Socio-Economic Rights and Accountability Project (SERAP) has faulted the legal advice provided last week by the Attorney of the Federation and Minister of Justice, Mr. Mohammed Adoke to the effect that the Nigerian National Petroleum Corporation, was empowered by the NNPC Act to remit only to the federation account, its net earnings after deducting cost of its operations.
The organization in the statement released today and signed by its executive director Adetokunbo Mumuni said that, “the advice by Mr Adoke is patently inconsistent with the letter and spirit of Section 162 of the Constitution, which is to establish a dedicated account into which all public revenue by the Federal Government shall be paid, as well as to remove any arbitrary and non-transparent and non-accountable spending of public revenue.”
“In the first place, the use of the words ‘all public revenue’ in Section 162(1) suggests that the constitution allows of no distinction between net revenue and gross revenue. Secondly, the NNPC Act relied upon by Mr Adoke cannot override the clear provisions of Section 162, and the sacred principle that the Constitution is the supreme law of the land,” the organisation also said.
The organization also argued that, “being the supreme law of the land, the constitution is not a document to be read with levity or disdain; every section must be given its meaning i.e. every section has meaning and not devoid of adequate interpretation.”
“It has to be emphasized that Section 162 does not exempt certain types of revenue and does not distinguish between ‘net and gross revenue’ as Mr Adoke has attempted to do. In fact, the only exception provided for under that section are 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,” the organization added.
“This proposition is further buttressed by Section 162(10) constitution which defines “Revenue” to mean “income or return accruing to or derived by the government of the Federation from any source and includes”: a) any receipt, however described, arising from the operation of any law; b) any return, however described, arising from or in respect of any property held by the Government of the Federation; c) any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body,” the organization also said.
The organization said that, “Assuming for the sake of argument that the NNPC is required to pay into the Federation Accounts only the ‘net revenue’ and not the ‘gross revenue’ as Mr Adoke has argued, this will still not remove the fact that the NNPC is a trustee of the public revenue collected. Therefore, as a trustee, the NNPC has a legal duty to render account to the beneficiaries (Nigerians) of the trust, if and when called upon to do so.”
“We believe that the NNPC has woefully failed to discharge the sacred responsibility. Unfortunately, the impression created by the legal advice by the Attorney General of the Federation is that the NNPC is not obligated to render account. This is clearly inconsistent with the attitude of a government that has repeatedly expressed commitment to fight corruption, and in fact signed the Freedom of Information Act,” the organization added.
The organization also said that, “We believe that arguing that the NNPC has no responsibility to remit all public revenue amounts to permitting the corporation to create something analogous to a ‘special fund.’ It on similar analysis that the Supreme Court in the case of Attorney-General of the Federation versus Attorney –General of Abia State delivered in 2002 ruled that the provisions of Section 1 (d) of the Allocation of Revenue (Federation Accounts etc.) Act on “Special Funds” is inconsistent with the provisions of Section 162 (3) of the 1999 Constitution and therefore unconstitutional.”
“This interpretation is entirely consistent with Section 162 (2) of the Constitution which provides that the President, upon the receipt of advice from the Revenue Mobilisation, Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account and in determining the formula, the National Assembly shall take into account, the allocation principles,” said the organization.
“We therefore ask the Mr Adoke to urgently refer the NNPC to appropriate anticorruption agencies so that the confusion around the missing $20 billion oil money can be resolved once and for all, and suspected perpetrators brought to justice.”