SEC Versus NASS: The Kettle and the Pot

Everyone now knows the story-the House of Representatives Committee on Capital Markets decides to conduct a public hearing on the capital market, as should be its purview. It fixes a date and arranges other logistics for the hearing, and then writes a letter inviting the Director-General of the Securities and Exchange Commission (SEC), the government-established regulatory agency for the capital market, again as it should be expected (or indeed required) to. The problem arises when it attaches the budget for the hearing to its letter to the SEC DG, implicitly or explicitly soliciting a donation in support of the hearing. This is the principal agency which the committee by virtue of its mandate exercises legislative “oversight” over! We can go on and on about the capital market committee, but it seems this is a regular, indeed routine practice between the legislative houses and agencies and ministries (and perhaps even private sector entities?) affected by matters which are before the legislature and its committees! This practice makes absolute nonsense of the independent judgment parliament is required to exercise on behalf of the electorate whenever conducting investigations or considering some legislation. Essentially the consequence of such a practice, even if individual legislators did not benefit in any way from the “assistance” offered by these entities is to bias the legislature and erode its independence and impartiality. It is worse if members of the investigating panel actually receive benefits in cash, or kind (such as airline tickets-probably first class or business, to the Dominican Republic!) from parties with an interest in the outcome of investigations or legislation. Other questions also arise-do ministries, departments and agencies include monetary support for the National Assembly in their annual budgets? If not, how do they procure the funds they utilise for such purposes? Should tax payer or public funds be utilised in this manner? Where public funds are used by an executive or regulatory agency in this manner, is the public required to know? Has there been transparency around such payments, which by all accounts appear to be a regular phenomenon? Aren’t there appropriations in National Assembly budgets for its committee sittings and public hearings? But then let’s go back to the story! SEC decides to “support” the committee hearing and duly approves a sum of N30million to be disbursed to the committee! At this point, both SEC and the House Capital Market Committee are indictable for corruption!!! As we know, both the person who solicits a corrupt inducement and the one who pays or offers to pay are potentially guilty of a crime! Again questions arise-did SEC have provisions in its budget for paying for legislative investigations? Can such a hearing be covered by the omnibus phrase “capital market development”? In what way does the “reformist” leadership of SEC think this action was different from the behaviour of its predecessors which it claims to be reforming? Anyway for some reason, the consensus-ad-idem between SEC DG Arunma Oteh and the House Committee Chair, Herman Hembe breaks down and the committee chair decides to go for Oteh’s jugular! And fortunately he has some fairly strong ammunition in his hand!!! Apparently Ms Oteh has been living in Nigeria’s most expensive hotel, Transcorp Hilton for over nine months running up a bill to the tax payer in excess of N30million! Mrs Oteh’s defence is to blame her subordinates for misleading her and not providing alternative accommodation as promised! Quite frankly, these statements somewhat validate Mr Hembe’s allegations of incompetence even if in his case, they may have been motivated by malice! The day the DG reported at SEC, she became CEO at the agency and became accountable for all the public funds entrusted to it. It became her responsibility to familiarise herself with rules and regulations guiding SEC and public service and to ensure that public funds were not spent in an irresponsible manner. Of course she must be aware of the maxim, “ignorance of the law is no excuse”! Indeed it does not require knowledge of any specific laws or regulations for a responsible public officer to know that spending N30million in a hotel cannot be a prudent manner of expending the resources of a financial market regulator! Could she have done that at the African Development Bank where she came from? Could an official of the US SEC spend the agency’s funds in that manner? How different was her behaviour from that of those she dismissed at the Nigerian Stock Exchange? Ms Oteh had also apparently engaged the services of two personnel from a publicly-quoted bank who worked in her office even though she claimed their work did not form part of the agency’s regulatory core? Again why did she feel comfortable risking accusations of potential conflict of interest and bias given that the bank was involved in significant transactions before SEC at the time? Well the SEC DG then fought back with a public attack on SEC employees whom she evidently suspected of leaking information to the committee and revelations that the committee chair had requested a bribe of N44million, and obtained funding for a trip to Dominican Republic which was never made. If you ask me, this sounds like the pot and the kettle-both look very black to me!!!

SNC or Scattered Monologues?

I have usually been cautious about the call for a “sovereign” national conference. I am a student of constitutional law, and I understand the complexity of trying to vest “sovereignty” in a “conference”, especially while there is an elected president, a dual chamber national assembly comprised of senators and members of a house of representatives; thirty-six state governors (many of whose elections have been tested in the courts and affirmed by the judiciary, up to the nation’s Supreme Court); and houses of assembly. If we were to convene a “sovereign national conference” (SNC), what would happen to all these institutions and offices? Would they be in abeyance, or be abolished? Could those offices continue concurrently with such a conference? What would happen to the constitution itself, since it doesn’t recognise or envisage such a temporary (or permanent) transfer of sovereignty? Would our armed forces, the intelligence agencies and police report to such a sovereign conference or would they continue to report to the president and commander-in-chief of the armed forces, whom the existing constitution regards as having operational control of those agencies? What if the conference is unable to reach consensus (since all agreements will have to be negotiated) on issues before it? Does sovereignty revert to the elected institutions or will it be extinguished or dissolved? Or will extra-national institutions (United Nations, African Union, etc) assume authority over the country? Will the judiciary recognise such a conference? Questions about the mode of representation and other modalities of convening, operating and reaching agreements at such a conference so far remain unanswered. Clearly, it is easier to call for SNC than to define exactly what the implications and other details of the proposed conference are, or will be. On the other hand, I am also not impressed by those who simply dismiss calls for SNC, insult its advocates, or simply raise queries without putting forward alternative views or recommendations towards resolving our current grave national condition, which confirms that the national question regarding Nigeria is far from settled. When “Boko Haram” and its sponsors call for Islamic Sharia all over Northern Nigeria, or indeed all over Nigeria, demands which are also not envisaged within the context of the current constitution, aren’t they in effect calling for some extra-constitutional discussion about the nature of the Nigerian federation? Why hasn’t “Boko Haram” forwarded its demands to the national assembly as proposals for constitutional amendment? Why did arguments over zoning and/or rotation ultimately result in Northern post-election violence last year? Why didn’t the Niger-Delta militants present their grievances to the national assembly for required legislation? Why did they resort to armed militancy? Why did late President Yar’Adua agree to engage with the militants and substantially accede to their demands? When Northern governors gather requesting review of revenue allocation formula in their favour in order to redress Northern poverty, aren’t they asking for some sort of negotiation? Why is South-West Nigeria perpetually calling for true federalism? Can these calls be ignored in perpetuity? Why do Igbos (and increasingly many others) celebrate Ojukwu as a hero? Isn’t that a sign that his battle to enthrone a more equitable union and reject hegemony now resonates with many more Nigerians? Why are South-South leaders looking to President Jonathan’s eventual exit from office with dread, worried that the region will simply return to being the goose that lays the golden petro-dollars, while others benefit, and they look on in despoiled anger? Why do we so regularly turn upon each other, killing and maiming fellow citizens in ethnic, religious, political or communal bloodletting? Why are nomadic herdsmen killing farmers and indigenes all over North-Central Nigeria while the whole country keeps quiet? Why is there a war going on over ownership of territory in Jos? Why do we have 60 percent poverty and 24 percent unemployment in spite of so much economic potential? Aren’t these all symptoms of something deeper and more fundamental? In spite of all these, there are those who arrogantly insist that every important issue about Nigeria has been settled. What type of spouse tells his partner and their children who complain about their family, with multiple instances of crisis and dysfunction, that every important matter concerning their home is settled? Wouldn’t it be more curious if the complainant happens to provide 85 percent of household resources while the dismissive spouse is economically dependent on the unhappy partner? Why are virtually all ethnic and regional groups in Nigeria retreating towards ethnic and regional formations and development agendas – BRACED Commission in the South-South; DAWN (Development Agenda for Western Nigeria) in the South-West; the usual Arewa/Northern formations (which recently appear to recognise the imperative of focusing on development rather than political power and religion); and the South-East governors who would most certainly follow suit. One may question whether a sovereign conference is possible, but we certainly need a national constitutional conference where leaders and representatives of all ethnic nationalities, the six geo-political regions and other stakeholders can have a sincere conversation about the structure and future of this dysfunctional unitary federation. A national dialogue is better than the scattered and intermittent monologues expressed through violence, threats and mutual intimidation currently going on. Of course if we don’t agree to talk now, we can have post-mortems later.

Security and Development in Lagos State

Security is one of those things which motivation scholars describe as “hygiene” factors – a state of security is not appreciated until insecurity is prevalent, then we seek earnestly for security, and once a state of security emerges, we are relieved and appreciate it, until the previous insecurity fades away, and then we forget. Ask Lagosians the achievements of the Fashola administration in Lagos, and they are likely to talk about tangible or visible phenomena, particularly infrastructure and social services: road construction, new school buildings, hospital services, environmental greening, clearing of Oshodi, improved refuse disposal system, BRT buses, etc. Very few people may immediately mention security of lives and property. I happen to think that is in fact the most significant achievement the Lagos government has recorded since 2007. Using my own personal experience, I recall facing four different armed robbery attacks between 2000 and 2007 – a brand new car was snatched in 2000, never to be seen again; armed robbers lurking at my gate in 2001 (apparently waiting to snatch my car) snatched my wife and a neighbour’s bags when I didn’t turn up in time; in 2003, while visiting a junior colleague who had just given birth, my entourage and I were attacked by robbers; and in 2007, my home was attacked during the night by armed marauders. Since 2007 (thanks be to God!), I have not had a similar encounter. My story may not be a scientific sample, but practically everyone I knew had tales of car snatching, home attacks, robbery during traffic snarls and worse up till 2007. Somewhat “miraculously”, much of these have ceased, even though episodes of crime have of course not been eradicated from Lagos. All over the country, crime and insecurity prevail – the Eastern states rife with armed robbery and kidnapping; while militants may have declared a (temporary) ceasefire in the Niger Delta, kidnappers and armed robbers (who may in substance be the same people as the erstwhile “militants”) continue unchecked; Edo and Delta States are overwhelmed with criminals and kidnappers. During a December 2011 visit to Warri, I realised the alarming extent of crime in the oil city and its negative impact on the local economy and night life). Many parts of the North have, as we know, been overtaken by terrorism and violence, subverting the economic potential of many Northern cities and states. In the later months of 2011, the South-West states (minus Lagos), especially Ogun, Oyo and Ondo, were taken over by armed robbers, leading in some cases to the closing down of banks and businesses, and consequent decline in commercial activity. Why has Lagos State been, by and large, exempt from the virtual breakdown of law and order and prevalence of crime and insecurity across the nation? Clearly, the state of security in Lagos is not happenstance or mere co-incidence but the consequence of a deliberate strategy encompassed in the activities of the Lagos State Security Trust Fund (LSSTF), which was set up by Governor Babatunde Raji Fashola under a law enacted by the State House of Assembly in 2007. The LSSTF is a public-private initiative created to address the issue of inadequate funding of the police and other law enforcement/security agencies by the federal government which is constitutionally charged with that responsibility. It is one of the acute incongruities of Nigeria’s current constitutional order that the federal government insists on not permitting the establishment of state police while abandoning not just the police, but most other federal agencies domiciled in the states (SSS, Customs, Prisons, Immigration, and even some federal secretariats) to the state governments for funding and operational maintenance. In effect, the state government neither eat their cake, nor have it. The LSSTF was created to bridge the huge funding gap which had condemned the police to ancient methods, untrained and ill-motivated personnel, ineffectiveness and almost total irrelevance in the fight against crime in Nigeria. Since its inception, LSSTF has mobilised over N8.4 billion as at October 2011 to support the activities of the police and other security agencies through provision of armoured personnel carriers, patrol vehicles, motorbikes, radio and communication equipment, kitting, training, incentives and personal allowances, fuelling and maintenance of vehicles, and other varied support. From available records, LSSTF mobilised N4.4billion in the seventeen months to December 2008, with Lagos State government (LASG) providing 56% while private sector entities provided the balance. In 2009, N1.12billion was raised, with LASG responsible for 74%. In 2010, N1.27billion was realised, with LASG contributing 67%. And in the ten months to October 2011, the fund generated N1.56billion, with LASG donating 82%. The enhanced equipment, mobility, competence and motivation of security agencies in Lagos State is the basis upon which the current relative peace and security in the state is founded. That peace and security is what substantially accounts for the economic and commercial progress made in the state. Businesses – local and foreign – can invest; a night economy has (at least partially) developed; firms can grow and generate new employment; the state’s tax base has expanded as a consequence; and more funds can be generated for investment in infrastructure and social services. I am told the Lagos State model is now being transferred to several other states. The sooner, the better!