Can National Assembly ‎Tamper with the Budget?

The intervention of the judiciary is required to finally lay to rest the recurring dispute between the executive and the legislature on whether the latter can alter the budget, writes Davidson Iriekpen

The National Assembly last week reacted to the comments credited to the Acting President, Prof. Yemi Osinbajo, that the parliament was not constitutionally empowered to alter the budget proposal submitted to it by the executive arm of government. Osinbajo had expressed frustration over the National Assembly’s habit of introducing new projects into the nation’s annual budgets, insisting that the federal legislature only has the power to adjust funds allocated to projects by the executive.

But the parliament countered him, saying it has the constitutional powers to vary and determine the figures once prepared and laid before it by the president, contending that the constitution did not intend to make the legislature a rubber stamp. While reacting to a point of order raised by Deputy Senate Leader, Ibn Na’Allah, who said the statement by Osinbajo angered some senators, whom he said complained to him, the Senate President, Dr. Bukola Saraki, said the acting president might have been misquoted. He added that there was no ambiguity over the powers of the National Assembly to tinker with the budget proposals submitted by the executive.

“The point of order raised by the Deputy Minority Leader is very important. I also have the experience of having a couple of our colleagues coming to us on the 2017 budget. I am sure that the acting president must have been misquoted because there is no ambiguity in the constitution on our responsibilities. The matter has been cleared and settled.

“I rise this morning based on what happened yesterday in my office. About five senators bombarded my office, angrily complaining about a statement credited to Osinbajo, to the effect that the National Assembly does not possess any power to alter the budget submitted to it by the executive.

“He (Osinbajo) is somebody I know so much. I would rather believe that what was alleged to have been said could not have been said by him. And even if it was, he must have been misquoted”, he said.

Just like the Senate, the House did not take Osinbajo’s statement lightly, as the Speaker, Hon. Yakubu Dogara, maintained that the National Assembly has the constitutional powers to introduce new projects; add, remove or reduce items in the Appropriation Bill. Reacting to a motion on a matter of privilege moved by Hon. Lawal Abubakar (APC, Adamawa), who said his privilege as a member had been breached by the statement made by Osinbajo, Dogara said the framers of the constitution vested the power of lawmaking in the legislature, while the execution or implementation was vested in the executive. He also said the constitution further empowers the parliament to override the president in the interest of the public, should the executive decline to assent to any bill.

He noted that the house, under his leadership would not be a rubber stamp for the executive and would “do everything to uphold and protect the independence of the legislature.

“When it comes to the budget, the power of the purse in a presidential system of government rests in the parliament. A declaration as to which of the arms has the power and rights, inasmuch as it is related to the interpretation of the law, is the function of the judiciary and not of the executive,” he added.

The speaker argued that the Appropriation Act is a law enacted by the parliament and that public officers from the president to his ministers had sworn to uphold the constitution and the said refusal or failure to implement the budget was a violation of the constitution, which has consequences. He stressed that the parliament has the powers to override any veto, saying: “The worst the executive can do is to say they will not sign and after 30 days, if we can muster two-thirds, and it doesn’t have to be two-thirds of the entire membership, once a quorum is formed, with two-thirds of the members sitting and voting, we can override the veto of the president and pass it into law.”

He said in the United States, from which Nigeria copied its presidential system of government, any budget proposal sent to the congress is presumed “dead on arrival” and only comes “alive” when passed by congress because the legislature has the powers to tamper with the proposal.

He further argued that the designers of the constitution left things the way they are because the executive is just one man (the president), while every other person in the executive arm is acting on behalf of the president, “so the relationship between the president and every other person there, is that of servant and master.

“It is only in the parliament where we have representatives of the people that there is equality and you can state your mind on any issue, you can bring matters of priority the way you deem fit.

“From the very pedestrian interpretation of the functions of the three arms of government, one makes laws, the other executes the laws, the other interprets the law. So, a declaration as to which of the arms has the power and rights, inasmuch as it is related to the interpretation of the law, is the function of the judiciary and not of the executive.

“I don’t even want to believe that the acting president made that statement; I don’t want to believe that, sincerely speaking. Because when it comes to the issue of the budget, I think we better say these things and make it very clear, so that our people will have a better understanding. When it comes to the budget, the power of the purse in a presidential system of government rests with the parliament,” Dogara maintained.

The 2017 budget was laid by President Muhammadu Buhari before a joint session of the National Assembly on December 14, 2016. It was passed on May 11, 2017, and transmitted to the presidency on May 19, 2017. Upon receipt of the budget, it was discovered that the National Assembly introduced about 4,000 new projects, amounting to about N451billion

Since the return of democratic rule in 1999, there has been a dispute over the legislature’s insistence that it has the power to vary budget estimates presented to it by the executive for approval, citing Section 80(2) and (3) of the constitution. This disagreement has often delayed the passage of the budget each year since 1999, with each president, from Chief Olusegun Obasanjo to Buhari, withholding assent until an agreement was reached with the National Assembly.

The matter came to a head under President Umaru Musa Yar’Adua, who approached the Supreme Court in 2008 for an interpretation of the constitution but was prevailed upon to withdraw the matter and seek a political resolution. The political resolution allowed the executive to practically break the appropriation law that allows it to implement the budget according to its whims and caprices. This, however, resulted in serial haphazard implementation of the appropriation acts, as they were selectively implemented by the executive, laying the foundation for frequent friction with the legislature.

The logical question begging for answer now is: Does the legislature really have the powers to tinker with the budget once it is presented to it by the president (executive)? For instance, Section 80(2) provides: “No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by the constitution or where the issue of those moneys has been authorised by an Appropriation Act, Supplementary Appropriation Act or an Act passed in compliance with Section 81 of this constitution.”

Section 80(3) also provides: “No moneys shall be withdrawn from any public fund of the Federation other than the Consolidated Revenue Fund of the Federation unless the issue of these moneys has been authorised by an Act of the National Assembly.”

Section 81 to which Section 80(2) refers, provides: “The president shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the federation for the next following financial year.”

While lawmakers in both chambers of the National Assembly are still bickering over the issue, many analysts are wondering who between them and Osinbajo, a professor of law, is in a better position to interpret the law better. They admitted that while the power of approval of estimates lies with the legislature, its authority does not include extensive adjustments of the estimates and inflating the budget without recourse to the executive.

Some analysts have wondered if the lawmakers are so sure of their powers to tamper and tinker with the budget, why have they not approached the Supreme Court for interpretation? Since it is almost the same application of constitution at the state level, they are wondering that since the Senate is populated by former governors, if they ever tolerated their Houses of Assembly to tinker with the appropriation bills submitted to them.

A few observers believe that the various adjustments usually introduced in the appropriation laws each year by the lawmakers are nothing but slush funds usually embezzled. They further wondered why the lawmakers do not tamper with other executive bills sent to them, and carpeted the lawmakers for always looking for what they can benefit.

It is was against this backdrop that a human right lawyer, Femi Falana, SAN recently urged Osinbajo not to sign the 2017 budget, arguing that the lawmakers do not have the constitutional powers to increase the budget presented by the president.

However, another senior lawyer and author of many books on the constitution, Mr Sebastine Hon, SAN disagreed.

He said: “The word ‘laid’ in section 81(1) of the constitution, therefore, if read subject to the legislative powers of the National Assembly under section 59, has given the National Assembly some level of powers over the estimates sent by the president.

“Indeed, the word ‘laid’ in the subsection suggests about two things: (a) ‘put on the legislative table for deliberation and passing into law;’ and (b) ‘consider the estimates as human beings and not as robots.’ Clearly, from this interpretative reasoning, the National Assembly has power to tinker with the estimates sent to it by the president – and this includes subtracting or adding to those estimates. I make bold to state that these are some of the provisions intended by the lawmakers to act as checks and balances in the power sharing arrangements of the constitution as between the executive and the legislature,” he added.

As a way of putting this lingering controversy to rest, analysts have urged the executive arm of government to summon the courage to urgently take the issue to the Supreme Court for proper interpretation. They believe that this will not only put the contention to rest permanently, but further enrich the country’s jurisprudence.

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Since the return of democratic rule in 1999, there has been a dispute over the legislature’s insistence that it has the power to vary budget estimates presented to it by the executive, citing Section 80(2) and (3) of the constitution. This disagreement had often delayed the passage of the budget each year since 1999, with each president, from Chief Olusegun Obasanjo to Buhari, withholding assent until an agreement was reached with the National Assembly.