SOYINKA AND THE DOLLAR MINISTERS It is unfortunate that Prof Wole Soyinka was quoted in the news as absolving the dollar

SOYINKA AND THE DOLLAR MINISTERS

It is unfortunate that Prof Wole Soyinka was quoted in the news as absolving the dollar-paid Ministers of any blame because they have a right to negotiate whatever pay they deem fit for their services. To him the blame should go to "the government", by which he means Obasanjo, "who due to reasons have failed to address issues that need to be addressed" (as reported by ThisDay, March 4, 2004) or who "deliberately decided to pay them their current remuneration even when this is against the provisions of the constitution" (as reported by Vanguard of the same day).

Curiously, unlike most of Soyinka's intervention on national issues, this one has not helped Nigerians to understand what this is all about; rather, it further muddies the water by introducing the illogic of neglecting the principle of individual responsibility before the law as it specifically applies to the officers concerned. Yes, the President has the higher duty to protect the Constitution and see to it that our laws are obeyed; but this is also true of every public official, including Ministers. This is more so when the rules or constitutional provisions in question are specifically directed to regulate the behaviour and actions of those officials involved, in this case the Ministers.

As far as we're talking public service, their right to negotiate does not take precedence over the Constitution or Acts of the National Assembly; and, even if it were the private sector, they're bound to follow the rules and laws governing salaries and emoluments in such workplaces. In such a situation, a Chief Executive or whoever they negotiate with cannot grant to them powers and privileges he does not have capacity to grant by virtue of company rules. The Constitution did not give the President the power to grant the privileges he's granted them, so talking about negotiation rights is otiose. You cannot claim rights that the law does not grant you, even if you negotiate it with the President. Yes, Obasanjo will take responsibility for his part in the debacle, but the Ministers will have to shoulder theirs too. All we need ask is, are there provisions of the rules or law in question to which the Ministers are individually liable? The answer is YES.

But before we even begin to look at those specific provisions that hold the Ministers liable individually, let us make something clear. These are well-educated, smart and accomplished people, who couldn't have come into this without understanding their obligations under the laws of the Federal Republic of Nigeria. If indeed they had come in without knowing, the subsequent orientation they usually receive before taking up their position formally ought to have straightened them out. Besides they have the Attorney-General of the Federation as colleague and, if in doubt, they should have gone to him to clarify their rights and obligations. This is not counting the battery of ministry and personal lawyers in their service. And the fact that sources from within the RMAFC did in fact warn them about the illegality of this action before it was done indicates it is something that the parties knowingly and willingly did; thus, they must be deemed to know the full implications of their actions.

The first of these laws which hold them specifically and individually liable is the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc) Act No 6 2002, which specifically mentions the office of the Minister as entitled only to the sum of N794, 085 per annum as salary. It does not say they should be paid this money in another currency or any equivalence of the naira neither does it give room for them to be paid more. It simply says they should be paid that specific amount in naira as salary. Further, it should be noted that this particular law is a direct response to a constitutional mandate given the Revenue Mobilization Allocation and Fiscal Commission as a Section 153 (1) statutory body, whose powers are as contained in Section (32)(d), Part 1, Third Schedule of the Constitution of the Federal Republic of Nigeria (1999), which clearly gives the Commission the power to "determine the remuneration appropriate for political office holders, including the President, Vice-President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in sections 84 and 124 of this Constitution".

The other categories of infringements are contained in Part 1 of the Fifth Schedule, as part of the Code of Conduct provisions of the Constitution. Below are the sections to consider with specific regard to the Ministers' culpability:

1. A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.

3. The President, Vice -President, Governor, Deputy Governor, Ministers of the Government of the Federation and Commissioners of the Governments of the States, members of the National Assembly and of the Houses of Assembly of the States, and such other public officers or persons as the National Assembly may by law prescribe shall not maintain or operate a bank account in any country outside Nigeria.

9. A public officer shall not do or direct to be done in abuse of his office an arbitrary act prejudicial to the rights of any other persons knowing that such act is unlawful or contrary to any government policy.

13. A public officer who does any act prohibited by this Code through a nominee, trustee, or other agent shall be deemed ipso facto to have committed a breach of this Code.

With regard to Section 1 above, it is fair to say that the idea of collecting dollars as salary runs contrary to the legitimate expectations of Nigerians that part of the duty of their Finance Minister must be to protect the naira. It goes without saying that the Finance Minister was brought in to put policies in place to stabilize the national currency; but obviously her personal interest in taking her pay in dollars runs contrary to this idea of making the naira attain better value. In fact, the overall effect of what she has done can be properly labeled as economic sabotage. So on that count, she and the President who should know better are in violation of this section, ditto the Foreign Minister, whose duty as part of the cabinet must necessarily include avoiding actions that can be construed as economic sabotage as well.

Section 3 is speculative, but it must qualify as reasonable speculation because no one would be expected to collect such huge salaries in dollars and keep them locally. It may well be possible, after all, banks in Nigeria operate domiciliary accounts; but it is doubtful in the case of these Ministers, especially when we are being told in their defence of commitments such as mortgage payments abroad, children's school fees, etc. This would therefore depend on what the investigations unravel. The question is where are the dollars being paid into? Are they paid into accounts in Nigeria or abroad? If outside the country, they'd be deemed guilty under this section.

Section 9 holds the President guilty of abuse of office and the Ministers guilty as well for conspiring with him to do so. By arbitrarily arrogating to himself the power to make such deals, the president has collared himself with that charge and by accepting and benefiting from such an act, and, considering their positions, the two Ministers are guilty as well. These acts, of course, are prejudicial to the rights of other cabinet members earning the lawful salary especially and also prejudicial to the rights of the ordinary Nigerian taxpayer who does not expect to be shouldering such burden by virtue of what the law has stipulated as salaries for all Ministers. They all cannot claim lack of knowledge, as they have the Attorney-General to advise them on such matters and by virtue of their position really, they're deemed to know.

Section 13 talks about a breach if these prohibited acts are done through a nominee, trustee or other agents, which is exactly what is reported and admitted to have been done in this case, if it is true that such monies are being paid through the Nigerian Diaspora Trust Fund. That is a direct breach and it does not matter whether the UNDP or other donors are involved. The Constitution is very clear as to what constitutes a breach here and leaves no room for exemptions by emphasizing that there is a breach ipso facto, that is by that very act. It is the equivalence of a strict liability offence to which you cannot plead any defence. The very fact of the act done is conclusive proof of guilt.

Finally, we must believe that Okonjo-Iweala and Adeniji did not break the rules in their previous places of work, so no one, including Soyinka should expect that we will accept them coming down here to work, break the supreme law of our land, including other subsidiary laws and walk away without rebuke.

We are either a country of law or of beasts.

March 2004