Yar’Adua, National Assembly & Arrested Budget
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Franklin Otorofani, Esquire.
04.08.08 |
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 Come May 29, 2008, President Musa Yar’Adua will have clocked one full year in
office. And as tradition demands, the anniversary will afford Nigerians the
opportunity to assess the performance so far of the Yar’Adua administration as
they see it from their individual perspectives. In readiness for this assessment
many pundits and public commentators are probably gearing up already to bombard
the press with their individual assessments. On can therefore expect a deluge of
commentaries and analyses; favorable or unfavorable, critical or patronizing
from both critics and praise singers alike.
However, as a public commentator, I’m not about to rush to the front of the line
to roll out my own assessment of the administration. Like others, that exercise
will have to wait until the anniversary finally arrives in May. They say a month
is an eternity in politics because so much can happen within a month in politics
that can change the entire equation.
Between now and May 29, 2008, therefore, President Yar’Adua has all the time in
the world to positively influence the outcome of the various assessments that
will soon be rolled out on his performance. It is in his own interest to sustain
the confidence reposed in him by Nigerians and do away with the do-nothing image
he has managed to garner for himself over the year.
Suffice it to state, however, that apart from his much trumpeted seven-point
program, which has yet to migrate from paperwork to groundwork, rule of law has
become the single most prominent platitude of the administration. The rule of
law mantra is platitudinous because it has yet to be felt at the grassroots of
criminal justice administration in Nigeria. The police are still collecting
illegal toll fees from commercial drivers on Federal Highways; the prisons are
still filled with detainees remanded in prison custody awaiting trial; traffic
laws are still being violated with impunity by utterly lawless Nigerian drivers;
university lecturers are still busy defrauding students with handouts and
sex-for-grades. And what is more: University administrators themselves are still
running admission rackets with JAMB candidates; motor touts are still harassing
innocent passengers and extorting illegal levies from drivers; custom officials
are still making brisk business at the borders and ports; and gross lawlessness
in every facet of our national life is still the order of the day in Nigeria. In
fact, Nigeria has not moved an inch in the direction of the enforcement of rule
of law beyond AGF Akasse Aondoakaa’s overzealous grandstanding when it comes to
the ex-governors.
One year into the “Rule of Law” regime, Nigeria as a country, has never been
more lawless than it is today. Only the Kalus, Iboris, Nnanamis, and the
Igbinedions are beneficiaries of the rule of law largesse from the Yar’Adua
administration’s stable. The common criminal is still being brutalized and
dehumanized by the Nigerian police in their hell holes called police cells. The
disgraceful exit of Professor Grange and her co-travelers in corruption and the
emerging bribery scandal involving Election Tribunal Judges show conclusively
that corruption is winning the war against the government rather than the
government winning the war against corruption.
Despite these deficits, however, rule of law is still the official mantra of the
administration and presidential spokesperson and genuflecting PDP governors and
other government officials are still patronizingly mouthing rule of law as if
it’s some new scientific discovery in Nigeria. Rule of law has become the be all
and end all. Nothing else matters; not even power supply, healthcare, education
or privatization, for that matter. All we need do to fix these problems is to
shout: “Rule of Law!” and the rest will be added unto us! It reminds one of
President Bush Doctrine of “Compassionate Conservatism” on the back of which he
smilingly rode to power only to abandon it for “War on Terror!” at the slightest
opportunity and bared his fangs at the world.
President Yar’Adua appears to be treading a similar path. I think it’s fair to
say that the administration is now somewhat superficially wedded to the concept
of rule as a lifeline and talking point without explaining to us what it
actually means and how it is to be actualized. However, in the process of
translating the seven-point agenda of the administration into concrete reality
through the instrumentality of his first national budget, Yar’Adua has found
himself caught up in his own web of rule of law jingoism.
Unfortunately, while President Yar’Adua may use his first anniversary in office
to reshuffle his moribund cabinet to generate public interest in his government,
he will have nothing concrete to celebrate in terms of physical or even
institutional development or reform beyond the setting up of commissions. To use
an entire year just to set up commissions for power and electoral matters cannot
exactly be counted, by any measure, as a great presidential achievement worthy
of celebration.
With the nation sliding into total darkness and fuel scarcity threatening to
ground the economy, Yar’Adua must be having nightmares at the Villa if he cares
about his legacy at all. It seems anything he touches becomes a problem for his
administration. I can practically reel them off my fingers: NICON, NITEL, EFCC,
PHCN, fuel importation, ex-cetera ex-cetera.
But even more troubling is the continued absence of a budget that ought to
provide the road map for this administration and the nation. As at the time of
crafting this piece, President Yar’Adua’s first national budget has been
arrested and held hostage, so to speak by ‘rule of law’ at the National
Assembly. A N2.4 trillion budget submitted by the President to the National
Assembly since November last year, has yet to see the light of day, five odd
months afterward. This delay itself is set to enter the Guinness Book of Record
and Mr. President can at least claim to have set a record for his
administration, if he can’t point to nothing else as his achievement.
First, Mr. President vetoed the budget because the lawmakers had unilaterally
jacked up the estimates from N2.4 to N2.89 trillion. The Assembly members no
doubt had their pet constituency projects to cater for and so, they chose to
bloat the budget and turned it into a National Father Christmas bash! That was
their own way of telling Nigerians that they cared for their welfare even though
there is no single social security program for impoverished Nigerians in their
bloated budget. It was all about their deep pockets.
The President was right in rejecting the upward review of the budget. This
writer is of the opinion that the legislature erred in loading the budget just
because there is increase in crude oil price without having regard to its effect
on the macro economy generally and inflation in particular, which, thank
goodness, is in single digit as of today according reports.
The legislature ought to defer to the executive in the management of the
economy, and it appeared to have gotten the message when it beat a hasty retreat
in the face of the President’s objections. Therefore the estimates were revised
downward to N2.7 trillion and resubmitted to the President for his assent,
though not much of a difference from the previous figure. However, rather than
give his assent, Mr. President found another reason to withhold his assent
again. This time around, he forgot about the high figures, but discovered that
there were no breakdowns in the budget’s main heads—suggesting that only lump
estimates for the main heads were captured in the document submitted to him for
his assent.
Additionally, Mr. President found yet another provision requiring the Accountant
General of the Federation (AGF) and the Governor of the Central Bank, to submit
themselves to the National Assembly for periodic briefing of the members in the
course of the implementation of the budget. Mr. President cried foul! He saw
this measure as nothing but power grab by the National Assembly, and he would
not give in to it. He got company in President George Bush, right here in the
United States!
Every branch of government fights turf wars with other branches and the
judiciary is the arbiter even where it’s itself is a party to the dispute. The
legal doctrine Nemo dat judex in causa sua (no one can be a judge in his own
cause), is not applicable to the judiciary! Rightly or wrongly, Mr. President
felt that he was being tactically led to the Slaughter House by the National
Assembly blindfolded before throwing the noose around his neck! Poor Yar’Adua!
Mr. Aondoakaa his AGF will protect him from the lawmakers who are out to get
him! I understand he has headed to the Supreme Court to put the lawmakers in
their place and save his master’s neck from the hangman’s noose!
On its part, the National Assembly, through its several spokespersons, appears
to be arguing that it was only following precedents as budgetary breakdowns
usually come after the main document has been presented to and signed by the
President. Well, that may have been so under OBJ, but it is ancient history for
Mr. President, and the President is not interested in ancient history especially
one dictated by the highly unpopular but incredibly effective Emperor Olusegun
Obasanjo II. And his reason for treating it as ancient history is nothing but
the Rule of Law!
Strict observance of the Rule of law would not permit him to append his
signature to a document that does not clearly spell out the quantities and sizes
of the pins and clips, potatoes and tomatoes, and the “pure water” sachets that
he is expected to deliver to the homes and offices of Nigerians at the end of
the year. Do you blame him? Nigerians might demand the figures later and call
for a probe if he cannot give them the figures. “Probe” is now the new fad in
Nigeria. It has replaced “Impeachment.” Trust Nigerians for their inventions and
infatuations. For now though, “Rule of Law” shares the spotlight with “Probe,”
and President Yar’Adua is not about to give up on his own infatuation anytime
soon.
Now, what don’t the lawmakers understand about his rule of law mantra? Do they
need a retreat or training workshop for that too in Ghana or Cuba or Katsina to
be sponsored with another N10 million from the Ministry of Health, Education, or
Justice perhaps, this time around? I don’t get it. Anyway, Mr. Aondoakaa has
summoned them to the Supreme Court to undergo some tutorial on Rule of Law, just
in case they are too dense to understand this simple Yar’Aduan brainwave
formulation that could win him the Nobel Prize for Legal Theory. Don’t tell me
there is no Nobel Prize in that category. They will create one for our
President! And don’t tell me also that Mr. President is the formulator of the
Doctrine of Rule of Law. At least he re-invented it in Nigeria where it was
never known before the advent of Yar’Adua. He brought rule of law to Nigeria and
opened our eyes to its dazzling beauty that has been mesmerizing the Olisa
Agbakobas and Akaasse Aondoakaas in Nigeria. He deserves to be honored with a
Nobel Prize in Legal Theory.
So much for President Yar’Adua’s invention, sorry, re-invention of the doctrine
of rule of law, and his possible candidacy for the Nobel Prize on account of it.
If I understood Mr. President correctly, he is afraid of giving his consent to a
document that looks more like a booby trap than his first national budget.
Suppose he signed the general budget only to be presented later with the
itemized breakdown, which like a typical United States budget, is loaded with
alien items (earmarks) that he didn’t bargain for in the first place? Then it
might be too late to do anything about it and he will be stuck with implementing
a budget that he might not have agreed to, at least with respect to certain
particular items.
And this brings me to the crux of this piece: While not taking sides in the
budgetary impasse, it’s pertinent to ask Mr. President: (1) if the budget he
initially presented to the National Assembly contained a breakdown of the main
heads; (2) If the answer is yes, whether the National Assembly unilaterally
removed the breakdown of the main heads, and he is merely seeking to have them
restored in the amended version. Anything short of a ‘yes’ answer to the above
questions is fatal to Mr. President’s case because he cannot seek what he,
himself, did not present in his own budget to the National Assembly.
Thus, if his initial budgetary estimates did not contain a breakdown of the main
heads in the sectoral allocations, it would be questionable as to why Mr.
President is raising that issue now as a reason for withholding his assent. It
becomes even more questionable when it is realized that Mr. President did not
raise the issue of budgetary breakdown when he withheld his assent the first
time. He only raised the issue when the amended budget was re-presented to him a
second time. Is somebody telling us that there was sectoral breakdown in the
first budget and none in the second one causing Mr. President to raise the
alarm? I don’t think so. This sounds more like an afterthought than a genuine
and valid reason for withholding presidential assent. This, however, is without
prejudice to the President’s legitimate objection to the requirement AGF and CBN
Governor’s briefing of the Assembly in the course of the budget implementation
as being demanded by the National Assembly.
Yet there is a larger issue involved here that has bearing on our constitution,
and therefore the rule of law. By our constitutional arrangement our national
budget is a product of two institutions—the executive and the legislature. This
is because a budget is a statute which, like every other law, must have the
imprimaturs of both the legislature and the executive branches of government in
order to have the force of law. And like every other law, its implementation
lies in the hands of the executive branch with concurrent oversight by the
legislature.
However, it must be pointed out from the outset that not every law imposes an
obligation on the executive to implement its provisions to the letter. Examples
are our criminal laws: A police officer, for instance, is not obliged to arrest
a criminal even if he thinks a crime is being committed right under his nose.
This is because the powers of arrest vested in law enforcement agents are
discretionary in nature and not at all obligatory. In the same token, a
prosecutor is not obliged under our laws to prosecute an accused person even
where he thinks the accused has committed a crime.
Like the law enforcement agent, his prosecutorial powers are discretionary
rather than obligatory. And so, even in cases where prosecution is already
underway such prosecution could be discontinued at any stage before judgment is
delivered through the process of Nolle Prosequi. In point of fact the
constitution specifically vests in the Attorney-General of a State and the
Federation, the power to initiate, continue and discontinue the prosecution of
any criminal case within jurisdiction no matter the gravity of the offense
involved. This power was recently exercised by the Attorney General of the
Federation (AGF) Mr. Aondoakaa in Orji Kalu’s case notwithstanding widespread
public outcry against it. There was nothing anybody could do about it. It’s the
law of discretion!
While many may question the rationale for such discretionary powers, it is
important to keep in mind that there are certain political and humanitarian
cases the prosecution of which, in connection with other related matters, could
damage the image of the country. Sometimes, it’s politically inexpedient to
initiate, continue, or otherwise proceed with such prosecution. Certain cases
are so highly political even where crime is involved that the authorities might
find it a whole lot better to discontinue them for political reasons and
discretion is at the heart of such powers.
The position in law is no less so in the case of a budget. Though dressed up as
a statute, the implementation of a budget is no more obligatory on the part of
the executive than its oversight is obligatory on the part of the legislature.
In other words, the implementation of the provisions of a budget is by law, a
matter of discretion save of course for recurrent expenditures such as personal
emoluments and other benefits. As such, the President cannot be legally held
accountable for lack of budgetary implementation, although it might be
politically unwise and imprudent not to implement the budget or parts thereof.
What is the legal proposition here? Here it is: A budget is essentially a series
of political-cum-developmental propositions the implementation of which is
contingent upon a set of assumptions and projections that may or may not
materialize in future, the failure of which implementation is not justice-able
and therefore, not legally enforceable. Thus, neither a President nor a governor
can be legally or judicially sanctioned for not implementing particular
budgetary provisions because no budget can be fully implemented even if all the
projections and assumptions underlying it come to pass.
That is not to say that the legislature cannot sanction a non-performing
executive who refuses to implement the budget or parts thereof through
impeachment or by ordinary motion as the case might be. But impeachment is
essentially a political rather than a legal or judicial weapon to be wielded
against the executive in appropriate cases, which itself is discretionary.
This being the case, President Yar’Adua’s fears that he might incur some legal
sanction down the road for not implementing particular items that might later
show up in the budgetary breakdown after giving his assent to the main budget,
are totally unfounded. Worse still, using such fears to arrest the budget, and
therefore, the timely execution of capital projects contained in the budget is a
cardinal political sin even if it’s not legally sanctionable.
The arrest of the 2008 budget is an arrest of Nigeria’s development for the
year. Except contracts for capital projects have already been signed behind
closed doors even before the budget is signed into law, there is no way any
capital project contained in the 2008 budget will see the light of day in 2008.
In the end the unspent budgetary provisions will be returned to the treasury to
be recaptured in the 2009 budget, if not shared by Ministers and directors like
Prof. Grange and her co-travelers were alleged to have done in the Ministry of
Health, and the circus show goes on ad infinitum.
Nigerians cannot afford this hide and seek game being played by Mr. President
and the National Assembly. This ping-pong is not in the interest of the people
and government of Nigeria. Nigerians must demand a halt to this. And I dare say
that a government that is in a hurry to develop must not be caught dragging its
feet in the name of rule of law in a bogus case like the national budget.
Yar’Adua can indeed, proceed to implement the budget as is to the best of his
ability regardless of his objections to some of the provisions while the Supreme
Court does its part. But while at it, the nation’s business must not wait for
the Supreme Court.
Yar’Adua’s fears have no basis whatsoever in law and in fact. That he is willing
to use alleged absence of budgetary breakdown as a reason to arrest Nigeria’s
development at this point in time when Nigeria is sliding fast into the dark age
under his watch is, to say the least, unpardonable. It’s amazing that Mr.
President wants to know the budget for every pin and clip in the budgetary
estimates before giving his assent. That amounts to micro-managing and it’s not
the Presidents’ job to micro-manage the economy. His duty is to institute and
implement broad policies that are captured in the budget and shouldn’t seek to
know how many brooms are provided for in the budget for cleaners in the
ministries. That’s taking budgetary practice to totally absurd levels that are
ultimately unproductive. Could it be that was what Mr. President was doing in
Katsina state which left underdeveloped while leaving billions of naira in the
state coffers?
There must be more to the presidential veto than meets the eyes. And I would
urge the National Assembly to override the veto immediately if there is no
breakthrough with the executive branch in the coming days, not weeks.
That Mr. President has allowed his first full fledged budget to suffer this
cruel fate is a sad commentary on his leadership style and his commitment to his
development agenda, as publicly espoused. It’s clear that for whatever reasons,
Mr. President is not overly in a hurry to deliver on his election promises and
has instead taken a flight in legalese. That would explain why there is still no
declaration of a state of emergency in the power sector almost one year after
his inauguration, even after his Power Supply Commission has submitted its
report to the President. That would explain his dithering in privatization and
the war on corruption. He is just taking his time as if he has all the time in
the world to implement his agenda, forgetting so early that he has a term
certain which runs out in just three years.
The reader may take this as the opening salvo for my forthcoming assessment of
the Yar’Adua administration on his one year anniversary. I hope though, there
will have been some significant movement on budget implementation before then.
Unfortunately, all indications so far, point in the opposite direction. Budget
2008 is fast becoming a still-born child of the Yar’Adua administration. And for
a first child, that is no fun but a bad augury. And even in the unlikely event
that the budget is presented to and signed by the President today, the prospect
for its implementation is, at best suspect, and at worst gloomy. Without mincing
words, the situation does not augur well for this administration and the nation.
It’s all well and fine to protect executive turf from legislative encroachment,
but I would call on Mr. President to eschew undue legalism and do the people’s
job for which he was elected.
God Bless Nigeria!
Franklin Otorofani, Esq. is a Nigerian Attorney resident in the United States
Contact: mudiagaone@yahoo.com
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