Spending without appropriation, by Eze Onyekpere



The recent revelation that President Muhammadu Buhari authorised the release of $496 million from the Excess Crude Account (“ECA”), without legislative approval, for the purchase of Tucano aircraft is trending. The president merely got the approval of the governors through the National Economic Council, NEC, for the withdrawal from the ECA, considering that it is an account owned by the entire federation, consisting of the federal, states and local governments. This is a development with grave implications for constitutionalism, separation of powers and the rule of law.

Media reports indicate that the president, in a letter dated April 13, 2018 had written to the National Assembly seeking the inclusion of the $496 million in the 2018 federal budget currently pending before the National Assembly, after he had given anticipatory approval for the release of the money. The trajectory of events shows that the NEC approved the withdrawal in December 2017, about one month after the president sent the 2018 federal budget to the National Assembly. Snippets of the transaction were heard in January and February 2018, and later at the beginning of April 2018. They were all about whether the money for the payment of the aircraft had been released by the federal government and or whether the federal government had made a firm commitment without getting the National Assembly’s approval. The minister of defence, Dan-Alli, indicated that the money had been spent, while the senior special assistant to the president on National Assembly matters denied that the money had been spent without legislative approval. He further recited the very well-known provisions of the 1999 Constitution on the exclusive powers of the legislature in respect of appropriation.

According to media reports, part of the letter of April 13 reads: “In the expectation that the National Assembly would have no objection to the purchase of this highly specialised aircraft, which is critical to national security, I granted anticipatory approval for the release of US$496.374.470.00. This was paid directly to the treasury of the United States. I am therefore writing seeking the approval of this House…. The balance of the requirements for critical operational equipment is still being collated from the different security services and will be presented in the form of Supplementary Appropriation Bill in due course”. The purport of this letter is that for a period of four months after the NEC approval, the president, the minister of finance and the minister of budget and planning failed, refused and neglected to take any steps to bring the request for the purchase of the said aircrafts to the National Assembly. This shows tardiness on the part of the executive, as a four-month interval was long enough to draw the attention of the legislature to the need and its urgency. The tardiness is further reinforced by the letter’s indication that four months down the line, the defence authorities are still collating the needs of the security agencies for a mere US$1 billion.

By this development, the president had effectively combined executive and legislative powers, since the money has already been paid. What purpose will the legislative decision serve if the president had already given the approval by paying for the transaction? In effect, the hands of the legislature have been tied. Assuming that the legislature decides to reject the transaction, what will happen to the resources already committed? Does this not amount to executive blackmail of the legislature, considering that the president in his letter already knew the mind of the National Assembly? Should the legislature reject this blackmail, would they not be open to the public charge of frustrating the war against insurgency and criminality across the federation?

The concept of anticipatory approval is unknown to Nigeria’s constitutional jurisprudence. What the relevant sections of the Constitution (section 80-83) require is authorisation before expenditure. Any expenditure made without legislative authorisation is unconstitutional, null and void. It clearly offends the rule of law because the authorising agent outside of the legislature is unknown to law. Again, it stifles the separation of powers if one arm of government overreaches itself by combining the duties of two arms. The above letter of the president to the legislature seems to be an afterthought, rather than a normal way of expending money in government.

Can the president be heard to plead that an emergency situation arose? If there was an emergency, the natural thing to do was to rush a request to the legislature with a plea for expedited consideration of the request. This was not done. What is the emergency in aircraft that would be supplied in 2020? It is not that the supplies will come immediately to energise the war against insurgency. What is the emergency if discussions for the procurement of these aircraft started in the President Jonathan era? Alternatively, was the president advised or under the mistaken belief that he could spend money from the ECA without legislative approval? If it is true as another media house wants Nigerians to believe that the president was wrongly advised, it implies that he is surrounded by incompetent advisers who do not mean well for the country.

Going forward, the National Assembly should deliberate on the president’s letter and request the president to show cause for spending without appropriation in violation of the constitution. If the response of the president is good enough, they should then proceed to the second phase, which is to review the terms of the sale agreement and weed out conditions that do not favour our country. They should send a strong message to the president that on no condition would this be tolerated in future. There are already signs of anarchy and lawlessness in the security sector, and we should not allow same to repeat in the fiscal sector.

This development provides the opportunity for the National Assembly to reaffirm the process and procedure for withdrawals from ECA and similar funds. Fiscal governance is at the core of good governance and indeed is central to the welfare of citizens and development of society. The expectation is that our resources should be managed and spent in accordance with constitutional stipulations.

Onyekpere is the lead director at Centre for Social Justice.

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