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Can the Legislature alter the provision of the budget as presented by the Executive?

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Senate President Bukola Saraki


Ordinarily one would have thought since the Executive is expected to prepare the budget estimates and place it before the National Assembly; the Assembly should accept or reject the provisions as presented but are not expected to introduce new items that may not be priority of Government. They may also not be expected to increase the budget envelop since that may affect the balance of the budget. However, these may be ordinary expectations, but what does the law say about it.

The position of the law in this respect varies from jurisdiction to jurisdiction. Generally speaking, budget development is typically in the domain of the Executive branch of Government which is responsible for the source and veracity of the content of the proposal and any change by the Legislature should be done through the executive to avoid friction. There should be respect for the doctrine of Separation of Powers which guarantees the independence of each arm, even in the exercise of checks and balances.

In the USA, the Congress has authority to alter, increase, reduce or even introduce new items. Congress possesses unlimited amendment powers in the budget proposals. It can change funding levels, eliminate or add programmes, add or eliminate taxes or other sources of receipts (See the Budget of the U.S Government Fiscal year 1999 Washington DC, U.S Government Printing Office, 1998, page 2). In an International survey prepared by the National Democratic Institute, examples of jurisdictions are given on the role of the Legislature in budget making e.g.

In Malawi, the Constitution effectively prohibits the Legislature from considering any bill or amendment for the imposition of any charge upon the CRF or any alteration of such charge unless the recommendation comes from the Government; this effectively prohibits amendment of the Ministers budget.

Ghana – their constitution prohibits the imposition of charge on the Consolidated Fund of Ghana or the alteration of any such charge otherwise than by reduction.
South Africa – their 1996 constitution empowers the Legislature to offer amendments to the executive’s budget but the Legislature must provide the procedure to exercise this power under a framework Law.

It must be noted that the defunct 1979 constitution and the current 1999 constitution of Federal Republic of Nigeria were in line with the principle of Separation of Powers amongst the Legislature, Executive and the Judicial Arms of Government. The Legislature makes laws; the Executive administers and enforce the laws while the Judiciary interprets the laws. In practice, there is cooperation and inter-dependence amongst them. Also through the checks and balances one arm of the government can exercise some level of powers over the other arms while being careful in doing that, not to undermine or usurp their functions. But the Legislature should not be made to seem like a rubber stamp of the executive in the budgeting process by accepting the proposal hook, line and sinker. Budget is a plan for saving, borrowing and spending. It is a mere guess work of income and expenditure. The actual income or revenue may fall short of what is expected while expenditure may outstrip the expected revenue.

From Section 81 of the constitution, it is clear that the President will after research on estimate of the revenue and expenditure for the year in question; present same to the National Assembly. The National Assembly is the custodian of the Nations’ purse; one of its most basic and fundamental powers exercised is the power to make laws in relation to taxation of income, profits and capital gains. (See item 59 of the Exclusive Legislative List, 2nd Schedule PT 1 to the Constitution 1999 as amended) the question is “does the National Assembly have the power to sanitise, query, apportion, vary subtract from, add to multiply, tinker with in any way the plans and estimates presented to ensure conformity with the laws, especially the constitution?”

It must be noted that without the approval of the National Assembly the Executive cannot withdraw money from the consolidated revenue fund. See Section 80(2)(3) and (4) of the constitution. Article 1 Section 9 of the U.S Constitution is similar to Section 80 of our constitution. That section provides “No money shall be withdrawn from the Treasury but in consequence of the Appropriations made by law”. This means all moneys are paid into the USA Treasury which is like our CRF. Also no withdrawal can be made from the USA Treasury except through appropriation.

Legislature while exercising its powers of oversight should realise that the powers are not absolute but subject to limitations. It cannot for instance, usurp the general investigating functions of the Executive nor can it take over or exercise the powers of the judiciary, otherwise it would be going ultra-vires its powers. This was the decision of the Supreme Court in the case of:TONY MOMOH VS SENATE OF THE NATIONAL ASSEMBLY (1982) VOL 3 Nigeria constitutional law report 1 page 105; (1981)9 S.C (REPRINT) 1 AT 78-79.

In that case the court held that with regard to the investigative powers of the Legislature, anything outside the purpose defined in Section 88 of the constitution is not valid. In the case of GLOBAL EXCELLENCE COMMUNICATIONS LTD & ORS VS DUKE (2007) Law Pavillion Electronic Law Report – LPELR – 1323 (SC) the case of ATTORNEY-GENERAL BENDEL VS ATTORNEY – GENERAL FEDERATION & 22 ORS was relied on where OBASEKI J.S.C. stated the principles guiding the court in interpreting or constructing the provisions or our constitution and they include:

Where the language of the constitution is clear and unambiguous it must be given its plain evident meaning;a constitutional power cannot be used by way of condition to attain unconstitutional result.under a constitution conferring specific powers, a particular power must be granted or it cannot be exercise.

The constitution is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be severed from the rest of the constitution.
a constitutional provision should not be construed so as to defeat its evident purpose;the principle upon which the constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.

In the case of ATTORNEY-GENERAL ABIA STATE VS ATTORNEY-GENERAL OF THE FEDERATION (2006) LPELR-613 (SC) per NIKI TOBI (of blessed memory) while determining the powers of the National Assembly to establish the State Joint Local Government Account Allocation Committee, mentioned three types of oversight functions; namely:

The power of the Legislature to conduct investigations Control and surveillance over the financial affairs of the executive, and Control and supervision of the general business of the Government.

It was also held in that case that oversight functions can only be exercised within the law making powers of the National Assembly, the functions are not at large and must be exercise within the provision of the constitution.

The court also had course to explain the provision of section 162(3)(4)&(5) which provides for the distribution among the Federal, State Government and the LGCs, amounts standing to their credit “on such terms and in such manner as may be prescribed by the National Assembly”. The Supreme court held that that phrase gives the National Assembly very wide powers but that in exercising those powers, the National Assembly must not infringe on the constitutional powers of the States and so the establishment of the Joint Committee was held to be ultra vires. Similar phrase is used in Section 80(4) of the constitution which prohibits any withdrawal of money from the CRF or any public fund of the federation except “in the manner prescribed by the National Assembly”.

So how does the National Assembly check and balance the exercise of the power of the executive with regard to the budget process where the budget does not comply with the law for instance:

Where the budget submitted is at variance with Section 11 of the Fiscal Responsibility Act which requires the proposed budget to conform with the Medium Term Expenditure Framework already passed by the National Assembly which is usually for three years;Section 12 of the FRA provides that the aggregate expenditure shall not be more than the estimated aggregate revenue plus a deficit (not exceeding 3% of the estimated Gross Domestic Product). What happens when the budget proposal is at variance with the Medium Term Expenditure previously passed by the National Assembly? How can this be rectified before approving the budget?

The focal point of Section 3 of the Fiscal Responsibility Act is that where the President presents a budget in contravention of Section 16 of the Constitution, which deals with policy on Economic objectives, the National Assembly may be pressured (through public hearing) to include estimates which make the budget comply with those objectives set out in that Section 16.

One of the consequence of separation of powers is that each arm of government will respect the independence of the other arms of government but where there is specific provision as to how something is to be done and there is obvious violation of that specific provision, the other arms are duty bound to ensure compliance with that provision of the law.

What happens to the outcome of the public hearing conducted by the National Assembly?
If the National Assembly cannot make any input into the budget estimate but to just pass or reject it, what is the purpose and function of the joint finance committee of the National Assembly created under section 62(3) of the constitution?

The constitution has given the National Assembly power to pass the budget into law where the President withholds assent; the constitution does not specifically prohibit the National Assembly from altering the budget, in fact it was been argued that what the President present to the National Assembly is an estimate and his role is to cause the estimates to be “prepared and laid” before the National Assembly. While the National Assembly has the duty to pass the law after performing its function as stated in Section 59 of the constitution.

A large number of countries follow the Parliamentary system of government where the Legislature has the power to only approve or reject the budget, although generally almost all countries allow for amendment of the budget.

Under the British Parliamentary System, the Legislature cannot alter the budget by increasing it but it can decrease it. The Crown has the prerogative over money supply and the Legislature is specifically prohibited from increasing the budget. Worthy of note however is that the difference is that under the parliamentary system, the parliament consist of all the Ministers unlike a Presidential system where the Ministers are not part of the National Assembly.

According to Anwar Shah 2007 in his book titled “Budgeting and Budgetary Institutions” at page 273, he classified 3 possible situations:

* Unrestricted power – this allows the Legislature to change the expenditure and revenue up or down without the consent of the executive. For example in the United States of America and also Philippines; although the “power of the purse” granted the Legislature is counter balanced by a Presidential veto.

* Restricted power – this is power with limits on the maximum increase in the expenditure or decrease in revenue. In France, U.K and British Commonwealth countries, Parliaments are not allowed to propose amendments on increase of expenditure and they also have very limited power to propose any amendment. Germany allows such amendments but only with the consent of the Executive.

* Balance power – this is the ability to raise or lower expenditure or revenue as long as a counter-balancing measure maintains the budget balance. This is known as “paygo” in the U.S it channels Legislative influence to the sector allocation of resources where it is more appropriate.

It is therefore pertinent to note that the spirit of the 1999 Constitution is that the Legislature can alter the estimates as it is in the U.S. This fact is further supported by the fact that even where the President withhold assent, the Legislature can review and pass the budget. The only thing that can make the President to withhold assent might be including issues that were not contemplated and it is said that the budget can be passed without such assent. If it were a case that the National Assembly cannot adjust, such provisions may not have been necessary. The final right would have been on the President.
Mainoma, a Professor of Accounting, is the Vice Chancellor of Nasarawa State University, Keffi


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