Keeping An Eye On Ayade’s Privatization Part 1 & 2 BY AGBA JALINGO

In Breaking News, Opinion, Politics

PART 1

The Cross River State Government, through Mr. John Odo, Chairman of the State’s Privatization Council, yesterday announced it’s readiness to sell over thirty Government concerns.

According to the Council, Cross Riverians are to key into the initiative by referendum either online or by logging into www.crspc.org or getting the form from their various LGA Chairmen.

Here is the link to the Cross River State Enterprise Privatization Law 2018. There is no where in the law where there is provision for a referendum. To what end is this one?

If this is not a smokescreen, when did the Ayade government resort to using referendums to gather opinions from Cross Riverians?

Why this is important for me is that, even the opposition PDP in Cross River is not ready to play opposition politics just like the APC did when they were in opposition. These folks know themselves so well and have done so many things together, across party lines that they can’t hold themselves to account. The ones that can, are waiting by the flanks to be absorbed. So it is the generality of the people of Cross River State, home and abroad, who have the wherewithal and clear conscience, that will have to take this up and police this process.

If we allow this process to be driven by the whims of Governor Ayade and his 25 rubber stamps in the House of Assembly, our State assets will be handed over to the same people who have kept us in this quagmire and retarded our progress.

Privatization is a legal process guided by law. Our State has a privatization law and we must insist that the law must be followed from the first step.

What section of the law provides for a referendum and what is this one supposed to achieve?

Yours sincerely.

PART 2

Below Is The Cross River Enterprise Privatization Law.

I have read the law through and through and I can’t find any provision that says the Governor can unilaterally constitute his Commissioners and whoever he likes into a Committee to do a referendum on what should be done with our State’s assets.

So far, part of Governor Ayade’s dilemma, in his Peregrino House sojourn, has been his incessant penchant for thinking he is more intelligent than laid down procedures. Procedures were actually made because of impulsive individuals like him who personify everything to the detriment of everything. Always jumping around and doing things haphazardly and usually leading to nowhere. That is the same attitude that brought us to this privatization conundrum in the first place.

No matter what people perceive about some of your actions, if you follow due process and laid down processes, you leave very little room for errors and criticisms. So let Governor Ayade Esq. read the law and again and follow it.

CROSS RIVER – STATE ENTERPRISES (PRIVATISATION) LAW

PART I

Establishment and composition of members of the State Council on privatisation.

Tenure of office of members of Council.

Functions and powers of the Council.

PART II

Bureau for State Enterprise’s

Establishment of the Bureau for State Enterprise.

Appointment of Executive Secretary and other staff.

PART III

Further divestment of Government’s shareholding

Privatisation of State Enterprises.

Offer for sale of shares.

Further divestment of Government share holding.

Shares allotted to Nigerians.

Annual report of privatisation of Enterprises.

Establishment of privatisation proceeds accounts.

Funds of the Bureau.

Borrowing powers.

Estimate of expenditure and income.

Accounts and audit.

PART V

Legal proceedings

Limitation of suit against the Bureau.

PART VI

State Enterprises arbitration panel, etc.

Establishment and membership of the State Enterprises arbitration panel.

Power of the Panel.

Proceedings of the Panel

Other arbitration Laws applicable

PART VII

Miscellaneous

Regulations.

Repeal.

Transfer of functions, rights and obligation.

Interpretation.

SCHEDULE

PART I

Enterprises in which equity held shall be privatised.

PART II

Supplementary provisions relating to the Council

Proceedings of the Council.

Committees.

CHAPTER S12

STATE ENTERPRISES (PRIVATISATION) LAW

A Law to make provisions for the privatisation of Enterprises in Cross River State and for other matters connected therewith.

(6th November, 2001)

PART I

Privatisation of the State Enterprises

A— Establishment and composition of the Commission etc.

A— Privatisation

Establishment and composition of members of the State Council on privatisation,

(1) There is hereby established the Cross River State Council on privatisation (in this Law referred to as “the Council”, which shall be a body corporate with perpetual succession and shall sue and be sued.

(2) The Council shall consist of—

(a) a Chairman who shall be appointed by the Governor, subject to confirmation by the House of Assembly;

(b) the Attorney-General for the State and Commissioner for Justice;

(c) the Commissioner for Finance;

(d) the Commissioner for Trade and Investment; and

(e) five other members to be appointed by the Governor, subject to confirmation by the House of Assembly.

(3) Notwithstanding the provisions of subsection (2) of this section, the Council may coopt the supervising commission of an affected enterprise to attend relevant meetings of the Council.

(4) The supplementary provisions contained in the Schedule to this Law shall have effect with respect to the proceedings of the Council and the other matters contained in the Schedule.

B— Tenure

Tenure of office of members of Council

Subject to the provisions of this Law, a member of the Council, other than an ex officio member—

(a) shall hold office for a term of three years in the first instance and may be reappointed for a further term of three years only; and

(b) on such terms and conditions as may be specified in his letter of appointment.

C— Functions and powers of the Council

The functions and powers of the Council are to—

(a) articulate the economic and social objectives of privatisation of enterprises;

(b) recommend policies on privatisation;

(c) recommend guidelines and criteria for valuation of enterprises for privatisation and choice of strategic investors;

(d) recommend enterprises to be privatised;

(e) approve the legal and regulatory framework for the enterprises to be privatised;

(f) advise government on choice of public or private issue of sale of shares of listed enterprises for privatisation;

(g) determine the timeframe for privatisation;

(h) recommend the prices for shares or assets of the enterprise to be offered for sales;

(i) review, from time to time, the socio-economic effects of the programme of privatisation and decide on appropriate remedies;

(j) approve the appointment of privatisation advisers and consultants and their remuneration;

(k) advise Government on appointment of committees as and when necessary with regard to persons from private sector with requisite technical competence;

(l) forward the budget of the Council for approval by the State Executive Council;

(m) supervise the activities of the Bureau and issue directions on the implementation of the privatisation programme;

(n) receive and consider for approval, the audited account of the Council;

(o) submit to the Governor in each year a report on the activities of the Council;

(p) receive regular and periodic reports from the Bureau on programme implementation and give appropriate directions; and

(q) perform such other functions as may, from time to time, be necessary to achieve its objective.

PART II

Bureau for State Enterprises

A— Establishment

Establishment of the Bureau for State Enterprise

There shall be a Bureau for State Enterprise which shall serve as Secretariat of the Council.

B— Functions of the Bureau

The functions of the Bureau are to—

(a) provide secretarial support to the Council; and

(b) carry out such other duties and responsibility as may be assigned to it from time to time by the Council.

C— Appointment of Executive Secretary and other staff

(1) There shall be appointed for the Bureau an Executive Secretary who shall—

(a) be appointed by the Governor on the recommendation of the Council; and

(b) not be below the rank of a Director in the Civil Service of the State.

(2) The Executive Secretary shall be the Chief Executive of the Bureau and Secretary of the Council and shall hold office—

(a) for a period of three years in the first instance and may be reappointed for a further period of three years only; and

(b) on such terms and conditions as may be specified in his letter of appointment.

(3) There shall be for the Bureau a Management Committee comprising the Executive Secretary and Departmental Heads, who shall be responsible for the implementation of the policies of the Council and the day to day administration of the Bureau.

(4) Such staff of the Bureau as may be required shall be deployed from the Civil Service of the State.

PART III

Further divestment of Government’s shareholding

A— Privatisation

Privatisation of State Enterprises

The State Council on privatisation (in this Law referred to as “the Council”) established under section 6 of this Law shall, from time to time by order published in the Gazette determine the enterprises to be partially or fully privatised in accordance with the provision of this Law.

Offer for sale of shares

(1) Subject to the provisions of section 3 (f) of this Law, an offer for the sale of the shares of a State enterprise shall be by public issue or private placement as may be determined by the Council.

Further divestment of Government share holding.

Without prejudice to the provision of this Law, the Government of Cross River State in accordance with the policy guidelines and decisions issued, from time to time, by the Council, so however that the Council may dispose of the shares or part thereof to one interested investor, through any local or international market.

Shares allotted to Nigerians

(1) Subject to any direction of the Council and without prejudice to the provisions of section 7 of this Law, the shares of the enterprises to be allotted to Nigerians under this Law by public offer shall be in accordance with the provisions of subsection (2) of this section.

(2) Not less than one percent of the shares to be offered for sale to Nigerians shall be reserved for the staff of such enterprise to be privatised.

B— Annual report on privatisation

Annual report of privatisation of enterprises

(1) The Council shall prepare and submit to the Governor not later than 30th June in each year, a report in such forms as the Governor may direct on the privatisation of enterprises during the proceeding year.

(2) Such report to the Governor shall after consideration by the Governor be submitted to the House of Assembly for further consideration.

Establishment of privatisation proceeds accounts

(1) There shall be an account maintained by the Council in a designated commercial bank to be known as “Privatisation Proceeds Accounts” into which shall be paid all proceeds received from the privatisation of State enterprises before and after the commencement of the Law.

(2) The funds in the account established under subsection (1) of this section shall be utilised for such purposes as may be determined by the Council.

Funds of the Bureau.

(1) The Bureau shall establish and maintain an account in a designated commercial bank to be approved by the Council from which shall be defrayed all expenditure incurred by the Bureau.

(2) There shall be paid and credited to the account established in pursuance to subsection (1) of this section—

(a) the subvention received by the Council from the Government of the State;

(b) fee and charges for services rendered or publications to the Bureau.

(3) The account shall be managed in accordance with rules made by the Council and without prejudice to the generality of the power to make rules under this subsection, the rules shall in particular contain provisions—

(a) specifying the manner in which the assets or the funds of the Bureau are to be held and regulating the making of payments into and out of the account; and

(b) requiring the keeping of proper accounts and records for the purposes of the fund in such form as may be specified in the rules.

(4) The Bureau may, from time to time, apply proceeds of the fund established pursuant to subsection (2) of this section for the following purposes—

(a) the cost of administration of the Bureau;

(b) the reimbursement of members of the Council or any Committee set up by the Council for such expenses as may be authorised by the Council, and where they exist, in accordance with the rates approved by the Government of the State;

(c) the payments of salaries, fees and other remuneration, allowances, pensions and gratuity payable to members of the Council, employees of the Bureau or expert or professionals appointed by the Council;

(d) the maintenance of any property acquired or vested in the Bureau; and

(e) any other matter connected with all or any of the functions of the Bureau under this Law.

Borrowing powers:

The Council may borrow such monies as it may from time to time require to enable it to carry out its functions under this Law.

Estimate of expenditure and income:

The Bureau shall not later than 30th of June in each year, submit to the Council an estimate of its expenditure and income during the next succeeding year.

Accounts and audit:

(1) The Bureau shall keep proper accounts and records of its receipts, payments, assets and liabilities and shall in respect of each year prepare a statement of account in such form as the Council may direct.

(2) The Bureau shall within six months after the end of the financial year to which the accounts relate, cause the accounts to be audited by Auditors appointed by the Council and in accordance with the guideline supplied by the Auditor-General of the State.

PART V

Legal proceedings:

Limitation of suit against the Bureau

(1) Subject to the provisions of this Law, the provisions of the Public Officers Protection Act shall apply in relation to any suit instituted against any member of the Council or any Officer or employee of the Bureau.

(2) A notice, summons or other documents required or authorised to be served upon the Council under the provisions of this Law or any other Law or enactment may be served by delivering it to the Executive Secretary or by sending it by registered post and addressed to the Executive Secretary at the principal office of the Bureau.

(3) The notice referred to in subsection (2) of this section shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.

(4) A member of the Council, the Executive Secretary, any officer or employee of the Bureau shall be indemnified out of the assets of the Bureau against any proceeding, whether civil or criminal, if such proceeding is brought against him in his capacity as a member of the Council, the Executive Secretary, officer or employee of the Bureau.

PART VI

State Enterprise Arbitration Panel, etc.

Establishment and membership of the State Enterprises Arbitration Panel

(1) There is hereby established under this Law an ad hoc body to be known as the State Enterprise Arbitration Panel (in this Law refereed to as “the panel”) which shall be responsible for effecting prompt settlement of any dispute arising between an enterprise and the Council or the Bureau or any other person or organisation involved in the privatisation process.

(2) The panel shall consist of five persons appointed by the Governor, three of whom shall be knowledgeable in arbitration matters and such persons shall be of proven integrity and one of whom shall be the Chairman.

(3) The members of the panel shall be paid such remuneration and allowance as may be determined by the Governor upon recommendation by the Auditor-General of the State.

(4) Each party shall appoint two (2) Arbitrators and the Arbitrators will appoint a fifth member who shall be the Chairman.

Power of the panel:

The panel shall have power to arbitrate—

(a) in any dispute arising from questions as to the interpretation of any of the provisions of a Performance Agreement; or

(b) in any dispute arising between the Council and the enterprise or any interested party.

Proceedings of the panel:

(1) Subject to this section and section 27 of the Interpretation Law, the panel may make standing order regulating its proceedings.

(2) The Chairman of the panel shall preside at every session of the panel.

(3) The quorum at any session of the panel shall be the Chairman and two other members.

Other arbitration Laws applicable:

The provisions of the Arbitration and Conciliation Act 1988 or any other enactment or law relating to arbitration shall be applicable to any matter which is the subject of arbitration under this Law.

PART VII

Miscellaneous

Regulations

The Council may make regulations generally for the purpose of giving effect to the provisions of the Law.

Repeal:

The Privatisation and Commercialisation Law 1991 is hereby repealed.

Transfer of functions, rights and obligations:

(1) The statutory functions, rights, interests, obligations and liabilities of the Bureau, existing at the commencement of this Law under any contract or instrument at law or in equity shall by virtue of this Law, be deemed to have been assigned to and vested in the Bureau established by the Law.

(2) Any proceeding of cause of action pending or existing immediately before the commencement of Law, by or against the Bureau in respect of any right, interest, obligation or liability, may be continued or as the case may be or commenced and any determination of the Court of Law, tribunal or other authority or person may be enforced by or against the Bureau established by the Law to the same extent that such proceeding or cause of action or determination might have been continued, commenced or enforced by or against the Bureau existing before the commencement of the Law.

(3) All assets, which immediately before the commencement of this Law were vested in the Bureau shall by virtue of this Law without further assurance, be vested in the Bureau established by the Law.

Interpretation:

In this Law, unless the context otherwise provides—

“Bureau” means the Bureau of State Enterprises established by section 9 of this Law;

“Council” means the State Council on Privatisation established under section 6 of this Law;

“Nigerians” for the purposes of this Law mean citizens of Nigeria and companies incorporated in Nigeria whose shares are wholly owned by citizens of Nigeria;

“panel” means the State Enterprises Arbitration Panel established by section 17 of this Law;

“state enterprise” means any corporation, board, company or parastatal established by or under enactment in which the Government of the State, a Ministry or Extra-Ministerial Department or Agency has ownership or equity interest and include a partnership, joint venture or any other form of business arrangement or organisation;

“strategic investor” means a reputable core investor or group of investors having the requisite technical expertise, the managerial experience and the financial capacity to effectively contribute to the management of the enterprises to he privatised.

Short title:

This Law may be cited as the State Enterprises (Privatisation) Law.

SCHEDULE

PART I

Enterprises in which equity held shall be privatised:

PART II

Supplementary provisions relating to the Council:

Proceedings of the Council:

(1) Subject to this Law and section 27 of the Interpretation Act, the Council may make standing orders regulating its proceedings or those of any of its Committees.

(2) The quorum of the Council shall be five members and the quorum of any committee of the Council shall be determined by the Council.

(1) The Council shall meet not less than four times in a year and subject thereto, the Council shall meet whenever it is summoned by the Chairman, and if the Chairman is required to do so, by notice given to him by not less than three other members, he shall summon a meeting of the Council to be held within fourteen days, from the date on which the notice is given.

(2) At any meeting of the Council, the Chairman shall preside but if he is absent members present shall elect one of their members to preside.

(3) Where the Council desires to obtain the advice of any person on a particular matter, the Council may co-opt him to the Council for such period as the Council deems fit, but a person who is in attendance by virtue of this sub-paragraph shall not be entitled to vote at any meeting of the Council and shall not count towards a quorum.

Committees:

(1) The Council may appoint one or more committees to carry out on behalf of the Council, such of its functions as the Council may determine.

(2) A Committee appointed under this paragraph shall consist of such number of persons (not necessarily) members of the Council as may be determined by the Council; and person other than a member of the Council shall hold office on the committee in accordance with the terms of his appointment.

(3) A decision of a committee of the Council shall be of no effect until confirmed by the Council.

Yours sincerely.

Citizen Agba Jalingo, a journalist and rights activist is a Cross Riverian and writes in from Lagos.

NB: Opinions expressed in this article are strictly attributable to the author, Agba Jalingo and do not represent the opinion of CrossRiverWatch or any other organization the author works for/with.

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