by Muhammed Adamu
Legal luminaries are at it again; as always, adumbrating about everything that is the subject of law or of the due process of law. And now the celebrated schism is over some ‘strange’ legislative phenomenon called ‘budget padding’. From the ubiquitous ‘charge-and-bail-lawyer’ even to the obtrusive Senior Advocate of Nigeria, SAN, the legal community is agog with opinions over whether or not there is anything called ‘budget padding’. And whether if there is, ‘budget padding’ is a part of the legislative process, or whether it is an offence in the eye of the law or merely a reprehensible act of legislation remediable by legislative mechanisms and not the Criminal Code.
As always with our ‘legal luminaries’, some of the opinions are as illuminating as others are terribly obfuscating.
In a previous piece on this Column I alluded to a description of ‘the legislative process’ as some kind of vicious ‘machine’ into which executive matters pass as ‘pigs’ and come out as ‘sausages’. Proponents of budget padding say that NASS constitutionally is not designed to function like a computer, which takes in ‘garbage’ and regurgitates ‘garbage’.
They say that it is preposterous therefore to expect NASS to treat and remit executive requests exactly as they came –un-tinkered. That since it is the constitutional duty of lawmakers not merely to rubber-stamp but ‘approve’ executive requests, there is thus nothing wrong if a budget bill comes to NASS as ‘pig’ and returns to the President as a ‘sausage’.
This view ignores the fact that unlike other bills, the intention of the framers of the Constitution in subjecting money bills to the lawmaking process is informed not by the desire to turn lawmakers into project-proposers, but by that overarching aim of the ‘doctrine of separation of powers’ to ensure that the President who proposes a matter does not himself approve it.
When NASS remits to the President a bill passed by it containing items unacceptable to the executive, Mister President has power only to withhold assent. He does not become ‘lawmaker’ to re-legislate and assent the document. By merely attaching his objections to the document and returning same to NASS he is deemed to have effectively communicated his veto -which also operates to activate an invitation to dialogue with the legislature.
By the same token where NASS entertains reservations on any items contained in a money bill, it does not register those reservations by arrogating to itself the power to re-propose and approve new items. Rather it avails itself of the constitutional process of ‘budget defense’ to raise those concerns with the executive.
Proposing estimates and projects in a budget is an executive duty. Approving them is purely a legislative function. The President proposing and approving or the NASS proposing in the course of approving, will amount to a breach of the legal rule ‘against self-interest’ namely ‘nemo judex in causa sua’, which insists that no one should be allowed to sit in judgement over his own matter. Yet this, admittedly, was what the NASS did when it proposed new constituency projects into the budget and proceeded also to approve same!
The NASS may only propose adjustments and realignments of already proposed items on the basis of information made available to it by the executive –information concerning capacities for execution, the exigencies and expediencies attached to each project including often the realizability of guess-timated revenues.
In fact, the guess-timated nature of budgets is the reason that although when assented it is legally binding on the President to execute, yet on account of the paucity of funds, failure on the part of the President to implement will not amount to an offence.
A budget is not padded merely because the legislature, following due legislative process, and for reasons mutually appreciated by both parliament and the executive, has moved some money from one sub-head in the budget bill to another; nor is a budget padded merely because parliament -following due legislative process- and for reasons either of even-spread or of other expediencies (which are properly communicated to the executive), has moved a proposed project in the budget from one proposed location to another in the same budget.
A budget is not padded where parliament, for good reasons (and which are mutually appreciated by it and the executive), steps down a project entirely from the budget. In fact, a budget is not padded merely because one member of parliament is able to out-lobby other members to attract –within the bounds of legislative reasons- more projects to his constituency than others, or even to attract a particular ‘lone’ project to his constituency where others have either failed or have not even bothered at all to lobby.
But a budget is definitely padded –notwithstanding that due legislative process has been followed- where parliament unilaterally increases, even by a kobo, the overall budget sum as proposed by Mister President who (having the constitutional duty to source funds to execute the budget) alone knows the capacities and limits of the executive in raising those revenues. Thus, the saying that “parliament may ‘reduce’ but cannot ‘increase’ the overall budget sum” because Parliament is not privy to the ‘ways and means’ of the executive.
The budget can also be said to be padded where parliament –in spite of following the due legislative process- unilaterally and without the knowledge of the executive, imports into the budget entirely new projects in addition to those proposed by Mister President. It is immaterial that the legislature in doing so merely substitutes proposed projects in the budget with new ones and therefore has not increased the overall budget sum or in any way imposed new spending obligations on the executive.
A budget is also padded if a member or a Committee or the leadership of any of the chambers exploiting the privilege of their positions in the budget-making process, connive(s) with a particular ministry, agency or parastatal of government, to secretly over-allocate funds to particular projects in the budget with the intention thereafter that any one or all of the conniving parties are to benefit from that superfluity allocation.
And a budget is most definitely padded if after passage by both chambers and before or after harmonisation any member or members of either chambers capitalising on their privileged positions, import(s) into the budget new subheads or juggle(s) existing ones for the benefit of their constituencies and without the knowledge of other members –in fact some or all of whose constituencies may be shortchanged by the budget tinkering.
The moral high-ground
In a previous piece titled ‘Is this our ‘Do-nothing’ congress?’ I narrated the story of the British puritan lawyer and 12-times Governor of colonial Massachusetts, John Winthrop, who was credited with the extrapolation of the Biblical assertion: “A city that is set on a hill cannot be hid”. On the strength of his puritan reputation, a colonial trading firm had invited Winthrop from England to come to govern its outpost of Massachusetts.
And as he set sails with 700 fellow puritans on board a ship named the Arabella, Winthrop -inspired by the ‘city on a hill’ axiom- gave a sermon in which he set ‘forth a moral code’ for leadership and good governance.
Said Winthrop: “We must be willing to abridge ourselves of our superfluities, for the supply of other’s necessities…We must make other’s condition our own (because) a city that is set on a hill cannot be hid…the eyes of all people are upon us so that if we shall deal falsely with our God in this work… we shall be made a story and a by-word”.
This sermon came to be a source of moral suasion in American politics, deriving as it did from the metaphor of the ‘elevated ground’ as an in-obscure spotlight and a ‘conscience spot’ for those who aspire to lead society.
John F. Kennedy and Ronald Reagan were said to have drawn frequently from the ‘city on a hill’ metaphor in many of their political speeches to underscore the moral duty incumbent especially on elected leaders to govern society conscious of the stare of omnipresent God and the gaze of feeble man. The moral is as well for administrators as it is for judicial officers. But it is even more instructive to those invested with the power of lawmaking –namely legislators.
The legislature is supremely suited to be that veritable ‘city on a hill’ because it alone possesses the hallow to be the ground above all grounds and the ‘board’ above all boards in the ultimate task of gate keeping for good governance.
Nor is the reason farfetched that even in the all important task of ‘checks and balances’ the legislature, without doubt, is the ultimate check of all checkers –making it thus the proverbial ‘moral high ground’ atop which although every Tom, Dick or Harry may ascend, yet only those who deal justly with the spiritual and temporal trusts both of God and of man, may legitimately abide.
Speaking about this crucial arm of government in a democracy, Ronald Reagan once referred to it as “the lengthening shadow of all men and women who have… voted to send representatives here”, -meaning that the legislature is the virtual projection of the democratic will and aspirations of the people.
It ceases to be so the day that it ‘deals falsely’ with the people and with God in the very duty that it has undertaken by oath to accomplish. For as Barbara Jordan, -herself a former congresswoman- once asked rhetorically “who can so properly be the inquisitors for the nation as the representatives of the nation?”
But 17 years into ‘representative governance’, Nigerians still do not have ‘elected representatives’ who are truly “the lengthening shadow” of all men and women who have voted to put them to office, or who are truly trustees of the people and the veritable ‘inquisitors for the nation’. Nor do they have lawmakers who are genuinely conscious of the eyes both of God and of man upon them as they sit atop society’s highest ground above all other grounds.
“The most effective application of power”, Arthur Burns said, “is the power of moral example”. Yet we have no recollection in all of the last 17 years of our democratic odyssey, of any one time when our so called ‘peoples representatives’, selflessly and in deference to the public good, demonstrated this ‘power of moral example’ by dealing justly with the people that they egregiously claim to represent. The only way our lawmakers know how effectively to apply their ‘legislative power’ is when they grandstand even in defiance of public opinion, to defend their ‘special interests’.
Nigerians have long resigned to the belief that they are ill-fated always to have parliaments that are unworthy of the ‘moral high ground’ upon which they are raised.
The men up there on our nation’s moral high ground, no sooner than our votes elevate them to the hallowed chambers, than they set themselves as ‘aristocratic’ antagonists of the very people who freely voted to anoint them.