University of Botswana Law Journal - PULP

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134 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 Act. In part three, the mechanism for attainment of its statutory objectives is examined and the scope of the application of the Act is dealt with in the next part. The impact and the amendment of the Act are briefly discussed in the subsequent parts five and six. The challenge for the enforcement of the Act is considered in part seven and conclusion is in part eight. 2. THE OBJECTIVES OF THE PPA We cannot overemphasize the importance of objectives to a statutory provision since objective its self is the harbinger that occasion its enactment. It is the purpose which sets the mission which a particular statue intends to achieve and does not only prescribe the yardstick for its assessment but also provide a mechanism for its interpretation. 6 The Canadian courts captured the importance of objectives in interpreting a statute in the Driedger principle: “… the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” See Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes 4th ed. (Vancouver: Butteworths, 2002) at 1. As a result, statute ought not to be drafted without having a particular purpose in mind, just as a house should not be built without having a particular plan as pattern for engineers to follow. 7 There is a presumption that every enacted statute has a purpose and that purpose must be discovered either in the preamble to the statue or in the entire statue. Therefore in this section we will consider the purpose of the PPA by looking in to its objectives in the Act. Section 3[1] of the PPA establishes a regulatory body known as the 6 There are many rules of interpretation from the literal rule to golden rule and the mischief rule etc. The common thread however is that most of the rules consider the objects of the Act in interpreting a statute. Even where there has been uncertainty, ambiguity or absurdity in the words used in such way that it is difficult for the judge to fathom the meaning of the statute and its objects, the courts under the common law will still consider what is the purpose of the Act and not what ought to be the intention of the Parliament or the Judge. In Duport Steels Ltd v SIRS 1980 House of Lord Scarman said: ‘In the field of statute law the judge must be obedient to the will of Parliament ... Parliament makes ... the law: the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires ... Unpalatable statute law may not be disregarded or rejected, merely because it is unpalatable.’ ‘If Parliament says one thing but means another, it is not, under the historic principles of the common law, for the courts to correct it ... We are to be governed not by Parliament’s intentions but by Parliament’s enactments’ But even if the court intends to use the purposive approach as advocated by Lord Denning the relevant point here is still the purpose of the parliament. In Magor and St Mellons v Newport Borough Council Lord Denning said: ‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out’. 7 But see Professor Steven L. Schooner Desiderata: Objectives for a System of Government Contract Law 11 Public Procurement Law Review 103 [2002] He asked a question and answered it himself: ‘What does your government hope to achieve through its government procurement law? It is possible to draft and enact a new law without answering the question, and experience demonstrates that this is often the case’.
PROCUREMENT LAW IN NIGERIA 135 Bureau of Public procurement [BPP]. The body becomes an agency with corporate personality. 8 The objectives of the PPA as a statute are not directly stated in the Act but could be gathered from the statutory function of the BPP. In a section of the law 9 titled the objectives of the Bureau the Act mentioned four objectives of the Bureau which are first to harmonize the existing government policies and practices on public procurement and to ensure probity, accountability and transparency in the Procurement process. The Second is to establish pricing standards and benchmarks while the third is to ensure the application of fair, competitive, transparent value-for money standards and practices for the procurement and disposal of public assets and services. The fourth is the attainment of transparency, competitiveness, cost effectiveness and professionalism in the public sector procurement system. It seems the official website of the BPP at its home page is conspicuously enumerating the objectives of the PPA in a simplified form when it displayed four core issues as its objectives 10 which are economy efficiency, competition [provision of a level playing ground for all strata of bidders], value for money and transparency. To avoid ambiguity as to what the PPA intends to archive and to provide guidance and direction to all parties in the contract of procurement, the Federal Government of Nigeria publishes Procurement Procedures Manual for Public procurement in Nigeria, 11 The Manual reiterates the issue of the objectives of the PPA when it mentions and explains six principal hallmarks of a proficient public procurement system. The first to be mentioned is the Economy which it explains graphically as the best value for money. It explains the meaning of value explicitly when it states: “For complex purchases, value may imply more than just price, for example, since quality issues also need to be addressed. Moreover, lowest initial price may not equate to lowest cost over the operating life of the item procured. But the basic point is the same: the ultimate purpose of sound procurement is to obtain maximum value for money.” 12 The third is fairness which it describes as a process of being non 8 In Nigeria a company must be registered with Corporate Affairs Commission [CAC] before it can be a corporate body but section 2 of the Act invests the agency with the power of a corporate entity without registration with CAC. Section 2 provides that the body shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name and can also acquire, hold or dispose of any property whether movable or immovable for the purpose of carrying out any of its functions under this Act. 9 Section 4 of the PPA. 10 See the official website of BPP supra note 10 [assessed on 16 August,2010] 11 It can be downloaded from the official website of the BPP [assessed on 16 August, 2010.] 12 Id.
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