By Kenneth Okonkwo
It has come to the national discourse on the extent of the power of the National Assembly in issues that concern the budget. In dealing with this issue, we must note preliminarily that the Constitution is built on the fundamental principles of separation of powers, checks and balance. We note also that the Constitution cannot give the same power to two arms of government at the same time to avoid confusion. This means that when an arm of government is expressly imbued with a power to do something, it excludes the power of the other arms to the same.
In this vein, we have three arms of government: The Legislature, the Executive and the Judiciary. The Legislature makes the law (SEE SECTION 4 OF THE CONSTITUTION OF NIGERIA, 1999), the Executive implements the law ((SEE SECTION 5 OF THE CONSTITUTION OF NIGERIA, 1999) and the Judiciary interprets the law (SEE SECTION 6 OF THE CONSTITUTION OF NIGERIA, 1999).
As regards this issue of the process of making the budget, the relevant sections of the 1999 Constitution are Sections 58(1), 59(1)(a), 80(2), 81(1)(2).
For benefit of clarity, we will reproduce these sections in full:
SECTION 58(1) states: “The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the president.”
59(1)(a) states that: “The provisions of this section shall apply to an appropriation bill or a supplementary appropriation bill including any other bill for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public fund of the Federation of any money charged thereon or any alteration in the amount of such a payment, issue or withdrawal.”
80(2) states that: “No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those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.”
81(1) states that “The President shall cause to be prepared and laid 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.”
81(2) states that: “The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein”.
From the foregoing provisions, we can deduce as follows:
1. The preparation and implementation of the budget, by the Constitution, lies squarely on the executive ((SEE SECTION 5, 81(1) OF THE CONSTITUTION OF NIGERIA, 1999)
2. The preparation of the estimates of the revenues and expenditure in the budget shall be included in a bill to be known as an Appropriation Bill (SEE SECTION 81(2) OF THE CONSTITUTION OF NIGERIA, 1999 AS AMENDED).
3. The only heads of expenditure to be included in the Appropriation Bill are those ones prepared by the President ((SEE SECTION 81(1)(2) OF THE CONSTITUTION OF NIGERIA, 1999 AS AMENDED).
4. The authorisation of the budget lies squarely on the Legislature (SEE SECTIONS 58(1), 59(1a), 80(2) OF THE CONSTITUTION OF NIGERIA, 1999 AS AMENDED).
Legal minds readily agree with me that one of the cardinal principles of interpretation of Statutes is that the express mention of one thing is the express exclusion of other alternatives. It would appear from this that the express mention of the President as having the power to prepare the estimates of revenues and expenditure in the budget expressly excludes the power of the Legislature to do same. The power of the Legislature to authorise, therefore, is limited to removing any head of expenditure it finds not to be in the interest of the people and reducing any amount of money slated for any project, which it finds too much for the project and of which it finds not in the interest of the people to allow such sum. With respect, the Legislature has no power to add any project, head of expenditure or increase the amount of money slated for any project. This position respects the constitutional principles of separation of power, checks and balance. Any other interpretation will lead to absurdity. Some of the absurdities are not too far to see.
1. The Legislature is the approving authority and cannot at the same time be an initiating authority. If this is allowed, we will come to a point where the Legislature will allocate all the moneys to itself and approve it by overriding the President’s veto. This was the major reason the framers of the Constitution removed the power to add any project in the budget from the Legislature because no arm of government can check or balance it. On the other hand, the Legislature being the authorising authority, can check the excesses of the President by rejecting or reducing his budget proposals in line with the wishes of the people
2. We note also that the budget when passed into law, called an Appropriation Act, is binding on the Executive to implement and the President cannot refuse to implement it without reasonable and verifiable excuse. Indeed it is an impeachable offence for a President to wilfully refuse to implement any item on the budget. It will be preposterous for the Legislature to unconstitutionally introduce its own projects and pad the budget beyond the capacity of implementation by the executive and turn back to hold the Executive responsible for its lack of implementation.
A notable Professor of Law, on Channel TV, even opined that the Executive should allow the Legislature to tinker with the budget, as it likes and subsequently choose the ones to implement and the ones not to implement. I respectfully disagree with this position and submit that this is one of the absurdities that the Constitution was trying to avoid by tacitly and clearly spelling out the roles of every arm of government in the making of the budget.
3. The introduction of funny projects to ministries unconnected and unrelated to their functions is yet another absurdity. If allowed to add its own projects, the Legislature has been found to add projects like primary health care and motorised bore holes in the budget of the Ministry of Power, Works and Housing under the guise of constituency projects. With respect, there is no place in the Constitution where the word constituency project is mentioned. The idea of constituency project is illegal and unconstitutional and cannot stand any test of judicial interpretation.
Having clearly enunciated the legal requirements of the law as regards the processes involved in making a budget, we want to point out that there is nothing in the legal process that limits the power of the Legislature to engage or lobby the executive, through political process, in ensuring that certain projects, which will be of benefit to the people are included in the budget, before the President causes it to be laid before the National Assembly, but to unilaterally add any project or pad the budget in any form and approve same, without consultation and consent of the President, we submit, with respect, that the Legislature has no constitutional power to do so. The President should also consult the Legislature as an important arm of government before preparing its budget to ensure that the budget reflects the interest of all. This will certainly reduce the friction between these two important arms of government and ensure speedy and early passage of budgets for the benefit of the people.
•Dr. Okonkwo is a legal practitioner and foremost Nollywood actor.