Legal Pitfalls Surrounding 2016 Appropriation Bill

By Nebo Ike

Budget is a proposed account of income and expenditure, of individuals, associations, or corporate bodies usually prepared annually but could be ad-hoc, one–off or recurring. For a corporate entity called Nigeria and other Nations budgets are part of national, fiscal policy which must be passed as an Appropriation Bill as s.53(3) of the 1999 Constitution stipulates and assented before implementation.

S. 81(1) provides: “The President shall cause to be prepared and led before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year”. S.80(3) had already warned that “No moneys shall be withdrawn from any public fund of the Federation, unless the issue of those moneys has been authorized by an Act of the National Assembly”.

Apart from complying with all the Legislative processes like other bills, the time of presentation of the budget proposal is provided by Fiscal Responsibility Act; when applied to the time the 2016 Bill was presented to the Senate there was a shortfall. As if that is not damaging enough, the Appropriation was full of errors. That is inelegant!

Being presented late to the National Assembly was already in breach of the provisions of the extant laws including Fiscal Responsibility Act; like applying salt to injury the Appropriation was stolen with some people threatening to go to Court. That was a breach of parliamentary procedure, yet no one was charged for crime. When the hanky-panky escalated beyond proportion and the reappearance, the Appropriation had become deeply tainted and controversial. Despite breach of procedure, the disappearance of the Appropriation was in breach of National Ethics as provided by s.23 of 1999 Constitution as amended.

The 2016 controversial bill failed to comply with the provisions of s.59(2) of 1999 Constitution as amended, which required the President of the Senate Dr. Bukola Saraki, within 14 days after he discovered that the Bill had not been passed 2 months from the commencement of 2016 financial year, to arrange for and convene a meeting of the Joint Finance Committee to examine the bill with a view to resolving the differences between the two Houses.

No one is in doubt about the power of the legislature to alter, edit, critically examine, approve or disapprove the contents of the Appropriation Bill. The power to alter includes increase, decrease of the figures and narratives or both. This function usually stretches the over-lapping functions of both arms to the point of doubtful separation of powers. For instance who takes responsibility of late passage of the bill; the Executive or Legislature? However, the fact that 2016 Bill was “passed” without details is obviously mischievous of the Legislature. The reasons or excuses may unfold later. At least the inability to observe the delicate balance of separation of power is a breach of the constitution no matter how subtle.

Using UK as parameter, Legislative hour costs as much as an average of £6. If converted to Nigerian currency we would be in the neighbourhood of N1,800 and N 2,100 depending on the exchange rate adopted. So who can give us the exact figure it cost for 469 legislators to deliberate on the 2016 Appropriation Bill till the inchoate passage on 29th March, 2016. Yet Bureau of Public Procurements whose duty it is to monitor procurements and eliminate wastages could not bark at least to ginger them to use guillotine procedure.

The legal and procedural pitfalls surrounding the 2016 Appropriation Bill are palpable and controversial enough to warrant Mr. President’s “critical review” probably department by department, before assenting to the Bill. Another threat by Mr. President is whether the legislature’s “butchering” of the Appropriation Bill as presented by the Executive did not significant distort the government’s avowed programme looking towards welfarism. That threat is also disturbing because if in the considered opinion of Mr. President to withhold assent as long as 30 days, trouble shooting may start with s.58(4) of 1999 Constitution when the Joint Sitting of the Houses passes the Bill again with 2/3 majority and subsequently becomes law. Niger Delta Development Commission Act was the first to sail through under the 1999 Constitution, when former President Obasanjo withheld assent.

The next time when such legislative quagmire presented itself was when the aborted fourth alteration of the 1999 Constitution came up in 2014. It was reported that rather than assent to it the President was advised by the Attorney –General and Minister of Justice not to assent to it. The prolonged argument was whether the President’s signature was necessary for the validity of the Constitution in the first place?

The Chairman, Committee on Appropriation House of Representatives Dr. Abdullatif Jubrin was alleged to have deliberately delayed details of the Appropriate as ransom against the Executive. How this could happen in this democratic dispensation is baffling even though he has denied it. Afterall a legitimately elected government is entitled to levy taxes as well as the authority to spend such revenue responsively.

If eventually the government is frustrated in assenting to the Bill and implementing the budget provisions, then the government has Constitutional Powers under s. 82 to continue to authorize the withdrawal of money from the Consolidated Revenue Fund for six months subject to the limit of last year’s (2015) budget figure. Even in the case of Contingencies Fund and Supplementary Appropriation Bills are to be approved by the legislature. So the Executive would always need the cooperation of the legislator. Any attempt to spend money without the backing of the legislature may constitute legal pitfall and impeachment.

The issue of budget is sensitive and is capable of causing infraction between the three arms of the government as well as the public. It took a legal battle to the Federal High Court for the Executive to concede that s.81(3) and s.162(9) authorize financial autonomy of the judiciary through National Judicial Council (NJC); funds received to be disbursed to head of courts. In that case, the enforcement of which Judiciary Staff Union of Nigeria (JUSUN) went on strike for more than 1 year, Olisah Agbakoba, SAN got executory judgment of the Federal High Court that held: “that the remunerations, salaries, allowances and recurrent expenditure of the judiciary being constitutionally guaranteed charges (or ‘First line Charge’) on the consolidated Revenue Fund of the Federation, did not form part of the estimate to be included in the Appropriation Bill”. This reflects the provision of s.84(2) and (4) of the 1999 Constitution as amended. The public is already weary of this war of attrition. It is the similar frame of mind that drove Brazilian’s legislators towards the attempted impeachment of their President Dilma Rousseff.

Iyke Ozemena
Corporate Attorneys/Consultants