The Criminality Of Budget Padding By Femi Falana, SAN.

The Criminality Of Budget Padding  By Femi Falana, SAN.

Last week, Honourable Yakubu Dogara, the Speaker of the House of Representatives arrogantly maintained that he would not subject himself to the investigation being conducted by both the Nigeria Police Force and the Economic and Financial Crimes Commission (EFCC). As far as he is concerned, he enjoys immunity under the provisions of the Legislative Houses Powers and Privileges Act. The embattled Speaker also claimed that the padding of the 2016 is not a criminal offence. Honourable Dogara’s confidence is likely to have been anchored on the statement credited to the Presidency that the budget was not padded in any material particular.

Before then the All Progressives Congress (APC) had decided to follow the discredited path of the Peoples Democratic Party by treating the serious allegation of monumental corruption as a “family affair” of the ruling party. But unlike the PDP the party failed to act timeously. In other words, a cover up is no longer possible at this stage as the cat has been let out of the bag. For now, Honourable Dogara has no choice but to defend the criminal allegations. Contrary to his misleading contention, the Legislative Houses Powers and Privileges Act has not conferred immunity on him with respect to allegations of criminal offences. Since the immunity conferred by the Act is limited to contributions to debates by members of the national assembly the Speaker cannot ward off the invitation of the Police and the EFCC to react to the criminal allegations leveled against him by Honourable Abdulmumin Jibril.

The Speaker ensured that Honourable Jibril was removed as the Chairman of the Appropriation Committee of the House when it was confirmed by the House that he had allocated projects worth N4 billion to his constituency. The House kicked against Jibril on the ground that the remaining 359 members have been left to share the remaining N36 billion out of N40 billion. While not denying the allegation Honourable Jibril disclosed that the Speaker and some principal officers had unilaterally inserted 2,000 items, otherwise called constituency budgets in the budget. He has also accused the Speaker of corrupt enrichment through the acquisition of farms and other properties. Although the Speaker has failed to deny the serious allegations he has threatened to sue Honourable Jibril for defaming him.

It would be recalled that the initial budget was withdrawn by President Buhari when the national assembly members accused some top civil servants of padding the 2016 budget. It was so scandalous that the federal government undertook to sanction the public officers who had altered the budget. At that juncture, the President promptly removed the illegal insertions and re-present the corrected budget to both chambers of the parliament. Thereafter, the budget was debated and passed and sent to the President for his assent. It was signed into law by President Buhari when he believed that it had been properly passed by the members of the national assembly.

But it has now emerged that about 20 legislators in both chambers of the national assembly altered the budget by inserting constituency projects worth N100 billion in the Appropriation Bill. Both the senate and the House allocated to themselves N60 billion and N40 billion respectively. If it is established that the alterations were effected after the passing of the budget by both houses the issue at hand goes beyond padding. A clear case of conspiracy, fraud, forgery and corruption can be established against the suspects.

Padding takes place when legislators resolve to rewrite the budget by introducing new items outside the estimates prepared and presented to them by the President. The controversy over the padding of budget was laid to rest with the enactment of the Fiscal Responsibility Act, 2007 which has imposed a duty on the finance minister to source input from certain institutions including the national assembly during the course of preparing the budget. That is when negotiations and horse trading with the executive by the legislators is allowed. But neither the Constitution nor the Fiscal Responsibility Act has empowered the National assembly members to rewrite the national budget by including constituency projects whose costs are arbitrarily fixed by the legislators.

Under section 81 of the Constitution the President is given the exclusive power to cause the budget to be prepared. Upon the preparation of the budget by the executive it shall be laid or presented to the National Assembly by the President. In debating the Appropriation Bill, the legislators may reduce the estimates if there are errors or inflation of the cost of items or if certain items provided for has been purchased before or for any other genuine reasons. But the national assembly cannot increase the budget in any manner whatsoever. So, the unilateral introduction of constituency projects is totally illegal and unconstitutional.

By introducing new items the national assembly has usurped the powers of the President to prepare the budget. In other words, the legislators would have prepared the budget and laid it before themselves and then passed it. That is a negation of the doctrine of separation of powers. The Appropriation bill or amended Appropriation bill is not like other bills. Whereas other bills shall emanate from either of the two houses money bills shall emanate from the President. So a money bill is a special bill which cannot be subjected to additions by the national assembly because it has no power to prepare it.

Padding is an unconstitutional infraction when the estimates are increased on the floor of the House. The infraction becomes criminal when the Appropriation Bill is altered by a few legislators after it had been passed by both houses of the national assembly. In the instant case, Honourable Jibril is alleged to have altered the budget by inserting projects worth N4 billion while a handful of other legislators led by the Speaker are alleged to have included 2,000 items in the budget. Since the President was then misled to sign it as the Appropriation Bill properly passed by both houses the principal officers of the national assembly cannot turn round to seek protection under the Legislative Houses Powers and Privileges Act.

It is unfortunate that Honourable Dogara has never heard of the word “padding” before now. It is not new in our legislative history. While the 2005 Appropriation Bill was under consideration in the senate some senators including the senate President padded the budget of a ministry after collecting N55 million bribe from a minister. The scandal led to the removal of the senate president who was later charged with his indicted colleagues and the minister. The Supreme Court has recently ordered that the suspects be tried for corruption having thrown out the preliminary objections filed against the charges by them at the trial court.

If legislators conspire with themselves to pad the budget to fund the purchase of exotic cars and payment of unauthorised jumbo emoluments it is a criminal offence. The allegations of Honourable Jibril have gone beyond the padding of the budget. The serious issue which the Speaker and other principal officers have not addressed is that the alterations of the budget took place outside the plenary session of the house. This is the crux of the matter. A former senator was arrested recently and the EFCC stumbled on a document which set out how N60 billion was shared among some legislators. The EFCC should investigate the source of the fund. Where did the fund come from? Jibril’s complaint should provide the country a golden opportunity to get to the root of criminality in the national assembly.

Regardless of the interference of the ruling party and the denial of the allegation of the padding of the 2016 budget by the Presidency the Police and the EFCC should proceed with the investigation of the allegations of Honourable Jibril against the leadership of the House and the counter allegations of his colleagues against him. Up till now, the N115 billion budget of the national assembly in the 2016 budget has been shrouded in secrecy. The ongoing investigation should reveal the details of the budget.

Mr Femi Falana, Senior Advocate of Nigeria, SAN, is a lawyer and human rights activist who lives in Lagos.

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