The Nigerian public has been thrust into a state of uncertainty following recent developments surrounding the Bureau of Public Enterprises (BPE) and the Ministry of Finance Incorporated (MOFI).
The tussle between the two entities over the authority to reform sectors, privatise and commercialise the federal government’s assets has sparked concerns, necessitating a call for clarity.
The news broke when MOFI issued a directive to all DisCos, instructing the transfer of the federal government’s equity in electricity distribution companies (DisCos) to MOFI.
The directive has raised serious questions about which agency of government is empowered to drive the federal government’s Reform, Privatisation, and Commercialisation Programme.
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The Bureau of Public Enterprises (BPE) serves as the primary agency responsible for implementing the government’s Reform, Privatisation, and Commercialisation Programme, with a focus on driving economic growth and efficiency in Nigeria.
The Ministry of Finance Incorporated (MOFI) is entrusted with overseeing the central government’s assets, managing financial matters, and contributing to the overall economic strategy of Nigeria.
The directive from MOFI to the DisCos has ignited a conflict over the interpretation of roles and responsibilities. BPE asserts its statutory role as the sole agency of government entrusted with the mandate for the privatisation and commercialisation of FGN assets, emphasising that in addition to its statutory powers, it holds the irrevocable power of attorney (donated by MOFI) necessary for executing these processes.
In response to the conflicting directives, the Attorney General of the Federation is urged to intervene. There is a need for the attorney general to elucidate the roles of both BPE and MOFI, clarifying the legal authority underpinning their actions.
It is necessary to analyse the BPE stand and the directive issued to BPE by MOFI. It is important to know that the BPE has the upper hand because it knows that neither the MOFI Act of 1959 nor the Finance Act confer legal authority on MOFI to manage or privatise FGN assets.
Furthermore, the Public Enterprises (Privatisation and Commercialisation) Act, being an Act of the National Assembly and assented to by the President, supersedes any letter or policy statement on which MOFI bases its actions.
There is a need to also consider the following issues critically:
Can MOFI revoke a power of attorney without consulting the chairman of the National Council on Privatisation (NCP), who happens to be the Vice President of the Federal Republic of Nigeria?
When you look at the membership of the NCP, the Minister of Finance is the vice chairman of the NCP. Therefore, did MOFI get the approval of the NCP before commencing these actions?
Did MOFI consult the Minister of Justice/Attorney General of the Federation before taking these actions?
It is important to know that MOFI donated the PoA to BPE on the 27th day of March 2012 and the PoA states that: “The Power of Attorney hereby conferred shall be irrevocable”.
Both agencies await clarity from the federal government to resolve this unfortunate development. The ongoing dispute, if not handled judiciously, could adversely impact the activities of DisCos, which play a pivotal role in the Nigerian economy.
The government must ensure that MOFI understands its role and limitations. The attorney general’s intervention is essential to dispel the ongoing dispute, paving the way for the smooth progress of the Reform, Privatisation, and Commercialisation Programme needed to grow the Nigerian economy.
Let us also remember that posterity will judge if we refuse to do the right things at the time we were in the position to do it.
John Nwachukwu, lawyer and public analyst resides in Lagos
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