THE LEGALITY OF BUDGET PADDING IN NIGERIA: A DELIBERATE SLAP ON THE GRUND NORM

Controversies and political ruckus has been the unfortunate identity of Nigeria's politics. Very much recent is the re-awakening of the BUDGET PADDING PALAVER even in the present face of technical recession. Speaker of the House of Representatives, Rt. Hon. Yakubu Dogara in a speech sometime ago alleged that he cannot be tried for the alleged budget padding. He hinged his argument on two points. The first was that he, as a law maker (particularly as Speaker), is protected by Section 30 of the Legislative Houses (Powers and Privileges) Act. That Section states as follows: "Neither the President or Speaker, as the case may be, of a Legislative House nor any officer of a Legislative House shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by or under this Act or the standing orders of the Legislative House, or by the Constitution". Going by the clear wording of this section, it would seem that Speaker Dogara is right. This is because it is the National Assembly that approves of the budget and the Speaker is among the law makers who approve same. Thus, the Speaker, in the alleged "budget padding", was under the powers conferred on him by the Constitution. However, can that provision stand the test of constitutional supremacy? The simple answer is NO! It should be remembered that the Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999) confers supremacy on the Constitution over and above all laws. Section 1(3) further states that if any law made by the National Assembly or any House of Assembly is inconsistent with any provision of the Constitution, that ordinary law shall, to the extent of its inconsistency, be void. Even, Section 4(8) CFRN 1999 prohibits the enactment of any law that purports to oust the jurisdiction of the court. The same constitution empowers the National Assembly to make laws on the powers, privileges and IMMUNITIES of law makers vide Paragraph 47 of the Exclusive legislative list contained in the Second Schedule to the Constitution. That is what birthed the Legislative Houses (Powers and Privileges) Act (LHPPA) particularly Section 30 thereof, inter alia. It would seem then that Section 30 of the LHPPA is directly consistent with the Constitution. It will be apt to disagree. The law cannot contradict itself! One observation that attracts general acceptance is the fact that there are times when the law as stated expressly is so vague or ambiguous that it requires an interpretation by looking beyond the express wording of the statute in order to get the intention of the framers of the law; this is referred to as the Golden Rule of interpretation. This Golden rule was clearly applied in the case of Inakoju v Adeleke (2002) 4 NWLR (Pt. 1025) 423, where Section 188(10), CFRN 1999 which ousted the court's jurisdiction to entertain impeachment matters was reinterpreted to allow the court entertain such matters on procedural grounds. Thus, applying the same golden rule to this issue of immunity of law makers under Section 30 LHPPA, it cannot be said that the framers of the Constitution intended that law makers should be shielded from legal proceedings when they commit a crime, even if under the exercise of the functions conferred on them by law. In any case, commiting a crime while exercising legislative powers is going ultra vires. Can it even be said that a law maker who uses his office to commit a crime is acting legislatively? That could not have been the intention of the framers of the Constitution. Thus, Section 30 cannot stand the test of Constitutional Supremacy and is hence, null and void vis-à-vis Section 4(8) CFRN 1999. This leads us to an X-ray of a yet disturbing national concern (infra).

IS BUDGET PADDING A CRIME? Section 36(12) CFRN 1999 states that a person shall be convicted of an offence (crime) unless such a crime is defined and its punishment prescribed in a written law. Actually, there is no law where budget padding is described as a crime. However, what we know as budget padding may still constitute an offence contained in the Criminal code. Budget padding means making the budget proposal larger than the actual estimates for the project. Section 465 of the Criminal Code establishes the offense of forgery. Of weightier importance is Section 466 of the Criminal Code which states that where the offence involves the forging or altering (in this case, padding) of a document or writing relating to the "payment of money, or to the delivery or transfer of any property..." among others, it is immaterial whether the money, inter alia is payable outside Nigeria or whether the document or writing is under seal (see Section 466, Criminal Code for the full details of that provision). Thus, wrongfully altering a document relating to the payment of money can be said to be an offence punishable under this section. Under Section 81(1) CFRN 1999, which is the section that establishes the budget, there is no word as "budget". Rather what is found there is " estimates of the revenues and EXPENDITURE..." (Block letters mine). Everyone knows that expenditure is the payment of money. Based on the definition of budget padding stated above, it is clear that the estimates of expenditure (payment of money) is being altered by our legislators without the knowledge of the President who sent it to them for approval. Thus, budget padding is a crime- the crime of forgery under Section 466 of the Criminal Code.

Speaker Dogara also raised one salient issue. He stated that the budget is a law and it is the legislature that makes laws, thereby justifying the alterations on the budget made by the National Assembly. He is right that the budget is a law- infact, when passed, it is called Appropriation Act. However, equating the Appropriation Act to other Acts (laws made by the National Assembly) of the National Assembly may not augur well for a proper understanding of the nature of the Appropriation Act. There are some differences between both laws. First of all, the Appropriation Act must originate from the Executive arm of government. This is unlike other Acts which may either originate from private individuals (private bills) or the executive (executive bills). Secondly, the Appropriation Act, as well as some other money bills, has a special mode of enactment stated in Section 59, CFRN 1999 unlike that of other Acts whose procedure is contained in Section 58, CFRN 1999. Thirdly, due to its pressing importance unlike other Acts, if after two months into the new financial year the Appropriation Bill is not passed by both houses, the Senate President is empowered to convene a joint finance committee of the National Assembly to resolving the differences between both houses. If the joint finance committee cannot resolve the differences, then a joint sitting of both houses of the National Assembly shall be convened to resolve the them. After resolving them, it (the Appropriation Bill) will be sent to the President for assent. There is no other Act that is enacted in such a manner. Moreover, Section 81, CFRN 1999 states that the President shall cause to be LAID before each House of the National Assembly, estimates of revenue and expenditure (budget) for each financial year. It is my opinion that the constitution does not empower the law makers to alter it without the President's knowledge. It cannot be said that the intention of the framers of the constitution was to give law makers an unbridled opportunity to alter the budget estimates without the executive, from whom the bill originated. This is because it would amount to the executive implementing a budget it does not understand. The argument that the President still has power not to sign it cannot hold water. This is because the clear purport of the constitution, based on Section 59(2) & (3), CFRN 1999 was to make the process fast. Thus, subjecting the President to a lot of scrutiny after the altered budget has been given to him could not have been intended. What then is the role of the legislature in the budget process? In my opinion, the legislature is meant to scrutinize the budget estimates and then decide whether to approve of it or not, just like the way they screen Presidential appointees for confirmation. If the legislature must alter the budget estimates, it should be to the knowledge of the executive (President) so that it (the budget) does not become a document that is completely FRENCH to the executive which originated the same document.

With all matters disclosed and arrested, it is clear that the argument of Mr Speaker, on a closer observation, cannot hold water. Budget padding is clearly forgery which is an offence under our Criminal Code. Although it is a practice that many say has been going on for years, the fact that it is criminal means that it must at some point be curtailed. The opportunity to curtail it is now that it is dominating the headlines. There is no immunity for such an act; and so, since those who have been accused of it have not denied it, they should be brought to book.

Authored by: PATRICK OMODIA.
Edited by: OKOCHA OBED.