An appraisal of the Executive Order: The Federal Government through the Acting President, Prof. Yemi Osinbajo, issued an executive order, in a bid to create an enabling environment for businesses and also to promote transparency and efficiency in Government MDAs; formulated a policy aimed at increasing domestic and foreign investments, creation of employment and ultimately stimulating the national economy. Earlier, the federal government constituted the Presidential Enabling Business Environment Council to coordinate and work out the modalities for the implementation of this policy thrust of Government.

The Acting President signed Executive Orders to provide a legal framework for the policy and also to further strengthen its implementation. The major highlights of these EOs are captured under the following heads:

 

  1. Government Budgets
  2. Ease of doing business
  3. Promotion of Local content in public procurement

 

  1. GOVERNMENT BUDGETS

Under this heading, the EO directs that all MDAs to on or before the end May every year, prepare and submit their schedule of revenue and expenditure estimates for the next three financial years. These according to the Order are to be submitted to the Minister of Finance and the Minister of Budget and National Planning.

The order stipulates further that; MDAs shall on or before the end of July every year, prepare and submit to the Minister of Finance and the Minister of Budget and National Planning their annual budget estimates, which shall be derived from the estimates of revenue and expenditure as projected in the three-year schedule earlier mentioned.

 

Upon submission of the said schedule, it then becomes a duty of the Ministries of Finance, and, Budget and National Planning to review the estimates and ensure they conform with the national plan before they are approved and transmitted to the National Assembly for consideration as a budget for the purpose of passing the Appropriation Bill (Act) as required under the constitution of the Federal Republic of Nigeria, 1999 (as amended).

 

The EO also has a provision to the effect that; No payment shall be made in respect of any capital or recurrent liability, other than payment salaries and allowances for erring MDAs, except with the express approval of the President. It is submitted that this is an arrangement to checkmate corruption and wastage of public funds by public officer who are always found in the habit of spending without an approval of the President.

 

The EO prescribes that Heads of MDAs and Chief Executive Officers of Government owned companies shall “take personal responsibility and be subject to appropriate sanctions for any failure to comply with this Order”.

 

The mischief the EO aims to cure is the delay in the passage and assent of our National Budget occasioned by the late preparation and transmission of budget estimates by MDAs, with the 2016 and also 2017 budgets as a perfect reference point. It is submitted that; in as much as the EO is highly recommended, it however leaves much to be desired in the area of sanctions. As there is no clear cut stipulated sanction for failure to comply with the Order as can be seen above.

 

The EO fails to specifically mention what “appropriate sanctions” mean with regards to the personal responsibility of the Heads of erring MDAs. This should be corrected.

 

In like manner, simply withholding the capital and recurrent expenditure of erring MDAs without more, but paying salaries and allowances of such MDAs is not enough to curb this menace and get our National Budget cycle running for the national financial year.

 

There is no doubt that, every worker is entitled to wages for work done, but in line with the spirit of the EO and considering the mischief sought to be addressed, it is suggested that the salaries of the relevant personnel in the MDAs who are involved in preparing budget estimates should be withheld and/reduced on a pro-rata basis for every additional day that exceeds the deadline given, as a clear cut sanction. This will not only enhance effectiveness in the performance of the stipulated duty, it will also prevent undue delays occasioned in the preparation of budget and its passage, in the long run.

 

  1. EASE OF DOING BUSINESS 

 

This generally deals with the ease of doing business in the country. The EO provides for very sweeping innovations across board, in MDAs mostly involved in revenue generation for the Government. In a financial driven economy, one of the ways by which a country experiences financial prosperity is through businesses. This may however be a myth, where there is no ease in the doing of businesses. This is because; business investors either local or international contribute greatly to the economy. Thus, having a legal framework to regulate the doing of business in Nigeria is a commendable development.

For the purpose of clarification; According to section 1 of The Order, all Ministries, Departments, and Agencies (MDAs) of the federal government shall publish a complete list of requirements (including fees) on their websites. They shall also paste same list in a conspicuous place in their premises within 21 days of the issuance of the order.

In addition, according section 1 and section 2, “it shall be the responsibility of the head of the relevant MDA to ensure that the list is verified and kept up-to-date at all times. If there is any conflict between a published and an unpublished list of requirements, the published list shall prevail”.

Section 6 states, “there shall be at least two (2) modes of communication of acceptance or rejection of applications to the applicants by the relevant MDAs before the expiration of the stipulated time, including letters, emails and publications on MDA websites.”

Finally, according to section 3, any application for permits, registration or licenses not approved or rejected within the stipulated time will be deemed approved:

“Where the relevant agency or official fails to communicate approval or rejection of an application within the timeline stipulated in the published list, all applications for business registrations, certification, waivers, licenses or permits not concluded within the stipulated time shall be deemed approved and granted.”

An applicant whose application is deemed granted under this directive may, for the time being, apply to the minister in charge of the application for the issuance of any document or certificate in evidence of the grant within 14 days of lapse of the MDA’s stipulated timeline for the application.

Notably, more than 105MDA in Nigeria are affected by this particular order. Among these MDA is the Corporate Affairs Commission. In compliance with this Order, CAC has not only cancelled manual registration and incorporation but updated its portal to ease the tedious procedures involved in the pre-incorporation and post-incorporation of companies and other business entities in Nigeria. In the published list, the relevant agency will state the stipulated time in getting an approval. The implication is a reduction in the arbitrary cost of getting these simple things done. In addition, the days of overcrowded queues at the CAC are over. Although, this has its challenges despite complying with the Orders and one of such challenges is that the timeline stipulated on CAC portal for the incorporation of companies is more in the letters than reality.

 

  1. PROMOTION OF LOCAL CONTENT IN PUBLIC PROCUREMENT 

The EO directs that all MDAs of the FGN shall grant preference to local manufacturers of goods and service providers in their procurement of goods and services.  Also, any invitation for tenders shall specify the eligibility and criteria for qualification of local manufacturers and the preference to be granted such local manufacturers, in the procurement process.

 

Under this, there are various provisions for Made-in-Nigeria products and services to be given preference (up to 40%) in any procurement exercise to be carried by Government MDAs. This is a bid to reduce over reliance on foreign goods that are also produced locally and to also encourage local production and entrepreneurship in Nigeria.

Thus, according to the Order among other things, the heads of all MDAs of the FGN shall within 90 days of the date of this Order: propose policies to ensure that the Federal Government’s procurement of goods and services maximises the use of goods manufactured in Nigeria and services provided by Nigerian citizens doing business as sole proprietors, firms, or companies held wholly by them or in the majority;

 

In conclusion therefore, it is submitted that; these provisions are highly commendable; however it should not be used as an avenue by unscrupulous individuals in these MDAs to settle their cronies. As such an independent implementation and monitoring committee, comprising of persons of unquestionable character and integrity drawn from outside the MDAs be established to vet and monitor the bidding and award process. It is hoped that this will reduce the tendency of abuse of office by the heads of the MDAs and in turn achieve the aim of the laudable provisions of the EO.

Therefore, in order to achieve the aim of the Order to provide an avenue for ease of doing business, it is humbly suggested that;

  1. There is a need for proper training of officials and also for public enlightenment.
  2. Implementation is key- Officials/personnel of the affected MDAs should undergo continuous training.
  • Public participation and feed back is vital to the implementation of the order and as such the public should be properly enlightened on their role i.e. when a specified timeline or duty imposed by the act is not met, the public should not keep quiet and see it as a “Nigerian/normal ” thing but should be encouraged to explore the remedial mechanism contained in the order.
  1. With regards to the sanctions contained in the EO, the relevant questions to be asked include –

 

  1. Who will report the violations of the EO and;
  2. Who will enforce the violations of the EO (is it the same officials who are being reported)?
  3. There will be need to set up independent bodies to look into complaints, deal with them effectively and issue appropriate sanctions when necessary.

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By: A.A Odusanmi Esq (Associate)

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Author: chas