Budget controversy: Invoke Rule 22 of S’Court Order, SANs tell FG

.Say action will save Nigeria from underdevelopment, unnecessary tussle

.We need more collaboration between Executive, Legislature at preparatory stage of budget – Yusuf Ali

As controversy over the propriety of alteration of the 2017 Budget by the National Assembly rages on, some Senior Advocates of Nigeria (SANs) have insisted that the only solution to the perennial problem is for the Federal Government to approach the Supreme Court to seek the interpretation of power of appropriation.

The senior lawyers: Yusuf Ali (SAN), Chief Mike Ozekhome (SAN), Mr. Femi Falana (SAN), Prof. Konyinsola Ajayi (SAN), Prof. Yemi Akinseye- George (SAN), Mr. Dave Ekpedeye (SAN), Mr. Chukwuma – Machukwu Ume (SAN), Ikechukwu Ezechukwu (SAN), Hakeem Afolabi (SAN) and Hammed Jimoh spoke in separate interviews with our correspondents on Tuesday.

Though they expressed divergent views, the senior lawyers are asking the Federal Government through the Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami (SAN), to invoke Rule 22 of the Supreme Court Order and file the matter accordingly.

The said Rule 22 of the Supreme Court Order is usually invoked when there is a constitutional dispute between the federal and state governments or between two arms of government which necessitates direct approach of the Supreme Court without going through the High Court and the Court of Appeal.

The senior lawyers have also argued that the outcome of the matter at the apex court will lay to rest the tussle that usually arises between the Executive arm and National Assembly every year over the legality of whether the lawmakers have right to insert new projects into the budget, add, subtract or move projects.

They further argued that the legal action will ensure positive development of the country as the outcome will engender substantive implementation of the budget, thereby preventing the present state of affairs.

The Daily Times recalls that the Special Adviser on Media and Publicity to the AGF, Comrade Salihu Othman Isah, had in his exclusive interview with the newspaper last Wednesday, said the issue of seeking the definition of appropriation at the Supreme Court was delicate.

According to him, the AGF is the right person to make the decision to approach the Supreme Court on the issue.
Speaking on the issue, Yusuf Ali (SAN), said: “My attitude is that the executive can go to Supreme Court on this issue, but the members of National Assembly are not rubber stamp of the executive.

“Besides, the National Assembly can amend the money bill before it is passed as the lawmakers don’t share the appropriation power with anybody.

“But my suggestion is that we need more collaboration between the executive and the legislature at the preparatory stage of the budget before its presentation. There should be prior consultations between the two arms of government for effective collaboration.

“Though the Minister of Power, Works and Housing, Mr. Babatunde Fashola (SAN), has a point in his latest reaction where he raised the purpose of budget defence that would later be altered, what is happening is not hopeless. The National Assembly should allow the executive to present supplementary budget to take care of core projects in the interest of the country.”

Speaking on the matter, Chief Mike Ozekhome, SAN, stated that the controversy need to be resolved by the Supreme
Court now that the budget has been signed.

He said that in a developing society like Nigeria where acts of impunity seem to be the order of the day, the executive arm should test the validity of the legislature action at the Supreme Court, especially as the conduct has become a yearly event.

He said: “It’s so simple. The power of appropriation belongs to the Legislature, the NASS and not the Executive. The Legislature controls the purse. Sections 4, 80, 81, 82, 83, 83, 84 and 162 of the 1999 Constitution (as amended) make it clear that the Executive cannot expend money without legislative approval. It’s an impeachable offence.

“The NASS can add to, subtract from, subsume in, multiply, remove from, alter, vary and amend budget proposals initiated by the Executive. As the representatives of the people, they know where the show pinches.”

But Femi Falana, SAN, has clarified that the pronouncement of Justice Gabriel Kolawole of the Federal High Court did not empower the National Assembly to tamper with the budget.

He said: “Justice Gabriel Kolawale who delivered the judgment in Suit No. FHC/ABJ/CS/295/2014: Femi Falana v The President and 3 Ors) in dismissing the case questioned Falana’s locus standi to institute the action after he had described him as “a renowned human rights crusader” and acknowledged my humble contributions to “the development of human rights jurisprudence in Nigeria”. In justifying the dismissal of the suit, his lordship said that the reliefs sought in the case qualified him to be described as a “meddlesome interloper”!

“No doubt, the learned trial judge said that the National Assembly is not a rubber stamp parliament. The incontestable statement has since been twisted to give the very erroneous impression that the power of the National Assembly to increase the budget has been judicially recognised.

“Thus, in a press statement credited to the National Assembly last week, it was reported that “The Federal High Court has ruled that the National Assembly has the power to increase or review upward the budget estimates laid before it by the executive. With respect, the summary of the decision of the Court by the National Assembly is grossly misleading.”

For Konyinsola Ajayi (SAN), “The National Assembly lacks the power to alter the budget as the executive prepares the document. But I will support the idea of going to the Supreme Court as the action will be the best way to settle the enlargement of powers and arrogation of authority to itself by the NASS”.

On his part, Prof. Yemi Akinseye-George, SAN, said the Constitution offers no clear answer to this question on whether the National Assembly has power to insert new projects in the Budget.

He said: “There is no special definition of estimates by the Constitution. Therefore, the word must be given its ordinary grammatical meaning of ‘an idea or approximation rather than conclusive figures.

“Therefore, it is only the Supreme Court that can clarify this. The provisions of the Constitution are too skeletal on the budget making and approving processes. Only a comprehensive budget law can help to address the perennial but needless controversy over whether the National Assembly can increase the budget estimates submitted by the President. Until then, the established practice since 1999 seems to be that the National Assembly has the power to vary the estimates submitted by the Executive,”

Also speaking on the issue, Mr. Dafe Akpedeye (SAN), said that there is the need for harmony between the two arms of government.

He said: “There is need for harmony from both arms of government. Though they are separate arms of government, the need for harmony cannot be overemphasised. At the formulation stage, little or no consultation takes place between the budget office of the federation and the National Assembly. Admittedly, budget formulation has always been an exclusive prerogative of the Executive; however there is the need for legislative participation in the formulation stage. This will drastically reduce the level of alteration of the money bill sent to the National Assembly.

“Also, Presidential advisers on National Assembly Matters must be actively involved in creating better executive-legislature understanding.

“A commendable example was when the Presidential Liaison Officer to President Jonathan, Senator Joy Emordi, helped in forging a legislature-executive rapprochement on subsidy removal in January 2012 after an earlier row between both branches over the removal of subsidy from automobile fuel.

“Proper education and the forging of executive-legislature understanding would lead to the acceptance of the National Assembly’s power to contribute to budget formulation/drafting and to amend the budget. In the same vein, proper machinery should be put in place for the budget to be tabled in a timely manner.

“Another point to note is that oversight depends on the availability of relevant information. Without proper fiscal transparency codes and best practices that outline disclosure requirements, the National Assembly may as well be in the dark as to the facts behind the figures in the budget. Thus, good, comprehensive budgetary documentation is required by the Legislature to make sound decisions”.

Mr. Ikechukwu Ezechukwu, SAN, who also spoke on the matter, maintained that the best thing to do in order to resolve the issue is to approach the Supreme Court for the interpretation of the power in the constitution.
According to him, the constitution has boldly defined the duties of the Executives and the Legislative arm of government.

He said: “If there are any irregularities observed by any of the parties, the party that is aggrieved should go to court to seek interpretation. So in my opinion, it is important to go to court to put this issues to rest”.

He added that the Supreme Court is expected to decide the matter constitutionally on the duties of each arm of government so that whoever it goes in favour of will respect the orders.

In his own comment, Mr. Chukwuma -Machukwu Ume (SAN), said that the controversies between the executive and legislative arms of government over appropriation and insertion of new projects in the 2017 appropriation bill are diversionary as the functions of each arm were clearly stated in the 1999 Constitution (as amended).

Ume further stated that the criticism of the inclusion of new projects in the 2017 Appropriation Bill is not helpful to its implementation and it seems as diversionary.

He said: “The Constitution of the Federal Republic of Nigeria 1999 (as amended) guaranteed a separation of powers and it gives the President the power to prepare and lay before the National Assembly a draft of the budget each year.

“Same Constitution empowers the National Assembly to appropriate funds for projects and for other activities of the government as well as projects its thinks are necessary for the welfare of the general public. It has the power to alter the draft budget and to allocate funds to subheads and to pass it into law.

“We should remember that the National Assembly is not a rubber stamp. It was not the intention of the makers of the Constitution to make the National Assembly a rubber stamp that would approve executive drafts as laid before it.

“The drafters of the Constitution had good intention when they empowered the Legislature to appropriate funds because as the true representatives of the constituents, they know the immediate needs of the people in each of their respective constituencies than the members of the executive arm who are concerned with the centre”.

In his own argument, Mr. Hakeem Afolabi (SAN), said: “The best approach is to invoke the original jurisdiction of the Supreme Court to determine the powers of the National Assembly to make appropriation law for Nigeria. Such approach, I believe, will settle this matter once and for all.

“The powers to initiate and execute projects are clearly executive powers. The executive in presenting its proposals as bill to National Assembly is to defend the projects it is seeking to embark upon before Nigerians as represented by the National Assembly. This mechanism has been put in place to prevent abuse on the part of the executive.

“However, beyond scrutinising the budget, the National Assembly has no powers to start initiating projects not proposed by the executive and also lacks powers to move projects outside the proposals of the executive.
“The power of National Assembly is limited to ensuring that the monies proposed by the executive are transparent proposals and not inflated.”

An Abuja-based lawyer, Hameed Jimoh, has also explained that “having considered the provisions of sections: 80(2&3), 81 (1, 2&4), 82, 83 & 318(4) of Nigerian Constitution & Section 10(2) of the Interpretation Act, LFN, 2004, the National Assembly has the incidental powers to remove and or add in the appropriation bill or budget submitted to it by the executive.”

He said words like ‘authorise’ and ‘prescribe’ used in the above sections of the constitution as what the National Assembly has power to do on the appropriation bills presuppose that the National Assembly has the power to remove and or add to the executive’s appropriation bill submitted to it.

He said the Constitution never envisages a rubber stamp legislative body.

Efforts to get the response of AGF on when his office will approach the Supreme Court on the matter was abortive as his Special Adviser on Media, Comrade Salihu Othman Isah, did not respond to calls put to his phone at press time.

The Daily Times recalls that the Minister of Power, Works and Housing, Mr. Babatunde Fashola, SAN, accused the National Assembly of inserting new projects in the 2017 budget.

He had also stressed the need to go to the Supreme Court to seek clarification on whether it has power to alter the budget.

Fashola also challenged the National Assembly on Monday, asking the spokespersons to the lawmakers to address issues surrounding the 2017 appropriation bill and not personal attacks.