By Mohammed Adamu
THEY did it last year. And they did it the year before last. But hold it! They have always done it -since 1999. Padding the budget, -for selfish interest. Call it ‘legislating for self’. As far back as 1999 when Obasanjo submitted a Supplementary Appropriations bill to purchase an aircraft for the office of the Vice President, Ghali’s Assembly had padded it with a little ‘sop to Cerberus’ -a couple of billions- as anticipatory token of presidential gratitude to themselves, for expeditious passage. When Obasanjo vetoed it, our legislators suddenly ascended the mountain of their own guilt to judge the puny, little mole-hill of Obasanjo’s presidential request. They questioned the rationale behind buying a jet in the midst of scarce resources.
But it was only last year that the shit of this obnoxious activity –budget padding- hit the fan for the first. And after the stench that it had generated, you would think that the ‘representatives of the people’ had learnt their lessons, and that they would never take us down ‘Padding’s avenue’ again. But here we are in 2017, with another padded budget! And as always, our lawmakers insist that they are right and everyone else is wrong. They are always right. Our legislators have never been wrong. Not even when the Wabara Assembly was caught right in the act during the budget-for-bribe scandal. And maybe you ask ‘when will the National Assembly come off this perennial habit of selfishly padding the budget in flagrant breach of the Constitution and in utter disregard of the due legislative process?’ Your guess will be as good as mine, whenever the executive arm summons the courage to say ‘enough’!
Or so said Femi Falana: “We have been on this game since 1999. This is about the fourth president. Every year, we have this controversy. It is totally uncalled for, over the power of the National Assembly to tinker with the budget…We have advised the government to put this matter to rest by approaching the Supreme Court. The precious time of the nation has been wasted over who has the right to the project”. When will the executive arm avail itself of the judicial process, to end this shameless intransigence by a parliament into whose greedy net all that comet is always fish?
Last year at the peak of the padding controversy, I wrote the title ’Paddings, Proposals and Approvals’ (11/08/16). Read on.
Paddings, proposals and Approvals
Legal luminaries are at it again; as always. Adumbrating about everything that is the subject of law or of the due process of law. And now the celebrated schism is over some ‘strange’ legislative phenomenon called ‘budget padding’. From the ubiquitous ‘charge-and-bail-lawyer’ even to the obtrusive Senior Advocate of Nigeria SAN, the legal community is agog with opinions over whether or not there is anything called ‘budget padding’. And whether if there is, it ’ is a part of the legislative process or a perversion of the executive’s initiative in the legislative process. Many lawyers are locked on whether ‘padding’ is an offence in the eye of the law or merely a reprehensible act of legislation remediable not by the Criminal or Penal Code, but by the same ‘legislative process’. And as always with our ‘legal luminaries’, some of the opinions are as illuminating as others are terribly obfuscating.
In a previous piece on this Column I alluded to a funny description of ‘the legislative process’ –whenever in the hands of selfish legislators- as some kind of vicious ‘machine’ into which executive matters pass as ‘pigs’ and come out as ‘sausages’! They are not merely adjusted or modified, as envisaged by the doctrine of separation of powers, but they are radically mutilated and changed entirely into something else. If an ‘executive proposal’ to the legislature has to come out mangled and padded like a miserable ‘sausage’ after going through the legislative process as a cheerful ‘pig’, we might as well go parliamentary by fusing together the legislative and the executive arms of government.
Proponents of budget padding say that NASS constitutionally is not envisaged to function as some kind of ‘computer’ that takes in ‘garbage’ and regurgitates ‘garbage’. That it is preposterous therefore to expect NASS to treat and remit executive bills exactly as they came, ‘un-tinkered. And they say that since it is the constitutional duty of lawmakers not merely to ‘rubber stamp’ but essentially to give ‘approval’ to executive requests, there is therefore a latent power in that constitutional duty not only to ‘disapprove’ an executive request but where necessary also to ‘re-order’ such a request so as to make it amenable to legislative approval. Meaning therefore that there is nothing wrong if a ‘budget bill’ comes to the legislature as a genome and it returns to the President as a gnome.
Proposal and Approval
However this view ignores the fact that quite unlike in the case of regular everyday executive bills, the intention of the framers of the Constitution in subjecting ‘money bills’ to the lawmaking process is informed not by the desire to turn lawmakers into project-proposers, but fundamentally by that overarching, unwritten aim of the ‘doctrine of separation of powers’ to ensure that at any time there is a healthy and mutually-beneficial ‘checks and balances’ between and among the arms of government. In particular such ‘checks and balances’ as between the executive and legislative arms take the form of one arm only proposing and the other strictly approving executive requests: the President who proposes projects for approval to the legislature, does not himself arrogate the luxury of approving them; nor does the legislature which is strictly empowered to ‘approve’ such projects, arrogate the luxury also of further proposing new projects and approving them, or of disapproving proposed ones only to re-propose and approve them by default.
For example, whenever NASS remits to the President an executive bill passed by it but which contains strange objectionable items neither contemplated by, nor acceptable to the executive arm, the President has power only to withhold assent for that bill and by a ‘round table’ -not by ‘turning the table’, to communicate and to seek to redress his grievances. He does not suddenly become a ‘lawmaker’ of necessity all by himself, to re-legislate the document and to breathe presidential assent to it. It is ultra vires the President’s power (doctrinally and constitutionally) to do so. By merely attaching his objections to a ‘padded’ or ‘mutilated’ executive bill and by returning same to NASS, he is deemed to have effectively communicated his veto -which operates naturally to activate, depending on the circumstances, either an invitation to dialogue with the legislature or a casus belli for war.
By the same token where the legislature entertains reservations on any items contained in a ‘money bill’ sent to it by the executive arm, it does not register those reservations by arrogating to itself the power to mutilate the proposal and to re-propose entirely new items and proceed to ‘approve’ them. It is constitutionally and doctrinally ultra-vires the power of the legislature to do so. Rather the legislature avails itself of the conventional process of ‘budget defense’ at which to raise those concerns either with the respective heads of executive agencies who are sufficiently informed about the ‘whys’ and the ‘wherefores’ of proposed items relevant to their concerns or with the budget office that is a repository of details relevant to all executive proposals.
Thus proposing ‘projects’ and ‘estimates’ in a ‘money bill’ –including capping the overall budget sum- is entirely an executive duty. Just as approving ‘projects’ and ‘estimates’ to those projects –including only reducing the overall budget sum- is purely a legislative function. And so the President ‘proposing’ and at the same time ‘approving’ budgetary requests, or the legislature in the course of approving budgetary requests, also ‘proposing’ and approving new ones, will clearly amount to a breach of the legal rule ‘against self-interest’ (‘nemo judex in causa sua’), which is that ‘no one should be allowed to sit in judgment over his own matter. And that exactly, was what the NASS did when it arrogated to itself the right to ‘propose’ new constituency projects which were not initially in the executive budget and also proceeded to approve same!
The NASS may only propose adjustments and realignments of already proposed items on the basis of information made available to it by the executive –information concerning capacities for execution, the exigencies and expediencies attached to each project including, often, the realizability of guess-timated revenues. In fact conventionally, the guess-timated nature of budgets is the reason that although when assented to by the President, it is usually legally binding on him ‘unfailingly’ to implement, yet on account of the paucity of funds, failure on the part of the President to implement such budget, is said not to amount to an offence -as it would have been if it was a failure to implement a non-monetary bill.
Padding or no padding
A budget is not padded merely because following due legislative process, and for reasons mutually appreciated by both parliament and the executive, the legislature moved some money from one subhead in the budget bill to another; nor is a budget padded merely because -following due legislative process- and for reasons either of even-spread or of other expediencies which have been properly communicated to the executive, parliament decided to move a proposed project from one location in the same budget to another.
A budget is not padded where parliament, for good reasons -mutually appreciated by it and the executive- steps down a project entirely from the budget; nor is a budget padded merely because a few members of parliament are able to out-lobby other members to attract –within the bounds practically of sound reason- more of the proposed projects in the budget to their constituencies, or maybe where a few able to out-lobby others and to attract a particular ‘proposed’ project to their constituencies, especially where locating such project is of no geo-specific relevance to the executive; meaning that although the executive has proposed a location for it, the project can be located somewhere or anywhere else.
But a budget is definitely padded –notwithstanding that due legislative process has been followed- where parliament unilaterally increases, even by a penny, the overall budget sum as proposed by the President who, alone -having the constitutional duty to source funds to execute the budget- knows the capacities and limits of the executive arm in raising those revenues. And this explains the saying that ‘parliament may ‘reduce’ but cannot ‘increase’ the overall budget sum’, because Parliament is not always privy to the ‘ways and means’ available to the executive. Nor are the ‘ways and means’ available to the executive always predictable even by the executive arm itself.
A budget is padded where parliament –in spite of following the due legislative process- unilaterally and without the knowledge of the executive, imports into the budget entirely new projects in addition to those proposed by the President. And it is immaterial that the legislature in doing so merely substitutes proposed projects with new ones -and therefore has neither increased the overall budget sum nor imposed new spending obligations on the executive arm.
A budget is also padded if a member or a Committee or the leadership of any of the chambers exploiting the privilege of their positions in the budget-making process, connive(s) with a particular ministry, agency or parastatal of government, to over-allocate funds to particular projects in the budget with the intention thereafter that any one or all of the conniving parties are to corruptly benefit from that superfluous allocation or provision.
And a budget is most definitely padded if after passage by both chambers and before or after harmonisation, any member or members or committees of either chambers capitalising on their privileged positions, import(s) into the budget new subheads or merely even juggle(s) existing ones for the benefit of their constituencies and without the knowledge of other members –some or all of whose constituencies may be adversely affected or shortchanged by that tinkering.