Senior Lawyers Justify Spending COVID-19 Funds without Appropriation

Femi Falana
  • Odinkalu faults senior lawyers on standard practice
  • Says authority to incur expenditure required

Tobi Soniyi

Three Senior Advocates of Nigeria, Sebastine Hon, Femi Falana and Dayo Akinlaja have said President Muhammadu Buhari does not need the approval of the National Assembly to disburse funds donated to the federal government by the private sector.

In separate interviews yesterday, the senior lawyers said the power of the National Assembly over appropriation was explicitly limited to public fund by the combined effect of sections 59, 80 and 81 of the 1999 Constitution.

However, a human right activist, Dr. Chidi Odinkalu disagreed with the senior lawyers, insisting that an approval of the National Assembly was needed.

However, the provisions of the constitution dealing with the budgeting process said such money or receipts must be received by the federation and not by the president or a committee set up by the president.

In his reaction, Hon explained that the provision of the 1999 Constitution did not contemplate that such grants or donation by private individuals meant for specific purposes should be budgeted before being spent.
“The constitution will also not require even money donated by international organisations for this particular purpose because this is a matter of national emergency and the budgeting process is a very tedious process the constitution could not have intended such a procedure.”

He, also, argued that the makers of the constitution “envisaged money and revenues received by operation of federal economic ventures and other sources of income that are made available to Nigeria as a federation.
“Since the money are donations donated by individuals for the purpose of tackling a virus that is killing people, it is not within the contemplation of the constitution that such money must be budgeted before it is spent.”

Also supporting Hon’s argument, Falana explained that by the combined effect of sections 59, 80 and 81 of the Constitution, the power of the National Assembly over appropriation “is explicitly limited to public fund.
Pursuant to Section 80, subsection 3 and 4 of the 1999 Constitution, as amended, no monies can be spent without the approval of the National Assembly.

“For the avoidance of doubt, sections 80 (3) and (4) thereof states that no moneys ‘shall be withdrawn from any public fund of the federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly and No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly.’”

Falana said the National Assembly lacked the vires “to appropriate funds contributed by the private sector. Or does the National Assembly want to appropriate the fund contributed by international donors and funding agencies?”

He contended that it would be the business of the board of the banks and other corporate bodies that made donations to demand accountability.

Citing Section 68 of the Constitution, Falana said that the National Assembly was empowered to exercise its oversight functions to the extent of probing the management of public fund appropriated by it.

He said: “I want to believe that the leadership of the National Assembly is talking about the contributions of agencies like Nigerian National Petroleum Corporation (NNPC) and the Niger Delta Development Commission (NDDC), among others, to the fund.

“But instead of dissipating energies over money donated to combat the COVID-19 by the private sector fund, the legislators should concentrate efforts on the N1 trillion economic stimulus packaged and approved by the management of the Central Bank of Nigeria.

“That is the exclusive cons titutional responsibility of the National Assembly because the CBN cannot spend any money without appropriation. The N500 billion COVID 19 intervention fund being proposed by President Buhari has to be appropriated by the National Assembly.”

Akinlaja agreed with Hon and Falana, pointing out that the donation “does not make it public money in the sense that it would require appropriation before spending.”

He explained that the source of the money “is private and such money is not required to be transferred to any of the public accounts before spending. It is money that enters the requisite public accounts that must not be spent without such appropriation.

“Interestingly enough, the money donated is meant to take care of emergencies. So, I do not think that it needs be delayed till the bureaucracy of appropriation is met. All I think the government needs do is to put in place credible mechanisms for equitable utilisation of the funds.”

Odinkalu, a former Chairman of the Governing Council of the National Human Rights Commission, disagreed with the senior lawyers on the power of the federal government to spend the donated funds without appropriation.
Odinkalu said the funds donated “have become public funds and should therefore be appropriated. Without appropriation, you cannot really monitor or oversee its management.

“After the money had been donated to the federal government, it ceased to be private fund. When they donate it to the government, it is no longer private fund.

If it is going to be administered by public officers, what is their power over private funds?
“It is a different thing if it is held in private coffers. For instance, Fate Foundation has raised over N300m and is administering that itself. That is not public.

“The problem is, if you send the money into public coffers, it becomes public revenue, which is liable to be accounted for. To travel from revenue column to expenditure column it has to pass through appropriation whether prior to expenditure or by ratification,” Odinkalu argued.

He said the example of international grants “cited by the senior advocates did not arise. That money does not actually go into government coffers usually. They usually disburse or administer directly to projects, except it is a loan.”

Odinkalu said most gifts to the governments these days “will go to Treasury Single Account. From there, you cannot spend except you have authority to incur expenditure (AIE). The AIE is not issued without appropriations authority.”

About N22.58 billion had already been donated to the federal government to combat COVID-19.