‘Worrisome changes’ in 2022 Budget: Lawyers, others divided on NASS’ power to insert new projects

Since Friday last week when President Muhammadu Buhari signed the 2022 Appropriation Bill into law at the Presidential Villa, Abuja, crisis may have started brewing between the Presidency and the National Assembly over what was described as ‘worrisome changes’ and inclusion of new provisions totalling N36.59 billion in the budget by the lawmakers.

President Buhari, who said the action of the lawmakers negated the principle of separation of powers, explained that he signed the Appropriation Bill, despite the alleged flaws, to “enable implementation to commence on 1st January 2022”. He promised to revert to the National Assembly with a request for amendment and/or virement as soon as the Assembly resumes to ensure that critical ongoing projects that are cardinal to his administration and those nearing completion do not suffer a setback due to reduced funding.

Some of the changes listed by the President include: “Increase in projected FGN Independent Revenue by N400 billion, the justification for which is yet to be provided to the Executive; reduction in the provision for Sinking Fund to Retire Maturing Bonds by N22 billion without any explanation; reduction of the provisions for the Non-Regular Allowances of the Nigerian Police Force and the Nigerian Navy by N15 billion and N5 billion and increase in the provision for Capital spending (excluding Capital share in Statutory Transfer) by a net amount of N575.63 billion, from N4.89 trillion to N5.47 trillion.”

But the Senate President, Ahmad Lawan, justified the injection of the various new projects into the budget, saying the National Assembly did not do anything wrong and that the judgments of both the executive and legislative arms do not always have to be the same.

Experts, analysts and others who spoke with The Guardian on the matter were divided, particularly on the power of the National Assembly to insert new provisions or projects in the budget.

While some backed the lawmakers, others joined President Buhari in condemning the changes effected by the lawmakers. They suggested ways to avoid the crisis that occurs almost yearly in the process of budget making.

A lawyer and former Minority Whip of the House of Representatives, Dr. Samson Osagie, said the constitution gives the National Assembly the power to insert projects or make alterations and adjustment to the budget proposal for the overall benefit of the people.

“The constitution gives power to the executive to prepare and submit budget proposal to the National Assembly for consideration. So, you don’t expect that the approving authorities will return the proposal exactly the same way it was brought to it. And what if the proposal is against the people?” he queried.

According to him, the insertion is part of the process leading to the approval of a budget that will be of national interest. The constitution does not contemplate that whatever the executive proposes, the legislature must approve.

“But if the President has any observation, he can make it in form of proposed amendment, and then it goes on and on until agreement is reached,” he added.

Osagie explained that the National Assembly inserts its projects into the budget proposals to accommodate pending ones that were not included in the proposal sent to it. “The executive cannot question the right of the National Assembly to act in national interest in the consideration of the budget as sent by the President,” he insisted.

On whether or not the insertion negates the principle of Separation of Powers, Osagie said: “No! If for anything, it strengthens the principle of separation of powers because there is difference between preparing the budget, submitting the estimate and approving the budget, after all.”

Professor of Comparative Constitutional Law, Edoba Omoregie (SAN), said: “I think the President’s view needs to be examined in the context of what’s provided in section 81 (1) and (2) of the 1999 Constitution. That section empowers the President to direct the preparation of estimates of revenue and expenditure of the Federation, which shall be included in the Appropriation Bill to be laid before each House of the National Assembly in each financial year. Thereafter, the National Assembly is expected to consider the estimates for final legislative approval. The process is concluded with the assent of the President. What the constitution prescribes seems to be a joint effort of both the President and the National Assembly. The “estimates” which President causes to be prepared and laid are to be “included” in the Appropriation Bill. They cannot be the only matters or estimates to be contained in the Appropriation Bill.

Although the Constitution provides for separation of powers, this must not be interpreted as creating a wall between the branches, especially one that admits of no cooperation. So, the provisions of section 81 (1) and (2) of the constitution envisage that the two political branches shall cooperate in the appropriation process. In any event, what the President laid before the National Assembly are “estimates”. They cannot be taken hook, line and sinker by the National Assembly, except you want a rubber stamp National Assembly. I am not sure it’s in national interest to have such a parliament. As a matter of fact, the 9th National Assembly appears to be the most cooperative as far as the mutual relationship between previous Presidents and the National Assembly is concerned. Some might even suggest that the 9th National Assembly has been too malleable. I believe the National Assembly has not acted ultra vires in including additional provisions into the Appropriation Bill, which the President has eventually assented to.

A Lagos-based constitutional lawyer, Steve Ubimagi, said: “In my considered opinion, the National Assembly did not act beyond its constitutional powers in adding N36.59bn projects to the 2022 budget.

“If President Buhari feels strongly aggrieved at the said NASS’ action, he shouldn’t resort to emotional blackmail. Let him seek the advice of the Attorney General of the Federation (AGF) to challenge it at the Supreme Court. Not only would the matter be laid to rest after obtaining a definitive judicial pronouncement on it, they could also obtain a permanent injunction restraining the lawmakers from ever touching a proposed budget without presidential clearance once it is laid before the NASS by the President .

“For me, the development is healthy for our democracy. Any institutional grievances may be taken before the judiciary for adjudication or determination or resolution.”

Abuja-based lawyer and Principal Partner, Charles I. Ndukwe & Co., Charles Ndukwe, said the NASS had the power to insert and remove anything in and from the budget because the budget is a law.

Ndukwe, who argued that the NASS could even decline to act on the proposed bill for reason of discrepancies in the proposal, noted that until the budget becomes a law, the NASS has the power to insert and to expunge or return the budget to the executive if there is need to do so.

“If the executive thinks that the NASS shouldn’t have an input in the budget, then they shouldn’t send the appropriation bill to the NASS and then sign it into law. In as much as the executive prepares the law, and in this case, budget, it doesn’t take away the powers of the NASS to check what has been presented before it for approval. It’s their right; the constitution is clear on this.

“The NASS has the final say and if it decides not to pass the budget, there is nothing the executive can do. The only problem here is that, in most cases, the NASS does this for their self interest and sacrifice the country at the alter of personal interest.”

According to him, the insertions by the NASS into the budget do not breach any law and could not be said to breach the principle of separation of powers.

“Under the Principles of Separation of Power, each arm of the government should mind its business, but at the same time, check the excesses of others. That’s why executives may prepare a bill in an anger to punish offenders but the legislature will say, this proposed law is harsh, why not do it this way or that way.”

Also, an economist, Dr. Desmond Echeta, is of the view that the lawmakers have the constitutional right of oversight to make adjustments in the budget proposal.

“The job of the executive is to prepare the budget constitutionally and send to the National Assembly. The NASS members are representing their people. They have the constitutional powers to increase and decrease. They use their powers to insert those things. In the case of the education sector, they reduced it. All these things are the things that happen in democracy. The NASS has the constitutional right to query the budget.”

A constitutional lawyer in Cross River State, Sir Leonard Anyogo, argued that the major role of legislators is to make laws for the governance of the country.

“The executive ought to prepare the budget and defend it before the legislature. In reality, the legislature could influence the executive in choosing projects but that ought to be done through the executive.

On whether the insertions by the National Assembly negate the principle of separation of powers, Anyogo replied: “They don’t because the three arms of government are supposed to work in tandem for the development of the country. I believe that the National Assembly should not be a rubberstamp.

The Legal Officer, Human Rights Law Service (HURILAW), Collins Okeke, said it would be difficult to say that the action of the National Assembly is ultra vires because the courts have yet definitive pronouncement on the extent of the powers of the National Assembly to appropriate the budget.

“Some have argued that the powers of the National Assembly include introducing items into the budgets. Others have argued otherwise. The Executive should approach the court for interpretation of the Constitution on this matter. The President’s liaison officer should know (including his boss) but they cannot stop or change the practice unless the court makes a pronouncement declaring the practice unconstitutional. The practice does not portend any significant danger for our democracy but is disrupts the revenue and spending plan of the executive.”

A Kano-based lawyer and writer, Abubakar Sani, said the lawmakers exceeded their remit under the constitution to have directly slotted projects into the Appropriation Act without an antecedent request or even collateral input from the executive.

“This is the only possible conclusion from even the most cursory reading of the relevant constitutional provisions dealing with the budget process, namely Section 81(1)&(2). Under those provisions, it is the prerogative of the President to ‘cause to be prepared and laid before each House of the National Assembly, estimates of the revenue and expenditure of the Federation for the next financial year.”

According to him, by virtue of Section 4(1) of the constitution, the role of the National Assembly in the matter is restricted to only exercising it’s legislative powers by considering and, if found fit, passing the Budget Bill, albeit with necessary amendments, if need be.

“By no stretch of the imagination, however, should such amendments include usurping the executive’s exclusive constitutional functions by smuggling projects or heads of expenditures – either fresh or otherwise – into the Appropriation Bill as prepared by the latter. That would be flagrantly unconstitutional,” he argued.

Prof. Bukola Akinola, Dean, Faculty of Law, Redeemer’s University, Ede, Osun State, said: “I agree with the President that the inclusion of the said sum not budgeted for by the executive is a violation of the principles of separation of powers.

“However, there is no justification for the president to give assent to such illegality.
The members of the National Assembly are not within the contemplation of section 81 of the constitution, which provides that the President shall cause to be prepared and laid before each house of the National Assembly revenues and expenditure of the federation. The National Assembly ought to have persuaded the executive to invoke section 81(4) (b) of the constitution to shore up the expenditure and present it again to the National Assembly.

“The President’s liaison officer ought to know about the inclusions by the National Assembly. This doesn’t augur well for our democracy because it is a usurpation of the executive powers in section 5 of the constitution of Nigeria. There is always room for supplementary budget through Supplementary Appropriation Bill. The National Assembly acted ultra vires of section 81 of the constitution.”

Dr. Olukayode Ajulo said: “The Constitution of the Federal Republic of Nigeria does not support a total separation of the powers, otherwise the principle of checks and balances would not have found its way into the constitution. Narrowing it down to this instant issue, it is not the intention of the framers of the constitution that the National Assembly cannot make changes to budgetary estimates as presented by the executive or that the President is bound by law to assent to an altered budgetary estimates.”

“For context, the legal framework for the passage of money bills, more specifically, the national budget, is largely domiciled under Sections 59, 80 and 81 of the 1999 Constitution as amended as well as the Fiscal Responsibility Act, 2007.

“Section 59 of the CFRN 1999 as amended stipulates the mode of exercising Federal Legislative Power relative to money bills and it provides summatively how an appropriation bill or any other money bill can be vetoed by the National Assembly in the event of withholding of Presidential assent.

“Under the Fiscal and Responsibility Act, 2007, some grey areas of the power sharing arrangement between the executive and the National Assembly as per the highlighted constitutional provisions above were further brought into more clarity. Precisely, Section 13 of the Act mandates that the Minister of Finance, in preparing the draft Medium-Term Expenditure Framework (which is declared under the same Act as the basis for the preparation of the annual budget), shall seek the inputs of the National Assembly and certain other bodies.

“The Act, in my considered view, has further created an opportunity for the National Assembly to make its input which by the concurrence of the Minister of Finance may include the introduction of projects to be executed in respective constituencies of members of the National Assembly subject of course to the availability of funds. It makes the entire budgetary process tidier as opposed to the current trend of altering significantly the contents of an Appropriation bill by the National Assembly.

“As it is, the budget estimates are based on economic projections which should never be further subjected to the vagaries of significant changes, otherwise, we will remain in the zone of budget deficit and poor performance of budget.

“With the benefit of the extant provisions of law earlier highlighted, it is admitted that the National Assembly is empowered by law to consider the Appropriation bill but the same must not be construed to mean a tangible disruption of the aspirations of the executive as we currently have it.

“In fairness, therefore, to the President, the inclusion of N36.59 billion for National Assembly’s projects in the Service Wide Vote which essentially is for unforeseen recurrent and capital expenditure is disruptive and unjustifiable. The National Assembly enjoys financial autonomy and its budget is captured under statutory transfers and as such it should have factored whatever projects it had under its budget as opposed to this forceful inclusion under a compartmentalized lump sum meant for contingency recurrent and capital expenditure.”

Another Lagos-based lawyer, Wahab Abdulah
Also said the National Assembly acted ultra vires by usurping the powers of the executive arm of government.

According to him, the president is empowered to formulate bill, this time appropriation bill, for spending in the fiscal year to the National Assembly for approval before the president’s assent.

“The way the duties are structured, the president is to propose before the National Assembly projects the government wishes to execute for the year and the cost. This is both the current and capital expenditures. Before the government embarks on proposing projects in the budget, its costing and host of others, there are a lot of considerations, information gathering, that would have gone into it. So, the sudden inclusion of new projects or proposals is completely wrong.

“Many people have argued that since the lawmakers reserve the powers and rights to vet the proposed budget brought before them as appropriation by reducing some expenditures or cost of certain projects, the lawmakers should also reserve the rights to create or formulate new projects and appropriation. I vehemently oppose this argument. The roles of the lawmakers as stipulated in the constitution are to get the budget proposals, vet in whatever form and approve. So, the duty of creating new projects as well as appropriating cost is completely wrong.’

The Principal Partner of Benon Chambers, Lagos, Ben Onuora, alleged that in most cases, the projects inserted in the budget by the NASS are constituency projects which are often seen as a conduit for corruption.

“They do not make mistakes in inserting those things; they were all deliberately inserted as a way of enriching themselves. NASS will always want to have this done, especially in the wake of election. You see all manner of corruption-induced insertions.

“They always want to get involved in everything, including who gets a project and at the end the projects will not be delivered. This is the reason the prices of most of these projects are ballooned. You see that some of these projects don’t get funded to the fullest. The money released for them is too small.

“Despite the fact that the NASS has the power to do this, they shouldn’t take advantage of it to steal public funds. More worrisome is seeing personal names on these constituency projects sponsored by the government. Any project sponsored by the government should have the government name on the signpost and not one NASS member or the other,” he said.

To Onuora, the development portends great danger for the country’s democracy. “We expect the dividend of democracy; that’s what every Nigerian wants to see. They can do this together but for their self interests.”

A former lawmaker, Alhaji Haruna Musa Fatahi, who represented Kano Municipal Council in the House of Representatives, argued that it was reasonable for the National Assembly to cut or increase some allocations in the budget due to anticipated inflation and fluctuations in exchange rates.

He noted that the only way out of the quagmire is for both the executive and legislative arms to jointly work together anytime there would be adjustment, insertion or amendment in the budget proposal.

A budget analyst in Rivers State, Ignatius Chukwu, said it was risky for the National Assembly to get involved in inserting items in the budget because when it does, the executive could ignore such items during implementation.

He also described the disagreement between the executive and the NASS as a sign of absence of harmony between both arms.

“The yearly crisis is very bad for our democracy. It means each arm will do its best to undo the other and prove that the other arm was wrong. It’s bad for our democracy. The points raised by the Presidency are sensitive; inserting costs that are not backed by funds is hollow planning.”

Former Chairman of the Nigerian Bar Association (NBA), Plateau State Chapter, Mr. Sule Kwasau, called for cooperation between the Presidency and the National Assembly. He noted that with cooperation between the two arms, the principle of Separation of Powers will not be violated whether the National Assembly inserts projects in the budget or not.