspire confidence in the people and earn their trust. Show more of a sense of responsibility and commitment to improving the standard of living of the people, by providing better amenities and infrastructure, instead of paying some government officials obscene salaries. If this is done, and people see that revenue is being put to good use, they will be happy to pay taxes.