Although Acting President Yemi Osinbajo has signed the budget, he perhaps fired the first salvo when he said the National Assembly went beyond its brief, Dare Odufowokan, Assistant Editor, looks at the controversy around the budget.
The 2017 budget and the many controversies surrounding it are the obvious issues of the moment in the last one week. Of course, following the long wait for the fiscal document before it was eventually signed into law last week by the Acting President Yemi Osinbajo, whatever concerns it must interest all.
Unfortunately, the recent tunes emanating from the two arms of government saddled with getting the budget ready, namely the Federal Executive Council (FEC) and the national assembly, are at best combative. Before, during and after the signing of the budget into law last week, the two arms of government have constantly disagreed over both the process and the product of the appropriation bill submitted before the national assembly last October.
The original story behind the latest wave of controversy was that acting President Osinbajo last week said the National Assembly has no right to introduce new projects or modify those contained in an appropriation bill. According to reports, Osinbajo said the Executive was disappointed in the legislature for tampering with the 2017 Appropriation Bill which he signed last week.
Co-incidentally, he was speaking at the Old Banquet Hall of the Aso Rock Presidential Villa in Abuja while flagging off the 2018 budget preparation process. The acting president had reportedly said of the budget process, “I am sure that we understand not just how to do it right, but to get it done in good time.
“This last budget, the president presented it last December. Despite the assurances that it will be passed by February, it was not until May. As it turned out, we were quite disappointed that it spent a bit of time before it was approved. And thereafter, we had to go into negotiations with the National Assembly in order to get it right.
There are issues about who can do what. The first report is about who can do what. When you present budget to the National Assembly, it is presented as a bill, an appropriation bill. And secondly, do not introduce entirely new projects and all of that or modify projects. This is something that we experienced last year and this year again. It now leaves the question about who is supposed to do what.”
Hardly had the acting President finished talking before Nigerians from all walks of life started commenting on his argument. While many aligned with his grouse over the alteration of the bill presented to the national assembly as the 2017 budget proposal, there were those who had different opinion from his over the matter.
One of those who agreed with Osinbajo is the Chairman of the Presidential Advisory Committee Against Corruption, Prof. Itse Sagay (SAN), who insisted that the National Assembly has no power to introduce any project into the budget. He specifically warned the upper and the lower chambers of the national assembly not to cross their bounds in the discharge of their legislative duties.
But the Chairman, House Committee on Media and Public Affairs, Mr. Abdulrazak Namdas, submitted that the controversies over the actions of the national assembly on the budget were uncalled for. According to the lawmaker, the power to decide what should be spent and how it should be spent in a presidential system, is that of the legislature.
Raging controversy
And just as Nigerians were thinking the dust raised by Osinbajo’s comments will pass away unnoticed by the national assembly, senators and members of the House of Representatives took it upon themselves to condemn, albeit in strong terms, what they regard as the attempt by the acting President to downplay their power to tinker with the budget.
“The Acting President’s statements after signing the budget are mere afterthoughts probably designed as usual to incite members of the public against the legislature. But this time, the presidency got it pretty wrong. It is unfortunate that in spite of telling the world a day before that the national assembly displayed maturity in handling this year’s budget, Osinbajo went to town with another story a day after,” a member of the House of Representatives said.
The Speaker of the House of Representatives, Yakubu Dogara, while reacting to Osinbajo’s comment, insisted that the National Assembly has powers to introduce new projects into the federal budget, or remove proposed items. He argued that the framers of the Constitution vested the powers of law making in the legislature, implementation in the executive, and interpretation in the judiciary.
“A declaration as to which of the arms has the power and rights, in as much as it is related to the interpretation of the law, is the function of the judiciary and not of the executive. The Appropriation Act is a law enacted by the parliament and public officers including the president and his ministers, had sworn to uphold the Constitution,” he said.
“The refusal or failure to implement the budget is a violation of the Constitution which has consequences. We are men of honour. Whether legislators or executive, we are bound by the oath of office to faithfully execute that law and in the case of the executive, if it is not done, all of us know the very consequences. I don’t want to call it by its name, we know the consequences,” he said.
The Speaker also stated that in the event of refusal to assent to any bill by the Executive, the constitution empowers the National Assembly to override such veto in the interest of the public. Dogara added that the House under his leadership would not be a rubber stamp to the Executive as it would do everything to uphold and protect the independence of the legislature.
But Babatunde Fashola, minster of power, works and housing, says there are aspects of the 2017 appropriation act that violate the constitution, suggesting that the judiciary may have to explain how far lawmakers can go in altering the budget. The former Lagos State governor pointed out that some of the projects included in the budget of his own ministry were a violation of the constitution.
He said, “There may be need for judicial interpretation to lay the controversy to rest. It is the law that affects our day-to-day developmental expectations. In a federal example like ours, nobody should be scared to have a judicial interpretation of the limits of the power the parliament can exercise during appropriation.”
The former governor, who is also a Senior Advocate of Nigeria (SAN), said the issue of separation of power should not be taken out of context, maintaining that the three arms of government are “inter-dependent” and no arm can be absolutely independent, if not, the business of government will never be carried out.
“My view is that I don’t think parliament has the power to increase the budget because parliament does not collect taxes. Budget has expenditure as it has revenues, and if executive has formed the view about earning and borrowing subject to the approval of the parliament, I think it is only fair to say we won’t push you beyond what is reasonable. If executive says it is unreasonable, there is room for consultation but to unilaterally increase the budget is not something that lies in the power of the parliament, although they can reduce it,” Fashola argued.
But the House spokesperson, Namdas, would have none of Fashola’s arguments. “We gave our position on this matter already and keep repeating it. The power of the purse, in a presidential democracy, resides with the legislature and Nigeria will not be different,” the federal legislator insisted.
“The Acting President signed this same budget into law after studying it for several days. He knew there were additional projects and he signed. We have a law in place. Is it after the law has come into effect that they turn around to question the powers of the National Assembly over the same budget he willingly signed?”
Commenting on Fashola’s suggestion that the judiciary may have to be called upon to interpret the constitutional provisions regarding the budget, Namdas advised the executive to approach the judiciary for the interpretation of the 1999 Constitution if it was in doubt over any of its provisions. “They are the ones asking questions. Let them go to court,” he added.
For Prof. Sagay, it is amusing that the President of the Senate and the Speaker of the House are saying that the Acting President had no right to comment on the matter. He, however, laments that the legislature wants to alter the budget for its own benefits. “They said they have all the powers. The National Assembly has no power to create projects; it approves budgets.”
It is the government, the executive, that takes proposals for projects but this National Assembly does not get the message; it wants to be both legislature and executive at the same time. “The National Assembly itself sees the Nigerian national budget as its personal budget, its money to tinker with at will and then to leave something to the rest of us. It is no surprise that Nigeria’s development remains stunted and misery and poverty remain overwhelming,” Sagay added.
Professor Epiphany Azinge, a former Director General of the Nigerian Institute of Advance Legal Studies, while reacting to the development, submitted that the national assembly has the assignment to ensure good governance in all facet of governance in the country. He insisted that if tampering with the budget will enhance good governance, the legislators are in order by doing so.
“The national assembly has the assignment to ensure good governance in all facet of governance in the country. And constitutionally, they should work for the good of the people. The national assembly makes the law, the executive implements the law. The controversies over who did what to the budget is needless in my opinion.
“The executive should allow the lawmakers to go on a wild goose chase while making the law, and the executive should implement the budget the way they want as prescribed by section five of the constitutional provision. It is unacceptable to say the national assembly lacks the power to appropriate. No matter the insight of the executive, the NASS should be allowed to make the law as appropriate.”
He added, “Don’t expect the federal legislators to fold their arms and not inject the need of their various constituents into the budget. The executive can push aside what they feel is un-implementable. That way, we will avoid controversy. Each arm of the government must be allowed to exercise its powers. The controversy is needless I insist.
“We should appeal to the national assembly for reasonability in the exercise of the powers. The power belongs to the people. So they must be circumspect in what they do with the mandate reposed in them by the people. We must urge them to be reasonable. But the constitution is very clear that they have the power to appropriate. All forms of alterations, be it the funds or in projects, falls within appropriation.
The alterations
Explaining his position on the actions of the national assembly concerning the 2017 budget and the process that led to it, Osinbajo, had cited the federal lawmaker’s decision to increase the budget from N7.29 trillion to N7.43 trillion, as one of the various alterations that ought not to have been carried out by the legislature.
Aside from his stand that such increase remains unconstitutional and outside the purview of the national assembly, the vice President lamented that the increase would make the implementation of the budget difficult. He said the increase would have adverse effects on the planned implementation of some projects captured in the budget would be affected.
He listed these executive projects as the railway standard gauge projects, the Mambilla power project, the Second Niger Bridge, the Lagos-Ibadan Expressway, among others were affected by the alterations as funds allocated to them by the executive were reduced to fund some of the new projects they introduced.
Similarly, Fashola observed, “In my budget, you will find things like motorised boreholes, primary health care centres. That is a violation of the Constitution; it shouldn’t be in the appropriation law of the federal government. If the judiciary decides that it is the national assembly that should make the budget and hand it over to the executive to implement, so be it.
“When I was defending my budget, we didn’t discuss boreholes or primary health care centres, now I have hundreds of them in my budget. I have new roads that are state roads, I inherited over 200 roads when I became minister that we are trying to complete and even the right to add something must be in a context of our national development.
“I don’t think that they can sit down and legislate projects that are not federal projects that would be doing violence to the constitution because there are three levels of government. The local and state governments have their responsibilities and the federal government should be building federal roads not state roads,” the former Lagos governor added.
The Nation also gathered that several billions were injected into the budget by the national assembly to take care of what they termed as constituency projects. A senator who pleaded anonymity told The Nation, “It is not new; you people are just making an issue out of a practice that has been on since 1999. Or are you not aware there were constituency projects during Obasanjo’s regime? So, there is no issue.”
Shedding more light on how the federal lawmakers are working against norms in their handling of the budget, Fashola, said “a federal legislator’s constituency project must be a federal matter otherwise you’ll be encroaching into the territory of the state legislator, that is my argument.” While he wouldn’t want to say expressly that a legislator has no input to make into the budget, he says the question is how and when.
“I had cause to appear before the committee of the House and I even presented a paper at their invitation because they were planning to pass a constituency project law and they were doing a hearing on the bill and they were planning to create constituency offices and I said they shouldn’t do it, it’s not necessary because there are institutional capacities within our national framework for this kind of thing,” he said.
“When the president submits the budget and these committees’ hearings start everyone is excited and we are going from one committee room to the other, you’ll wonder what we were doing then. That is the place I expect that issues about projects that affect constituencies to be brought up but the issues to be taken on must be federal issues,” Fashola said.
Once a legal tango
Meanwhile, checks by The Nation revealed that the current face-off between the executive and the legislature was once the subject of litigation following a suit by renowned rights activist, Femi Falana, with the President, the Attorney-General of the Federation, the National Assembly and the Auditor-General of the Federation, all listed as respondents.
The Plaintiff (Falana) had asked the Court to determine four questions whether:
1) By Section 81 of the Constitution, the National Assembly can increase or review upward any aspect of the estimates of the revenues and expenditure of the Federation for the next financial year prepared and laid before it by the Executive;
2) By Section 85 of the Constitution, the National Assembly can audit public accounts of the Federation, appoint auditors for statutory bodies or conduct periodic checks of all government statutory corporations, commissions, authorities, agencies, including all persons and bodies established by an Act of the National Assembly in any manner whatsoever and howsoever;
3) By virtue of sections 88 and 89 of the Constitution, the National Assembly can summon corporate bodies and private individuals while conducting an investigation into any matter, and;
4) By virtue of section 214 of the Constitution, NASS can probe or investigate the allegations of corrupt practices, fraud, murder and other criminal offences committed in statutory corporations, commissions, authorities, agencies, including all persons and bodies established by an Act of the National Assembly in any matter howsoever.
Falana prayed the court to declare unequivocally that by virtue of the stated sections, the legislative arm cannot increase budget estimates, or audit accounts of the Federation (or appoint auditors to do same), summon corporate bodies and private individuals while conducting an investigation into any matter, or probe/investigate allegations of corruption, fraud,
