The feud between the executive and the legislature worsened barely 10 days after Acting President, Prof. Yemi Osinbajo signed the N7.44 trillion 2017 budget into law. The Minister of Power, Works and Housing, Babatunde Fashola, blew the lid on how the National Assembly inserted projects outside the purview of his ministry, an action he noted would make it difficult to complete other roads projects across the country.
The former Lagos state governor who is also a Senior Advocate of Nigeria (SAN) complained that his ministry was saddled with a 2017 budget that could only afford to take care of primary healthcare centres and boreholes as a result of the slash in allocations by the lawmakers. He described as unfortunate a situation where ministries, departments and agencies defend budget allocations only for the legislature to input figures alien to what the Executive submitted for consideration.
He said the “distortions” were responsible for the delay in Osinbajo signing the budget. Among the projects he said would be affected by the slash were the Lagos/Ibadan expressway and the Second Niger Bridge as well as some projects in the North.
“We were asked to complete those abandoned projects; the budget of Lagos-Ibadan Expressway was reduced by the National Assembly from N31 billion to N10 billion. We owe the contractors about N15 billion and they have written to us that they are going to shut down.
“Also, the budget of the second Niger bridge was reduced from N15 billion to N10 billion and about N3 billion or so was removed from the Okene-Lokoja-Abuja road budget. Everybody is complaining about power supply but they also cut the budget for Mambila Power Project and the Bodo Bridge that connects the Nigeria Liquefied Natural Gas station was also cut; and all these were also discussed. If after we had defended the budget and had gone and the Legislature unilaterally changed the budget, what is the purpose of deliberation?”
Fashola also said that apart from the 200 uncompleted roads he inherited from the previous administration, the lawmakers added 100 roads in the new budget.
“These roads are not federal roads and some of them do not have designs. How do we award roads that were not designed, irrespective of the power you have? It is unconstitutional for the National Assembly to legislate on state roads. A budget is an estimation plan that set in motion what is to be spent, how much will be borrowed and how much will be collected. The executive controls all the machinery for collecting taxes and other revenue with relevant data from the ministries of Finance, Physical Planning and the Budget Office and others.
“I am not saying that the legislature cannot contribute to the budget, but, I hold the view that it cannot increase the budget because they do not collect the revenue with which to run or implement the budget.”
Acting President Osinbajo a Professor of Law, also took sides with Fashola by knocking the National Assembly, insisting that it lacks power to inject new projects or modify the 2017 budget. He said the legislature only has the right to allocate funds for projects in the budgetary proposals.
Hear him: “When you present a budget to the National Assembly, it is presented as a bill, an appropriation bill. And secondly, do not introduce entirely new projects and all of that or modify projects. This is something that we experienced last year and this year. It now leaves the question about who is supposed to do what.”
The House of Representatives reacts
Speaker of the House of Representatives, Yakubu Dogara replied Osinbajo’s statement saying that the action of the House was not wrong. He said contrary to the Acting President’s remarks, the National Assembly had powers to introduce new projects to the budget and remove projects from it. He also pointed out that the interpretation of which arm of government has what right is the prerogative of the judiciary.
He said: “A declaration as to which of the arms (of government) has the power and rights, as it relates to the interpretation of the law, is the function of the judiciary and not of the executive. The Appropriation Act is a law enacted by the National Assembly and public officers including the President and his ministers have sworn to uphold the constitution, therefore, any failure or refusal to implement the budget amounts to the violation of the constitution and had consequences.”
The House went further to puncture Fashola’s claim, saying that Fashola’s ministry did not spend a kobo on the Second Niger Bridge in the 2016 budget as was allocated to his ministry then.
The Chairman, Committee on Media and Publicity of the House, Abdulrazak Namdas, pointed out that part of funds allocated to Second Niger Bridge in 2016 was returned at the end of the year, adding that it was the reason the National Assembly reduced allocation to the project in the 2017 Budget by N5 billion.
He further explained said that the deduction was applied to fund other projects in the South-East, and left N7 billion for the Second Niger Bridge.
“The truth is that in the 2016 Budget, N12 billion was appropriated for the Second Niger Bridge but not a kobo was spent by the ministry. Not a kobo was spent and the money was returned. The ministry could not provide the Committees of the National Assembly with evidence of an agreement on the Public-Private-Partnership (PPP) or a contract for the Second Niger Bridge,’’ he said.
Namdas also said that the lawmakers queried an allocation of N20 billion in the ministry’s budget whose details were not provided by the minister. He explained that it would have been irresponsible of the lawmakers to appropriate funds that were not tied to specific projects, adding that for doing so, “we incurred the wrath of the ‘almighty minister’. The National Assembly has powers in Sections, 4, 59, 80 and 81 of the 1999 constitution (Amended) to amend the budget estimates submitted by the executive.”
Namdas said that the decision to redistribute the projects proposed by the ministry was done to ensure even spread of projects across geo-political zones, which the proposal of the executive failed to do.
The Senate reacts
The Senate was more forceful in throwing salvo at Fashola. It clearly told him to resign his appointment if he was overwhelmed by the volume of work in his ministry. Its spokesperson, Sen. Sabi Abdullahi said Fashola did not give the public details about the Lagos-Ibadan Expressway, which was on private finance initiative from beginning. It said that Bureau of Public Procurement (BPP) and the Federal Executive Council, in 2013, approved the reconstruction, rehabilitation and expansion of the expressway on Public-Private-Partnership (PPP) basis, “using private finance initiative”.
He further said: “The Federal Government provided about 30 percent of the funding while the balance shall be provided by the private sector. The project was on course for completion by end of 2017 when the private finance initiative was being implemented, with over 30 percent completion rate attained as at early 2015. Even as at last year, the 2016 Appropriation Act voted N40 billion for the project on the insistence of the ministry and only N26 billion was released. If we had known, the rest of the N14 billion could have been allocated to other critical roads across the country.
“Hence, in this year’s budget, we have engaged with the government and private sector groups, who have assured that they will resume funding of the project. So, we only provided the fund in the budget that would ensure that work does not stop before the funds from the private sector start coming in.”
NASS and the right to alter the budget
Section 80 (2) of the 1999 constitution 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.
“(3) No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly. (4) No moneys shall be withdrawn from the Consolidated Revenue Fund or any other”
Section 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.”
Section 59 (1) states that “the provisions of this section shall apply to: (a) 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; and (b) a bill for the imposition of or increase in any tax, duty or fee or any reduction, withdrawal or cancellation thereof.”
A Lagos-based lawyer, Martins Agoziem told Daily Sun that the word ‘laid’ implies that the National Assembly has the powers to ‘tinker’ with the budget and that includes inserting or removing projects and inserting and also slashing allocations. “If there was no need for NASS to have an input in the budget, why then is there need for 59 and 81(1) of the constitution. Subject to the legislative powers of the National Assembly under section 59, NASS has some level of powers over the estimates sent by the President. These provisions were put in for a purpose. NASS is not made up of robots. They are there to put in checks and balances”, he said.
On his part, Human rights lawyer, Femi Falana thinks otherwise. During a television programme on monitored in Lagos, he argued that Section 81 did not give the lawmakers the unilateral power to insert new projects into the constitution. He cited the Fiscal responsibility Act No 31 of 2007, which he says addresses the lacuna in Section 81 of the constitution.
According to him, section 13 of the Act imposed a mandatory duty on the Minister of Finance to seek input from the National Assembly and other mandatory bodies in the preparation of the Medium Term Expenditure Framework which shall be approved by the Federal Executive Council. The Framework shall be the “basis for the preparation of the estimates of revenue and expenditure to be prepared and laid before the National Assembly under Section 81 of the constitution.”
All said and done, the Presidency has said that it would seek the Supreme Court’s interpretation of the much brandied Section 81 of the 1999 constitution, on whether it empowers the legislature to substantially alter appropriation bills or not.