Ordinarily, one would have thought since the executive is expected to prepare the budget estimates and place it before the National Assembly, the lawmakers should accept or reject the provisions as presented but are not expected to introduce new items that may not be priority of the government. They may also not be expected to increase the budget envelop since that may affect the balance of the budget. However, these may be ordinary expectations, but what does the law say about it.
The position of the law in this respect varies from jurisdiction to jurisdiction. Generally speaking, budget development is typically in the domain of the executive branch of government which is responsible for the source and veracity of the content of the proposal and any change by the legislature should be done through the executive to avoid friction. There should be respect for the doctrine of Separation of Powers which guarantees the independence of each arm, even in the exercise of checks and balances.
In the USA, the Congress has authority to alter, increase, reduce or even introduce new items. Congress possesses unlimited amendment powers in the budget proposals. It can change funding levels, eliminate or add programmes, add or eliminate taxes or other sources of receipts (See the Budget of the US Government Fiscal year 1999 Washington DC, US Government Printing Office, 1998, page 2). In an international survey prepared by the National Democratic Institute, examples of jurisdictions are given on the role of the legislature in budget making e.g.
• Ghana – their constitution prohibits the imposition of charge on the Consolidated Fund of Ghana or the alteration of any such charge otherwise than by reduction.
• South Africa – their 1996 constitution empowers the legislature to offer amendments to the executive’s budget but the legislature must provide the procedure to exercise this power under a framework Law.
It must be noted that the defunct 1979 constitution and the current 1999 constitution of Federal Republic of Nigeria were in line with the principle of Separation of Powers amongst the Legislature, Executive and the Judicial arms of government. The legislature makes laws; the executive administers and enforces the laws while the judiciary interprets the laws. In practice, there is cooperation and inter-dependence amongst them. Also, through the checks and balances, one arm of the government can exercise some level of powers over the other arms while being careful, in doing that, not to undermine or usurp their functions. But the legislature should not be made to seem like a rubber stamp of the executive in the budgeting process by accepting the proposal hook, line and sinker. Budget is a plan for saving, borrowing and spending. It is a mere guess work of income and expenditure. The actual income or revenue may fall short of what is expected while expenditure may outstrip the expected revenue.
From Section 81 of the constitution, it is clear that the President will after research on estimates of the revenue and expenditure for the year in question; present the same to the National Assembly. The National Assembly is the custodian of the nation’s purse; one of its most basic and fundamental powers exercised is the power to make laws in relation to taxation of income, profits and capital gains. (See item 59 of the Exclusive Legislative List, 2nd Schedule PT 1 to the Constitution 1999 as amended); the question thus is, “Does the National Assembly have the power to sanitise, query, apportion, vary, subtract from, add to, multiply, tinker with in any way the plans and estimates presented to ensure conformity with the laws, especially the constitution?”
It must be noted that without the approval of the National Assembly, the executive cannot withdraw money from the Consolidated Revenue Fund. See Section 80(2)(3) and (4) of the constitution. Article 1 Section 9 of the US Constitution is similar to Section 80 of our constitution. That section provides “No money shall be withdrawn from the Treasury but in consequence of the Appropriations made by law”. This means all moneys are paid into the USA Treasury which is like our CRF. Also, no withdrawal can be made from the USA Treasury except through appropriation.
Legislature while exercising its powers of oversight should realise that the powers are not absolute but subject to limitations. It cannot, for instance, usurp the general investigating functions of the executive nor can it take over or exercise the powers of the judiciary, otherwise it would be going ultra-vires its powers. This was the decision of the Supreme Court in the case of:
TONY MOMOH VS SENATE OF THE NATIONAL ASSEMBLY (1982) VOL 3 Nigeria constitutional law report 1 page 105; (1981)9 S.C (REPRINT) 1 AT 78-79.
In that case, the court held that with regard to the investigative powers of the legislature, anything outside the purpose defined in Section 88 of the constitution is not valid. In the case of GLOBAL EXCELLENCE COMMUNICATIONS LTD & ORS VS DUKE (2007) Law Pavillion Electronic Law Report – LPELR – 1323 (SC), the case of ATTORNEY-GENERAL BENDEL VS ATTORNEY – GENERAL FEDERATION & 22 ORS was relied on where OBASEKI J.S.C. stated the principles guiding the court in interpreting or constructing the provisions or our constitution and they include:
1. Where the language of the constitution is clear and unambiguous, it must be given its plain evident meaning;
2. a constitutional power cannot be used by way of condition to attain unconstitutional result.
3. under a constitution conferring specific powers, a particular power must be granted or it cannot be exercise.
4. The constitution is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be severed from the rest of the constitution.
5. a constitutional provision should not be construed so as to defeat its evident purpose;
6. the principle upon which the constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.
To be concluded
Mainoma, a professor of accounting, is the Vice Chancellor of Nasarawa State University, Keffi