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By Gregory Okere
Every human endeavor, organisation or association is set up with objectives, functions and duties. This is most relevant to ministries, departments and agencies (MDAs) of government which are set up for public purposes. The success of a government agency is usually measured in its ability to perform its duties and discharge its functions. However, there is a direct relationship between the ability to perform functions and the powers granted an agency in its enabling law. Powers are the tools and implements necessary for the carrying out of functions. It is in this context that this discourse reviews the extant functions, powers and duties of the Fiscal Responsibility Commission (FRC) established under the Fiscal Responsibility Act (FRA) to determine whether adequate powers are available to the Commission for the purpose of discharging its duties.
Contextually, the function of the FRC is defined as the nature and appropriate action of the Commission, activities appropriate for the performance of duties, realisation of goals and the proper activities of the FRC as defined by law.Its duties will be in the realm of obligations conforming to legal standards of conduct, in accordance with international best practices and acceptable performance by similar organisations, benchmarked against the best in class.The functions define the extent of its activities, geography, tier of government, engagement and the subject matter over which it exercises “jurisdiction”.
FRC’s powers refer to the right, ability, authority or faculty for performing its duties. It could be enumerated or expressly stated in law. It may be implied powers, such that are necessary to carry into effect those powers which are expressly provided in law and therefore presumed to have been granted by the legislature if the law is to be effective. There are inherent powers which inhere in requisite government agencies like the courts, being powers which are intrinsically part of the exercise of the expressly enumerated powers. Generally, in the drafting of bills and enactment of laws, it is better to enumerate, specifically and expressly grant powers to an agency rather than leaving such powers to be implied because the exercise of such powers could be challenged and stuck in a long and unwinding litigation if the agency is accused of acting beyond or ultra vires its powers.
The FRA states the functions of the FRC as follows: monitor and enforce the provision of this Act and by so doing, promote the economic objectives contained in section 16 of the Constitution; and disseminate such standard practices including international good practice that will result in greater efficiency in the allocation and management of public expenditure, revenue collection, debt control and transparency in fiscal matters. The functions also include undertaking fiscal and financial studies, analysis and diagnosis and disseminating the result to the general public; making rules for carrying out its functions under this Act; and the omnibus clause to perform other function consistent with the promotion of the objectives of this Act.
On the other hand, the powers of the FRC are defined in S.2 of the FRA which states that for the purpose of performing its functions under this Act, the Commission shall have power to compel any person or government institution to disclose information relating to public revenues and expenditure; and cause an investigation into whether any person has violated any provisions of this Act. If the Commission is satisfied that such a person has committed any punishable offence under this Act or violated any provisions of this Act, the Commission shall forward a report of the investigation to the Attorney-General of the Federation for possible prosecution.
The foregoing functionsin S.3 of the FRA are wide ranging. Monitoring and enforcing the Act is wide and covers all the provisions from the beginning to the end.But in the event any person or government institution refuses (when asked) to disclose information relating to public revenues and expenditure to the FRC, what will be the FRC’s next line of action to get the agency to obey the law? Again, if the FRC intends to conduct an investigation into the financial affairs of an agency and the agency refuses to cooperate with it, what will be the next line of action to get the agency to obey the law? Currently, the requests and directives of the FRC are ignored by many MDAs with unprecedented impunity. These powers of the FRC seem to be inchoate as they are hanging in the air.
In the circumstances, the FRC needs clear and express powers to summon individuals and representatives of MDAs, to take evidence on oath, to search premises and to make records and or seize evidence relevant and necessary in their investigation and coming to a conclusion as to whether an infringement of the law had occurred. All these powers should be available to the FRC at the pain of punishment on any person who refuses to cooperate or obstructs the Commission in the lawful performance of its duties. Beyond tracing evidential materials from MDAs, the FRC should also be empowered with the power to trace relevant resources and materials from the money deposit banks where proceeds of the mismanagement of public funds may have been kept. The FRC’s access to fiscal information is fundamental to the proper performance of its duties and this should be secured by law.
Collaboration between the FRC and the traditional law enforcement agencies should be specified by law. These will include the Police, the Independent Corrupt Practices and Other Related Offences Commission, the Economic and Financial Crimes Commission and any other relevant MDA in the performance of its duties.
Okere writes from Abuja
