Unconstitutionality of constituency projects
The issue of constituency projects initiated by the National Assembly has been a controversial one since the inception of the current republic. From my own personal understanding, constituency projects were conceived to give money to members of the National Assembly who will in turn execute projects of their choice in their respective constituencies.
During the Obasanjo Regime (1999-2007) the controversy surrounding the constituency projects often led to rifts between the National Assembly and the Executive arm of government. The rifts were however craftly managed by the executive because it had excesses that needed to be covered up. It therefore had no choice than to accede to the demands of the legislative arm.
The controversy surrounding the issue of constituency projects has persisted under the present regime because the legislative arm keeps looking for ways not only to legitimize it but also to perpetuate it.
In furtherance of this move, a Bill is reportedly pending at the National Assembly for the purpose of giving legal backing to constituency projects. The Bill is said to be titled “Constituency Development Funds Bill 2016” (see Guardian Tuesday 27th December, 2016).
This article seeks to examine the constitutionality or otherwise of constituency projects. It will also examine the implication of constituency projects for the principle of separation of powers as enshrined in the constitution of the Federal Republic of Nigeria 1999.
We are all aware that the primary role of the legislature (in this case the National Assembly) is law making. Thus, section 4 of the 1999 constitution provides as follows. 4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the federation which shall consist of a Senate and a House of representatives. 4. (2) The National Assembly shall have power to make laws for the peace, order and good government of the federation or any part thereof. On its part section 5 of the same constitution provides as follows: 5 (1) The executive powers of the federation, Shall be vested in the president and may… be exercised by him either directly or through the Vice president and ministers of the Government of the Federation or officers in the public service of the federation and Shall extend to the execution and maintenance of this constitution, all laws made by the National Assembly and to all matters with respect to which the Aational Assembly has, for the time being power to make laws.
The clear division of functions made by sections 4 and 5 of the constitution is simply known as separation of powers. Thus, while the legislature (National Assembly) has the constitutional duty of making laws, the actual implementation or execution of those laws is the function or duty of the executive.
In Governor of Kaduna state Vs The House of Assembly, Kaduna State and another (1981)2 NCLR, page 444 Ratio 1, it was held as follows:
In the 1979 constitution, the doctrine of separation of powers is enshrined. It is therefore the responsibility of the legislative arm of government to make laws and it is the responsibility of the Executive to execute the Laws made by the Legislature.
(Note: Sections 4 and 5 of the 1979 constitution are in pari materia (on the same subject) with sections 4 and 5 of the 1999 constitution). It is pertinent to observe at this juncture that if the framers of the 1999 constitution had wanted the National Assembly to make laws and at the same time implement or execute the laws, the constitution itself would have said so. Adequate machinery and procedures for such implementation would equally have been provided.
However no such thing is contained in the constitution. Rather the principle of separation of powers as enshrined in the constitution is clear and devoid of any ambiguity. Each arm of government is therefore expected to concentrate on the role assigned to it by the constitution so as to ensure that things work out properly.
See, the Governor of Kaduna State Vs House of Assembly Kaduna State and another (Supra). It is against this background that with the greatest respect to the distinguished and honourable members of the National Assembly, I see constituency projects as unconstitutional. This is because the constitution does not recognize such projects.
This being the case, any law enacted by the National Assembly to enable it to execute constituency projects will equally be unconstitutional. First and foremost such a law will be a complete negation of the principle of separation of powers as clearly provided for in sections 4 and 5 of the constitution. This means that such a law will be inconsistent with sections 4 and 5 of the constitution.
By virtue of section 1 (3) of the constitution, “if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail and that other law shall, to the extent of the inconsistency be void”. It is equally provided in section 1 (2) of the constitution as follows “the federal Republic of Nigeria shall not be governed… except in accordance with the provisions of this constitution” (Emphasis mine).
My humble view is that the execution or implementation of constituency projects by members of the National Assembly is an act of governance within the meaning of section 1 (2) of the 1999 constitution. Therefore, as long as it is not in conformity with the provisions of the constitution, any law made to back it up is void ab initio. The law is ex nihilo nihil fit. (You cannot put something on nothing and expect it to stand).
The effort being made by the senate to enact the Constituency Development Fund Bill 2016 is tantamount to putting something on nothing. There is no way it will stand because the proposed law has no constitutional basis.
To be sure, the constitutional role of the National Assembly is not limited or restricted to lawmaking. Both the Executive and Legislature are empowered by the constitution to police each other so as to ensure that none abuses the powers vested in it. Under the principles of separation of powers this is known as checks and balances.
For example the National Assembly has powers to carry out oversight functions with respect to the Executive as well as its Ministries, Departments and Agencies. It is in line with this function that the executive and its agencies submit their budgets to the National Assembly for scrutiny and approval. Whenever the need arises, the National Assembly investigates the finances and other activities of the Executive arm of government. (See generally sections 80-83 of the constitution where in the National Assembly is empowered to exercise control over public funds). See also sections 88 and 89 of the constitution wherein the National Assembly is empowered to conduct investigations into the affairs and activities of the executive arm of government.
The national Assembly is equally empowered to approve certain appointments made by the President. I will not dwell on this at all as my main interest is in the area of finance. This is why I have painstakingly perused the provisions of the constitution relating to the powers of the National Assembly over public funds. I can confidently say that nowhere in the constitution is it provided (either directly or by implication) that the members of the National Assembly should collect money and award contracts for the purpose of executing developmental projects in their constituencies.
Clearly therefore the collection of money by legislators for the execution of projects in their constituencies is a flagrant usurpation of the functions of the executive arm of government. I stand to be corrected. Indeed the fact that senators are now seeking to enact a law (The Constituency Development Fund Bill) to give legal backing to constituency projects is a tacit admission that whatever they collected in the past for this purpose was illegally collected. This is notwithstanding the fact that such moneys may have been captured in the various appropriation Acts for the relevant years. There has to be an enabling legislation which specifically authorizes money to be appropriated for constituency projects.
It is then and only then that specific amounts or sums of money can be captured in an appropriation Act. As long as no such legislation is in existence, whatever was collected in the past in the name of constituency projects was illegally collected. I need not emphasize that it is very disheartening to note that people who address themselves as distinguished and honourable members would collect and spend public funds without an enabling legislation (illegally). There is nothing basically wrong with the idea of constituency projects as it is capable of ensuring accelerated rural development if discreetly implemented. What I find very objectionable is the collection of cash by people whose primary duty is law making for the purpose of executing projects.
To start with, it is capable of making the legislators to neglect or even abdicate their primary responsibility of law making. The business of law making is a very serious one requiring the fullest attention and utmost diligence by the law makers. Today so many Bills that would have helped in improving the lives of Nigerians are pending before the National Assembly. Some of them have been there for many years without any serious work being done on them. The Petroeum Industry Bill is a case in point. Why then should the law makers make constituency projects their priority while their primary responsibility suffers.
Moreover the execution of constituency projects by law makers is capable of worsening official corruption in the country. According to the Guardian report under reference, if the proposed legislation sails through each senator will pocket a whopping sum of N1.7b (one billion seven hundred million Naira). Who will monitor how this money is spent? Assuming a senator simply pockets the money and refuses to do anything, who will question or query him? The National Assembly is not accountable or responsible to the executive arm of government. The latter does not therefore have the power to look into the finances of the National Assembly in the circumstance, it is very doubtful that the money will be used for the purpose for which it is meant.
Therefore, releasing cash to senators for constituency projects could be counterproductive as it portends grave danger for probity, accountability, transparency and due process.
A better alternative would be for the law makers to discuss with the executive arm of government on the issue of constituency projects.
Maraizu, a lawyer, writes from Abuja