Tuesday, September 8, 2015

TSA: FG operated illegal accounts for 48 years

UNTIL August 11, 2015 when President Muhammadu Buhari ordered stoppage of multiple accounts, the Federal Government had, for at least 48 years, breached its own rules on collection and management of national revenues. Beginning with the Oliver Lyttleton Constitution, the 1954 document that conferred the status of a federation on Nigeria, the central government has always been mandated to operate a single revenue account for the country. Forty-five years after, Section 162, sub-section 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states: “The Federation shall maintain a special account to be called ‘the Federation Account’ into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the ministry or department of government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja.” As opposed to keeping common funds in multiple accounts in commercial banks, contrary to the provision of the constitution, Buhari recently ordered implementation of Treasury Single Account (TSA), into which all ministries, departments and agencies (MDSs) of government, which are funded from the Federation Account, will henceforth pay their earnings. Specifically, the MDAs will henceforth pay all their revenues to a sub-account that is linked to the TSA at the CBN. To ensure quick compliance with the directive, the Head of Service of the Federation, Danladi Kifasi, gave the federal sub-treasury account name and number as Accountant General: 300002095. Some of the MDAs affected by this directive include Nigerian National Petroleum Corporation (NNPC), Central Bank of Nigeria (CBN), Security and Exchange Commission (SEC), Nigerian Ports Authority, Nigeria Customs Service (NCS), Nigeria Immigration Service (NIS) and Federal Inland Revenue Service (FIRS), among others. The constitutional provision for single account — beginning from 1954 — notwithstanding, investigation revealed that since 1967, successive administrations have “been breaking the law” by operating multiple accounts. Apart from the Excess Crude Account (ECA), the latest in the list, the controversial Sovereign Wealth Account (SWA) is being challenged by state governors, though it has been legitimised by an Act of Parliament that birthed the Nigerian Sovereign Investment Authority (NSIA), the managing agency for the Sovereign Wealth Fund (SWF). In an exclusive interview with The Guardian in Ibadan, Oyo State, a budget historian and lawyer, Dr. Tunji Ogunyemi, attributed operation of the ‘illegal accounts’ to “exigency and, sometimes, corruption.” According to him, “Sections 82, 83, 84 and 162 sub 2 of the Constitution of the Federal Republic of Nigeria (as amended) are clear as to what should happen to monies earned. They say you shall deposit all monies — with no exceptions — earned by the federation within a fiscal year, into the Federation Account. No exception as to running cost is granted. “The National Assembly can then allocate what one can take from the account. It is not like there won’t be some set off, that can happen, but it shouldn’t be in such a way that an agency earns N162 billion and spends N160 billion out of it.” Ogunyemi, who lectures in the Department of Economics at the Obafemi Awolowo University (OAU), Ile-Ife, Osun State, had, in a scholarly article, The Trouble With Nigeria’s Fiscal Federalism: Non-Statutory Accounts And ‘Un-due’ Processes In Fiscal Matters, 1967 to 2004, virtually indicted many of the past administrations for allegedly bastardising the TSA, through arbitrary operation of illegal accounts in disregard to the federating units. The article was published in the journal, Transactions of the Historical Society of Ghana (New Series No. 14, 2012. Ogunyemi’s position was corroborated by Dr. Emmanuel Egbogah, an oil expert and former adviser to the late President Umaru Musa Yar’Adua, who, re-iterated that the administration of former President Goodluck Jonathan had planned to implement the TSA in February but was handicapped by political issues. Responding to the avalanche of reactions trailing the policy, Ogunyemi said the legitimacy and supremacy of the Federation Account is enshrined in the constitution, in which there is no room for illegal accounts or exceptions on remittances of funds accruing to the country. He argued that some accounts established between 1967 to 2004 negated principles of revenue generation and allocation in federal states and that their continued operation “called to question the integrity of the Federal Government in keeping to the dictates of the rule of law and the due process of financial management as enshrined in extant legislations in Nigeria.” One of the cases of corruption instantiated by the operation of the illegal accounts, according to the budget historian, is the shoddy management of Nigeria’s external debts, particularly with the London club of creditors. He revealed that a debt servicing account was illegally established in 1982, and argued that the Federal Government failed to consult all stakeholders in the Federation Account and did not enact a law to give it legal backing. The account was discontinued after 2002, after the Supreme Court declared it illegal. Prior to the interview, Ogunyemi had written thus: “During the period the account was operated, the sum equal five per cent of the accruals from exports and income derived from Nigeria’s investment abroad, which were public revenues that belonged to the Federation and not to the Federal Government alone, was paid into it. Despite the opening and maintenance, Nigeria’s debt management was still in a shambles. “The debt increased from $4 billion in 1979 to $18 billion in 1985. Thus, the fact that a special account was created, the amortisation of the debt did nothing to arrest its growth, rather, the ‘anatomy’ of the Nigerian economy became, in the words of C.S.P Okongwu, even more ‘traumatised’ due to the debt and other factors induced by it. They later handed the template over to civilian rulers at the return to democracy in 1999.” Ogunyemi told The Guardian that, though the legitimacy of the TSA was enshrined in the 1954 Oliver Lyttleton Constitution, the opening of other accounts started 48 years ago, during the civil war under the Gen. Yakubu Gowon regime, to prosecute the war. “The origin for several accounts for the Nigerian Federation can be traced to the regime of Gen. Gowon, who was Head of State for about nine years, from 1966 to 1975. That regime was awash with petrol money, so it had to create several accounts in England and the United States, to receive the huge unexpected income, after the civil war, which ended in January 1970. These accounts were dedicated to certain things such as reconstruction of facilities that were destroyed during the war; amortising debts incurred during the war; and Joint Venture Cash Calls Account for financing joint-ventures between the Nigerian government and oil partners among others,” he said. According to Ogunyemi, the bastardisation of these accounts, from dedicated to corruption-induced, and arbitrary operations began with the regime of then Gen. Ibrahim Babangida, and later Gen. Sani Abacha regime, when the country had stabilisation and dedicated accounts which, he said, were not really true to their purpose. “The Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC) established by Section 162 sub 2 of the constitution, immediately there is an accrual to the Federation Account, will issue a statement to set aside 13 per cent which should go to the oil producing states, and one per cent to the Ecological Fund. The remainder is what ought to be shared in the percent of 52 and 48 for the federating units. This is the normal thing and no one should tilt it because there is a law backing it up. “However, there are several accounts that the Federal Government has kept without deference to the other stakeholders. There are several of them. Some are called dedicated or stabilisation account. They are completely outside constitutional provision, as no section provides for them. “The regimes that practiced this most are those of Generals Babangida and Abacha. What we have today is that politicians from 1999 continued with the illegality from the military. Some of the states were bold enough to challenge the Federal Government,” he said. Stressing that it behoves on the account holder to close it since its objective has been defeated, Ogunyemi said the monies ought to have been returned to the treasury. “The legal foundation for the opening of any account by the Nigerian government is codified in sections 80 to 84 and 162 of the 1999 Constitution. Section 162 is very clear about which account money should be domiciled. “All monies earned, according to the constitution, must be kept in the Federation Account. It is also known as the Distributable Pool Account (DPA). It doesn’t matter what it is called; it is one single account. The proceeds and income accruable to the Federation are kept in this account, whether they are from tax efforts or petroleum receipts or donors or sales or income from courts and offices. Income from assets, too, especially Federal Government bonds or seignoraige, that is, the income made from producing currency, are paid into the account,” he said. The expert noted that “there is the Consolidated Revenue Fund, which belongs exclusively to the Federal, which is provided for in the constitution from sections 80 to 84. It is from the account that the Federal Government budgets, not the Federation Account. The Federation Account is jointly owned by the federal, state and local governments. Abuja is not a beneficiary of the federation account. A judgment in the case between Attorney General of the federation government and Abia State government and 35 others, delivered in April in 2003, rules that Abuja is not a state and therefore cannot earn from the Federation Account.” The problem, he said, is that the Federal Government has been dealing with the Federation Account, particularly since the regimes of Babaginda and Abacha, in such a way as to completely discountenance the other stakeholders as if they knew nothing. “Instead of depositing one per cent of earnings into the amelioration of ecological troubles known as the Eco Account or Ecological Fund before sharing, the Federal Government has been appropriating the fraction to itself. “Immediately the fund is set aside, it ought to go to the fund from the federation account and not remain there. But the Federal Government appropriates the one per cent into its own and then determines when to release it. Nothing can be more un-procedural. It should ordinarily go from source,” he added. Egbogah, an oil and gas expert, said the new directive would clearly enshrine transparency and discipline in management of finances. Egbogah has had over 40 years of diversified geological and petroleum engineering experience in consulting, teaching, research/ development, project planning, implementation and management in Canada, United States, Middle East and Asia Pacific region. According to him, payment of government revenues into multiple bank accounts operated by MDAs in commercial banks, “as obtained under the older order, was clearly against the Nigerian constitution, which, in sections 80 and 162, directs that all federally collected revenue should be paid into the Federation Account.” “This (implementation of the TSA policy) is something very good, because, for the first time, it will give the government what you may call helicopter view — one single look at what the financial situation is at any point.”

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