‘Padding is not in Nigerian laws’

The allegation by the sacked chairman of the appropriation committee of the House of Representatives, Abdulmumin Jibrin that certain projects were smuggled into the budget, in a manner that is now known as ‘budget padding’, generated a huge controversy that is yet to abate. The argument now is whether it is lawful or not to insert more projects and figures into the appropriation bill.

A Lagos-based lawyer, Robert Emukpoeruo, who assessed the issue from the point of law, concluded that the term ‘padding’ is not used to describe any crime in the Criminal code, Penal Code or any law in Nigeria. He also bared his mind on the court of Appeal, Abuja, which reversed the decision of Justice Okon Abang in Abia governoship tussle.

On whether padding is regarded as a crime in law, Emukpoeruo said: “I cannot define budget padding. I have only tried to grasp the underlying issue raised by both sides of the divide. I think, without any lawful definition of padding, that the issue is really the inclusion of certain projects in the budget by the National Assembly after receipt of the appropriation bill from the Presidency. There is need to point out that the budgetary process starts from the executive arm of government. The process does not end at the National Assembly in the normal course of event. It will end with the President when he appends his assent, but it will not end with the President if he withholds his assent and the National Assembly musters the required two thirds majority to override his veto.

“But until assented to, the budget remains just a proposal, it remains a bill without the force of law.I cannot imagine how it can be a crime for the National Assembly, either through its principal officers or otherwise, to include projects in the budget proposal for the president to assent to. So, until the president assents to the appropriation bill, it has no legal effect. I do not think any crime is committed by the mere inclusion of intervention projects in the bill and presenting it for presidential assent. The word or term ‘padding’ is not used to describe any crime in the Criminal code, Penal Code or in any law in Nigeria and I am also not aware of any legislation, which specifically criminalizes the inclusion of intervention projects in the appropriation bill.”

Emukpoeruo, however, clarified that it is a crime if monies appropriated for specific projects end up by any means in the private pockets. Such according to him should be investigated and dealt with appropriately. He said: “A member of the National Assembly may be charged with the commission of a crime if monies appropriated for intervention projects for his constituency end up wholly or partly in his pocket. That is the crime the Independent Corrupt Practices and other related Offences Commission (ICPC), the Economic and Financial Crimes Commission (EFCC) or the Police should investigate and not an allegation that projects were included in the budget for presidential assent.”

He also noted that the Transparency Group in the House of Representatives appears to be aggrieved by the concentration of intervention projects in the constituency of principal officers, and also by the addition of intervention projects allegedly unknown to the generality of members. “For an act to be a crime, it must be so defined specifically in a written law. This is a constitutional imperative. I know of no law, which makes this action criminal. They may be unconscionable, they may be wrong, they may even be immoral. But they are no crimes. Once those projects have been assented to and approved by the president, there is nothing criminal in their inclusion in the budget. But there is a serious crime, if projects approved by law to be executed, is not executed and the monies appropriated are misappropriated! That is definitely a crime!”, he said.

Emukpoeruo also expressed his views about the judgment of the court of appeal, Abuja, which reversed the decision of Justice Okon Abang of the federal high court, Abuja in the Abia state governorship crisis. He described the appeal court decision as right and well founded.

“The speed with which their lordships of the court of appeal disposed of these appeals is commendable. The decisions of Justice Abang caused ripples in law. This may have informed the court of appeal’s statement that Justice Abang “stood the law on its head” in relation to one of the interlocutory appeals,” he said.

He believes that ordinarily, the making of an order concerning who was validly elected as the governor of a state, is a matter within the exclusive remit of the Governorship Election Tribunal by virtue of the provisions of the constitution. According to him, the federal high court is most certainly not an election tribunal and no order made by that court ought to invalidate a return made by the Independent National Electoral Commission (INEC) at an election.

“I must emphasis that the provisions of section 31 of the Electoral Act 2010 (as amended) severely circumscribes the nature of order that can be made under it by either the state high court or the federal high court. The order that can be made does not extend to removing and or replacing the governor of a state. Jurisdiction once specifically conferred, is limited by the specific language of the law conferring jurisdiction. This jurisdiction cannot be expanded. It can only be expounded.The specific words of the Electoral Act in section 31(6) is that the person, who makes any false statement in the affidavit submitted to INEC shall be disqualified from contesting the election.

The power given to the state high court and the federal high court is very limited. The kind of order they may make is limited to an order precluding the person from contesting the election. There is nothing in the Electoral Act that gives any Judge of the federal high court or the state high court the power to remove a governor who has gone through an election, who has been given a certificate of return and who has been sworn-in and is acting as governor of a state.

I am of the strong view that the false statement in the affidavit must relate to the constitutionally specified grounds of qualification or disqualification. It is not every or any false statement in an affidavit that should fall within the purview of section 31 of the Electoral Act 2010 (as amended). The sole object of the affidavit under section 31 is for a candidate to make oath that he has met all the constitutional requirements to contest the election in issue,” the lawyer stated.

Asked if he could advise Uche Ogah, to approach the apex court under the circumstance, Emukpoeruo declared: “He would be very cognizant of my prior obligation to the legal profession, my prior obligation to the system of justice and advise him frankly of the true purport of the provisions of section 31(6) of the Electoral Act vis a vis the provisions of sections 177 and 182 of the constitution.

The issues ventilated in this case, do not fall within any of the provisions of sections 177 or 182. On this ground, he cannot conceive of any cognizable cause of action. The decision shows that our judicial system has the capacityto correct errors swiftly and decisively and the speed with which the court of appeal dealt with this appeal is highly commendable. The Justices gave up their precious and well deserved vacations to hear this appeal expeditiously and come up with this judgment.”