National assembly exceeded bounds on 2017 budget

BY JOHANNES WOJUOLA

There has been a lot of back and forth as to the powers of the National Assembly (NASS) to initiate projects and tinker with the budget presented to it by the Executive.

The Speaker of the Federal House of Representatives, Hon. Yakubu Dogara ,was quoted as saying that NASS has powers to introduce projects in the budget document.

The statement is at variance with the provision of the Constitution of the Federal Republic of Nigeria (CFRN) based on the fact that it restricts the hallowed chambers to giving authorization for spending on estimates of revenue and as presented to it by the Executive.

Powers of the National Assembly with regards to the passage of the Appropriation Bill – what we colloquially call the Budget – is limited to giving authorization for spending on estimates of revenue and expenditure presented to it by the Executive.

Section 80 (2) of the CFRN states: “No money shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those monies has been authorized by an Appropriation Act …” This simply means that funds cannot be withdrawn by the Federal Government if it has not been authorized by the National Assembly – upon passage of the Appropriation Bill into law.

Section 80 (3) goes further to state: “No money shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those monies have been authorized by an Act of the National Assembly.”

From the foregoing, it is important to observe that the powers of NASS as contained in the two sections relate to the power to ‘authorize’ spending of money, and not projects. In other words, the power to give permission, an official approval that money can be spent.

Observers say that constitutional provisions depict the true spirit of the doctrine of Separation of Powers as well as checks and balances.

The legislative powers of authorization are further expounded in Section 80 (4) which provides that “No money shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly.”

The last sentence of that sub-section, which reads: “Except in the manner prescribed by the National Assembly,” seems to be the bone of contention. It forms the bases on which the members of NASS assumed that they have the powers to initiate or add projects into the budget document sent to them by the President.

The fact that the same Constitution, following immediately after S. 80 (4), at S. 81 (1) vests in the President the powers and duty, to “cause to be PREPARED and LAID before each House of the National Assembly … estimates of the revenues and expenditure of the Federation” for the financial year, shows that the powers of preparing projects to be embarked on by the Federal Government rest solely on the Executive.

Experts on the constitution said that the section mandates the President to submit ‘estimates’ which relate to the cost of things and not to itemize projects for authorization by the Legislature.

It also behoves that the duty of the Legislature is to approve these estimates and being that they are only but estimates, the Legislature may add or subtract from them as it deems fit. The action is expected to be done in consensus and while engaging with the Executive who at the end of the day have the mandate of implementing the approved funds.

Nowhere in the Constitution does it give express or implied powers to the National Assembly to initiate projects or compel the Executive to embark on projects demanded by the Legislature.

Traditionally, the lawmakers can lobby the Executive for the inclusion of certain projects in the budget.

Furthermore: to “prescribe” as used by the Constitution in Section 80 (4) means to specify or to authorize the use of something or to serve as a guide. Thus, no money can be withdrawn except in the specified/authorized manner passed by the National Assembly in the Appropriation Act. That is to say, the Executive cannot spend beyond the amount approved for a proposed item.

In this regard, the National Assembly may add or subtract to an estimate as presented by the Executive, but this does not give them the power to initiate a project.

There is the argument put forward by some NASS members that in America, where Nigeria copied its Presidential system of government, that the legislature is allowed to initiate special projects, and thus same should apply to the Nigerian milieu.

This argument is faulty in the sense that the Nigerian constitution has already provided expressly for the powers of the Executive and the Legislature with regard to the appropriation process. This implies that there is no need for derivative speculation from abroad when the literal interpretation of constitutionally specified powers is not ambiguous.

Secondly, and importantly, the initiation of projects by the U.S. Senate, popularly known as ‘pork-barrel projects’ is largely considered by the American public as unconstitutional, and corrupt. The other form of it, called ‘Earmarks’ has been banned since 2011.

In the same year, U.S. former President, Barack Obama, promised to veto any future appropriation bills that contained ‘earmarks’.

A similar system in the Philippines was declared unconstitutional by its Supreme Court in 2013.

The Nigerian Constitution expressly vests the power of preparation of the budget in the Executive. Of note, as applicable here, is the rule that where legislation lays down the procedure for doing a thing, there should be no other method of doing it. (See Nuhu Sani Ibrahim v INEC [1999] 8 NWLR [Pt 614] 334, 352).

There is absolutely no need for the Legislature to desire a usurpation of the constitutional powers of the Executive. If the Constitution desired that the NASS should initiate projects, it would have expressly stated that it PREPARES and LAYS before itself the budget.

The ground norm did not say so. Neither should anyone.

Wojuola is an Abuja-based lawyer and public affairs analyst