In this interview with OLADIMEJI RAMON, human rights lawyer and Senior Advocate of Nigeria, Mr. Femi Falana, shares his views on the controversy trailing the 2018 national budget
The 2018 budget, like the previous budgets, was passed into law last week, in the middle of the year; does this call for any concern?
Of course, it calls for concern. By virtue of Section 318 of the Constitution, the financial year means “any period of 12 months beginning on the first day of January in any year or such other date as the National Assembly may prescribe.” If the financial year is expected to commence at the beginning of the year, the Appropriation Bill ought to be passed by the National Assembly not later than December 31 of each year. But in practice, the Appropriation Bill is presented to the National Assembly by the President in October or thereabouts and it is not passed by the National Assembly until June of the following year. Although President Buhari signed the 2018 Appropriation Bill into law on June 18, 2018 to avert the collapse of the government, he has promised to forward a supplementary bill to the National Assembly and that may not be passed until the end of the year. Meanwhile, the preparation of the 2019 Appropriation Bill has not even commenced.
What we are witnessing is the height of impunity on the part of both the executive and the legislative organs of the government. The crisis has continued because the Fiscal Responsibility Act is often ignored. The law was designed to fill the so-called lacuna in Section 81 of the Constitution. Under the law, the input of the National Assembly and other agencies of the government shall be incorporated in the Medium Term Expenditure Framework, which is to reflect public expenditure and projection. The framework shall be endorsed by the Federal Executive Council before the presentation of the budget. Under the Act, there is no provision for inserting projects in the budget during its consideration by the National Assembly.
What is your reaction to the complaint by the President that the lawmakers cut a total of N347bn in the allocations to 4,700 projects in the 2018 budget and inserted 6,403 projects of their own at the cost of N578bn?
No doubt, the National Assembly has become so bold in arrogance and impunity. Otherwise, how can they insert 6,403 projects while the President proposed 4,700 projects and increased capital expenditure form N2.36bn to N2.87bn? With respect, the Buhari administration has itself to blame for the mangling or padding of the budget by the National Assembly. In 2016, Honourable Abdulmumini Jibrin, the then Chairman of House of Committee on Appropriation, blew the whistle when he petitioned the EFCC to the effect that the budget had been padded to the tune of N100 billions. The House placed him on suspension for 180 legislative days. The allegations were investigated and confirmed by the EFCC but it was settled like a “family affair” of the APC. The House spent public funds to fight the legislator from the high court to the Supreme Court and back to the high court. The legal battle lasted two years before his illegal suspension was set aside. Recently, a former Minister of Finance, Dr. Ngozi Okonjo-Iwela, disclosed in her book entitled, “Fighting Corruption is Dangerous,” that the National Assembly was bribed with N17bn by the (ex-President Goodluck) Jonathan regime to pass the 2014 budget. Was the allegation investigated? I sued the National Assembly over the rewriting of the budget by the National Assembly in 2014. The case was decided in 2016. The Presidency was not interested in the case. Even though the court struck out the case for want of locus standi to file the suit, it proceeded to hold that the National Assembly lacks the constitutional power to abandon the budget estimates and revenues of expenditure proposed by the President and substituted them with their own. Recently, Senator Shehu Sani revealed that each senator receives N13.5m as running costs and salary of N750,000 per month and then influences the award of contracts of constituency projects worth N200bn per annum. Did the anti-corruption regime investigate the monumental scandal? In the 2018 budget, the illegal payments have not been removed. In 2016, the President promised to sanction the public officers who were indicted for the criminal padding of the budget. Did the President sanction any of the criminal suspects? It is such unprecedented official impunity permitted by the President that has encouraged the National Assembly to continue the illegality of rewriting and jerking up the budget without cash or revenue to back it up.
The lawmakers have explained that the cuts became necessary to correct the lopsidedness in allocations to projects among the geopolitical zones. Do you buy this explanation?
That is arrant nonsense. By virtue of Section 59 of the Constitution, all money bills shall originate exclusively from the Executive. All other bills are to originate from either chamber of the National Assembly. Specifically, Section 81 provides that the President shall cause the estimates and revenues of expenditure to be prepared and laid before the National Assembly. For instance, the President may propose that a new federal secretariat shall cost N100bn. Before arriving at that figure the executive would have obtained quotations from prospective builders, confirmed the cost of the site and examined the bill of quantity and found out the cost of labour. Budgeting is a detailed process. It is a serious business. To avoid fraud or the inflation of the cost of the project the Minister of Housing is invited by the National Assembly to defend the cost of the project. In the course of scrutinising the project, the legislators are empowered to reduce the cost to N80bn if it had been inflated. But on no account can the National Assembly unilaterally increase the cost of the project to N150bn and then pass it. That means that the legislators rewrote the budget of the project and passed it when they have no constitutional powers to originate the additional N50bn. The point I am labouring to make is that the National Assembly has got no power to introduce money bills to correct imbalance in the budget. It is trite law that any power excised by any authority or institution under a democratic government is traced to a particular law. I challenge the National Assembly members to point to any law that empowers them to rewrite the budget and pass it in order to correct geographical imbalance.
However, let me acknowledge and commend the practice of reviewing the national budget or the Appropriation Bill by the National Assembly. In each state of the federation, the budget is always passed by the House of Assembly without any debate whatsoever. In 2016, Governor Ayo Fayose of Ekiti State presented the budget for seven minutes, grabbed the gavel and passed it himself. Have you ever heard that any of the 774 local governments in the country has ever passed any appropriation bye-law? Therefore, budgeting under the current political dispensation has been reduced to the legalisation of the underdevelopment of the country by the three tiers of the government. Apart from servicing a parasitic bureaucracy with 70 per cent of the budget, a substantial bulk of the capital vote of 30 per cent of the budget is criminally diverted and cornered by a handful of unpatriotic public officers and their contractor friends.
Unfortunately, the executive/legislative face-off has obfuscated the budget deficit of N1.9tn, debt servicing, galloping inflation, skyrocketing interest rates and the fact that the full execution of the 2018 budget within the remaining six months of the year is almost impossible.
Year in, year out, the National Assembly members insert some projects of their own in the Federal Government’s budget; is it part of the legislators’ functions to execute projects?
The executive has allowed the illegality to continue for too long. Sections 4, 5, 6 of the Constitution stipulate that the legislature will make law; the executive will execute the laws, including Appropriation laws, while the judiciary will interpret the laws. To that extent, the National Assembly cannot combine legislative duties with executive functions by introducing new projects into an appropriation law and turning round to execute certain provisions of the same appropriation law. It is an aberration under the presidential system of government. Mind you, we have been having legislative chambers since 1922. But this is the first time that legislators are rewriting the budget and executing it and enriching themselves in the process of implementing of some so-called constituency projects. The crisis does not call for the demonisation of the National Assembly but a resolve on the part of the executive to correct the distortions in the budget. I want to assume that majority of the legislators are wallowing in honest ignorance. Otherwise, they would not argue that they are rewriting the budget in a bid to correct geographical imbalance.
Not long ago, Nigerians heard that members of the National Assembly allocated jumbo running costs for themselves without the knowledge of the Revenue Mobilisation Allocation and Fiscal Commission; last week, the President complained that the legislators unilaterally increased the National Assembly’s budget for 2018 by N14.5bn – from N125bn to N139.5bn. Do these suggest that there is no legal mechanism for regulating the activities of the lawmakers?
Under (former) President Olusegun Obasanjo, the budget of the National Assembly was N43bn per annum. It suddenly rose to N150bn in 2010 when the budget was forged by the cabal that ruled the country. That was when the late President Umaru Yar’Adua was hospitalised in an undisclosed Saudi medical centre. The annual budgeting fraud was perfected by the National Assembly under (former) President Jonathan Goodluck. In 2016, because of recession the National Assembly decided suo motu to reduce its budget to N115bn without details. It has now been increased to N139bn without details. By accepting the figures without the provision of the details, the executive breached Section 81 which requires that the President shall lay before the National Assembly the details of the estimates of the revenues and expenditure of the next financial year. The details of the sum of N139bn have to be set out. But because of the N13.5m running costs and other illegal payments the details of the budget of the National Assembly are deliberately shrouded in secrecy. It is high time that the fraudulent practice was stopped.
The mechanisms for regulating the activities of the lawmakers are there in the anti-graft laws but the executive is not prepared to make use of them. For instance, Section 70 of the Constitution states that a member of the National Assembly shall receive such salary and allowances which shall be fixed and determined by the Revenue Mobilisation Allocation and Fiscal Commission. But the National Assembly members have decided to fix and pay jumbo emoluments to themselves. Not less than 21 legislators and ministers are receiving pension from the state governments where they had served as governors and huge salaries and allowances from the Federal Government. Why should the Minister of Finance authorise the release of money for payment of such illegal salary and allowances to people who are on scandalous pension for life?
At least two lawyers and a group, SERAP, have sued, asking the court to compel the senators and the Reps to return all the monthly running costs of N13.5m and N10m they have respectively collected over the years. Do you think the plaintiffs have a good case?
The lawyers and the Socio-Economic Rights and Accountability Project (SERAP) have a very good case. By challenging the illegality of the payment of unauthorised salaries and allowances for legislators the plaintiffs are promoting public accountability in the overall interest of the society. But why should it be the business of SERAP or Mr. Monday Ubani to challenge the illegality of the payment of the N13.5bn running costs which legislators have illegally fixed for themselves? As usual, the executive will not take advantage of the case to resolve the lingering crisis, once and for all. But are you not surprised that all the legislators from the ruling party and the opposition are united without exception in the collection of the illegal salaries and allowances, budget padding and the execution of constituency projects? (Punch)
