Powers, Limits, Extent Of Appropriation In Budget Matters By The NASS Vis-A-Vis The Role Of The President (Part 1)
By Mike Ozekhome
We shall, this week, step down our running discourse on restructuring and take on a more urgent matter – budget padding. Budgets are regarded as “contractual agreements” between governments and the people they serve. According to Wikipedia, “a budget (from old French baguette, purse) is a financial plan and a list of all planned expenses and revenues. It is a plan for saving, borrowing and spending.”
The American Heritage Dictionary of the English Language, (4th Edition) defines budget as “an itemized summary of estimated or intended expenditures for a given period along with proposals for financing them” Merriam Webster’s Dictionary defines it more poignantly thus: “a statement of the financial position of an administration for a definite period of time based on estimates of expenditures during the period and proposals for financing them”.
From the foregoing, the operative words as regards budget are “plan” and “estimates”. This simply means that a budget is nothing but a mere plan, an estimate; a mere guesswork and probability, of how much may be required for projects.
The actual income or revenue may fall far short of what is expected, while the cost of the project may actually outstrip the expected revenue in the interim. Consequently, to determine whether the National Assembly has the Constitutional powers to pad, augment or increase the budget, it is apposite to examine the provisions of the Constitution itself.
Section 81 of the Constitution of the Federal Republic of Nigeria, 1999 mandates the President to prepare and lay before each House of the NASS estimates of the revenue and expenditure of the Federation for the following years.
In a bill called the Appropriation Bill. Where this is insufficient, section 81(2) provides for supplementary Appropriation Bill. According to Business Dictionary, “estimate” means: “Approximation, prediction, or projection of a quantity based on experience and/or information available at the time, with the recognition that other pertinent facts are unclear or unknown.” It is crystal clear from the above provisions that the President shall first do his research on “estimate of the revenue and expenditure” for the year in question and present same before the NASS.
This means that the President is not in charge of the National purse; the NASS is. Indeed, the NASS in section 4 of the 1999 Constitution has the responsibility to make laws for the peace, order and good government of Nigeria, while the Executive headed by Mr. President exercises executive powers under section 5 thereof.
The Judiciary interprets. Furthermore, by virtue of Sections 59, 80, 81 of the Constitution, it is only the NASS that can appropriate funds to the estimates and plans presented by the Executive, or authorise funds to be spent from the Consolidated Revenue Fund. The meaning of this is that the Executive epitomised by Mr. President can never spend money without the approval of the NASS. However, the Constitution itself, in furtherance of the doctrine of separation of powers, ably espoused by French Political theoretician, Baron de Moutesque in 1748, has made it clear, that the Appropriation Bill regarding the projected revenue and expenditure MUST originate from the Executive and not the Legislature.
Consequently, although the NASS has the last say as to whether or not funds should be allocated to a particular project, or whether such estimates are indeed, sufficient or not, it does not originate the bill. It must be conceded, however, that at the time appropriations are being made by the Legislature, the rough estimates may need adjustments or re-adjustments, where it is discovered that the initial estimates by the Executive regarding approval of funds is realistically inadequate.
Where for instance, the NASS has cause to believe that a particular estimate falls short of what is required in the budget, or that a particular head has been over-bloated by estimates, it may, suo motu, increase or decrease such amount as initially proposed by the President. It may even altogether cancel and refuse to allocate any fund to such if it believes that such project is a white elephant, or is not of priority.
Where any of the scenarios painted above occurs, the President is helpless about it. Even where the President believes that the NASS has hurt him by failing to provide funds for a particular project dear to his heart, he has no constitutional power to unilaterally draw funds from the Consolidated Revenue Fund to finance the said project without NASS approval.
Any spending by the President in the absence of due appropriations is ultra vires and constitutes a violent contravention of the Constitution for which the President may become classically liable to be impeached. This is because Section 143(11) of the 1999 Constitution envisages an impeachable offence as “a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.” The reason for the above position is simple.
The Appropriation Bill, when passed, becomes an Act of the NASS which the President must implement. Thus, it must pass through the furnace of Legislative heat. Even where the President decides to withhold his assent by vetoing the Bill, the NASS can again override his veto by exercising it’s counter-veto power under Sections 58 (5) and 59 (4) of the Constitution, which give the NASS the power to pass into law, a Bill previously vetoed by the President.
Section 80 of the Constitution establishes the Consolidated Revenue Fund of the Federation and directs that all moneys raised by the Federation must be paid into it. It also forbids moneys being withdrawn from it except to meet expenditure duly approved by the NASS through an Appropriation or Supplementary Appropriation Act. For distributable money amongst the three types of government, Federal, State and Local Governments, section 162 of the Constitution again puts same at the door steps of the NASS.
The concept of “appropriations” as developed through the centuries in England and as adopted by the colonies encompassed dual limitations on both amount and object. Legislative supremacy over public fund implies the right to specify how appropriated monies shall be spent, which takes on an added significance in a separation-of powers regime. This means that neither the legislature, the Executive, nor the judiciary should exercise the whole or part of another’s arm’s power.
The NASS is not a mere robotic, rubberstamping, but a vibrant, interrogative Legislature. Since the Legislature has the capacity to amend, or even wholly reject budget proposals of the Executive and substitute one of it’s own, it means that it is only the NASS that can actually make such appropriation. Any plan or estimates tabled by the Executive, but without such appropriation, will be tantamount to misappropriation in the eye of the law.
AND THIS BUDGET PADDING
“Padding” is defined as “something added unnecessarily or dishonestly”. It is interesting to hear about allegations of “budget padding” at the House of Representatives. Can there really be padding of a budget within the precincts or hallowed Chambers of the green or red Chambers, where such figures have been introduced, debated and agreed upon? I think not. Padding occurs at the Executive level where the budget is worked upon.
If it ever occurs at the legislative level, in the negative sense in which it is being bandied, then it must be shown that unauthorised external additions, subtractions and multiplications were smuggled into the budget during the journey of transmitting same to the president from the NASS, after a harmonized version had been duly passed at plenary and distilled into a Bill.
Otherwise, the real business of the Legislature on budgetary matters is nothing but “padding”. This is because the cumbersome process of rewriting, altering, amending, rejigging, adding to, subtracting from, replacing and multiplying figures, heads, sub-heads, projects, incomes and expenditures, on a budget already worked upon and presented to it by Mr. President, is nothing but padding. (To be continued…)
Are the Legislators, Executives, Nigerians, et al, reading this piece and eagerly awaiting the concluding part of powers, limits, extent of appropriation in budget matters by the NASS vis-a-vis the role of the President on this Sunday Sermon on the Mount of the Nigerian Project by Chief Mike A. A. Ozekhome, SAN, OFR, FCIArb?
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