12th May 2023
Distinguished Senator Yusuf Yusuf
The Chairman, Ad-hoc Committee Investigating Budgets of the NDDC,
Senate of Nigeria,
Three Arms Zone
SUBMISSION ON THE LINGERING CRISES OF USURPATION OF THE POWERS OF THE BOARD OF NIGER DELTA DEVELOPMENT COMMISSION BY IT’S MANAGEMENT
We are Legal Practitioners based in the above address with interests spanning constitutionalism, human rights, public interests advocacy and litigation. We have watched with keen interest the crises of leadership tussles at the NDDC which is a needless act of usurpation of powers of the board by it’s management. The crises has now extended to the process of budgeting by the commission and if proper understanding of the Act establishing the commission and the civil service rules are not adhered to and upheld by the relevant institutions and stakeholders, that will undermine the principles of good corporate governance that will hamper the Commission from its mandate.
We therefore welcome the Senate setting up an Ad-hoc Committee under your Chairmanship to investigate the 2021, 2022 and 2023 estimates of the Commission
We respectfully identified the following key areas for determination and proffer necessary advice:
- THE ROLE OF THE CHAIRMAN OF THE GOVERNING BOARD OF NDDC
We submit that the NDDC’s highest decision making organ is the Governing Board .This is amplified by section 1 sub-section 2 (1)(a) of the Niger Delta Development Commission (Establishment etc) Act 2000. This board headed by the Chairman in conjunction with the office of the Managing Director shall formulate necessary guidelines for the development of Niger Delta area.
Section 8 of the Act further provides that the Board shall have power to:
a. manage and supervise the affairs of the commission,
b. make rules and regulations to carry out the functions of the commission,
c. enter into such contracts as may be necessary or expedient for the discharge of its functions and
d. ensure the efficient performance of the functions of the commission.
With the above provisons of the Act, it becomes a settled matter of law that the Chairman of the Governing Board is the supervisory authority on all issues affecting the Commission. Without the approval of the Board, any action so taken will be a violation of the Act, and thus illegal.
The overarching responsibility of the Chairman is to protect the resources of the people and make sure that due process is followed in all administrative and financial activities. The Governing board is therefore superior to the Managing Director, because the Management must always seek approvals of the Board to make or take significant decisions.
It’s therefore our considered view based on the extant law that the Commission can only effectively perform its roles with a substantive Governing Board headed by a Chairman. Any act done without the input and approval of the board is invalid and therefore remains voidable. The so called MoU signed by the management of NDDC with a United State based firm for the construction of railway in some parts of Niger Delta without the knowledge and approval of its governing board, is nothing but a gross usurpation of powers of the board as enshrined in the Act, and therefore null and void.
- CAN THE MANAGEMENT TEAM UNILATERALLY PREPARE AND PRESENT NNDC’S BUDGET TO THE NATIONAL ASSEMBLY WITHOUT INPUTS AND APPROVAL OF SAME BY THE GOVERNING BOARD?
Section 18 (1) of the NDDC act clearly provides answers to this question. The said section is herein reproduced for ease of reference,
The board shall not, later than 30th September in each year submit to the National Assembly, through the President, Commander in Chief of the Armed Forces an estimate and expenditure of the income of the commission during the next succeeding year for approval.
It is clear from the above Section that the only person that can present the budget of the Commission to the National Assembly is its Chairman. Any budget presented to the National Assembly, including the Senate, by the Management of the Commission is a breach of the Act that established the Commission. We therefore urge Your respected Red Chamber to decline validating the illegal budget proposal before you as that will amount to giving a stamp of acceptance to an unlawful act. The Senate should not consider any budget estimates from the Commission that is not approved by it’s board and presented for your consideration by the Chairman of the Commission.
May I, with respect also refer you to the Supplementary provisions regarding the Board in the NDDC Act, otherwise referred to as the Schedule. Section 1 (2)of the Schedule clearly provides that, the quorum of board shall be the Chairman and that the Board can only meet wherever it is convened by the Chairman and that under section 4 (1) the fixing of the seal of the commission shall be authenticated by the signatures by the chairman or any member of the board generally or specifically authorised by the board to act for that purpose and the managing director.
It is not in doubt that any decision made by the commission must be sanctioned by the Board. The management cannot act outside the province and authority of the Board.
The management team should be made to understand that it does not have unlimited authority and the principle of checks and balances under constitutional democracy has also been put in place by the NDDC Act so that the management team cannot confer unto itself emergency powers which will ultimately lead to abuse.
- UNAUTHORISED AND FRUITLESS EXPENDITURES
We also respectfully urge your Ad-hoc Committee to examine if the Management of the Commission, especially the Managing Director, have observed the Public Service Rules, including that of seeking the approval of their supervising authority in this case, the Chairman of the board – before undertaking local and foreign trips; and also whether they travel within the airfare class so prescribed by the Public Service Rules.
We hope that you shall give the necessary considerations to the salient issues of law raised by our submission in this document and use them to resolve this unnecessary usurpation and abuse of power.
YUSUF DANKOFA, PHD
Professor of Law.