The Constitution of the Federal Republic of Nigeria 1999 provides an enforceable Code of Conduct (Code) for public officers. This Code covers issues of prevention of conflict of interest, illicit enrichment, bribery and corruption, influence peddling, among others. It anticipates that public officers will perform their duties with integrity, objectivity, professional competence, and to deliver value to benefit the service beneficiaries. DAVID AGBA writes.
Conflict of Interest
The Code, with regards to conflict of interest provides that “A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.”
This is about a situation in which someone’s private interests are opposed to that person’s responsibilities to other people. This is about putting the interest of the state first and the service to the people as the public officer is paid at the taxpayer’s expense. The term is used in connection with public officials and fiduciaries and their relationship to matters of private interest or gain to them. It is about personal and financial interest conflicting with official responsibility.
Conflicts of interest could arise where a public officer is vested with the power to commit the government to a contract obligation.
Several experts and analysts have stated that in such a situation the public officer would be acting as an agent the government and a fiduciary relationship comes into being. The Public Procurement Act 2007 makes provisions on conflict of interest which may apply across board in non-procurement transactions.
The provision is adapted and reproduced below: “A conflict of interest exists where a person:
(a) possesses an interest outside his official duties that materially encroaches on the time or attention which should otherwise be devoted to the affairs of government.
(b) possesses a direct or indirect interest in or relationship with a bidder, supplier, contractor or service provider that is inherently unethical or that may be implied or constructed to be, or make possible personal gain due to the person’s ability to influence dealings;
(c) entertains relationships which are unethical, rendering his attitude partial towards the outsider for personal reasons or otherwise inhibit the impartiality of the person’s business judgments;
(d) places by acts or omissions the government entity he represents or the Government in an equivocal; embarrassing or ethically questionable position;
(e) entertains relations compromising the reputation and integrity of the government.
(f) receives benefits by taking personal advantage of an opportunity that properly belongs to the ministry, department or agency of government he represents;
(g) creates a source of personal revenue or advantage by using public property which comes into his hands either in the course of his work or otherwise; and
(h) discloses confidential information being either the property of his MDA to a contractor, supplier, service provider or to unauthorised persons.”
Criminal Code
By S.101 of the Criminal Code, another scenario of conflict of interest is defined on public officers interested in contracts. It provides:
“Any person who, being employed in the public service, knowingly acquires or holds, directly or indirectly, otherwise than as a member of a registered joint stock company consisting of more than twenty persons, a private interest in any contract or agreement which is made on account of the public service with respect to any matter concerning the department of the service in which he is employed, is guilty of a felony and is liable to imprisonment for three years and to be fined at the discretion of the court.”
Earning Double Emoluments from the Treasury, Private Practice and Farming
The Code frowns against this:
“Without prejudice to the generality of the foregoing paragraph, a public officer shall not
(a) receive or be paid the emoluments of any public office at the same time as he receives or is paid the emoluments of any other public office; or
(b) Except where he is not employed on full time basis, engage or participate in the management or running of any private business, profession or trade but nothing in this sub-paragraph shall prevent a public officer from engaging in farming.
According to a legal expert and Lead Director of the Centre for Social Justice (CSJ) Eze Onyekpere, this is a clear case where equity leans against double portions. Business and emoluments are broadly defined in the interpretative S.19 of Part 1 of the Fifth Schedule:
“Business means any profession, vocation, trade or any adventure or concern in the nature of trade and excludes farming”
“Emolument means any salary, wage, over-time or leave pay, commission, fee, bonus, gratuity, employment or office”.
He however argues that it restricts the meaning of public office as not including the chairmanship or membership of ad hoc tribunals, commissions or committees. This provision outlaws the receipt of salaries and remuneration from more than one official position but allows the holding of two or more government appointments. It also forbids private business or professional practice except for part time government workers. But this did not outlaw public officers holding stock or shares in publicly quoted companies.
Barr. Onyekpere said the crux of this application is hinged on the provisions of Section 2(b) of Part 1 of the Fifth Schedule of the 1999 Constitution, already reproduced above, which provides that a public officer shall not: “except where he is not employed on full time basis, engage or participate in the management or running of any private business, profession or trade…” As submitted for the Appellants/Respondents, these unambiguous words must be given their ordinary, natural and literal interpretation. These unambiguous words, in my considered opinion, state explicitly that a public officer, while in full time employment, cannot engage or participate in the management or running of any private business, profession or trade. These words do not rule out completely any form of private practice where the public officer is not involved in the running or management of the private business, profession or trade.”
Exemption of farming
Other experts believe the general exemption of farming in this paragraph is curious because it depends on the type of farming activities. If it is just a small farm in the living premises of the public officer, this provision makes sense. But if it is a large-scale farm that hires staff in tens and hundreds, it is as good as any other private business or full-time endeavor that will compete with the public officer’s attention and prevent him from giving his full attention to the public service.
As such, this section is due for review to categorise the acceptable and prohibited farming activities. The test should be based on the time of the public officer to be dedicated to such farming activities and whether such time would allow adequate concentration on the public service assignments.
Gifts or Benefits in Kind
The Code made the following provisions on gifts and benefits in kind:
A public officer shall not ask for or accept property or benefits of any kind for himself or any other person on account of anything done or omitted to be done by him in the discharge of his duties.
For the purposes of sub-paragraph (1) of this paragraph, the receipt by a public officer of any gifts or benefits from commercial firms, business enterprises or persons who have contracts with the government shall be presumed to have been received in contravention of the said sub-paragraph unless the contrary is proved.
A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom: Provided that any gift or donation to a public officer on any public or ceremonial occasion shall be treated as a gift to the appropriate institution represented by the public officer, and accordingly, the mere acceptance or receipt of any such gift shall not be treated as a contravention of this provision.
