BUDGET: EXECUTIVE REVULSION AND LEGISLATIVE ARROGANCE

Sufuyan Ojeifo canvasses judicial interpretation of the relevant constitutional provisions

At their respective plenary on Thursday, June 15, 2017, the Senate and the House of Representatives played the devil’s advocate with respect to the extent they could go in considering, scrutinising and altering the provisions of appropriation bill presented to them for approval by the president. They superciliously defended their repugnant act of budget padding and, almost, succeeded in trivialising the serious matter.

Deputy Majority Leader, Senator Bala Ibn-Na’Alla (APC, Kebbi), and Hon. Lawal Abubakar (APC, Adamawa), in their motions on the floors of the Senate and the House of Representatives, called attention to a statement allegedly credited to the acting President, Professor Yemi Osinbajo, to the effect that the National Assembly has no powers to introduce new projects in the budget before passing it.

Osinbajo was quoted to have said while signing the 2017 budget on Monday, June 12: “The first report is about who can do what. When you present a 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.”

I presume that this may be the true position and correct interpretation of the constitutional provisions regarding the limits of legislative power and control over public funds or appropriation. Doubtless, Osinbajo’s concern centres on responsibility, liability and due process. The budget is the fiscal policy document of the federal government but bears the evidential imprimatur of the executive branch, which has the responsibility to implement it in line with set objectives.

If the executive branch fails to implement the budget as proposed, it would receive the flaks. That is liability. Interestingly, the executive has, over the years, been receiving the flaks for failure to implement, 100 per cent, the budgets as always, but rather unfortunately, altered by the National Assembly. The blame should have been placed at the doorsteps of both arms of government. This is the reason it matters a great deal for proposers of budget to be different from their approvers.

The constitution is clear about the responsibilities and powers of the three arms of government. And because of the possibility of acting ultra vires, there is the provision for checks and balances in the exercise of the separate and disparate powers of the trinity of the executive, the legislature and the judiciary.

When an arm of government continues to appropriate to itself the powers that are not expressly vested in it by the constitution, steps should be taken to seek judicial intercession to find out if the extra powers are implied and/or discretionary. After 18 years of this controversy, this is what Osinbajo should now do, beyond frowning at the characteristic insertions by the National Assembly of new projects into the appropriation bills presented to it by the executive.

Assuming, arguedo, that the acting president did not even make that observation; that does not detract from the fact of alterations to which the legislature has always subjected the national budget submitted to it by the president. True, nothing prevents a dispassionate contemplation of the issue by well-meaning Nigerians who crave the passage of a well-considered budget that is aimed at stimulating the nation’s socioeconomic and political growth.

As a layman, I hold the view that Osinbajo’s position cannot, therefore, be said to be erroneous within the ordinary understanding of the

WHEN AN ARM OF GOVERNMENT CONTINUES TO APPROPRIATE TO ITSELF THE POWERS THAT ARE NOT EXPRESSLY VESTED IN IT BY THE CONSTITUTION, STEPS SHOULD BE TAKEN TO SEEK JUDICIAL INTERCESSION TO FIND OUT IF THE EXTRA POWERS ARE IMPLIED AND/OR DISCRETIONARY

provisions that are amply referenced in section 59 under “mode of exercising federal legislative power money bills” and sections 80-83 of the 1999 Constitution (as amended) 2011 under the powers and control over public funds.

It is very clear that the power vested in the legislature, according to the explanatory note of section 81, is that of “Authorisation of Expenditure” and not the usual power to prepare, make or alter the proposals of the executive as contained in the appropriation bill. Much as the approval issue is moot, it has historically and largely accounted for the perennial frosty relationship between the executive and the legislature since 1999.

The legislature has always altered the provisions of the budget and inserted projects, which were originally not captured by the executive. But to be sure, the legislature is not the executive. Therefore, the intervention of the judiciary by way of judicial interpretation of the relevant constitutional provisions will help to properly define whether appropriation, being a special bill, should be placed, strictu sensus, in the context of authorisation/approval or the full process of law-making such as to warrant the insertion of about 4,000 new projects as happened to the 2017 budget.

On the other hand, the executive is not the legislature; and, it is, consequently, constitutionally circumscribed from approving its own proposed budget estimates; otherwise, it would not need to submit the same to the National Assembly. The approving body is the legislature, which should ideally never contemplate the introduction of new projects into the budget, except it had lobbied for and harmonised such projects with the executive during the budget-making process.

It is against the backdrop of the above that the action of the legislature to insert entirely new projects in the budget derogates from its constitutional power of authorisation/approval and represents the usurpation of the power of proposal exercisable by the executive. This does not, in my view, limit the relevance of the legislature in the budgetary process. Rather, it gives the legislature the opportunity to effectively scrutinise the bill, and be in a better stead for oversight during the implementation phase.

The intendment of the framers of the constitution was not to turn the legislature into a rubber-stamping body. The primary purpose is to ensure that the budget proposals reflect a national outlook, connect promises to actions and stimulate real economic growth which is underpinned by equality and justice in the distribution of infrastructure development projects and creation of income and wealth.

In doing that, the legislature works within the policy framework of the budget presented to it. The budget figures are not padded or distorted. But it can query allocated funds on the projects proposed by the executive and get the buy-in of the executive to either increase or decrease budget figures. Indeed, new projects are not to be introduced into the budget in the misconstruction of its power of approval, which does not include the freedom to insert entirely new projects without recourse to the executive.

What should be done in the circumstance in which the legislature is interested in the inclusion of some projects in the budget is to activate pre-budgeting consultations in order to synergise with the executive through the budget office before the appropriation bill is presented by the president to the joint sitting of the legislature for consideration and approval. Ojeifo wrote from Abuja