Constituency Projects, Budget Process And Related Matters – Role Of Legislature And General Misconceptions, By Femi Gbajabiamila

A Nigerian lawmaker defends the position of the legislature on the 2013 budget.

Now that the dust over the 2013 budget seems to have settled, it is both necessary and responsible to further educate those who we represent on the issues that were thrown up and brought us to a near budget, if not constitutional, crisis.

One must commend the Minister of Finance and the leadership of the National Assembly, together with the appropriation chairmen of both chambers, for the commitment and determination exhibited in avoiding a financial and budgetary crisis which loomed large.

Of all the issues raised by the executive, three seemed to have received the most attention and public commentary with scores of people coming down hard on the legislature perhaps due to a lack of understanding of the role of the legislature in governance or an inherent and deserved distrust of same or both. For our democracy to develop, these issues must be explained with the hope that a countervailing and more compelling perspective will avert what now seems to be a perennial problem. What are these issues?

CONSTITUENCY PROJECTS

This appears to have generated the most controversy. The sum of the argument on the side of the executive and other commentators is that the budgeting is an exclusive preserve of the executive and any attempt by the legislature to have an input in the process for which the constitution gives them the power of appropriation over is an incursion into the role of the executive and ultra vires the powers of the legislature. This is an unfortunate misread of the constitution and the role of the legislator and nothing could be farther from the truth. We all stand witness today where the greatest democracy in the modern world (USA) has been forced into sequestration and its resultant trigger of automatic cuts in government expenditure and programmes with reason being the failure of the legislative and executive arms to agree on debt limits. Does that sound like the only role of the legislature is to make laws without any input into how money is spent? First the responsibilities of the legislature are both expressed and implied in the constitution. They are written in the letter and also imbibed in the spirit of the constitution. To say a legislator is only there to make laws and restrict his role to such misses the true essence of representative or participatory democracy. Surely a legislator represents his people in the center and part of his responsibility is to attract federal presence to his community. How else can he do this? The annual budget provides him the opportunity to attract the much needed federal presence in his constituency and justify his raison detre. Even if only for the sake of argument one accepts the restrictive interpretation of a legislator to making of laws, is appropriation not a law? Is the budget as contained in the appropriation Act not a law embodied in a statute? Therefore in making that law is it not the responsibility of the legislature to make a law that would be to the benefit of all? How does that become execution of a law?

For those who argue that the legislator’s only role is to make laws and anything else is an incursion on the powers of the executive to execute, would they then argue that Bills (executive bills) sent to the national assembly is an incursion into the powers of the national assembly’s powers to make laws? Or would they argue that the executive has no powers to set up investigative panels since under sections 88 and 89 of the constitution it is only the national assembly that has been expressly empowered to do so? Surely those arguments would be preposterous. The point being made here is that beyond express powers, there are implied powers incidental to the expressed powers, and input into the nation’s budget in a representative capacity by way of constituency projects is one such incidental power. For the avoidance of doubt constituency projects exist in other democracies including the United States whose democracy and form of government we mirror, where they are referred to as pork barrel legislation or earmarks.

Section 4 of the constitution, which is often quoted as the only role of the legislator, is often quoted incomplete and not in its entirety. The full section in subsection 2 reads:

“The National Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List…….”

Dissecting this provision, can it be argued that ensuring that there is an equitable distribution of the nation’s resources through the instrumentality of the appropriation Act is not a fulfillment of the injunction of section 4 to ensure peace, to ensure order, or to ensure good governance in a nation of multiple religions and ethnic groups? Going further into the provisions of section 4, are matters and items which constitute constituency projects e.g. health , power, water, education, roads and infrastructure not found in the exclusive and concurrent lists which national assembly has jurisdiction over (exclusive and non exclusive)? In this regard it is pertinent to state the following sections of the constitution:

Section 14(3): “The composition of the Government of the Federation or any of its agencies AND THE CONDUCT OF ITS AFFAIRS shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity………”

Section 15(4): “The State shall foster a feeling of belonging and of involvement among the various peoples of the Federation to the end that loyalty to the nation shall override sectional interests”

Section 16 (1): “The State shall…… harness the resources of the nation and promote national prosperity and an efficient , dynamic and self reliant economy and control the national economy in such manner as to secure the MAXIMUM WELFARE, FREEDOM AND HAPPINESS OF EVERY CITIZEN on the basis of social justice and equality…..”

Section 16 (2): “The State shall direct its policy towards ensuring (a) the promotion of a planned and balanced economic development (b) that the MATERIAL RESOURCES OF THE NATION are harnessed and DISTRIBUTED AS BEST AS POSSIBLE TO SERVE THE COMMON GOOD”

Section 17 (3): “The State shall direct its policy towards ensuring that (d) there are adequate MEDICAL and HEALTH facilities for all persons”

These and many more constitutional provisions underscore the multiple implied roles of a legislator. Or how else is an elected representative, who swore an oath to protect and obey the constitution supposed to ensure that these provisions are adhered to during the allocation of resources otherwise known as budget process. How is he to play his essential democratic role to check and balance an equal arm of government? If in a budget proposal the legislature finds that the nation’s material resources and distribution are skewed to a particular section of our vast country and to the disadvantage of maybe those he represents. Is he supposed to fold his arms or is he supposed to go beg the executive for inclusion or to “carry his people along”. Is that how he is meant to represent his people or protect he constitution? I think not.

Pedantic as it may sound, the idea that a legislator who represents a constituency and was elected so to do cannot speak for his constituency as per its needs defies logic and as I have often said any legislator who cannot provide such things that are under the exclusive or concurrent jurisdiction of the federal government is guilty of malpractice or gross negligence and does not deserve to be elected to represent his people. It must be mentioned that on the other hand Ministers and Special Assistants, staff of Presidency, personal assistants who are not elected and therefore unaccountable to their people find ways of influencing projects for their various villages, communities and states. A special assistant or minister can therefore and does often showcase these accomplishments and use them as veritable campaign tool against the “useless” representative who was unable to attract projects to his constituency in 4 years. Where is the equity in such an upstage of roles? As a peoples’ representative, it is the legislator they call when they need the aid of the government. If a hospital is needed in my community, the community doesn’t call or even have access to Mr. President or the minister of health, or water resources or education or power or works in case of a federal road project. It is the legislator that will be held accountable if these needs are not addressed. It is worth emphasizing that the President or a minister tucked away in the safe recess of Abuja or the villa cannot possibly know the needs of constituents more than the representative. It’s just not humanly possible.

Perhaps in a bid to give a dog a bad name, many have continued to propagate the lie that constituency projects are a vehicle for legislators to siphon money and therefore a drain pipe on the economy. Let me repeat for the umpteenth time, the legislator does not execute constituency projects neither does he provide contractors for same. I have been in the national assembly for 3 terms and attracted several federal projects to my constituency over the years, including health centers, classroom blocks, etc. Not once have I seen or spoken to a contractor. The contractors are from the respected ministries and have no relationship with me. I believe same goes for most of the legislators. Now if there are a few who are interested in having relationships with contractors and are prepared to demean themselves in that manner(without conceding that there are), we cannot because of a minute few discard of projects that are for the common good and bring succor or if you like “dividends of democracy “ to many. Or is the argument that those in the ministries have no relationship with contractors? As for the drain on the economy argument, this year’s capital budget is about 2.6 trillion out of which the constituency projects amount to about 100 billion representing less than 5percent of capital and less than 1percent of the overall budget. Enough said!

At the risk of sounding too academic I have thrown up these questions in the hope that the Nigerian people and indeed those on the other side of the divide will hopefully begin to see things from a different prism. If the constitution did not intend a more than passive role for the legislature, indeed there would not have been a need for section 81 which demands that any budgetary proposal must be brought for approval by the National Assembly. Section 84 is also clear as it states “no moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the MANNER prescribed by the National Assembly”. It therefore in my considered opinion sounds illogical that an institution will have the power of the purse but yet not have the right to influence how the money is spent or have an input in same defies logic not to talk democracy. The added power to override a presidential veto drives home this point.

I believe the budget processed can be streamlined and reformed for more effective participation by all stake holders. The most important stakeholders being the people represented by their elected representatives. The people cannot and must not be shut out from such an important process that may impact on their livelihood and welfare for at least a whole year.

RECURRENT EXPENDITURE CUTS

Another major area of controversy in the 2013 budget was the cut in recurrent expenditure. Now I make bold to say that no responsible legislative institution will reduce recurrent budgetary proposal without good reason. What it would mean would be simply that the government would not be able to pay its workers. So the question then becomes did the national assembly discover discrepancies in the recurrent expenditure as proposed by the executive. The committees charged with studying the proposals of some of the MDAs found such discrepancies. The executive itself had raised an alarm during the budgetary process and after it sent the budget proposal to the national assembly that it had discovered about 45,000 ghost workers. This discovery was made after it sent the proposals to the national assembly which in turn after doing its homework found this to be true and reduced the recurrent expenditure for the ghost workers accordingly. Surely the executive could not have expected the recurrent to remain the same after such a discovery.

NON APPROPRIATION OF FUNDS FOR SEC.

Many Nigerians have come down hard on the national assembly on the matter of non appropriation of funds for Security and Exchange Commission (SEC). The issue here for me is very narrow and that is what does the law establishing SEC say as regards to qualification for the position of director general and does the current occupant hold that qualification. The answer is a clear no. She does not have the requisite 15 years experience. There is a reason why that provision is inserted in the law and it was not put in there on a whim or for fancy. That being so, it is incumbent on the legislature and it is duty bound to protect and uphold the provision of the law. We cannot pay lip service to the law or cherry pick which to obey and which to disregard. That is not good governance and neither is it obeying the rule of law. No one person is above the law as the law is made for man and not vice versa. The argument that her appointment was approved by the senate is neither here nor there because once an error is discovered, it must be corrected. The alternative will be to perpetuate illegality. Disqualification for a position does not become qualification if the person escapes the scrutiny of the legislative arm at the first instance. The House cannot therefore submit a report after a thorough section 89 investigation that the director general is not qualified by law to hold office and in the same breath allocate monies to same person who it has found to be so unqualified. That would be speaking from both sides of the mouth and schitzophrenic. I must confess that contrary to most members who have met with the embattled DG, I find her to be a very amiable and congenial person. Unfortunately congeniality is not good enough to allow for the law to be broken. Many have also argued that the SEC is not meant to seek approval for spending from the national assembly as its funds do not come from the consolidated revenue fund. To that I will advise that they should read more carefully the provisions of section 80(4) which prohibits withdrawal of any money from “any public fund” without the approval of the national assembly. The argument also falls flat in the face of section 21 (particularly sub-section 3) of the fiscal responsibility act.

It is hoped that this piece will help nurture our democracy particularly its fiscal component and allow for a better understanding on the roles of various arms of government in ensuring good governance and accountability.

Femi Gbajabiamila is the Leader of the opposition in the House Of Representatives


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