As the debate on whether the legislature can alter a budget before passing it continues to rage, aÂ Â legal practitioner, Moses Ediru argues that the lawmakers don’t have such powers under the constitution
Recent debates on the nagging issue of budget padding by the National Assembly have thrown up at least three postulates. One, the suspended Chairman of the House of Representativesâ€™ Committee on Appropriation, Abdulmumin Jibrin, is of the view that the House can either increase or decrease the amounts contained in the budget as laid by the executive but cannot introduce new projects. Two, Professor Epiphany Azinge, SAN expressed the view that the National Assembly has the power to do both. Thirdly, Femi Falana, SAN, without addressing the issue of illegality maintained that the National Assembly has no vires to do either. This writer aligns with Falana, but before giving reasons for the alignment it should, peremptorily, be stated that the check and balances inherent in the budget making process is not intended to asphyxiate the well founded principle of separation of powers standing tall in our constitutional democracy. In other words, the law will not allow the legislature to take over the constitutional function of the executive to make budget for the nation. Now, the reasons:
According to S. 81 (1) of the 1999 Constitution, as amended, a budget is the estimate of the revenues and expenditures of the federation for the next following financial year. The only power vested in the legislature in the budgeting process by S. 80 (2) is to authorise the estimates before withdrawal can be made from the Consolidated Revenue Fund of the federation and not to participate in making the estimates; hence, the authorisation is extrinsic to the budgeting process. Therefore, where the legislature disagrees with the estimates for any project it can only withhold its authority or permission, refuse to pass the budget and send same back to the executive for alteration and the altered budget is to be passed as prescribed by S. 59 (1) – (5) of the constitution. It should be noted that the alteration contemplated by S. 59 (1) (a) is not that by the legislature.Â
If indeed the legislature can alter the sum for projects in the budget and pass it as such and also under S. 59 (4) veto the power of the presidentÂ Â to assent, then the budget is no longer that of the executiveÂ Â but the legislature. Should that be the case the legislature would have taken over the constitutional function of the executiveÂ Â thereby rendering the doctrine of separation of power under the constitutionÂ Â redundant and impracticable.Â
On the postulation of Professor Azinge, SAN, that the legislature can inject new projects into the budget, whether as constituency projects or non- constituency projects, the implications are even worse having regards to the constitutional power of the legislatureÂ Â to oversight the budget.
Clearly, the legislature, over time, has demonstrated preference for its power of oversight under S.88 by investigating the disbursement or administration of moneys appropriated to its main function of law making, the many allegations of abuse and extortion arising there from notwithstanding.Â
So, whether the alteration to the budgetÂ Â is in the form of injection of new projects or meddling with the estimated sums laid by the executive, the question would be who is to oversight the projects affected by the alteration, the same legislature? It is the view of this writer that allowing the legislatureÂ Â to oversight the injected projects will not only engender absurdity but also impugn the principle of checks and balances in the budgeting process and, ‘a fortiori’, the doctrine of separation of powers.
Moreover, just as the judiciaryÂ Â through the courts cannot, after invalidating any law made by the legislature, resort to its own notion of the law on any matter, the legislature cannot alter the budget for the purpose of passing it into law without violating the priceless doctrine of separation of powers.
If, however, the legislatureÂ Â is averse to passing the budget with the estimates of the revenues and expenditures prepared by the executive, the only lawful thing to do is to return it to the executive with its observations for necessary alterations before any subsequent passage by the legislature.
In fact, to the extent that S. 59 (1) (a) makes the legislative process of passing a budgetÂ Â under Subsections (2) â€“ (5) of S. 59 applicable to both altered and unaltered budgets means alteration of a budget is a non-legislative process or function. Otherwise, a budget altered in the course of passage by the legislature would have to be passed a second time by the same legislature in accordance with S. 59 (1) (a) to meet the constitutional requirements. Query! Is it possible to add the proceedings of the legislature leading to the alteration of the budgetÂ Â midstream to the post alteration proceedings to arrive at the proceedings consistent with the requirements of the constitutionÂ Â for the passage of the emergent budget? Only the legislatures can answer the question.
On the whole, this writer holds the view that alteration of budgetÂ Â by the legislature before passing it into law is legally and procedurally wrong and smacks of legislative incompetence and corrupt inclination.Â