The Constitutional role of the Legislature in Budget Making: A case against budget padding.
Nigeria’s 2017 National budget, through the Appropriation Bill was signed into an Act on 12th June, 2017 by the Acting President, Yemi Osinbajo in the absence of President Muhammadu Buhari who is on medical leave. The budget did not get approval of the Acting President’s signature without an initial quagmire of whether the Acting President would sign in the absence of the President. The most intriguing for the purpose of this work was that the Acting President raised alarm that the National Assembly through the Committee on Appropriation had increased the Budget from N7.30 trillion as submitted by the President in December, 2016 to N.7.44 trillion.
The incidence of the National Assembly adding figures to the budget has been an on-going practice in Nigerian polity perhaps without legal questioning until the passage of the 2016 budget which generated the language of “budget padding”. This raises the questions of what is the law on budget making in Nigeria? what is the budget itself? what is an Appropriation Bill? which governmental body is wielded with the responsibility of preparing the budget?
These are the Questions this work attempts to consider in order to bring to bare the constitutional role of the Legislature in the making of national budget for the Country.
- Separation of Power in Relation to Budget Making.
Considering the twists that played out in 2016 and 2017 budget episodes of Nigeria, Baron De Mostesqui was not blurred in vision when he postulated the principle of separation of power that was built upon the work of John Locke.
In more clearer terms, Montesqui stated that
..to prevent abuse, it is necessary from the nature of things that one power should be a check on another…when the Legislative, Executive and Judicial Powers are united in same person or body, there can be no Liberty.
The idea that governmental powers (roles) i.e. legislative, executive and judicial, be separately vested in the various arms of government has received constitutional embrace under the Nigerian democratic regime. The Constitution in sections 4, 5, and 6 vests legislative, executive and judicial powers respectively in the legislative, executive and judicial arm of government.
That being the case, the two arms that comes under the spotlight with regards to this work are the Legislature and the Executive.
The core legislative power as can be deduced from the constitution is centered on law making as the Constitution provides that:
The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.
The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
It is express that the role of the Legislature in nation building is ‘law’ making since the constitution defines ‘power’ to include ‘function’ and ‘duties’. That is not to say the Legislature do not have oversight functions which majorly is the investigation into the affairs of the Executive for which the legislature has power to make laws.
With regards to the Executive, the Constitution also makes provision for its power by providing that:
- Subject to the provisions of this Constitution, the executive powers of the Federation:
- shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
(b)shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
While there is no gainsaying that there is no clear scope as to what the Executive can do, an omnibous provision which is apt enough for this discussion is found therein the above provision. The Executive is to see to the execution of the provisions of the constitution and maintain the laws passed by the legislators.
It must be mentioned that the Legislative arm also maintains the constitution. This arises from the checks and balances provided by the constitution as the Legislature can ensure that the Executive are acting within the scope of the laws they have enacted.
That being said, the question that arises having stated the separate powers of the two arms is: who makes the budget? To properly attempt this answer constitutionally, one must first ask what a budget is. The Constitution has not defined the term budget. As a fact, the word ‘budget’ is not found in the constitution; what is available is the word ‘estimate’.
Black’s Law Dictionary provides a definition for budget which envelopes the word used by the Constitution as “a statement of an organization’s estimated revenues and expenses for a specified period, usually a year”. To trend with the Constitution, ‘estimate’ is in its verb form, “to form an idea of the cost, size, value etc. of something but without calculating it exactly”. In this context, one would take estimate in its noun form to be the presented cost for something.
However the definition is put, a budget or an estimate is surely not a law, therefore not anticipated by the constitution to be made by the Legislature whose core role is to make law and whose oversight role is to ensure the executive operates within the bounds of laws made by them. Therefore, where it is taken that the Legislatures do not make the budget, then the maker of the budget is the Executive as we would come to see. So also, it is only the maker of a thing that has power to amend, reshape or alter the thing made. Just as the judges do not amend the law but merely interpret, and the executive merely executes, the legislature reserve the right to amend, alter or reshape a law but not the budget i.e. not to add to the budget.
- The Money Bill as A law made by the Legislature.
The law making process of the legislature at the federal level is regulated by sections 58 and 59 of the Constitution. From these provisions, it can be seen that a ‘statutes’ begins as a ‘bill’ which is a proposal for a new law, or a proposal to change an existing law.
There are two classes of bills going by the constitution. The first is the general bill which is otherwise known as the ordinary bill. The general bill can be private or public bill. The ordinary bill eventually becomes law that affects the country at large. Providing regulations on various aspect of the society. The ordinary bill may be influenced or challenged by public depending on how it affects them.
The second class of bill is the money bill which is in other words called the 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. The passage of this bill brings about the budget of the federation for a year. This is regulated by section 59 and 81(1), (2) and (4) of the constitution for the federal budget.
According to Mbaya et al, bills go through four (4) stages and receives three (3) readings before the President Assents, The money bill goes through the same process except for where it is passed by one house but is not passed by the other within a period of two months from the commencement of a financial year, the President of the Senate shall within fourteen days thereafter arrange for and convene a meeting of the Joint Finance Committee to examine the bill with a view to resolving the differences between the two houses and where the Joint Finance Committee fails to resolve such differences then the bill shall be presented to the National Assembly sitting at a joint meeting and if the bill is passed at such joint meeting, it shall then be presented to the president for assent.
There must be no procedural error leading to the passage of the bill as it would render it void as in A.G. Bendel v A.G Federation & 22 Ors. In this case, a bill was referred by the National Assembly to the joint Finance Committee of both houses for the Committee’s consideration. The Committee passed the bill into law instead of referring it back to the National Assembly as stipulated in section 59 of the Constitution of Nigeria 1999 (as amended). The Supreme Court held that the act was null and void for failure to follow the prescribed legislative procedure in the constitution for passing bill into law.
The Constitutional role of the Legislature in Budget Making: A case against budget padding
- The Case Against Budget Padding.
Having said that the Appropriation Bill is made by the Legislature, it is important to address here the word “padding”. A word that became more pronounced in the course of passing the 2016 budget of Nigeria. A word with a dictionary meaning which does not contextually or otherwise have anything to do with the national issue. The situational meaning for all intent and purpose is simply ‘the addition of financial figures to the budget’. Wahab Shittu noted that padding the budget is a practice that some people use in business when submitting a budget for approval. It artificially inflates the proposed budget in order to give the project room to expand or to cover unexpected costs. Padding the budget means making the budget proposal larger than the actual estimates for the project.
In the case of Nigeria, the budget padding became a topical issue when it was discovered that the members of the National Assembly who claim to carry-out constituency projects ‘inserted’ the costs of their constituency projects into the proposed budget already submitted to it by the President for consideration and passage as Appropriation Bill (Money Bill).
The political twist created by the act of the members of the National Assembly is that the National Assembly which has a clear mandate of passing the Appropriation Bill, is constitutionally not the body empowered to create an estimate of the expenditure to be incurred by the country within a year.
While this act has been ongoing for several seasons of budget making in Nigeria, the President admitted he has never heard of the word ‘padding’.
…I have been a military governor, petroleum minister, military head of state and headed the petroleum trust fund. Never had I heard the words ‘budget padding’
As earlier said, what made this a national issue is the question of whether the National Assembly can in the process of passing the budget, add to, insert figures or alter the proposed budget as presented to them by the President. A school of thought holds that it can, because the lawmakers have power to amend any law. Other schools are of the opinion that the National Assembly has a limit to their powers in the budgeting process. The matter is to be considered under the constitution itself.
In accord with the latter school of thought and considering the fact that we have made an analysis on what the budget is, which is that it is not a law, we can take a look at the provision of section 81(1) of the Constitution which provides 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 expenditures of the federation for the following financial year.(emphasis mine)
This subsection clearly mentions who should prepare the estimates (budget) and that is the President (a member of the executive arm of government). The principle that ‘the express mention of one excludes all others’ can easily be called to interpretational aid in this situation. The constitution has not shared the responsibility of estimating what will be in the budget with the legislature at all. In the same vein, agreeable that the National Assembly are empowered in passage of a bill into law as clearly mentioned in section 4, 58 and 59, and indeed they are to pass the Appropriation Bill, subsection (2) of section 81 went further by stating that:
The heads of expenditure contained in the estimate shall be included in a bill, to be known as an Appropriation bill, providing for the issue from the consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein. (Emphasis mine)
The implication of this subsection is that the estimate (budget) prepared by the President (The Executive) will be put into or added to and packaged inside the Appropriation Bill to be passed by the National Assembly not that the National Assembly prepares the budget. The budget is by analogy a letter while the Appropriation Bill is an envelope; the Presidents writes the letter, while the National Assembly makes the envelope that will carry the letter.
The National Assembly through the appropriate Committee may question the estimate, suggest an increase or decrease in the estimate for any particular reason. They may even suggest an inclusion, but they are not to themselves modify, alter, substitute or remake the budge as this will run contrary to section 81(1) and (2) and amount to a substantive ultra vires. In addition, if the members want to influence a constituency project which is the bane of the padding issue, they can forward the estimate of their constituency project to the President who would then include it in the total estimate to be laid before the National Assembly same way he receives estimates from other ministries and agencies.
Going by the above exposition, it is hoped that these issues would be addressed in the next alteration to the Constitution. Though the principle of separation of power in its rigid and complete from is nearly impossible and it is doubtful whether any system of government has ever attained such an end. Nevertheless, the specific constitutional provisions on what an arm of government can do, should do and should not do need be highly respected by government officials to avoid usurpation of power and political tension, instability or chaos. Therefore, subsequent amendment should be to the effect that ‘the lawmakers shall not add to, increase, decrease, or directly alter the estimates presented by the President’. Also, a subsection which should be to the effect that ‘where the lawmakers desires an alteration in any form to the estimates, such desire shall be communicated to the President who shall then consider it and effect same if he deems it fit’. The effect would be that the law makers would clearly focus on law making as a primary task; leaving the preparation of the budget squarely in the hands of the Executives an originally envisaged by the Constitution.
 https://www.dailytrust.com.ng/news/general/osinbajo-signs-2017-budget/201624.html accessed June 2017
 De Montesqui, B. Espirit Des Lois (Spirit of the Law). Chapter XI. cited in Iluyomade, B.O. and Eka, B.U. cases and Materials on Administrative Law in Nigeria. (Obafemi Awolowo University Press, Ile Ife, 1992) p.7
 Locke, J. Second Treatise on Civil Government Chapter 12 – 13 cited in Iluyomade, B.O. and Eka, B.U. Cases and Materials on Administrative Law in Nigeria. (Obafemi Awolowo University Press, Ile Ife, 1992) p.7
 Constitution of Federal Republic of Nigeria 1999 (as amended) section 4 (1) and (2)
 See ibid. section 4 (6) for that of State Legislature.
 Ibid. section 318 (1)
 See generally Constitution of Federal Republic of Nigeria 1999 (as amended) section 88
 See for instance section 5 (4) of the Constitution of Federal Republic of Nigeria 1999 (as amended) which provides to the effect that the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session. The provision of section 81 requiring the President to lay the estimate before the National Assembly is also to create a check on the power of the Executive.
 Garner, B.A (ed.) Black’s Law Dictionary, (west Publishing co. U.S.A, 8th Edition, 2004) p.207
 That of State is provided under section 100.
 See for instance Economic and Financial Crimes Commission Act (Amendment) Bill, 2016. The Bill seeks to amend the original Act so as to provide for the protection of the fundamental rights of suspects and to ensure investigations are concluded before suspects are apprehended and charged to court. Available at http://www.nassnig.org/documents/bills accessed June, 2017.
 Ikelegbe, A. O. Public Policy Making and Analysis. (Uri Publishing Ltd, Benin City, 1996)
 Constitution of Federal Republic of Nigeria, 1999 (as amended)
 Mbaya, P.Y. et al, The Processes of Law Making in a Presidential System of Government: The Nigerian Experience. (Asian Social Science Journal; Canadian Center of Science and Education Vol. 9, No. 2; 2013). P.108
 Section 59 (2) CFRN 1999 (as amended)
 Section 59 (3) CFRN 1999 as amended.
(1982) 3 NCLR 1 S.C.
 The word, according to Oxford advanced Learners Dictionary, 6th edition means 1. soft material that is placed inside something to make it more comfortable or to change its shape. 2. Words that are used to make a speech, piece of writing, etc. longer, but that do not contain any interesting information. P.839. Perhaps with the phrase, ‘to change its shape’, there is something to work with since padding changed the financial shape of the budget.
Shittu, W. http://thenationonlineng.net/budget-padding-crime-not/ accessed June 2017.
 http://sunnewsonline.com/budget-padding-buhari-furious/ accessed January 2017.
 CFRN 1999 as amended
 In the maxim expressio unis est exclusio alterius as applied in A.G. Lagos State v A.G. Federation (2014) 9 NWLR (Pt.1412) 217 S.C, P.D.P v I.N.E.C. (2014) 17 NWLR (Pt.1437) 525 S.C.
 This means the act is beyond the powers or done without the power to. See Wade, H.W.R. & Forsyth, C.F. Administrative Law (Oxford University Press, oxford, 2009) p.30
 Iluyomade, B.O. and Eka, B.U. Cases and Materials on Administrative Law in Nigeria (Obafemi Awolowo University Press Ltd., Ile Ife, 1992) p.7
Written by: Ganiyu Ajibola Bello. LL.B, BL. DRS. LL.M
*A Barrister and Solicitor of the Supreme Court of Nigeria., Director of Academics and Law Lecturer at Pan-African Institute of Paralegal Studies, Dawaki Rockville, Abuja. firstname.lastname@example.org.