Category: Special Report

The Nigerian judiciary seems to be living in the past while the rest of the world is moving on. Antiquated rules and procedures, and undue reliance on technicalities, still hold the institution down. Some verdicts, such as the one that set free former Abia State Governor Orji Uzor Kalu, leave many scratching their heads as to the manner of justice being done. Deputy News Editor JOSEPH JIBUEZE examines how these procedural relics undermine justice.

Is the judiciary at war with itself through its rules and processes? There are reasons to believe so.

 A Senior Advocate of Nigeria (SAN), Jibrin Okutepa, captures the state of the judiciary.

He said: “If people who use the court system narrate and tell their experiences truthfully and honestly, there is only one conclusion to be reached: the justice system is in ruin.

 “Daily, Nigerians who use the court system get frustrated either due to the factors coming from the seat of justice or from those who are supposed to be ministers in the temple of justice.”

 Part of the cause of these frustrations is due to the judiciary’s refusal to move on from its hobbling present and past.

 Another SAN and former President of the Nigerian Bar Association (NBA), Dr Olisa Agbakopba, agrees that situation is dire. 

He said: “For decades, civil litigation in Nigeria has been besmirched by leprous devices seemingly concocted to defeat the ends of justice.”

 Not just civil litigation. The criminal justice system appears skewed to favour the powerful.

That is why an eminent professor of law, Itse Sagay (SAN), believes the judiciary has become hostile to the justice.

“We have a very serious problem,” he regretted.

One case that encapsulates most things wrong with the judiciary – from delays to frustration – is the trial of former Abia State Governor and now Senator, Orji Ozor Kalu.

 But the Judiciary can still make drastic, urgent changes, legal experts said.

Shocking verdict, waste of time, resources

Even the government is not immune to the effects of a failing justice system. 

Consider the effort, time and resources put into the 12-year trial of Kalu, and the eventual outcome

 The trial of Kalu, a former governor of Abia State, began in 2008.

 Before the enactment of the Administration of Criminal Justice Act (ACJA) 2015, he obtained a stay of proceedings in his trial.

The Economic and Financial Crimes Commission (EFCC) said Kalu, between 2001 and September 2006, procured Slok Nigeria Ltd, a company owned by him and members of his family, to retain N7.2billion in its Inland Bank Plc account, on his behalf.

Kalu was accused of collaborating with Udeh Jones Udeogu, Slok Nigeria and Emeka Abone “in concealing the genuine origin of an aggregate sum of N7,197,871,208.70…”

 Kalu and Udeogu, a former Director of Finance in Abia State Government House, pleaded not guilty to the charge.

After the Supreme Court dismissed Kalu’s interlocutory appeal, EFCC re-arraigned him before Justice Anwuri Chikere of the Federal High Court in Abuja on September 27, 2016.

 EFCC later got the Chief Judge (CJ) to transfer the case to the Lagos Division. 

On October 31, 2016, Kalu was re-arraigned before Justice Mohammed Idris of the Lagos Division.

 On March 20, 2018, after several witnesses had been called, the prosecution announced that a key witness in Kalu’s trial had suddenly relocated to Cameroun.

 EFCC later amended the charge and eventually closed its case on May 11, 2018.

 On May 28, 208, Kalu filed a no-case application, praying the court to discharge and acquit him. He said EFCC’s case against him was “feeble”, but Justice Idris, on July 31, 2018, dismissed the no-case submission.

On January 23, 2019, Justice Idris, who had been elevated to the Court of Appeal, announced that the Court of Appeal President Zainab Bulkachuwa did not give him a fiat to continue to adjudicate on the case.

 Six months later, on July 22, 2019, Justice Idris informed parties that he had been given the fiat.

Moments after Kalu opened his defence, his lawyer, Prof Awa Kalu (SAN), pleaded for an adjournment.

Justice Idris adjourned until August 26, 2019, from when he said the trial would be day-to-day.

  The case was stalled on August 26, 2019, because Kalu’s lawyer Prof Kalu “took ill”.

The trial was held on August 27, 28 and 29, 2019. The defence closed its case after the August 29 proceedings.

 Justice Idris adjourned until October 22, 2019, for the adoption of written addresses.

   On December 5, 2019, Justice Idris found the defendants guilty as charged.

 The judge said: “No evil deed will go unpunished. The offences are anti-human; it is condemned worldwide because it is a crime against humanity.”

Justice Idris sentenced Kalu to five years each on counts one to 11; three years each on counts 23 to 33, and 12 years each on counts 34 to 38.

 The judge said the sentences would run concurrently, meaning Kalu will only spend a maximum of 12 years in jail.

 Justice Idris ordered that Slok be wound up and its assets forfeited to the Federal Government.

 The judge also sentenced Udeogu to three years each on counts 23, 23, 25, 28, 30, 31, 32; 10 years each on counts 34, 37, and 38; and five years each on count 39.

How Kalu was freed

 All the years, time and resources put into Kalu’s trial and conviction turned out to be a waste.

On May 8, 2020, the Supreme Court reversed it all.

In a unanimous decision by a seven-man panel, the Supreme Court nullified the entire proceedings that led to Kalu’s conviction.

 It ordered the CJ to re-assign the over-a-decade-old case to another judge for re-trial.

 The Supreme Court held that Justice Idris acted without jurisdiction when he convicted Kalu, Slok Nigeria and Udeogu.

 It noted that Justice Idris was no longer a judge of the Federal High Court as of December 5, 2019, when he sat and delivered the judgment that convicted the defendants for allegedly stealing about N7.1 billion from the Abia treasury.

 According to the Supreme Court, Justice Idris, having been elevated to the Court of Appeal before then, lacked the powers to return to sit as a High Court judge to conclude a case that had dragged on endlessly for years.

It held that the fiat that was issued to him by the Court of Appeal President pursuant to Section 396(7) of the ACJA 2015 was unconstitutional.

 The section, now struck down, allowed a judge elevated to the appellate court to return and conclude part-heard cases.

 Another twist

Following the nullification of his conviction, Kanu filed an application at the Federal High Court seeking an order for his release from the custody of the Nigerian Correctional Service (NCS), Kuje, Abuja.

 In June 2020, Justice Mohammed Liman granted the application and ordered Kalu’s immediate release from custody.

 As EFCC moved to have the defendants retried, Kalu returned to the court to file an application stopping his retrial.

Prof Kalu argued that the Supreme Court never ordered his client’s retrial as he was not a party in Udeogu’s appeal, despite Kalu benefiting from the application by Udeogu and the eventual judgment.

 On September 29, 2021, Justice Inyang Ekwo of the Federal High Court in Abuja barred the EFCC from retrying Kalu.

 The judge held that the Supreme Court did not order Kalu’s retrial.

 “The judgment of the Supreme Court on this matter is final,” the judge held.

EFCC alleges manipulation

EFCC’s lawyer, Rotimi Jacobs (SAN), had pointed out Kalu’s seeming irony in the application.

 He suggested that Kalu was trying to take benefit of the Supreme Court judgment which nullified his earlier trial, and at the same Kalu was trying to avoid the burden of a retrial also ordered in the same verdict.

 “The plaintiff (Orji Kalu) and his co-defendant are enjoying the benefit of the Supreme Court judgment, but they are avoiding the burden that comes with it,” he said, but Justice Ekwo disagreed with him.

Sagay decries ‘technical justice’

The Supreme Court verdict in the Kalu case drew criticisms from eminent lawyers.

 Prof Sagay, who chairs the Presidential Advisory Committee Against Corruption (PACAC), said the Supreme Court had become “notorious” for such judgments.

 He said: “I consider the Nigerian judiciary hostile to the anti-corruption war. They have been indulging and insisting on technical judgments contrary to the justice of the case.

 “Nigeria is a common law country. Since 1873, the common law introduced the doctrine that where there is a clash between law and equity, meaning between technicality and justice, equity, that is justice, must prevail. This is a major aspect of our law.

 “But in judgment after judgment after judgment, the Supreme Court, which is supposed to be providing leadership on the issue of the superiority of justice over technical law, has done the very opposite, not in error, but deliberately and willfully.”

 Faulting the Kalu decision, Sagay said: “This is in spite of the fact that an Act of the National Assembly specifically empowers a promoted judge to complete his part-heard criminal matters in the high court.

 “These are just a few samples of judicial hostility to the fight against corruption. So, the problem is not the efficiency of the judicial system.

 “Everything has been done to eliminate inefficiency and ineffectiveness in the administration of justice in this country by the ACJA 2015.

 “The problem is human – the judicial officers, not the system.

 “If you change their orientation to justice, then, definitely, corruption will be dealt a deadly blow. 

“So, we need to beg the Judiciary for a change of heart, otherwise, the war against corruption will continue to meet a brick wall when it gets to the very last stage – the judicial stage.

 “A judiciary that is hostile will always find a technical excuse for setting aside justice to the detriment of the whole country in the fight against corruption.

 “Let me emphasise that not all judges are playing this role, but there is a significant number doing that, and the Supreme Court has become notorious for this type of judgment.”

SANs fault verdict

 Another SAN, Chino Obiagwu, also faulted the Kalu decision.

He said: “The upheaval implications of this decision to our criminal jurisprudence is profound.

 “Its negative impact will set us back in the task of advancing the much-needed purpose of ACJA, which is fair, speedy and effective criminal justice administration in Nigeria.”

 He noted that the innovative provision of Section 396(7) of ACJA was introduced to reduce the anomaly of part-heard criminal cases starting afresh because the judge handling the cases is appointed to a higher court.

 The practice of starting cases de novo, he said, usually leads to the failure of prosecutions.

 This is because the witnesses will nearly always be reluctant to return to court for another round of tedious trials.

 Obiagwu disagreed with the Supreme Court that Section 396(7) of ACJA contravenes Section 290 of the Constitution, which provides for the administration of an oath of allegiance on a judicial officer.

He said: “We respectfully hold the view that the decision is, procedurally and substantively, unjustified.

“It is procedurally flawed because it was the appellants in the case (as defendants at the trial court) who requested for the newly elevated trial judge to return to complete the trial.

 “A person cannot benefit from his own actions if later found to be unlawful.

 “The decision is also substantively flawed because a statute can give additional powers to a judge or justice, or to the court, and that would not be considered as unlawful or conflicting with the Constitution.

 “It will conflict with the Constitution if such statutory provision removes, limits or diminishes the constitutional provisions.

 “There are other provisions of many statutes that permit the justices of the appeal court to exercise the powers of the trial court, such as sections 16 and 22 of the Court of Appeal Act and Supreme Court Act respectively.

 “Also, laws establishing administrative inquiries or panels permit a judge to sit as chair or member of such administrative panel without diminishing his powers as a judge of the High Court or justice of the appeal court when he returns to that position or concurrently performs same.

 “Thus, Section 396(7) of ACJA simply added a function to the newly appointed Justice of the Court of Appeal but has not diminished his role, position or function as a justice of the Court of Appeal.”

Obiagwu called for a Constitution amendment to include a provision that a judicial officer elevated to a higher court or to another function, should conclude all part-heard matters before taking his oath of office to the new office.

 He believes if this is done, the current case law (emanating from the Supreme Court judgment) that upon mere announcement of the elevation of a judge or magistrate, he can no longer perform the function of his former office, will be legislatively overruled.

‘Supreme court wavered’

A former Benue State Attorney General and Commissioner for Justice, Chief Mamman Osuman (SAN), also faulted an aspect of the Udeogu judgment.

 He said: “I respectfully submit that the Supreme Court not only wavered but shied away from being the formidable court it should be.

 “Rather than boldly extend the order or the gratis of a retrial de novo to the first and third defendants i.e. (Orji Uzor Kalu and Slok Nigeria Limited) the Supreme Court embraced the technicality provided by both the Supreme Court Rules and the philosophy behind appeals to say that its order for a retrial de novo ‘pertains and relates to the appellant’ alone.

 “The path of justice, I humbly submit, would require that the other two defendants who were subjected to the same erroneous, illegal and unconstitutional trial conducted by his lordship M.D. Idris JCA be made to undergo a retrial.”

 Osuman urged the Supreme Court to revisit the judgment, since it is not infallible, and having done so before.

  He reminded the highest court of its verdict in the case of Adegoke Motors Ltd v. Adesanya (1989) 5 S.C. 113; (1989) 3 NWLR (part 109) pg. 250 at pg 274: “We are not final because we are infallible, rather we are infallible because we are final. Justices of this court are human beings capable of erring.”

Archaic rules, procedures in need of renewal

 Aside from technicalities, antiquated court rules, practices and procedures have continued to hobble the dispensation of justice.

For many observers, what is worse is that the rules have allowed these provisions to continue to exist and be deployed for unjust and evil purposes while the authorities watch almost helplessly.

Dr Agbakoba decried the fact that for decades, civil litigation in Nigeria has been besmirched by what he called “leprous devices seemingly concocted to defeat the ends of justice”.

 According to him, lawyers created these devices to keep themselves looking busy while achieving little.

 Lawyers, he said, wake up in the morning, don their wigs and gowns, and go to court.

“One would think they were doing something important or useful. Instead, in court, lawyers deploy, exploit, and manipulate these devices like ‘adjournment’, ‘call-over’, ‘date’, ‘extension of time’, ‘jurisdiction’, ‘mention’, and ‘objections’, among others, to delay justice.

“Lawyers on opposing sides may disagree on the merits of their respective cases, but they agree on the frequent invocation of these mantras.

 “Judges, who are of course lawyers and most have practised this hocus-pocus for decades before ascending the bench, watch in bemusement, fellow feeling, empathy, or sympathy.”

He said sometimes judges are reluctant to stop the lawyers’ excesses for fear of being accused of bias.

 Agbakoba said: “Sometimes, chagrined by the damage lawyers’ wizardry was doing to justice delivery, some judges wished they could intervene to stop it all.

 “But they feared they could not because that would mean descending into the arena; a species of witchcraft condemned by a long line of their illustrious forebears at common law.

 “The mantra seemed to be: once you ascend (to the bench), you must never descend (to the arena).

 “Thus the adjournment culture has flourished – a conspiracy between Bench and Bar to deprive paying clients of their day in court.

 “Lawyers can argue for an hour over date fixture while the judge, apparently entranced, watched in silent disdain.”

 The SAN wondered whether some of the things the judiciary tolerates can be allowed in other sectors.

 He said: “It is only in the business of law that people go to work just to argue about when to begin scratching the work. They call it ‘mention’.

 “If your doctor did that, you would sue for medical malpractice!  

 “In Nigeria, the adjournment culture is so deeply entrenched that even good lawyers go to court expecting an adjournment. Judges are almost always willing to oblige.

 “Often, when a case is called up, neither bar nor bench is prepared to proceed. Counsel is often unprepared: The Judge has not read the file.

 “Every day, large numbers of lawyers, looking like penguins or dolphins and wearing uncomfortable apparel, crowd into courtrooms all over Nigeria for call-overs and the like, with little respect for time or their client’s business.

 “Cases take far too long. On average, a case takes 15 years to crawl from the High Court to the Supreme Court, bogged down in the meantime by interlocutory appeals to the Court of Appeal and the Supreme Court, while the substantive dispute stalls at the High Court.”

Agbakoba believes there were far too many frivolous or unnecessary cases clogging the court system.

This, he noted, is so because the judiciary has no filtering process to knock off cases that out not to go on appeal.

The SAN said: “On 24 October 2011, a Report of the National Judicial Council (NJC) Subcommittee on Speedy Dispensation of Justice reported that some 75 per cent of cases on court dockets all over the country, ought not to be there in the first place.

“They are frivolous or unnecessary. They do not deserve judicial attention.

“Unfortunately, the court system welcomes all cases without a filter. So, the litigants virtually order the courts around.

“Litigants, through their lawyers, file and discontinue cases without regard to the court’s time.

“Even an abandoned case can remain on the dockets for years, under the guise of fair hearing.

“Hearing notices are issued ad infinitum to unwilling parties.”

The situation, Agbakoba emphasised, is not a realistic model for managing a modern court.

“The court cannot continue to be an all-comers’ dispute-resolution stadium

“Its business model must be re-defined so that the court transforms into a dispute-resolution engine room with a mind of its own and freedom of choice about which disputes it can or should take on.

“We must erect a firewall against the halls of justice to protect the courts against viral abuse.

“Frivolous, unnecessary, or vexatious claims are viruses in the bloodstream of our judicature,” he said.

Agbakoba called for a radical reform of the civil procedure system, with an emphasis on case management.

He said: “Other jurisdictions have understood the transformative value of case management in making litigation cheaper, quicker, smoother, more efficient, and more effective.”

But it will take strong to change the system, he noted.

This is because while there have been attempts to speed up justice delivery through civil procedure reform over the past few decades, each change of rules has not been followed by a change in judicial attitude.

“Judges still bow to the tyranny of rules, interpreting them with a degree of strictness, sometimes higher than that applied to statutes.

“Unless this attitude is changed, reforms will fail,” he said.

Agbakoba believes the judiciary must bring to the application and interpretation of court rules a high degree of flexibility.

This will be in keeping with the guiding philosophy of those rules – the swift delivery of justice with business-like efficiency.

“Case management is the spirit of modern court rules.

“I suggest that judges must now go beyond procedural reform and adopt case management tools as their dominant work ethic,” he said.

Role of judges

Judges must drop that ancient regime of slavery to rules, Agbakoba said.

“With each progressive change of rules in the past, judges have simply transferred to the new rules, their doctrinaire approach to the old,” he said, adding that this must change.

“The judges, with case management, must control the progress of litigation.

“Judges must regard the rules as a ready and steady handbook to guide them in their task of managing and resolving litigation.”

 Towards efficient justice system

The High Court of Lagos State Civil Procedure Review Panel had noted that the civil justice system “has still not attained the desired level of efficiency”.

It noted that litigation is still slow and uncertain in terms of the time it takes to bring cases to conclusion.

It said there was the need, therefore, to make rules that will guarantee as much certainty as the nature of the particular case will allow.

“The Rules must be effective and organised and as far as possible reduce the incidence of exploitation by counsel

“There is a need to deal with cases more speedily,” the panel recommended.

The lack of reforms has continued to clog up the Supreme Court.

Chief Justice of Nigeria (CJN), Olukayode Ariwoola, speaking at a special session to mark the commencement of the 2022/2023 legal year, admitted that the Supreme Court was overwhelmed by cases, some of which should not be there.

According to him, there are 6,884 pending appeals.

The backlog of civil appeals is 4,741 while the number of pending criminal appeals is 1,392.

The CJN said the Supreme Court has 751 “moribund appeals for disposal”.

To him, some of the cases should not be in court, let alone on appeal.

Justice Ariwoola lamented that the Supreme Court ranks as the busiest in the world due to Nigerians’ preference for litigation as against exploring other dispute resolution mechanisms.

He urged the National Assembly to speed up the process of amending the Constitution to reduce the number of cases that go to the Supreme Court.

Other heads of court are not unaware of the problems.

Chief Judge of Ogun State, Justice Mosunmola Dipeolu, noted that while modern technology such as electronic case and data management systems, e-filing, e-service of processes, e-payment and case tracking features are deployed elsewhere to reduce the backlog of cases and reduce the menace of delays, stakeholders in Nigeria were yet to embrace them.

“Lawyers have not really keyed into electronic filing.

“I know the concept of change can be difficult but it must be embraced,” she said.

Wanted: best practices

Dr Oyeniyi Abe, who practised law in Nigeria and is now a lecturer in Law at the Huddersfield Business School, University of Huddersfield, United Kingdom, identified other issues the judiciary must address.

He said: “They include widespread corruption in the justice system, delays in prosecution, unnecessary public holidays, inadequate scientific proof, the inability to secure legal representation, a lack of judicial independence (economic and political pressures), lack of training, and lack of expertise and support.”

He said other African countries were innovating and deploying technology to fast-track all aspects of judicial processes.

Abe added: “While South Africa, for instance, is innovative in terms of establishing specialised courts to address emerging issues, Nigeria lumps all manner of claims in the same court – making administration of justice a herculean task.

“A significant number of judges also need to be re-trained in professional ethics.”

Judicial watchers believe unless the the Nigerian judiciary goes back to the drawing board and takes drastic measures to address the problems, it will persist with its stone-age practices while the rest of the world moves on.

An audit report by the Global Fund to Fight AIDS, Tuberculosis and Malaria, published online in March this year, questioned some aspects of Nigeria’s procurement processes in the handling of COVID-19/HIV grants. Months after, the audit report became controversial, attracting media backlash. In this report, Associate Editor ADEKUNLE YUSUF examines all the controversial issues involved in the management of the grants

It was a routine exercise designed to seek greater improvement in how things are done, but it somehow backfired – or so it seemed. That was the fate that befell an audit report by the Global Fund to Fight AIDS, Tuberculosis and Malaria, published online in March this year, but which later ignited controversies months after when the media feasted on it. The controversial audit report, which generated media hoopla over how it described Nigeria’s handling of COVID-19/HIV grants, became a bone of contention among different stakeholders.

The periodic audit report by the Global Fund‘s Office of Inspector General (OIG) had said $19.6 million worth of procurements funded from its COVID-19 grants were awarded by Nigeria to servicers with unregistered businesses and without financial statements. The Office of the Inspector General (OIG) is an independent body of the Geneva-based global institution, which reports directly to the board of Global Fund through its Audit and Finance Committee. The audit highlighted “gaps in supply chains and identified inadequate controls in the supply chains, including weak information systems and insufficient oversight over the storage and distribution of commodities, which in some cases contributed to stock variances and distribution of expired commodities.”

The report, published online by the Global Fund, alleged further: While picking holes in virtually every aspect of the procurement process, the report said: “The audit noted non-adherence with eligibility requirements for 67% (six out of nine) of sampled procurements totalling US $7.5m, where vendors were awarded contracts without providing bank/performance guarantees, despite this being a pre-condition for contract awards.

 “A joint venture was awarded two contracts worth $3.5m without being legally registered, and without providing the bank/performance guarantee. In addition, eight of nine sampled vendors were awarded contracts amounting to $8.6m despite not providing certified financial statements.”

 It also carpeted the country’s procurement evaluation processes for lacking in technical and financial scoring criteria to assess the best-suited bidder beyond the set eligibility criteria. “For example, 63,056 procured masks by CRS were rejected by the Association for Civil Society in Malaria Control, Immunisation and Nutrition, as unusable; while a $3.5m contract to supply coveralls and lab gowns was awarded to a vendor who had only previously handled contract totalling $71,000 and who subsequently requested to extend the delivery period from six to 12 weeks.”

A peep into some of auditors’ complaints that ignited firestorm

In a discreet investigation, The Nation looked into the audit report and correspondences between all the parties: it showed a few things about glaring differences in Nigeria’s procurement processes, which are expectedly guided by national laws and guidelines, and those of donor agencies, which have international laws and operational guidelines to contend with as well as the local laws. In other words, the controversies bordered mainly on two things: poor harmonisation of differences in the laws and rules governing procurement processes involving Global Fund and Nigeria; and faulty interpretation of the same laws and regulations.  

 For example, on the issue of eight of nine sampled vendors that were allegedly awarded contracts amounting to US$8.6 million despite not providing certified financial statements, NACA’s response, which was not captured in the final audit report, debunked the auditors’ claim as both false and misleading. “OIG observation again is not correct and is misleading as it gives the impression that the financial statements were not audited by independent certified auditors. All bidders had their financial statements stamped and certified by independent certified auditors and that was sufficient to satisfy the bidding requirements. An additional certification by the Corporate Affairs Commission (CAC, as suggested by the OIG, is not in line with our procurement policies or practices. That the copy of the certified financial statements submitted by one of the bidders bears the acknowledgement stamp of the office of the CAC does not make that any more acceptable than the others.

 “For the avoidance of any doubts, the universally known and accepted definition of certified financial statements is that they are those financial statements examined and reported upon with an opinion expressed by an independent auditor. The key identifier of compliance based on this definition is that the submitted financial statements must bear the external auditor’s stamp/seal on the opinion page. This is the basis (criteria) by which NACA assesses a bidder’s eligibility. Any other suggestion by the OIG is alien to our laws, policies and practices and will amount to introducing a new criterion, different from what was advertised and assessed for each bidder. We therefore request the OIG to reconsider this observation based on the facts stated above,” NACA said.

 Auditors appointed by Global Fund’s OIG also demanded duly certified company audited accounts for the last 3 years (2017, 2018 and 2019) by the Corporate Affairs Commission as a requirement in the solicitation documents. In the exchange of correspondences between the parties, NACA described the requirement as inaccurate and incorrect. Although NACA admitted that the solicitation document required vendors to submit duly certified company audited accounts for the last three years (2017, 2018 and 2019), it insisted that the solicitation document did not specify to have the company audited accounts certified by the Corporate Affairs Commission. It cited page 3 of the bidding documents, which contained the list of the requirements and that particular requirement mentioned in the OIG response is not there.

 “NACA maintains that in line with the provisions of its procurement manual, duly certified financial statements is defined as those financial statements that are examined and reported upon with an opinion expressed by an independent auditor. We will be very pleased if the OIG could share with us evidence of this ‘best practice’ from the audit of other PRs in Nigeria, where bidders who got contracts with the PRs submitted audited reports with CAC certification on their certified audited financial statements,” it responded, citing links of online where certified financial statements have been defined and asking  Global Fund to share any reference that supports its insistence that the audited account of a firm is considered ‘certified’ ONLY when it has been certified by the Corporate Affairs Commission (CAC). “This position is at best the personal opinion of the individual member of the OIG team who reviewed the documents at NACA. We recommend that this finding be expunged from the report as it lacks any professional or academic basis. 

On the allegations that NACA’s procurement evaluation process lacks technical and financial scoring criteria to assess the best-suited bidder beyond the set eligibility criteria and that contracts were awarded to the lowest price bidder regardless of their technical capacity, NACA provided an extract on its procurement policies that are currently being followed: (a) Preliminary (review of documents establishing the eligibility and qualifications of bidders); (b) Eligibility/qualification (assessment of whether bidders meet minimum eligibility/qualification requirements to supply required goods/services); (c) Technical evaluation (assessment of whether offered solutions meet the specifications/ Terms of Reference) (d) Financial evaluation (examination of offered prices/VFM analysis).

 “In applying the above processes, for the procurement of goods, a pass/fail scoring system is used and documented whereas for procurement of services, a numerical scoring system is applied, as outlined in the procurement manual. Therefore, it is inaccurate to say NACA lacks a scoring criterion when NACA has and is practicing the approach above. We kindly request OIG to review this observation. The scoring system for NACA was shared with OIG and is available for OIG to review. Again, the observation made by OIG is not correct. NACA has documented scoring system that it uses. From the sample requested by OIG during the audit, there is evidence that NACA conducted its review in line with the process mentioned above of using a score system. Kindly share the actual procurements that did not contain a scoring system for our verification.

 “The scoring sheet for the eligibility criteria clearly includes a yes (written as Y) or no (captured as No) scores. This is the basis for shortlisting vendors for the next stage of the technical evaluation and the financial evaluation stages respectively. We wish to state that these scoring sheets were sighted and even discussed with the OIG team during the audit. A sample of the evaluation sheet is attached as reference.

 “Beyond eligibility criteria, tenders from the bidders are assessed against technical specifications as stated in the standard bidding document and in this case its either the submission is compliant or not. However, for services(not goods) the technical proposals are assessed using a set of criteria with allotted marks (weighted according to relevance and importance), and only the bidders with scores equal or above the set pass mark (threshold) are considered at the next stage which is financial. Just to emphasise that the scoring method is informed by the type and nature of the procurement and procurement method applied as stipulated in the NACA procurement manual.”

 Another allegation that a joint venture was awarded two contracts worth US$3.5 million without being legally registered and without providing the bank guarantee also incurred the wrath of NACA. “OIG observation is not correct and is not representing what NACA is practising in line with the requirements of our procurement manual. Section 3.10 of the SBD (General Conditions of Contract) stated that, ‘If the supplier is a joint venture, all of the parties shall be jointly and severally liable to the Procuring Entity for the fulfilment of the provisions of the Contract and shall designate one party to act as a leader with authority to bind the joint venture.’ Hence, nowhere is there a requirement for a JV legal registration. We kindly request OIG to revise their observation to reflect the correct position and applicable guidelines/practices. It is unfair for NACA to have this observation, which was never a requirement in the first instance.”

 According to NACA’s solicitation documents, Global Fund auditors said bid security of 2 per cent of the total bid sum will be required for bid prices above NGN 100 million, alleging that Clause 27.6 of NACA’s standard bidding document requires the Tender Security of a JVA that has not been legally constituted at the time of tendering to be prepared and presented in the names of all intended JVA Members as named in the letter of intent in ITT Sub-Clause 22.1(b). NACA fired back, saying it though it acknowledged the response from OIG, auditors’ response was not consistent with the OIG finding noted in the report. “The finding states that a joint venture was awarded two contracts worth US$3.5 million without being legally registered and without providing the bank guarantee. This finding is not consistent with the OIG response above. This finding raises an issue on the legality of the JV, which is not the case. Secondly, a bank guarantee was submitted with the name of one member of the JV but not in the names of both members. Appreciate if OIG can update the finding to reflect the correct position that NACA practices.”

It’s a routine audit query, not an accusation of fraud – NACA

When confronted with reports of purported misappropriation of $19.6 million worth of COVID-19 procurement grants awarded to Nigeria, Dr Gambo Aliyu, Director-General of the National Agency for the Control of AIDS (NACA), described media reports of alleged fraud of HIV management fund as “lacking in facts, misleading to the public and capable of inflicting reputational damage on the country.”

 As the principal partner and major recipient of the grants, NACA disagreed with Global Fund. While refuting reports that Nigeria was indicted for allegedly mismanaging the grants provided by the Global Fund to address COVID-19-induced challenges as it affects people living with HIV-AIDS, Dr. Aliyu described the Global Fund’s report as a mere routine audit report in which about 27 questions were raised; and out these, NACA disagreed with four.

 “The report in question was a routine audit report. In that report, 27 questions were raised. We agreed with Global Fund on 23 and disagreed on four and we still stand our ground. They have their view of the way we should do certain things and we also have the way we do things in government. It is not abnormal when there are queries or audits to get disagreements. In fact, if you don’t get disagreements, an audit query, which is 100 per cent agreed, may even be queried itself because there must be areas where the auditors or the partners involved responding to it disagree; it is natural we have had that area of disagreement,” he said.

 Regarding the question mark on the procurement processes for the award of contracts amounting to $19.6 million, Aliyu insisted that all procurements were carried out under the strict supervision of the Global Fund, with an audit firm embedded within the agency that endorsed every stage of the procurement processes.

“NACA handles Global Fund money on COVID 19 and we did all the procurements under the supervision of Global Fund. There is a cooperative that supervises it in Geneva. There is an audit firm that is embedded in NACA that approves every step of the procurement. All we did, we did together with Global Fund; there was no fraud, there were no collision and no one has accused us that there was no value for money for the work that we have done.

“There was nowhere in that audit report that the government of Nigeria was indicted or NACA was indicted, Lagos state government was indicted or global fund accusing the government of Nigeria or the Lagos state government of misappropriation, we haven’t seen. However, this individual just chose to write without having the courtesy to call us and give us that benefit of doubt. I think your profession requires a balance,” he said.

 The NACA boss, however, acknowledged that Global Fund has the largest investment in Nigeria, adding that 30 per cent of its grants to Nigeria were being disbursed by NACA. He reiterated that there are safeguard mechanisms mandating Nigeria to work hand in hand with Global Fund to avert fraud in the management of the grants. He added: “It is on verifiable record that under NACA Procurement processes, especially through the Global Fund, there is zero tolerance for fraud because of the layers of filtering of the process and compliance culture already established. All processes are guided by the PPA 2007, the Global Fund Manual and extant circulars respectively. In addition to internal controls and supervision in NACA, all procurement undertaken are subjected to verification and clearance by the Fiscal agent embedded in NACA by the Global Fund as well as final approval and continuous supervision by the Global Fund Country Team in Geneva. Needless to add that all processes are finally reviewed and signed off by OIG’s Office as required by law.”

 When asked if NACA approved procurement evaluation for unregistered firms within the period covered by the audit report, Aliyu said nothing like that happened. “It didn’t happen at all. How can we award contracts to companies that are not registered? By the time we finish evaluation, we do what is called due diligence. During the due diligence, we look at the record of each company with the Corporate Affairs Commission. Not only that the company is registered, we also make sure that there are no two companies that share directors. If we have a bid and two or three companies bided and they share same directors, then we know they are coming from the same source; they are automatically disqualified.

 “Yes we do business with Global Fund and the fund has the largest investment in Nigeria. Out of the investment that Global Fund has, only about 30 per cent of the investment is with government. The remaining 70 per cent is with the private sector. Also people should know that Nigeria is under what we call additional safeguard policy. Additional safeguard policy requires Nigeria to work hand in hand with Global Fund in virtually everything Nigeria does. NACA in particular works with Global Fund in every procurement activity. There is no procurement that NACA does that Global Fund isn’t aware of, that Global Fund didn’t review and that Global Fund didn’t approve,” he said.

‘No fraud or misappropriation in Nigeria’s HIV fund management,’ says Global Fund

In clarifications to recent widespread reports, the Global Fund to Fight AIDS, Tuberculosis and Malaria has denied any misappropriation or fraud in the fund it made available for managing HIV treatment and prevention activities in Nigeria. The clarification was made by the Global Fund Portfolio Manager for Nigeria, Dr. Jean-Thomas Nouboussi, who reacted to The Nation’s enquiries regarding allegations of fraud and misappropriation of COVID-19/HIV fund management in the country.

 On September 6 this year, iIn the clarifications sanctioned by Dr. Nouboussi and made available to The Nation by Christy Feig, Head of Communications Department, External Relations and Communications, Global Fund headquarters in Geneva, Switzerland, what was wrongly insinuated as fraud was mere audit review; and not an investigative report that can establish fraud or misappropriation or any other problems. According to Global Fund, there is a world of difference between an audit review, which is periodically carried out primarily to examine the design and adequacy of internal control mechanisms and risk management processes with a view to strengthening the system the more; and an investigation, which is usually a more comprehensive study of all the records to examine whether fraud or misappropriation or other problem has taken place.

 While stressing that Global Fund’s Office of Inspector General (OIG) has several tools to ensure Global Fund investments have the most impact possible, it clarified that “there was no fraud or misappropriation of Global Fund funds identified in the review.” Feig, who made the entire report of Global Fund’s OIG’s audit review available, also admitted that audit reports can be quite technical and complex to read through.

 Surprisingly, Global Fund was also effusive in its praises for Nigeria, saying the country has a success story to be proud of in COVID-19/HIV and malaria management. “Thank you for your question about the audit report of our Inspector General’s Office (OIG) conducted in Nigeria. An audit mainly examines the design and adequacy of internal controls, governance and risk management processes of the auditee. This includes adherence to national and implementers’ policies. An investigation is a comprehensive and careful study of the records to examine whether fraud or misappropriation of funds as well as other problems took place. As this was an audit, there was no fraud or misappropriation of Global Fund funds identified in the review.

 “Nigeria is an important country for our work to end HIV, TB and malaria. As you will see in the report, our grants there are mostly performing well across the three diseases. The Global Fund commends Nigeria for the progress the country is making in the fight against the three diseases. HIV performance has improved greatly, with 90% of people living with HIV knowing their status, 98% of those who know their HIV-positive status on treatment and 95% of those on treatment having suppressed viral loads. Because of this progress, HIV infections have decreased by 28% over the last 10 years.

 “During the COVID-19 Pandemic, Nigeria’s ability to innovate and adapt made it one of the few countries in the world that had positive progress in HIV. When COVID-19 struck in Nigeria in 2020, many clinical facilities were swiftly turned into COVID-19 isolation centres. The country acted quickly to bring HIV services closer to the people. Integrating health services meant that when community health workers were out looking for cases of COVID-19, they were also looking for cases of HIV and TB.

 “That led to an unexpected success: While HIV testing dropped drastically worldwide in 2020 due to COVID-19, Nigeria was one of the few countries to achieve an increase in the number of people diagnosed with HIV in 2020 compared to 2019. Nigeria has a good story to tell with its work to combat HIV, TB and malaria.  I know the audits can be quite technical and complex to read through, so I hope some of these statistics help with your work,” Feig said.

The commercialisation of the Nigerian National Petroleum Company Limited (NNPCL) may have further consolidated the firm’s hold on the country’s oil sector, making it an emerging octopus. But given past experiences, is the nation’s oil sector ready for a looming monopoly which the former state-owned firm now appears to be taking on? MUYIWA LUCAS writes.

In his time as the Group Managing Director of the erstwhile Nigerian National Petroleum Corporation (NNPC), Mele Kyari, proved himself as the quintessential chief executive of the state owned Corporation.

 When the corporation morphed into a Limited Liability Company courtesy of the provisions of the Petroleum Industry Act (PIA) 2021, no one could raise eyebrow that the boardroom tactician would retain his position to give the new company the needed stability.

 “The provisions of PIA have given the industry a new impetus. As a private company, the NNPCL is expected to evolve an improved fiscal framework, transparent governance and an enhanced regulation that could create a commercially-driven and independent national oil company that will operate without relying on government funding and free from institutional regulations such as the Treasury Single Account, Public Procurement, and Fiscal Responsibility Act. It will, of course, conduct itself under the best international business practice in transparency, governance, and commercial viability,” President Muhammadu Buhari had noted at the inauguration of the Nigerian National Petroleum Company Limited (NNPCL) last July.

 Given the responsibilities this mandate thrusted on him, Kyari, has his job cut out for him. Unlike before, he now has milestones which could either shoot him to the rooftops or puncture his reputation as a turn around expert.

From NNPC to NNPC Limited:

The transition of the NNPC to NNPCL was espoused at a three-day retreat in Asaba, Delta State. The retreat which had in attendance the Accountant General of the Federation, Commissioners of Finance from various states, members of the FAAC Post mortem sub-committee, RMFAC Commissioners and officials, and other officials from CBN, NUPRC, and FIRS, was an eye opener into the structure and operational modalities of the new company.

 A petroleum economist, university lecturer, author, and motivational speaker, Dr. Ahmad Adamu, while delivering a lecture on the implications of transforming NNPC to NNPC Limited on the federation account, noted that contrary to what obtained in the past, the new company – NNPCL will no longer remit revenue to the Federation Account because it is now owned by the Federal Government. He explained that 80 percent of company’s profits will go to the Ministry of Finance and Ministry of Petroleum, while the remaining 20 percent is to be retained by NNPC Limited. The Federation Account would get money in form of taxes on NNPCL’s annual profit and Hydrocarbon Tax.

Interestingly, while the NNPC Limited will still lift all crude oil due for the federation, take all Joint Venture (JV) crudes and gas, it will also transfer PSC and Royalty crudes to Upstream Commission and then to the FAAC monthly. Under this new arrangement, states will no longer benefit from NNPC Limited’s profits, just as the firm no longer have obligation to FAAC and will not attend FAAC meetings.

Burgeoning monopoly?

Though an oil producing country – the largest in Africa, Nigeria, in the last three months have been enmeshed in scarcity of premium motor spirit (PMS), known as petrol. The scarcity, blamed on several factors, chiefly among which is shortage of supply. But even before its transformation, the NNPC has been the sole importer of petrol for domestic consumption. This is in spite of complaints by other major and independent marketers in the industry, who have severally clamoured to be involved in the importation transaction. Sadly, the NNPC Limited is still the sole supplier of the product and is responsible for keeping reserve and ensuring the security of supply at a fee to the government. The firm, now commercialised, still handles all petroleum importation on behalf of the government at a fee.

 This development is getting industry stakeholders worried. They queried the model that allows NNPCL to continue as the sole importer of the product, accusing the government of deliberately promoting a monopoly market by allowing the firm to enjoy undue privilege.

 Their position was accentuated by the ongoing petrol scarcity, with oil marketers urging the Federal Government to put an end to the monopolistic privilege enjoyed by the NNPCL. They insisted that the prevailing situation is creating more problems for the country.

 Marketers under the auspices of the Major Oil Marketers Association of Nigeria (MOMAN), maintained that as part of permanent measures to curb fuel scarcity, other marketers should allow a free and fair play in the importation of petroleum products.

 According to Chairman of the Association, Olumide Adeosun, the current scarcity of petrol was occasioned by supply inadequacy in the last few weeks as well as distribution challenges created by the unavailability and continuous surge in international prices of Automotive Gas Oil (diesel).

“In the interim, MOMAN recommends that the current single supplier strategy be reviewed. MOMAN feared that the current supply framework cannot guarantee steady and consistent supplies to the country given the current state of government finances and unpredictable international supply shortages,” MOMAN said.

 The National Operations Controller, IPMAN, Mike Osatuyi, agreed that the monopoly being enjoyed by NNPCL must come to an end if the country intends to say goodbye to petrol scarcity. “NNPCL is the sole importer of petrol, so if they cannot make the product available, then how do we get petrol to lift and sell to the public? This era of NNPCL monopoly has to stop for the benefit of all Nigerians,” Osatuyi said.

 Still, the emerging monopoly of the NNPCL may have been strategic. For instance, on February 25, 2022, ExxonMobil announced it had agreed to sell its shallow-water assets in the country to Seplat Energy for $1.28 billion plus a contingent consideration of $300 million. The deal also included the Qua-Iboe export terminal and a 51 percent interest in the Bonny River Terminal and natural gas liquids recovery plants at EAP and Oso. It does not include any of ExxonMobil’s deepwater fields in the country. The transaction was expected to be concluded later in the year subject to the approval of the regulatory authorities.

 But in a swift reaction, the NNPC moved to truncate the transaction, informing ExxonMobil of its right of pre-emption privilege, especially as the major shareholder in the Joint Ventures with ExxonMobil. The NNPC was said to have been categorical that it was ready to match the Seplat Energy offer of $1.6 billion, particularly in line with its new dispensation of focusing on building the profitability of the NNPC Limited as a new business entity.

In March, a letter to ExxonMobil signed by the Group Managing Director, NNPC, Mele Kyari, the NNPC, reiterated its resolve to take over ExxonMobil’s share of the assets. The NNPC also reiterated in the letter that it had transformed from being a corporation to being a profit-driven company and that it now has the capacity to buy over the share of ExxonMobil in Joint ventures. “We are aware that you reached an agreement to divest from onshore and shallow waters JVs; we are interested,” the NNPC letter read in part.

 Still, stakeholders argued that the takeover of OVH Energy Marketing (OVH), owner and operator of the Oando branded retail service stations by NNPC limited now merged with NNPC Retail Limited (NRL), is a further consolidation of the firm’s monopoly. 

 Through this acquisition, involving takeover of 380 filling stations owned by OVH, the NNPC Retail Limited thus became the single largest filling station owners. “Our acquisition of OVH, brings more NNPC branded fuel stations under the NNPC Retail Limited umbrella, providing wider access for our customers, an enriched supply chain and product availability across our different locations”, said Mele Kolo Kyari, GCEO NNPC Ltd. “Our goal as NNPC Limited is to become a catalyst for massive improvement within the downstream oil and gas industry therefore, access to the extensive asset base of OVH is our audacious step towards attaining this goal.  We are positive that this is the much-needed transformation required by the sector as it provides us with an integrated platform to attract the right investments which enables the growth of our operations”.  In addition, NNPC Limited also acquired Apapa SPM Limited, an affiliate of OVH Energy, that owns and manages West Africa’s first privately owned midstream jetty, known as the Lagos Midstream Jetty.

 According to some industry players, given the massive role of NNPCL in the retail outlet, it is not impossible that the firm may have been sabotaging the business of the independents marketers through what they term “a deliberate attempt to starve them of getting petrol at the official rate so as to boost their own business.

 For instance, motorists complain of their inability to access petrol, especially at the regulated pump price of N169/N180 per litre. NNPC Limited currently supplies products to major oil marketers who sell the product at the regulated price of N180/litre to the public. However, Independent Petroleum Marketers Association of Nigeria (IPMAN) members said they have not been able to get fuel at the regulated depot price of N148/litre, adding that their filling stations are getting the products from depots at over N220/litre, thereby making them to sell to the public at N250/litre and N270/litre in most independent filling stations.

The Chairman, Lagos Satellite Depot Branch of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Akin Akinrinade, regrets that while arrangements were made by the NNPCL for major marketers to load at their various depots and at times at the private depots, no such arrangement was made for IPMAN members.

 Still, the cacophony of monopoly of the NNPCL now sings like a lullaby. The Chairman of Depot and Petroleum Products Marketers Association of Nigeria (DAPPMAN) and Chief Executive Officer of North-west Petroleum and Gas Company, Mrs. Winifred Akpani, also charged the Federal Government and the Central Bank of Nigeria (CBN) to ensure a level-playing field for all players in the industry, especially area of access to foreign exchange (FX) to enable them boost capacity and continue to make petrol available to Nigerians.

 Akpani stated that accessing FX at the official CBN rate was a serious challenge for marketers and was responsible for the price differential in petrol distribution in the country. She specifically decried the alleged absence of a level-playing field that guaranteed access to dollars for all marketers at official rates, saying having NNPC as the sole importer of petrol is not sustainable, considering the huge consumption of the product.

 The DAPPMAN chairperson stated that strategic decisions must be made in the industry to ensure Nigeria took full advantage of the expected growth in oil products demand across Africa. She maintained that accessing FX through the CBN window would enhance their capacity, facilitate seamless supply of petrol, and birth a regime of sustainability in terms of storage, distribution and supply across the nation.

 “DAPPMAN hereby calls on the government to establish a level playing field in the sector by giving petroleum marketers access to forex at the CBN exchange rate for their operations. The NNPC, which historically served as the supplier of last resort, is now the major oil downstream company in Nigeria with the acquisition of OVH and has full access to dollars at CBN’s official rates. The NNPC also has access to products through swap arrangements,” Akpani said.

 Akpani emphasised that accessing FX at the official rate would boost fuel supply across the country, adding that the burden of sourcing FX through the parallel market for transactions domiciled in Nigeria has left petroleum marketers in dire straits.

Anomaly

Perhaps the most talked about issue now is that of subsidy removal, which is, the deregulation of petrol pump price. According to Adamu, petroleum subsidy removal should have been put in place before the take-off of the NNPC Limited. However, government’s extension of the subsidy by 18 months makes the subsidy regime to remain alongside the new commercial structure of NNPC Limited.

 Although he noted that with the country’s petrol needs still 100 percent import dependent, it means that NNPC Limited is still paying the petroleum subsidy, which is antithetical to the company’s new orientation as a profit making concern.

 “But who will eventually pay the subsidy, and from which account? The Federal Government must forfeit its crude oil shares due for the federation to offset the subsidy bill, and this will translate to a loss to the federation account. Imagine that NNPC Limited has not remitted any money to the Federal Government in 2022 because of petroleum subsidy,” he explained.

 Adamu is right. With the current foreign exchange rate and higher oil price in the international market, subsidy bills have become more expensive, with payments for same this year estimated to hit N6.3 trillion. He said the country paid N2.04 trillion to offset subsidy payments in the first seven months period; 71 percent of gross oil and gas revenue to pay petroleum subsidy in June 2022 alone.

 Responding to our inquiry, the Acting Head, Department of Economics, Kola Daisi University, Ibadan, Oyo State, Dr. Olabusuyi Falayi, explained that the transition of NNPC to a limited liability company is expected to increase the revenue base of government as the Petroleum Industry Act (PIA) has mandated that where the NNPC Limited has a participating interest or 100 percent interest in a lease or license, it shall pay its share of all fees, rents, royalties, profit oil shares and taxes. However, the objectives of NNPC Limited also include responsibilities vested in it as concessionaire of all production sharing contracts (PSC) and it also includes the management of joint venture petroleum operating agreements to which it is a party.

Citing Section 17 of the PSC Act, production sharing contracts is any agreement or arrangements made between the Corporation (in this case NNPC Limited) and any other petroleum exploration and production company or companies for the purpose of exploration and production of oil in the Deep Offshore and Inland Basins. Under a production sharing contract, an agency appointed by the state, typically its National Resource Company (NRC), is the concessionaire, and the investor is a contractor to the concessionaire. The concessionaire, in this case NNPC Limited, holds the mining rights, not the investor. Although there are various rounds of PSCs in Nigeria, their main elements are the same and these includes that: NNPC holds all rights in the contract area; NNPC appoints the contractor with an exclusive right to conduct petroleum operations in the contract area; provision of  funds and guarantees and bearing the risk of operating costs by the contractor; the contract requires contractor to employ and train Nigerians and the contractor is allowed to recover all its operating expenses within five years and take an agreed percentage share of the profit.

 From the foregoing, Dr. Falayi explained, it is apparent that NNPC Limited has additional responsibilities of an apex body over and above those of other private oil companies carrying out similar activities in Nigeria. “This has given the NNPC Limited an undue economic advantage because the arrangement has not provided a level playing ground for the NNPC Limited and other operators in the sector,” Dr. Falayi said.

 According to the university don, while NNPC under the new PIA is meant to function as a commercial entity, however, the burden of being a sole importer of refined petrol will continue to weigh on its books and the net effect is that it will operate inefficiently and may not be able to maximise its profit which is the main objective of any business enterprise. This, he said, is evident in the current scarcity of petroleum across the country due to shortage from supplier of the last resort as NNPC has been known in recent time.

 The implications of this sustained and protracted fuel scarcity are numerous. It has led to a hike in the cost of living and cost of doing business as transport fare has increased by over 100 per cent. Food prices have similarly shot up due to the rising cost of transportation. A lot of productive man-hour is lost to queuing for petrol at the fuelling stations.

 He explained that in a free market economy, where there is less government intervention in economic activities and hence operators relies on free market allocation of resources to attain equilibrium, encourage efficiency and the attainment of society interest which is the maximisation of social welfare.

 Falayi cautioned that due to market failure in the allocation of resources, increased government participation has been witnessed especially in developing economies through nationalising and granting of property rights that has resulted in monopoly in some sectors, “the position being occupied by NNPC can foster the emergence of a monopolist whose activities may not be welfare maximising.”

 For now, while the voices of other stakeholders for a level playing ground for all stakeholders to operate in the industry continue may seemed lost, a liberalisation will ensure better deals for the economy and Nigerians.

Every year, the nation grapples with perennial flooding that often further wrecks the already ailing economy and threatens the actualisation of the Sustainable Development Goals (SDGs). But there are solutions to virtually all problems, especially if the right things are done at the right time. Experts believe that the crisis can be tackled if governments at all levels are more proactive by putting proper structures in place to forestall a recurrence of what now seems to be a yearly disaster. DAMOLA KOLA-DARE reports

I couldn’t resume school. My area in Lokoja was flooded. This got me very sad. I have looked forward to resumption after the Academic Staff Union of Universities (ASUU) called off the eight-month strike. But the flood caused me serious nightmare. The Federal Government should tackle the situation.” Those were the words of a 200-Level student – who craved anonymity – at University of Nigeria Nsukka (UNN). She could not resume because the flood affected her area in Lokoja, Kogi State.

 She was not the only one affected by the floods, as the humanitarian ministry disclosed that it killed over 600 people, rendered about 1.6 million residents homeless and affected almost 3.5 million people. The World Meteorological Organisation (WMO) said flood-related disasters have risen by 134 per cent since 2000, when compared with the two previous decades. Thus, flooding has become a recurring decimal not only in Nigeria, but all over the  world.

 A 2021 report from the Intergovernmental Panel on Climate Change (IPCC) pointed out that rising global temperatures were affecting the water cycle. Therefore, floods and droughts are more extreme and frequent. Little wonder, this year’s flood occasioned by heavy rains, was described by observers as ‘the worst in a decade.’

A nation caught unawares despite warning – states in dire straits

  The flood did not come without warning from the National Emergency Management Agency (NEMA). It had warned states located along the Niger and Benue rivers. The agency noted that three of Nigeria’s reservoirs would overflow. It said the release of excess water from a dam in neighbouring Cameroon had contributed to the flooding. Despite that, the flood caught many states unawares.

 Minister of Humanitarian Affairs, Sadiya Umar Farouq, stated that the flood caused injury to over 2,400 people and partially or completely destroyed more than 200,000 homes. It destroyed over 108,000 hectares of farmland, with the nation’s food supply at risk.  In addition, 332,000 hectares of roads and infrastructure have been damaged. Stakeholders said it is a threat to livelihood because of its negative impact on the economy, environment, health and social life. It would also stifle the nation’s drive towards achieving the sustainable development goals (SDGs).

 In 2012, flooding reached extreme levels and the nation lost a whopping US$16.9 billion. Already, President, Nigerian Council of Registered Insurance Brokers (NCRIB), Mr. Rotimi Edu, noted that the disaster would lead to insurance claims of over N1 trillion. It has been desultory days for residents in states including Anambra, Delta, Rivers, Cross River and Bayelsa, Adamawa, Gombe, Jigawa, parts of Kaduna, Kogi, Niger, Benue and Nasarawa, among others. Bayelsa was the most affected among the states. The number of Internally Displaced Persons (IDPs) in the state rose to over 25, 000 in both private and five government-owned camps.

Why flooding may persist

Again, NEMA has sounded the alarm bells. It said there would more flood next year. The agency urged the federal, states and local governments to act in advance. The agency’s Director General, Mustapha Mohammed, said: “We have written to states several times. This flood is still coming in 2023. They must be advised early to set up State Emergency Management Agencies (SEMAs) and local emergency committees and fund them adequately.

 “State governments need to do more in disaster management, instead of abandoning the menace to the Federal Government. NEMA lacks adequate personnel to handle disaster management. State governments should help. We do not enjoy hazard allowance.”

 Nonetheless, experts and observers warn that flooding may persist if proper structures and measures are not put in place. Adaku Uchendu of Queen’s University, Ontario, Canada, noted that lax implementation of planning laws would exacerbate the problem. She faulted construction of projects on natural floodplains and storm water paths. She said: “Many residential areas have no drainage system and rely on natural drainage channels. Increasing urbanisation also means more areas are built with concrete and cannot absorb water, increasing runoff. Citizens’ poor attitude to waste disposal and non-provision of waste disposal services by municipal authorities contributes to flooding. It is not uncommon to have drains blocked by refuse in urban areas.”

 Uchendu faulted unregulated urban expansion. According to her, high urbanisation rates without commensurate provision of urban infrastructure and amenities remains a challenge. She chided the indiscriminate conversion of arable lands residential areas. “Corruption is also a factor. It is not uncommon for town planning officials to accept bribes and overlook issues. These may include unauthorised use of land and alteration of approved construction plans. Some citizens also capitalise on the loophole of ineffective development control and extend their buildings over the approved areas. Sometimes they go as far as building over drains,” she added.

 Foremost Environmentalist and President Lagos  Landscapers Association, Mr. Olusola Adekoya, also urged  President Muhammadu Buhari to ensure swift action on  the ‘Comprehensive Plan of Action for Preventing Flood Disasters in Nigeria,’ adding that without being proactive, flooding would continue with its colossal damage. He also noted that if people continue to use wetlands for building houses, it would ignite water around the area, thus flooding would not abate.

Challenge of food insecurity

Food insecurity should not be treated with kid gloves. Statistics show that 7 out of 10 Nigerians did not have enough to eat last year. However, the International Monetary Fund (IMF) has warned that the  flooding in many states would aggravate food insecurity and further lead to hike in prices of foodstuff. Mai Farid of the African Department of IMF gave this warning during a session tagged: “Climate change and food insecurity in Sub-Saharan Africa.”

He said: “We are cognisant of the challenge that the flood of that magnitude and how it affected Nigeria and neighbouring countries. We also recognise Chad and Cameroon have also been hit. And absolutely, you’re totally right in terms of the supply of agricultural production it is going to drop, which will put even further pressure on prices. And in addition, the floods have affected some of the transportation networks, which makes it even harder for food to transfer into the country or even out in any essence storage.”

 Farid noted that Nigeria and other countries in the -Saharan Africa were the most food insecure region and also most vulnerable to climate change, but the least prepared to address such. He, however, stressed the need for an investment in ‘early warning system technology’ and ‘climate resilient infrastructure.’

 Food production levels in the country are getting low. Checks revealed that the nation relies on US$10 billion of imports to meet its food and agricultural production deficit. With the prediction that Nigeria would become the world’s third most populous nation by 2050, experts urge government to avert an impending food shortage crisis. The United States Department of Agriculture (USDA), in a report, predicted that the country’s rice production would fall by seven per cent from now to September 2023 as a result of insecurity and flooding that has wiped out rice-cultivating lands. It stated that floods swept off thousands of hectares of rice farms at a stage of maturing. It also said there was a decline of 5 per cent in rice consumption due to higher prices and weak purchasing power.

 But amid the growing concerns, the Federal Government noted that it was working to ensure that the floods do not cause food crisis. The Minister of Agriculture, Dr Mohammad Abubakar, noted that the government would expedite action and make sure food production was not affected. “The government,? through various interventions is doing everything possible with our development partners to ensure that the floods do not cause food shortage in the country. We are making sure that production does not stop; we are also intensifying effort at dry season farming,” he said.

 He said the nation must be proactive and manage risks, including flooding, and bush-burning, adding that the ministry and its partners have carried out some interventions? to address likely disruptions to food production.

Premium Motor Spirit (petrol) supply affected by flood

  The Nigerian Midstream and Downstream Petroleum Regulatory Authority (NMDPRA) said fuel scarcity, which occurred in Abuja and other states in the Northern region, was caused by flooding in Lokoja, Kogi State. It said, in a statement, that water submerged a greater part of the city and halted all vehicular activities. The NMDPRA said distribution of petroleum products to the Federal Capital Territory, Abuja and environs were affected. There were queues in Lagos as motorists engaged in panic buy.

Not only petrol supply was disrupted; schools were not spared as well. Niger Delta University, Federal University Otuoke, both in Bayelsa State, were submerged; the Joseph Sarwuan Tarka University, Makurdi, in Benue State, and the Delta State University of Science and Technology, Ozoro, in Delta State, were also affected by the floods. Vice-Chancellor, Niger Delta University,  Prof. Samuel Edoumiekumo, lamented that the  university premises was  submerged. He said in a particular area of the institution, people could only move around through canoes.

He said: “The university is submerged and everywhere is affected. We use a canoe to move around one part of the campus. It is at the new site (Faculty of Law) that some places are elevated and they are not so affected but the road to the university was cut off.” He said online learning was a viable option for students. “For all those having professional exams, we have directed their provost to work out modalities to teach them online. They will be receiving lectures online to prepare them for professional exams,” he said. Primary and secondary schools too were not spared in states as they had to shut down.

Actualisation of Sustainable Development Goals (SDGs) dicey

Persistent flooding is a major obstacle towards actualising the Sustainable Development Goals, according to Echendu. Hence, long-term solutions should be deployed. She said: “SDG 1 seeks to eradicate poverty by 2030. Poverty is the biggest global threat to achieving sustainable development. There is a two-way reinforcing relationship between flooding and poverty because they feed off on each other; flooding worsens existing poverty and poverty makes the impact of flooding much more severe by increasing vulnerability. As floods have become an annual occurrence, poverty is further entrenched.

 “Environmental problems like floods exacerbate the living conditions of people and pose a threat to Nigeria achieving the UN SDGs. Floods have the capacity to destroy the social capital of people and the physical environment/terrain as well as take away the little savings of the already poor households. When such floods become a frequent occurrence, the effects are compounded. The relationship between flooding and poverty therefore deserves closer attention.”

 Echendu also explained that flooding has a rippling effect on the agricultural system in Nigeria and is a threat to food security because of the impact on production and supply of food. She said it destroys livestock, crops, and seedling stores. This affects harvest and the next season of planting, resulting in food crisis. “The SDG goal 2 is focused on ending hunger in all its forms by 2030. The food and agricultural sector is key in eradicating hunger but this important sector is heavily impacted by flooding in Nigeria. Food security is the assured way of eradicating hunger, but Nigeria is far from achieving food security. This is despite its vast arable land. Nigeria remains the biggest importer of food in Africa. Flooding undermines food security because of its negative impacts on agriculture. Land for cultivation becomes scarce as arable lands are taken over by floods.

 “This leads to scarcity of food and the forces of demand and supply come into play, increasing food prices beyond what the mostly poor affected can afford. The worst-affected communities in Nigeria usually rely on agriculture as their main source of livelihood. With no harvest from flooded farmlands for several months during the year, they face hunger.  In 2012 in Adamawa State alone, floods affected more than 35 per cent of the vegetation cover and 56 per cent farmland cover while in 2014, 42 per cent of the total vegetation cover was overtaken by floods while 51 per cent of the total farmland cover was submerged. The poorer rural farming communities suffer more not only because they lose income, but they also lack the cash to purchase other food and non-food items they need,” she said.

 On how quality education is impacted, Echendu said: “In the developing world, there is even more need to promote education as the literacy levels fall well below that of the developed world. To that effect, there are numerous campaigns to promote universal basic education for all, especially for young children, but flooding disasters undermine this right to education of children. Displacements due to flooding cause children in disaster areas to become educationally disadvantaged at the crucial school age, which sets them up for continued economic disadvantage and opportunities later in life. There is evidence of overall poorer educational performances and outcomes, reduced level of education and general disadvantages that continue into adulthood.

 “Even in non-major floods, parents are not keen to send their children to school as they fear them treading dangerous flood waters en route to schools. They cannot ascertain if storms or rainfall will increase the severity of floods when the children are away at school and so prefer to have them at home where they have greater control over their safety, should the severity of flooding increase or there be need of evacuation. The teachers are also not in the best psychological state to teach because they also have to handle terrible conditions either in the school, home, or emergency shelter to get their lesson notes ready.”

 She noted that flooding impacts health with long-term effects, citing the SDG 3, which is focused on ensuring healthy living and well-being for everyone. Echendu said: “Flooding has both direct and indirect impacts on health. Increased deaths and injury are direct effects of flooding with 90 per cent of these direct effects having occurred in developing countries. Nigeria’s fledgling health sector suffers setbacks from annual flooding disasters. Water-borne life-threatening diseases like typhoid, cholera and dysentery are common during flooding.  Floods provide a perfect breeding ground for parasites like mosquitoes which leads to a rise in the incidence of parasite borne diseases like malaria. Women and children are especially vulnerable to these diseases which can lead to death.

 “Flooded homes provide a good damp environment for mildews and molds to grow sporadically which triggers upper respiratory illnesses for people who have allergies and episodes for asthma patients. Such health problems mostly affect the elderly and children. Power outages post-floods in developed countries force people to resort to fossil fuel-powered generators. When the generators are run without adequate ventilation, deaths due to Carbon Monoxide (CO) poisoning can occur. Even after floodwaters recede, health risks and threats remain. For example, when electrical wires become immersed in water, there is increased risk of electric shock.

 “Pollutants like insecticides and pesticides, animal, and human faeces, sewage, fertilizers, and other contaminants are rife in floodwaters which also carry disease causing micro-organisms. Soil-borne disease like melioidosis, which causes fatality has been linked to flooding. Rapid runoff from flooding causes erosion leading to land degradation which enhances deforestation. Deforestation on the other hand increases the seriousness of flooding.”

Cholera outbreak, children at risk

The International Rescue Committee (IRC), lamented the increase in cholera cases and other diseases. The IRC has been working in Nigeria since 2012, providing life-saving support to communities affected by natural disasters, armed conflict and other poverty related issues. Nigeria Country Director at IRC, Babatunde Anthony Ojei, said: “Nigeria has not seen flooding like this in more than a decade. At least, 13 states are experiencing a deadly cholera outbreak with more than 6,000 cases and a four – five per cent case fatality ratio. Having contributed less than one per cent of the world’s global emissions, yet ranked in the bottom 20 per cent of countries equipped to respond to the impacts of climate change, Nigeria is increasingly bearing the brunt of a crisis it did not cause. More than one million children in the northeast are expected to suffer from acute food insecurity this year, making them more susceptible to succumbing to diseases like cholera.”

 The United Nations Children’s Fund (UNICEF) also noted that more than 2.5 million people in Nigeria are in need of humanitarian assistance (60 per cent of are children). It said they are at risk of waterborne diseases, drowning and malnutrition as a result of flooding. There is a spike in cases of diarrhoea, water-borne diseases, respiratory infection and skin diseases in Borno, Adamawa and Yobe with 7,485 cases of cholera. The Nigeria Centre for Disease Control (NCDC) said 10,745 suspected cases, 256 deaths and a fatality ratio of 2.4 per cent have been reported from 31 states this year. They include:  Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ekiti, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kwara, Lagos, Nasarawa, Niger, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.

 UNICEF Representative in Nigeria, Cristian Munduate, said: “Children and adolescents in flood-affected areas are in an extremely vulnerable situation. They are particularly at risk of waterborne diseases and emotional and psychological distress.”  UNICEF’s Children’s Climate Risk Index (CCRI), noted that   Nigeria was at ‘extremely high risk’ of the effects of climate change. It ranked the country second out of 163 countries.

Flooding detrimental to mental health

  Speaking on psychological implications of flooding on victims, a psychologist at Ladoke Akintola University of Technology (LAUTECH), Dr Fisayo Adebimpe, said the ‘traumatic experience’ could have far reaching effects on the mental health of victims. Her words: “It could lead to displacement and loss of sense of belonging in the society. The traumatic experience can be detrimental to the mental health and wellbeing of the victim. There can be fear of displacement and starting all over can be challenging. The financial implications associated with relocation and loss of lives and properties can be disturbing. The victims could have post-traumatic stress disorder later in life as a result of scenarios or events that brings flashbacks, some victims might live in fear, some of might have negative intrusive thought patterns of this life threatening experience.

 “Lives and properties are being destroyed or damaged. Victims can be depressed and also have anxiety symptoms due to the disaster which created a constant panic and fear in them. The anxiety level of victims will be on the increase especially during rainy season due to the possibility of experiencing this calamity. Some may experience negative anticipatory behaviour, reduced sleep patterns/ sleep deprivation, mood swings, anger, nightmare/ night terrors, panic attacks.”

 Adebimpe, however, sought a robust support mechanism for them. “There should  be adequate support system for the victims  by government, family members, non-governmental organisations in providing relief packages and resources for them to stabilise. Mental health experts should also be available, like the clinical psychologists to give professional expertise in terms of treatments and intervention strategies on a long-term basis,” she said.

Wanted: Support from wealthier nations contributing to climate change

Checks revealed that the country contributes less than 1 per cent of global greenhouse gas emissions, while the richest 10 per cent of the world’s population are responsible for more than half of carbon emissions. It is being projected that by 2030 up to 118 million poor people would be exposed to floods, drought and serious heat in Africa. Thus, stakeholders have urged wealthier nations — which have contributed the most to climate change — to support African countries in adapting, planning and paying for the loss already incurred.

 They charge them to also take the lead in providing resources for the loss and damages already incurred by the poorest and most vulnerable communities around the world because of climate change. A climate activist,  ??Adenike Titilope Oladosu, on Twitter, renewed calls for climate finance to address Nigeria’s climate crisis. In 2009, the world’s richest countries promised to deliver $100 billion every year from 2020 to 2025 for climate finance. The money would be used to help countries with low income to adapt to climate change effects. They are yet to fulfil the promise with nations ravaged by climate crisis.

Towards long-term and sustainable solutions

An Environmentalist and Climate Change Advocate, Banke Oniru, urged the government to be proactive and prevent a recurrence with ‘high-tech disaster/flood detection system.’ She also suggested underground drainage referred to as Pipe Jacking Technology, among others. She said: “The government needs to be more proactive to ensure that such national disasters are prevented with high-tech disaster/flood detection system. Also, Pipe Jacking Technology (Underground drainage) – this was implemented in Uyo, Akwa Ibom State, to tackle Uyo’s perennial flood problem and it’s been quite effective. So deploying this solution across the needed areas may be the panacea to this perennial problem.

 “Gutters and water ways need to be cleared of dirt, debris and other items. Each local authority should be compelled to widen as a matter of urgency, and if possible pull down structures that are obstructing water ways across the country. Then, water harvesting, which refers to the collection of rainstorm-generated runoff from a particular area (a catchment) to provide water for human, animal, or crop use. This would come handy during the dry season when water is scarce.”

    Adekoya said flood control requires decisive action and consistency. He called for sustainable programmes and measures to control it. Adekoya said drainages and canals should regularly be cleaned without waiting for the rainy season. He urged leaders to borrow a leaf from China and establish a ‘Sponge City,’ which he described as a circulatory system where water from rivers is being recycled and purified for home and public use. The environmentalist also advocated rooftop garden where there would be gardens on top buildings to absorb excess rainwater.

 Adekoya urged town planners to create a proper regulatory building system and ensure all buildings are built above road level so that when there is flood people won’t experience it. He urged citizens to support government in the fight against flooding. He also stressed the need for proper waste disposal. “Citizens should support government to control flooding. It is not the work of government alone. They should dispose their wastes properly, otherwise, wastes disposed in water bodies will constitute danger,” he said.

 Experts reckon that flooding is a huge problem that can cause further colossal damage to our ailing economy, impede development, hamper education and worsen the health sector. Hence, government should swing into action to address it just as NEMA has warned of more floods next year.