Okonjo-Iweala's powers to hire and fire
By Kingsley Osadolor
LAST week, the Federal Ministry of Finance issued a statement whose dangerous import was sugar-coated with the government's omnibus reform agenda. In the statement, the Ministry revealed that only about eight per cent of its workforce are professionals; another eight per cent are so-called generalists, while about five per cent are support staff. Alarmingly, 79 per cent of the Ministry's 1,560 staff are categorised as "others". Even more worrisome, only 13 per cent of the staff have university degrees or higher qualifications, while 70 per cent are either secondary or primary school certificate holders. The statistics point unmistakably to the fact that a good many of the staff have no business being in the Ministry, as is mostly the case with other ministries and departments.
To cure the manpower inadequacies, the Ministry has adopted the recommendations of its reform committee headed by the Minister of State for Finance, Mrs. Esther Nenadi. In turn, the Finance Ministry forwarded the proposals to President Olusegun Obasanjo who has given the go-ahead for the immediate implementation of the plans to professionalise the Ministry. In addition to retraining and hiring staff with appropriate skills, the reform policy purports to include the de-pooling of the Ministry. The latter will give the Ministry exclusive powers to hire and fire, rather than recruit and disengage staff through the office of the Head of Service and the Federal Civil Service Commission.
Even with the best of intentions, precisely why the President assented to such a policy on hiring and firing is difficult to appreciate, considering the uproar bestirred by a similar policy three years ago. It was in August 2001 when, after a meeting of the Federal Executive Council (FEC), Chief Ojo Maduekwe, then Minister of Transport, and now one of President Obasanjo's Special Advisers, briefed the media on the wide-ranging powers that the FEC had purportedly conferred on the President. By those powers, the President could summarily dismiss or retire any Federal civil servant "in the public interest". The justification for those powers, according to Maduekwe, was the belief that "Public Service Rule 04601 was a cumbersome legislation which tied the government's hands unnecessarily, particularly on the issue of sanctioning of erring public officers and the (FEC) believed the President needed sweeping powers to deal with corrupt and inefficient public servants."
Asked whether those purported powers were not subversive of due process, Maduekwe declared with a bizarre sycophantic flourish: "Constitutional historians and legal scholars are all agreed that a President is a constitutional dictator; every President is a constitutional dictatorship and the nation has a choice whether to have a parliamentary system or a democracy with an Executive President." He added: "When you have elected a man to be President and he is an embodiment of the executive powers of the Federation as stated in the Constitution, he should not be under any let or hindrance in exercising this power". Maduekwe described President Obasanjo as mature and "can exercise these powers with all the statesmanship and all the integrity required and the day it is abused, of course, the National Assembly knows what to do".
How prescient the last clause was! One year after Maduekwe made that assertion, Obasanjo was battling to save his presidency, as the National Assembly cranked into motion the impeachment proceedings on grounds of the President's wanton violation of the Constitution. President Obasanjo survived the gambit, bloodied as he was in the process. Yet, since 2001, and more so since the beginning of his second term, the evidence that stares us all mockingly is that the President has been tending towards a worrisome dictatorship that encapsulates the misuse of executive powers, so much so that not a few have expressed regret that the impeachment plan of 2002 fell through.
It is instructive, therefore, that, by approving the proposal from the Ministry of Finance, President Obasanjo has delegated to the Finance Minister, Dr. Ngozi Okonjo-Iweala, the power to hire and fire without due process. In truth, Okonjo-Iweala has just been handed a poisoned chalice. She cannot exercise those powers without being in breach of the Constitution and the substance of a number of decisions by the Supreme Court which state unequivocally that the Ministry of Finance cannot do on its own what it believes the President has given it the mandate to execute. Shortly after Ojo Maduekwe rambled about "constitutional dictatorship", the Secretary to the Government of the Federation, Chief Ufot Ekaette, rebutted Maduekwe's assertions. The Secretary said in a statement: " I wish to correct the misrepresentation and confirm that the power to appoint and exercise disciplinary action on officers in the Federal civil service, including retirement in the public interest, still resides in the Federal Civil Service Commission as entrenched in Part 1(D) Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999."
Chief Ekaette is still the Secretary to the Government of the Federation. He has not recanted that statement he issued three years ago this month. The relevant part of the Third Schedule to the Constitution, to which he referred, has not been amended or repealed. After the issue came to light in 2001, the matter died naturally, because the President realised he could not exercise those powers that his Ministers had purported to confer on him. Now, he is purporting to confer similar powers, which he doesn't have, on a Minister. There couldn't be a better illustration of the maxim: Nemo dat quod non habet, which means you cannot give what you do not have. Section 171 of the Constitution empowers the President to hire and fire persons who are Secretary to the Government of the Federation; Head of the Civil Service of the Federation; Ambassador or High Commissioner; Permanent Secretary or Head of any Extra-Ministerial Department of the Government, and anybody on the personal staff of the President. But the foregoing powers do not extend to the generality of the civil service. The latter have appointments with a statutory flavour, and the rules laid down must be followed in their engagement and disengagement.
Without meaning to, the Finance Ministry, if it ever exercised the direct powers to hire and fire, will be on a collision course with the Office of Head of Service as well as the Federal Civil Service Commission, which coordinates recruitment and disengagement. Where the government is heedless enough and prompts Okonjo-Iweala to exercise those empty powers of hiring and firing, the potential for anarchy will be real indeed. It will be an act of lawlessness and one more count against a government that chooses which it laws it obeys and which court orders it respects. Moreover, Okonjo-Iweala is one of the Ministers whose dollarised earnings in breach of extant laws still generate controversy. Whether she wants to develop a reputation for benefiting from lawlessness is her choice, notwithstanding the altruism that guides her actions. Where such lawlessness benefits the Ministry of Finance, there will be no disincentive to other ministries and extra-ministerial departments to seek similar powers in order for them to professionalise their operations. That, of course, will mean further erosion, without due process, of explicit clauses in the Constitution. Indeed, if the Federal Government can get away with such waywardness, many state and local governments will only be too willing to be poor imitators of transgressors against the Constitution.
By no means should the foregoing be misconstrued as a condonation of a loaded, inefficient or incompetent civil service. Without doubt, many of the failings of various governments for which political actors take the blame are traceable ultimately to an inept civil service. In principle, therefore, one is for the move to professionalise the service. But in doing so, there must be obedience to the law and a recollection of history. In 1975/76, the civil service was not as rotten as it is today; yet it was in a professed bid to cleanse the system that the Murtala/Obasanjo junta savaged the civil service with mass job erasures whose chief consequence was the emergence of a service dedicated, first and last, to itself rather than the governed.
Tempting as the lynch mob mentality may be in achieving expedited results, it must be shunned in favour of due process. Reforming the civil service or any part of it must be within the ambit of the law. Where the law is found to be a hindrance, the challenge is to first reform the law and then use it accordingly to reform the service. There is little doubt that few organisations in the private sector will harbour the kind of manpower mismatch that the Finance Ministry announced that it has. But the rules governing hiring and firing in the private sector are different from the civil service. In the immediate matter of the Ministry of Finance, it must deal with the Federal Civil Service Commission, to work out redeployment and transfers as a stop-gap measure. A Ministry can stipulate the calibre of staff that it requires but under the prevailing rules it is not within its powers to storm the job market in search of recruits who, though qualified, may be engaged in breach of some of the safeguards prescribed and enforced by the Civil Service Commission.
