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Friday, May 21, 2010

Relax Our Code of Conduct, Pls

Senator Mantu: Relax Our Code of Conduct

As an advocate of single-term presidency, I received the news that the National Assembly will consider introducing the maximum of single five-year tenure for our executives with joy. To augment the consideration of the senate committee, I will at a later date reprint the article I wrote last year on the subject in my former column, Friday Discourse. Before then, I would like to forward another contribution on the issue of code of conduct for public servants.
Guidelines on the conduct of public servants are contained in Part I of the Fifth Schedule of the 1999 constitution. The broad principle of the code is mentioned in Section 1 of the schedule: “A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.”
Section 2 (a) went further to mention that a public servant, without prejudice to the generality of the provision in Section 1, shall not be paid more than one emolument, regardless to his number of public responsibilities.
A public servant employed on full time basis is further prohibited by Section 2 (b) from engaging or participating “in the management or running of any private business, profession or trade” other than farming.
To ensure that these provisions are complied with, public servants, including political appointees, are requested by provisions of Section 11 of the schedule to declare their assets “immediately after taking office and thereafter (a) at the end of every four years, and (b) at the end of his term of office.” The declaration must include a statement of “all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.”
To begin with, it is worth mentioning the obvious fact that only a very negligible fraction of our public servants complies with the above constitutional provisions. We are therefore dealing with a law that almost nobody wants to comply with and which has failed to achieve its primary objective of checking corruption in our public service.
I am not pleading for the abrogation of constitutional provisions that relate to corruption. The fight must continue. What I am proposing is the repeal of the Section 2 (b) of the schedule that prevents public servants from engaging in any business, no matter how morally legitimate, other than their official assignment and farming. This is the direction to which our experience in the past twenty-six years points.
Our main contention here is that public servants can no longer maintain their families or meet other social responsibilities resting on their shoulders using the token called salary. The reasons for this are many but we will limit ourselves to three principal ones: the inability of government to manage the economy efficiently; its abdication from providing essential services to its citizens; and the extended nature of the African family.
It may be essential to note how the constitutional provision on the code has changed over time. First, it did not exist in the 1963 constitution because the need did not arise. When it was introduced in the 1979 constitution as a means of eternalizing Murtala’s fight against bribery and corruption, it did not carry the exception of farming. If I remember correctly, the exception on farming came somewhere in the mid-1980s. Later, after long periods of strikes, medical doctors were allowed to practice privately, in addition to their official duties. Then ASUU, also after protracted strikes in the first half of 1990s, was able to procure a concession to engage in private practice. Perhaps, for their docility, other civil servants are yet to get any relief.
Understandably, the economy was better managed during the First Republic: inflation was very small; the wages were adequate; public servants, and the public as well, were enjoying all forms of benefits and services from government through functional schools, hospitals, railways and so on; elite families were nuclear and distant from their places of origins; and finally, there was little pressure from the public on these services due to poor awareness, illiteracy, low population, etc.
The situation changed with the decline of the economy and in quality of governance, beginning from the early 1980s. Inflation set in and the currency has been undergoing devaluation, reducing the value of emoluments to a small fraction of their previous levels in 1960s and 1970s. Government also failed to provide public servants with essential services in transport, health and education, leaving them to their devices. Families of civil servants are no longer nuclear because of the social responsibility that African tradition expects them to shoulder. Finally, there is enormous pressure on the scanty social services remaining, arising from increased public awareness of their importance, rising literacy, urbanization and population explosion.
While we must concede that even the best government cannot meet the entire social demands of all its citizens, at the same time, we can assert that any government that cannot cater for the needs of its public servants stands guilty of gross negligence. So, since public servants, no matter the negligence of government, cannot sit back and watch their children die of disease or grow without education, they are compelled by survival instinct, if not persuaded by moral imperatives, to look for sources that will complement their income. Though some have used this as a pretext for indulging in corruption, many are violating the law out of necessity. The teacher who goes round to teach in more than one school in town, the university lecturer who runs kabu kabu in the evening with his personal vehicle and the civil servant who opens a business centre are all live specimens of Nigerians who are in honest pursuit of subsistence.
We may think in the first instance that such people are simply working for the education, health and general welfare of their kindred. On deeper reflection, however, I strongly submit that they truly deserve our commendation and we should regard them as epitomes of civic behavior. The children they train will live to be the engineers who will construct and maintain our infrastructure or the doctors who will treat our patients, regardless of who was responsible for their education. Left to government, there would not be any. Also, while this provision of the law has immensely contributed to brain drain and many of their colleagues, including myself, have abandoned public service in pursuit of greener pastures in the private sector, these public servants have chosen to remain in the system and seek other means of meeting their social needs within the ambit of moral legitimacy.
Beyond the province of morality, they also merit the approval of the law, not its wrath. In the present circumstances, the law should encourage them, not restrain them. It is on this basis that I am suggesting the need to reform the constitution to allow public servants to engage, where possible, in business activities other than their official duties. This will enhance legitimate earning and reduce the potential of corrupting our public servants. All that is needed is deleting S 2 (b) in Part I of the Fifth Schedule while its S 1 remains to serve as the broad framework based on which judgment could be passed regarding whether the personal interest of a public servant in any business he engages really “conflicts with his [official] duties and responsibilities. In addition, other provisions of the code regarding declaration of assets and liabilities, bribery, gratification and so on should stand in order to determine the legitimacy of whatever might be earned by the public servant outside his official emoluments.
Other countries, like Egypt, have for long allowed their citizens multiple jobs. After all, what makes a medical doctor, an agriculturalist or an academician different from other public servants? What is good for them could also be good for the engineer, the computer specialists, the administrator, and many others.
I know an objection will be raised on the presumption that removing the restriction will open a wide gate for diverting the attention of public servants from their official responsibility or even put them in positions inimical to their duties. An example here is the common practice where some medical doctors use government hospitals as bases for procuring patients for their private clinics.
Without quoting numerous jurists that space would not allow, my defense here is that no law is flawless; laws are made to be broken, as a jurist once said. They are meant to protect the good citizen, not the “bad man”, as Justice Holmes would call these evil servants. What is essential is vigilance on part of the authorities concerned to check the possibilities of negligence and abuse by enforcing the relevant enactments. If legislation will remove an injustice or a burden from millions of our public servants, it should not be refrained by the possible abuse of some few members of the public.
More importantly, we do not have to live with the hypocrisy of a constitutional provision that every one knows is a farce. As it stands now, S 2 (b) of the code of conduct has violated one of the principles of the rule of law: i.e. the law should be such that it is possible to comply with. “If it is impossible to comply with the law”, wrote Dr. J. M. Elegido in his Jurisprudence, “people are bound to break it through no fault of their own. If this is the case the government will then have a handy method of punishing its opponents under a cloak of legality: they will be prosecuted for the offences they are bound to have committed. Of course, in practice there is no need for a government to promulgate laws which are literally impossible to comply with…”
The case is worse for politicians who required by law to abandon whatever they have built for decades simply because they will be in office for a brief period, sometimes of not even up to a year. In 1999, Obasanjo warned that he would not condone any public servant engaging in private business and that anybody interested in business should leave his government. Today, he knows that was a utopia. I hope that Senator Ibrahim Mantu and his committee on constitutional reform will face reality and expunge Section 2 (b) of the Fifth Schedule in light of these and many other considerations.


I was alerted by a contributor to NaijaPolitics forum on the Internet – – that “Dr. Rilwanu Lukman does not maintain a room talkless of a suite at Nicon Hilton Abuja.” Though I could not trace the detail of what she wrote other than this title of the mail, I immediately replied her that if what she said is true, then Lukman deserves my unreserved apology. It is now clear from the fire that the NNPC boss is receiving from the press that the column from where I received my information last year confused Lukman with Obaseke. I hereby express my sincere apology to Lukman and regret any embarrassment my publication might have caused him.

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