THE CONSTITUTIONALITY OF BUDGET-PADDING AND THE NEED FOR INSTITUTIONAL REFORM

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Fellow Nigerians, truth be told, the tired but tireless army of Nigerians were sick and haggard with vengeance and sternly looking forward to the possibility of establishing a new tradition of sacking an underperforming government and banishing the idea that an incumbent leader can never be defeated in Africa. Against all odds of permutations, the change mantra government (APC) was born as a bouncing and bubbly baby. This time around, President Buhari won the election convincingly and President Jonathan was magnificent in defeat. The jubilations and jollification in the land were unlimited, it even reverberated across the seas.


It should be established that, the change government came on board with a tripod missions. It includes among other things; insecurity (Bokoharam), corruption and economy. However, One of the area the government has shown total passion without compassion is in the area of fighting against corruption. The journey has been tough and rough, the battle has been fierce and relentless. Thank God, we have recorded the first conviction so far! You ask who? The recent conviction of GODWIN ORUBEBE! the former Minister of Niger Delta Affairs.


Moving forward, one of the gains of fighting against corruption is the budget-padding saga rocking the hallowed lower legislative chamber like thunderstruck and exposing the sacred institution to imminent collapse. Although, beyond the good, the bad and the ugly sides of the imbroglio, the scandal provides a golden opportunity to reform the process of budget-making in the country. However, the crux of this exercise is that it determines the constitutionality of budget-padding, makes reformatory suggestions and concludes that budget-padding is unconstitutional, criminal and demands stringent institutional reforms.


CONCEPTUAL CLARIFICATIONS:
The word "budget" according to the "Business Dictionary" means: " an estimate of costs, revenues and resources over a specified period, reflecting a reading of future financial conditions and goals." Also, the word "padded" on the other hand, is defined by Merriam Webster's Collegiate Dictionary, Eleventh Edition as " to furnish with a pad or padding... To expand or increase especially with needless, misleading or fraudulent matter..." While Padding is the "material with which something is padded."


More so, during the course of my research, I stumbled on an article titled "What is padding the budget" by (Danielle DeLee), it observes as follows: " 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 cost."


According to a renowned Senior Advocate of Nigeria, Esq, Femi Falana, in his article titled " The Criminality of budget-padding" he posits that: " padding takes place when legislators resolve to re-write the budget by introducing new items outside the estimates prepared and presented to them by the President." In summation, budget-padding is seen as an arbitrary inflation of budget estimates without the consent and knowledge of the Executive (President).


CONSTITUTIONAL PROVISIONS:
Having laid-down the above background, it is however pertinent and fundamental to look at the constitutional provisions in order to expressly and objectively know the position of the law as far as budget-padding is concerned. Section 81(1) of the 1999 constitution explicitly provides: " 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."


This position is also solidified and fortified by Section 81(2) of the constitution, which states thus: " The heads of expenditure contained in the estimates (other than expenditure charged upon the consolidated Revenue Fund of Federation by this constitution) 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 purpose specified therein."


Again, in the budget preparation process the provision of Fiscal Responsibility Act, 2007 is relevant providing with respect to annual budget for: (a)Annual budget to be derived from medium term expenditure framework. (b) Annual budget to be accompanied by certain document. (c) preparation of estimates of revenue and expenditure by corporations e.t.c. From the above, the constitution provides for  budget-preparation  exclusively vested in the hand of the Executive (President).


However, talking from the perspective of budget-appropriation, the Black Law Dictionary defines appropriation to mean " the exercise of control over property, a taking of possession... a legislative body's act of setting aside a sum of money for public purpose... if the sum is earmarked for a precise or limited purpose, it is sometimes called a ' specific appropriation'." So, in the appropriation sense, the discretionary right belongs to the Legislature. It has final input on the budget in Nigeria.


The 1999 constitution heavily empowers the National Assembly to exercise such in Section 80(2): " 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 authorized by an Appropriation Act, Supplementary Appropriation or Act passed in pursuance of section 81 of this constitution." Also, Section 80(3), 80(4),59 and others including Finance (control and management) Act, CAP F26, LFN 2004 and the Fiscal Responsibility Act, 2007 lean credence to this.


From the light of this constitutional provisions and Fiscal Responsibility Act, 2007, it is self-evident that, budget-preparation is exclusively conferred on the Executive(President), while budget-appropriation is solely and deeply resided with the legislature( National Assembly). Furthermore, neither the constitution nor the Fiscal Responsibility Act empowered the legislature(National Assembly) to re-write the budget by introducing new items (insertion and mutilation) outside the estimates prepared and presented to them by the Executive (President).


In this context, the corpus of budget-padding constitutionally are: (1) it contravenes the constitutional power of the legislature which are: general lawmaking, representation, oversight responsibilities and not project execution. (2) the act constitutes usurpation of executive power and this grossly negates the constitutional principle of separation of power provided for under section 4, 5, and 6 for legislature, executive and the judiciary respectively.


The act could be also likened to corrupt practices similar in nature to such offences as abuse of power, attempt to embezzle, diversion and misappropriation of public fund, conspiracy to act corruptly and illicit enrichment, fraud, forgery among others, which are all recognized under United Nation Convention against Corruption to which Nigerian is a party state, corrupt practices and other related offences Act, Economic and Financial Crimes Establishment Act (EFCC) and Fiscal Responsibility  Act, 2007 respectively.


THE NEED FOR INSTITUTIONAL REFORM:
The issue of budget-padding is an intricate web of malfeasance and corruption that spreads across board from the political class to the private sector. So, we must as a matter utmost exigency act fast by reforming the budgetary process, otherwise at the end of the sad-stories of padding, we will simply go back to business-as-usual until the next scandal happens and we get entertained all over again. In the light of this, how do we reform the lapses and loopholes that allow for "padding" and all such distortions. In short, after all the melodrama what next? I say emphatically and categorically that, it is radical institutional reforms.


Simply put, institutional reform means the process of reviewing and restructuring state institution mainly to improve quality of service delivery, enhance social responsibilities and ensure broad participation of citizens. In this discourse, I will advance three principal reforms.


Firstly, according to the maiden forum called "Gallery Colloquium" organized by order paper.ng, Nigeria's premier independent parliamentary reporting newspaper on Monday, September 26, 2016 at the Abuja Sheraton Hotel in the Federal Capital Territory (FCT), primarily convened to address contentious issues on the budget-padding and engaged principal stakeholders across boards to brainstorm the challenge of reforming the budgetary process to make it more effective, inclusive and implementable.


The colloquium observes and proffers among other things; " paucity of knowledge which demands for greater insight of the major players in the process, stronger legislative and executive collaboration, absence of planning in budgetary process which requires setting out at the right time and many others..."


Secondly, constitutional reforms, it includes; (a) the 1999 constitution as regards the budget-appropriation power vested in the legislature accommodates "the theory of unsuspecting technical fraud". This affected sections could be fine-tuned through the process of " Remedial Order " and only the highest court in the land (supreme court) can make such a 'referral' to the legislature. (b) Amendment of the constitution to mandate the executive (President) to submit his proposal before the end of the preceding financial year.

Quiet rightly, Stringent and radical conditions through the constitutional amendment should be put in place in order to obliterate the mischievousness of insertion, mutilation and divertion of national budget. Although, Section 318 of the 1999 constitution declares for where an approved budget is not allowed to operate for 12 mouths as unconstitutional, nevertheless, it is only binding in denial, amendment must be made to effect its full-operation and give it feather to fly.


Thirdly, extra-constitutional reforms, these are; (a) Transparency and openness, as soon as the budget get to the Appropriation Committee, it should be subjected to wider consultations and deliberations from within the legislative chambers and outside through the medium of public hearing from various public groups and well-meaning members in the society. (b) Absolute inclusiveness, the preparation, appropriation, supplementation, passage and implementation of budget should involve all arms of government as a unit and it must be a document reflecting and emanating from the society.


Further still, completeness; the operation of a financial year which is 12 months period must be fully completed before another budget implementation begins. Also, ongoing projects must be completed before introducing new ones in order to avoid wasteful spending and improper implementation. As a matter of fact, a mandatory mechanism must roll-down compelling major on-going projects that are not completed to be included in the following year's budget in view of stamping out budget implementation failure and abandoned projects.


From the foregoing, I hereby heavily submitted in the name of constitutionality, legality and morality that, budget padding is unconstitutional, criminal and punishable as it defeats and contravenes the objective of constitutionalism as regards budgetary process and implementation.


It also provides the institution of legislature to make strict constitutional amendments and offers members of the public a unique opportunity to make radical reformatory suggestions and submissions. True, no society is perfect but the dictates of time will continue to keep constitutional amendment and institutional reform on toes.





Kamoru Sodiq is a part two undergraduate of The Faculty of Law, Obafemi Awolowo University, Ile-Ife.