President Goodluck Jonathan's recent decision to merge Ministries, Departments and Agencies (MDAs) with similar mandate was to reduce waste. The decision is however being trailed by discordant tones from stakeholders. Indeed, a committee set up by the Secretary to the Government, Anyim Pius Anyim, on the mergers issue has just concluded its work, waiting for the presidential nod. But the snag has been the issue of legal impediment. While most of the parastatals and agencies derive their mandates from laws establishing them, some are off shoots of legal treaties entered willingly by the Nigerian government. On what should be the position of the law on the planned merger, BERTRAM NWANNEKANMA sought the views of the former Delta State's Attorney- General and Commissioner for Justice, DAFE AKPEDEYE (SAN) and Port Harcourt-based Senior Advocate of Nigeria, SEBASTINE HON. Excerpts:Dafe Akpedeye (SAN)HOW do you react to the planned merger of similar government parastatals and agencies by the federal government'I am also aware that President Goodluck Jonathan has set up a committee, which he termed Committee on Restructuring and Rationalization of Federal Government Parastatals and Agencies, with the expectation to prune the number of agencies andparastatals and make them more efficient. Apart fromthat, there is also the committee set up by the Secretary to the Federal Government on this issue.The immediate past Head of Service of the Federation, Mr. Stephen Orasanye is the chairman of the committee set up by the President, with other accomplished Nigerians selected from the Offices of Secretary to the Federal Government, Head of Service, the Trade Unions and Justice as members. Their terms of reference, among others, include to examine the enabling Acts of all the Federal Agencies, Parastatals and Commissions and classify them into various sectors and make appropriate recommendations for the review of the extant laws in line with the recommendations.As you can see, the protagonist of the merger did not gloss over the legal issues that would emanate from the exercise, hence, the exclusion of seasoned legal practitioners in the committee.What do you think is the focal point of this exercise'The focal point of government on this exercise is on parastatals and agencies established to implement domestic policies with minimal bureaucratic bottleneck and not agencies originating as a result of international treaties. It is important to make these distinctions because the legal challenges posed by the parastatals arising from our local legislation and those agencies arising from treaties are separable.The major legal impediments facing Mr. President's desire is that the parastatals and agencies under review are mostly creations of statutes. Their lives, irrespective of the views of the committee, cannot be extinguished by presidential fiat or proclamation. In other words, the National Assembly has to make laws repealing the existence of the ones to merge and also make laws to establish the new ones as their sphere may have increased with the merger. As at the last count, Mr. President said there were about 400of such agencies and parastatals in existence. So, we are talking about the House of Representatives and the Senate looking at about 400 legislations, streamlining them, repealing and enacting fresh laws before sending to the President for his assent. You will agree with me that it will be an arduous task.What is the way out'The way out lies in proper co-ordination and synergy between the Legislature and the Executive. If I remember correctly, the Presidential Committee was given eight weeks within which to submit its report. If the committee keeps its deadline and the executive presents the new bills to the National Assembly and follows it up, perhaps, the rationalization could be achieved within the life of this administration every other thing being equal.I am not in doubt that some of the agencies and parastatals are unnecessary excesses. They were just created at the whims and caprice of the powers that be for their own selfish ends. Some have also outlived their usefulness. Whatever malady they were meant to tackle, having been fully addressed or taken over by another agency, parastatal or even ministry, they should now be collapsed.To my mind, it will not be out of place then to scrap or merge some of the parastatals and agencies. Let me not pre-empt the work of the commission by mentioning names. Suffice it to say that it is a commendable venture.If the parastatals and agencies are properly rationalized, it will drastically cut down on the total overhead of government spending as most of the agencies are now merely waste drains, considering their value-added. I believe the nation will be better for it if the exercise is properly done and the proceeds to be saved properly harnessed and not allowed to drain through other useless avenues.Sebastine Hon (SAN)What is your view on the planned merger of agencies and parastatals by the government'Let us first of all appreciate the unenviable position of the President as the chief formulator and executor of our country's economic and social policies. Under that garb, and to that extent, Mr. President has every power to order the mergers. Beyond that, however, we have to examine the powers of the President in this regard vis-a-vis extant constitutional and administrative law realities.In the first place, Mr. President cannot validly order the merger of two bodies established by the constitution without first amending the constitution to accommodate the merger. Any attempt to merge two statutory bodies without first amending the relevant statutes, will not work. It is even more difficult or complex when any such merger will ground or render ineffectual in any way Nigeria's international treaty obligation. No country can lawfully legislate or formulate any policy that is capable of countering, counteracting or otherwise rendering ineffective an existing international obligation like a treaty. The reason is plain enough: international public law exists to instill discipline and international legal cum public order; otherwise, recalcitrant countries will always breach international contractual obligations without attracting the necessary legal sanctions. Some of the ways out include amending relevant portions of the constitution and the relevant statutes, with a view to accommodating this policy swing.Secondly, Mr. President should not just look at the cost effect but should rather strengthen some of the parastatals.Also moribund bodies, in my view should be scrapped altogether. However, Mr. President should exercise reasonable caution before he takes action on the proposed merger of bodies that are executing international treaty or other contractual obligations, for example, those executing the Millennium Development Goals, (MDGs). This is where Mr. President needs experts' advice, which will clearly centre on the 'dos' and 'don'ts' of the powers Nigeria can lawfully exercise pursuant to, or in derogation of, the relevant international treaties it voluntarily entered into. Above all, I support the proposed mergers, subject to constitutional and legal due process.
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