Opinion | COVID-19: Accountability And The Risk Of Misappropriation Of Public Resources

Being text of talking points for a webinar on the same theme organised by ACTIONAID Nigeria, Friday, May 15, 2020.

Jaye Gaskia

Setting The Context: Accountability:

To be accountable implies taking ownership of one’s processes and being responsible for the decisions made and actions taken in the realization of such processes.

Significantly, it also includes the obligation to respond to questions and to explain these decisions and actions in the course of undertaking the processes.

With respect to public expenditure towards combatting the COVID 19 Pandemic therefore, COVID 19 Response accountability requires taking responsibility for the various response processes; being responsible for these processes to constituted authorities – in particular civil authorities [the legislature], and citizens; and the obligation to explain the decisions and actions taken in the course of pursuit of COVID-19 Response processes to constituted authorities and the citizens.

Powers And Control Over Public Funds:

The 1999 constitution of the Federal Republic of Nigeria [CFRN] as amended in Chapter five, in Part 1 for the federal government with respect to the National Assembly, and in Part 2 for state governments with respect to state assemblies, vest the power to establish accounts into which public funds of the
federation [section 80] and of the state [section 120] are to be paid.

Furthermore, the 1999 CFRN as amended also vests the power to authorize expenditure by the executive from the public funds of the federation [section 81] or of the state [section 121] in the national and state assemblies respectively.

Sections 83 [NASS] and 123 [State Assemblies], vests the power to legislate for the establishment of contingencies funds for the federation and the state, and for authorizing the president or the governor to to make advances for from the fund, if satisfied that there has arisen an urgent and unforeseen need for expenditure for which no other provision exists.

The implications of the combined provisions of Chapter 5 Part 1E [with respect of the federation], and Part 2E [with respect to a state] is as follows:

1) The executive arm of government is vested with the power to prepare estimates of public expenditure and present same to the legislature for its authorization;

2) The legislative arm of government is vested with the power to authorize such public expenditure proposed by the executive;

3) It is unconstitutional and illegal for the executive to spend any public funds that have not been appropriated by the legislature;

4) It is illegal and unconstitutional to operate any funds or accounts outside of the consolidated revenue fund established by the constitution, without legislative approval for the establishment of such a fund and or account;

5) It is consequently illegal and unconstitutional for public funds accruing to the federation of to a state to be paid into any other account, and for funds to be expended from such accounts, other than the consolidated revenue fund of the federation or of the state, except such fund has been
established by an act of the legislature and drawing expenditure from it has been authorized by the legislation.

What Are The Potential Risks For Misappropriation:

The risk of misappropriation of public funds within the context of COVID 19 Pandemic Response exist in the context of the issues thrown up by the pandemic. The main issues thrown up by the pandemic and for which public funds are required to be appropriated and utilized include:

1) Public Health Issues: the issues around public health includes issues around;

(a) testing capacity, with respect to the availability of well-equipped and adequately staffed laboratories to support testing. Virtually every country was caught napping. For instance, Nigeria had less than five testing laboratories at the onset of the pandemic, but now has 15. The ability to test, and the capacity to ramp up testing and test as many as possible is key to containing the pandemic and reversing the spread. Achieving these goals require the disbursement and expenditure of public funds;

(b) isolation and treatment centers are also very key. The capacity to treat those infected depends on the availability and quality of specialised treatment for the disease. Which is why isolation and treatment centers are of extreme importance and are key to containing the pandemic. The federal and state governments are establishing equipped and staffed isolation and treatment centers, and the private sector coalition against COVID have also announced plans to build, equip and hand over to state governments, isolation and treatment centers in each state of the federation and the FCT. Establishing, equipping, staffing and management of isolation and treatment centers also equally require public funds to be disbursed and expended;

(c) Social distancing and Self Isolation are two interrelated public health measures being widely implemented. But we do know that it is difficult and nearly impossible to effectively implement social distancing and self-isolation in overcrowded, poorly ventilated, slum and barely habitable housing conditions, which is the reality of the poor, and of the overwhelming majority of citizens in a context where over 80% of the population are poor and live in poverty. There are cost implications for enforcing social distancing and self-isolation under these extreme circumstances;

(d) Public and personal hygiene and sanitation are also measures being urged, given their efficacy with respect to prevention and mitigation of infectious diseases and their spread. Thence we are to wash our hands regularly with soap and running water. And herein lies the huge challenge. Access to clean, portable and running water is severely limited before the pandemic, and as we all know, is a function of good, humane and habitable housing conditions. And in a country with 20 million housing deficits, which
translates into nearly 120 million citizens living in poor, uninhabitable, and inhumane housing, then this is a very huge challenge indeed. With establishments and institutions both public and private being mandated to ensure availability of running water and soaps and detergents for regular handwashing, as well as sanitisers for sterilization of the hands, it is obvious that there will be cost implications for ensuring that these happens;

(e) There are also challenges with the availability of personal protective equipment (PPE) for front line workers in healthcare, but also in security and law enforcement who are enforcing and policing the lockdown, and journalists who are covering the developments, personnel engaged and involved with essential services, as well as civil society and other responders who are undertaking various responses to the pandemic among the unreached, etc;

2) The Palliatives and Stimulus Packages: Lockdowns have become a major public health response to the pandemic, given the efficacy of the measure with respect to slowing down spread and rate of infection in infectious diseases. Given the unintended impact of lockdowns in disrupting socio-economic activities and processes, governments across the world and in Nigeria [at federal and subnational levels] are also responding with palliatives or subsidies to cushion the impact of the lockdown on the citizenry; and with
stimulus packages aimed at keeping businesses afloat and the economy going. The aim is to try to enhance the ability of citizens and economic actors to withstand the impact of the pandemic. However, there are issues that are also arising from these measures, including but not limited to:

(a) the issue of equity and inclusion in the design, implementation and distribution of palliatives and stimulus packages. Whereas it may be easier to reach big business, the challenge is reaching the MSMEs, the informal sector who are for all intents and purposes undocumented. How can the state reach those for whom it has no records, either as individual citizens or individual businesses? How can we develop in a participatory, inclusive and rapid manner the records needed to ensure equity and inclusion and fairness in the implementation of these schemes? Again, we go back to the limitations imposed by the
nature and character of the preexisting state before the pandemic which calls into focus the necessity for a biometric and developmental state retooled for effective, quality, and equitable delivery of essential social services as public service;

(b) Such palliatives, in whatever form they may be designed, will require the disbursement and utilization of public funds to implement and make possible.

3) The Economic Impact of the pandemic and the consequent stimulus packages; there are evidently very grave ramifications of the impact of the pandemic on the economy; just as there are equally evident opportunities for groundbreaking, inward looking, pro-people economic reforms. The impact on the economy is primarily threefold in its essence.

(a) the public health impact on the conditions of workers and consumers of goods and services, which in turn impact production, distribution and exchange, and thus affect the bottom line of businesses;

(b) the impact of lockdown and social distancing on ability of businesses to operate and function productively; and

(c) the impact of the inability of businesses to operate on the workers and those employed in the impacted businesses.

The cumulative result of all of these are also evidently going to be with respect to closure of businesses, reduced earnings for businesses and government with respect to revenues, potential job losses and layoffs, as well as attempts to reduce workers incomes and salaries. All of these will potentially negatively impact economic growth, widen the inequality gap, and increase poverty levels.

To ameliorate these and mitigate the deleterious impact on businesses and economic activities, a central and key part of the COVID-19 Pandemic response globally has thus been the utilization of the interventionist tool in the form of design and implementation of various stimulus packages to help to keep businesses afloat and sustain economic activities.

(i) For instance, the CBN has already floated two intervention funds as stimulus packages in this respect. These are the N50bn Targeted Credit Facility for MSMEs; as well as the N100bn Stimulus fund for the Healthcare sector targeting pharmaceuticals, manufacturing of medical equipment, kits, etc; building and equipping, and upgrading of medical facilities among others;

(ii) The Federal government is also putting together proposals for a N2tn stimulus package for the economy; while

(iii) Various state governments are also mulling their own versions of stimulus packages and palliatives.

(iv) The $3.4bn IMF Facility. The various stimulus packages, have to be quantified, costed, and public funds disbursed and utilized in realising their implementation.

The upside to all if these is that crisis is also an opportunity. The core economic lesson from this pandemic is that we must prioritise and invest in achieving economic self-sufficiency, enabling our economy some degree of autonomy from the global economy.

We have a duty to ensure that we ramp up public investment in, and incentivise private investment in social capital development – education (that is tied to the economic and national development needs, and is linked to industry); health (effective and efficient and accessible healthcare delivery – primary, secondary and tertiary healthcare, with universal access); Public housing scheme to ensure affordable, accessible humane and habitable housing for all; along with a universal social security scheme to take care of those who may fall through the net of accessible basic social services.

4) The question of security, law enforcement and human rights abuse and violation. It is clear that inequitable access to palliatives and stimulus packages, particularly for those who are really needy, and whose survival is more undermined by lack of access is a human rights abuse.

Similarly, the physical and mental abuse that some are subjected to by law enforcement and security agents in the course of enforcing and policing the lockdown and other public health regulations during the pandemic are also human rights violations. And these violations and abuses also have to be checked. Culprits need to be held accountable, and victims need to be redressed and compensated.

It is also important to note that keeping security during the pandemic and law enforcement activities directed at enforcing the public health regulations and measures require the deployment of security and law enforcement agencies and their personnel as well as other specialised task forces, all of which require the appropriation, disbursement and utilization of public funds.

The Main Areas Of Risks Associated With Accountability:

Haven described the context within which public funds are to be expended in combatting the pandemic, it is important to now outline the major processes around which the risks associated with accountability are high. These will include;

(a) Legislative process: with respect to authorization and approval for public expenditure

(b) Procurement processes with respect to the procurement of goods and services relevant for implementing the public health measures being put in place

(c) Operational processes including the design, management and implementation of the various measures

(d) Personnel management with respect to recruitment, training, equipping, and deployment of the various personnel to undertake the various measures. These will include medical and health care personnel, public and civil servants, security and law enforcement personnel, civilian volunteers, medical personnel, etc.

What Is Required To Ensure Accountability:

(i) The insistence on compliance of all measures with constitutional and other legal provisions. All measures must have a basis in law and observe the rule of law.

(ii) Legislative action is mandatory for appropriation of public funds to undertake the response. No expenditure should be undertaken by the executive without legislative approval.

(iii) Legislative oversight of executive action in implementing the measures is non negotiable.

(iv) Citizen’s oversight of the various processes is essential. This should be ensured through the inclusion of mechanisms to ensure citizens oversight, and ensure and enable citizen involvement in the design, implementation and monitoring and tracking of the measures being implemented.

(v) Follow through with the management framework for operation of public accounts for COVID-19 Response within the TSA framework prepared by Office of Accountant General of the Federation, to ensure compliance with transparency and accountability.

(vi) The keeping, updating and management of public records, data and information with respect to the response is central to ensuring transparency and accountability, as well as well as in ensuring equity and social inclusion with respect to access within the response.