NEW NNPC: CEOs’ Appointments Illegal -Coalition

  • Call for Kyari, others sacking
  • Cites Part 2, Fifth Schedule of 1999 Constitution
  • Threaten court action
  • Say civil servants can’t hold positions in private companies

Cyril Ogar and Yahaya Umar

Coalition of Civil Society Organisations has handed down a 72-hour ultimatum to the Federal Government within which to sack the Chief Executive Officer of NNPC Ltd Mele Kyari and CEOs’ of other subsidiaries of the Nigerian National Petroleum Corporation Limited or face a legal action over a gross violation of the nation’s constitution and public service laws, by stakeholders in the oil and gas industry.

The group handed down their demands in a statement jointly signed by the chairman Lord Charles Ibiang, a Petroleum and Energy Sector Analyst and made available to AljazirahNigeria in Abuja.

According to the group, the major achievements of the Petroleum Industry Act, PIA, is the fresh breathe it injected into the need to dismantle the opaqueness and cronyism in the State owned NNPC, which was reeling out corruptions, massive mismanagement of public wealth through the scandalous Subsidy Payment regime, under declaration of Crude lifting to cash calls debt scandals and others, not too palatable malfeasance.

The recent unveiling of the new post PIA NNPC Ltd is no doubt  a significant step in birthing a truly giant privately managed energy company, like Aramaco of Saudi Arabia, Petrobras of Brazil and our own private sector driven- public model success story like in NLNG

‘NNPC Limited and any of its subsidiaries shall conduct their affairs on a commercial basis in a profitable and efficient manner without recourse to Government funds  and NNPC Ltd shall operate under the Companies and Allied Matters Act entity, declare dividends to its shareholders and retain 20% of profits as retained earnings to grow its business.

Many industry stakeholders and observers are worried that the post PIA NNPC Ltd is supposed to be a paradigm shift, from the old normal, that should operate as a truly commercial and private sector driven system, manned by private individuals, who are highly competent and experienced in Oil and Gas. But the reverse seems to the case as the situation has remained the same, even during the transitory period given to the former management, after the formal incorporation of the NNPC Ltd Group at the Corporate Affairs Commission, the NNPC Board, should have advertised all the positions available and their job descriptions to the public for competitive recruitment processes in line with extant laws. This would have attracted very competent hands.

This opportunity was deliberately missed and the corporate governance laws violated, due to greed and cronyism through the imposition of a full time Public Servant as a GCEO of a Limited Liability Company.

How investors and serious investments can migrate to an environment, where corporate business laws are flouted and brazenly broken with impunity? Where will remedies be sought, during commercial disputes in an environment where such is permitted as a foundational framework?

Why are the same old, inefficient and incompetent leadership be foster on the new NNPCO LTD?  The answers to all these questions, only lead the citizens, investors, and investments into one conclusion, Nigeria is not serious with her petroleum reforms and nothing has changed.

Again interrogating the lawfulness of Mele Kyari; a full time Public Servant, who is subjected to the public service rules and laws, is assuming a director and the Group CEO of NNPC LTD, a limited Company. 

Even the Ministry of Petroleum Resources and Finance are not known to the constitution except the AGF and Minister of Justice! This is an argument for another day. Can a Civil or Public Servant take up positions as directors of a private company in the course of his employment knowing that a civil servant and Public Servant are the same? 

Citing Part 2 of the Fifth Schedule of the 1999 Constitution of the Federal Republic of Nigeria, which succinctly captured it, where it defines a public servant to include; Chairman, members and Staffs of Local Government Councils, Chairman and members of Boards of other governing bodies and staff of statutory corporations and of companies in which the Federal or State Government has controlling interest, etc.

As regards the violation of Kyari’s appointment, Sections 1, 2 and 4, Part 1 of the Fifth Schedule of the Constitution of the Federal Republic of Nigeria, provides a clear answer to it.

Specifically, Section 2 states; b “Without prejudice to the generality of the foregoing paragraph, a public officer shall not-

(a) Receive or be paid the emoluments of any public office at the same time as he receives or is paid the emoluments of any other public office; or

(b) Except Where He Is Not Employed On Full Time Basis, Engage Or Participate In The Management Or Running Of Any Private Business, Profession Or Trade but nothing in this sub- paragraph shall prevent a public officer from engaging in farming”, emphasis is mine’.

From the above, it is only public servants who are employed on a part-time basis may lawfully engage or participate in the management or running of a private business which may require assuming a role as director of a private company.

Stressing that without doubt taking on responsibility as director of any company requires a great measure of commitment and focus. Here the GCEO, Mele Kyari and other subsidiaries companies CEOs failed the legal test.

Only public servants, who are employed on a part time basis, are permitted by law to engage in or participate in the running of a private business as directors of a private company.

However, civil or public servants employed on a full time basis can take on the role as director of a private company (s) only upon retirement.

They can only engage in farming as a private business venture while fully employed in the civil or public service.

It is worth to note that the civil service is regulated by a code of conduct; as such civil servants must take serious note of the scope of their limitations as regards undertaking private business activities while in employment.

This indicates that Mele Kyari and CEOs’ of all the subsidiaries of former NNPC are limited by law and therefore, the appointments of Mele Kyari, others CEOs’ and subsequent Assumption of Offices  without retirement from the public service is in gross violation of the Constitution and Laws of the Federation.

The implications are that any actions taken by them, while presiding as CEO of NNPC Ltd, can be challenged in a competent Court as illegal. This is a danger investors will be wary of.

Fortunately, in order to help the system to do the right thing, the group threatens that the validity of this legality would be tested in Court to seek interpretation and clarity of the legality of the appointments, and directorships if Kyari is not sacked after the ultimatum given.

“We will follow up with full action after the expiration of our ultimatum and this will serve as a litmus test on the part of the Government on their fight against corruption and indiscipline”, the coalition said.

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