INTRODUCTION
Three years ago, the federal government had obtained the approval of the National Assembly to borrow $1 billion to tackle security challenges in the country, which included the supply of military hardware, helicopters, ships and armament, training of military and other security officers.
Aside from government telling bemused Nigerians in December 2015 that Boko Haram had been “technically defeated,” even though it was already sufficiently downgraded to allow for peaceful presidential elections in March 2015, it was reported in Premium times of 24th December, 2016, that President Muhammadu Buhari had declared “Boko Haram’s final crushing.” He stated that the last Sambisa stronghold had fallen. It was reported that Nigerian soldiers had raided Boko Haram’s “last enclave” in Sambisa forest, and the insurgents had finally been crushed. Mr. President enthused imperiously in a statement that he was “most proud” to receive the “long-awaited and most gratifying news of the final crushing of the Boko Haram terrorists.”
On November 27, 2017, barely a month ago, Daily Post quoted Minister of Information and Culture, Alhaji Lai Mohammed, while representing President Buhari at the commissioning of the Pulaaku Radio Station in Yola, Adamawa State, as follows: “Let me be clear, Boko Haram has been massively degraded and its surviving members put on the run. Instead of being hunters, they are now the hunted.
“In their desperation to stay relevant, they have resorted to the wicked and dastardly act of using innocent under-aged children to carry out suicide bomb attacks.
“What we are witnessing now are the last kicks of a dying horse. A dying horse manages to engage in some kicks. These kicks may be dangerous, but they don’t last long.
“Progressively, they become weaker and weaker until the horse finally gives up.”
One month after, the same Mr. President surprisingly requires $1 billion (a whopping N365 billion) to fight an already “defeated” Boko Haram.
Questions begging for answers
1. What has happened within the last 12 months or one month to a massively degraded and defeated Boko Haram?
2. Has Boko Haram regained so much vigour and strength that it now requires a whopping $1 billion to bring an already fallen Boko Haram to its knees?
3. What happened to the Sambisa forest that was allegedly already under the firm control of the Nigerian Army? Are there two Sambisa forests?
4. What happened to the weapons that were previously acquired by the Nigerian government for the Army, including fighter jets donated by the American government?
5. What happened to the funds, equipment, human resources, etc, that had serially been donated by foreign donors/agencies to the Nigerian government?
6. Was this not the same Boko haram that was so degraded that elections held peacefully throughout the six states of the North East zone in 2015, with some of the states turning in moon-slide and hardly believable figures?
7. Why has the bombing on civilians and military men, incessant attacks on defenseless villagers and settlements been on a rise, after government has repeatedly assured Nigerians of the conquest of Boko Haram?
8. Is it that the resurgence of bombings in the North East was a deliberate ploy to agitate for the $1 billion from the Excess Crude Account?
9. Why has the federal government deliberately closed its eyes on the continuous and deadly attacks on helpless sleeping communities by herdsmen?
10. Why has the federal government totally ignored issues of horrific environmental degradation and insecurity in the Niger Delta, which has been a long sore challenge, even before the advent of Boko Haram?
11. Why has the federal government failed to tackle the issue of mass unemployment, hunger and grinding poverty in the land?
12. Why is the President brazenly showing preferential treatment for his kith and kin, by sending the Vice President to go and pacify herdsmen who wantonly murdered people in Demsa and Numan in Adamawa State, whereas, when harmless IPOB members were protesting on the streets with berets, whistles, cudgels and flags, they were immediately mauled down by fully armed Army?
13. Is the $1 billion sought for actually meant for the 2019 elections as some political pundits have alleged?
What is ‘Excess Crude Account’?
The Excess Crude Account (ECA) is a Nigerian government account, which is used to save oil revenues above a base amount derived from a defined benchmark price. The ECA was established in 2004, and its objective is primarily to protect planned budgets against shortfalls due to volatile crude oil prices. By delinking government expenditures from oil revenues, the ECA aims to insulate the Nigerian economy from external shocks.
IS THE EXCESS CRUDE ACCOUNT CONSTITUTIONAL?
Though a salutary creative “save-for-the-rainy-day” policy, there is no provision in our Constitution for this coined amorphous contraption of the executive called “Excess Crude Oil Account.” There is no name or nomenclature of that nature throughout the 320 Sections of the 1999 Constitution. Thus, the creation of so-called “Excess Crude Oil Account” is an illegal attempt to enlarge the provisions of the Constitution, which is, therefore, null and void. PMB and his government are bound to obey the Constitution. In Attorney-General of Abia State v Attorney-General of the Federation (2002)6 NWLR (pt. 764) 264 at 479 paras D-F, the sagacious Kalgo, JSC made the opposite remarks that: “The supremacy of the Constitution has made it abundantly clear and in no uncertain terms that the provisions of the Constitution are superior … and are binding and must be observed and respected by all persons and authorities in Nigeria.”
Though a welcome policy carefully thought outside the box, there is no scintilla of doubt, therefore, that the ECA is overtly unconstitutional. Accordingly, the President must transfer all the proceeds in that illegal account into the Federation Account as lucidly provided for under Section 162(1) of the Constitution, for sharing in compliance with Section 162(2) thereof, with the National Assembly participating. The legal consequences or constitutional implications of the creation of a special account for the Federation under Section 162(1) of the Constitution is to mandatorily empower National Assembly members, who are the true representatives of the people, to supervise and finally authorise the sharing of the Federation Account. That is why Section 162(2) of the Constitution directs the President thus: “The President, upon the receipt of advice from the Revenue Mobilisation Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles, especially those of population, equality of states, internal revenue generation, land mass, terrain as well as population density.”
The foundation of every modern democratic society is premised on the rule of law, which accentuates constitutional order and legal certainty. In such a society, the activities of government and its agencies are duly regulated by the supreme law of the land, popularly referred to in a federal system as the Constitution. The mode of sharing and disbursement of funds in Nigeria is not arbitrary, whimsical or capricious. It is constitutional.
Mode of sharing revenue
Section 162(1), (2) & (10) of the Constitution of the FRN, 1999, as altered, prescribes the mode of sharing the revenue of the Federation. Section 162(1) for ease of reference provides that:
“The Federation shall maintain a special account to be called ‘the Federation Account’ into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the ministry or department of government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja.”
Subsection (2) also provides that:
“The President, upon the receipt of advise from the Revenue Mobilisation Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density.”
And sub-section (10) states that:
“For the purpose of subsection (1) of this section, ‘revenue’ means any income or returns accruing to or derived by the Government of the Federation from any source…”
Indeed, applying the literal canon of interpretation on the above provisions, it is clear that there shall be a Federation Account into which “all revenues” must be paid. The exceptions as stated above are:
(a) Proceeds from the personal income tax of the personnel of the armed forces of the federation;
(b) The Nigeria Police Force;
(c) The ministry or department of government charged with responsibility for Foreign Affairs; and
(d) The residents of the Federal Capital Territory, Abuja.
There is clearly nothing like “Excess Crude Oil Proceeds” in the above exceptions! If the lawmakers had intended to include it, they could have expressly said so in Section 162(1) above nor has the NASS passed an Act legitimizing “excess crude oil proceeds.”
Furthermore, section 162(3),(4),(5),(6),(7),(8), of the Constitution provides as follows:
(3) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State governments and the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly.
(4) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.
(5) The amount standing to the credit of Local Government Councils in the Federation Account shall also be allocated to the State for the benefit of their Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly.
(6) Each state shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the Local Government Councils of the State from the Federation Account and from the Government of the State.
(7) Each State shall pay to Local Government Councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.
(8) The amount standing to the credit of Local Government Councils of a State shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.
Where must revenue be kept before disbursement?
The answer is found in sections 80 and 120 of the Constitution provide that:
80. (1) All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation.
(2) No monies shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorised by an Appropriation Act, Supplementary Appropriation Act or an Act passed in pursuance of section 81 of this Constitution.
Thought for the week
“The foundation of any democracy is anchored on the rule of law both in its conservative and contemporary meaning. If we fail to uphold the rule of law, anarchy, despotism and totalitarianism will pervade the entire society. The social equilibrium will be broken. Law and order breaks down. Everybody will be his own keeper and God for us all.” (Niki Tobi, JCA, as he then was).