Yakubu Dogara: Is Budget Padding a Criminal Offence? | Independent Newspapers Limited
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Yakubu Dogara: Is Budget Padding a Criminal Offence?

Posted: Aug 11, 2016 at 8:06 pm   /   by   /   comments (0)

For nearly a month now, the news media in Nigeria has been seized with the seeming interminable buzz of corruption allegation brought against the Speaker of the House of Representative, Mr. Yakubu Dogara, by an aggrieved colleague, who accused him of budget-padding. In this piece, STEPHEN UBIMAGO reflects the view of two senior lawyers on whether budget  padding is a crime for which Dogara may be liable to a jail term…

Sacked Chairman House Committee on Appropriations, Mr. Abdulmumin Jibrin from Kano State, is said to have made damning allegations against House of Representatives Speaker, Yakubu Dogara.

He accused the Speaker of padding the Appropriation Bill presented to the House for passage into law to the tune of N281 billion, taking over N9 billion to his Bauchi State constituency alone.

He also accused Dogara of taking N25 million every month from the accounts of the National Assembly.

He therefore called on the anti-graft agencies, namely the Economic and Financial Crimes Commission (EFCC); the Independent Corrupt Practices and Other Related Offences Commission (ICPC) as well as the Directorate of State Service (DSS), to commence investigation of the man, while in the meanwhile the Speaker should vacate office to allow for proper investigation of the allegations.

Jibrin, like many other Nigerians, had criticized Dogara for saying budget padding is not a crime for which he should resign to allow investigation to be conducted into the allegations against him.

But Jibrin is not without well-placed sympathizers.

For example, Senior Special Assistant to the President on National Assembly Matters (Senate), Senator Ita Enang, was recently quoted as taking the words from Dogara’s mouth when he said, “There is nothing, to our knowledge, like padding of the budget. The budget, as assented to by the President, is the budget passed by the National Assembly and it is being executed.

“In all our years of legislative engagement, we have yet to find in the legislative lexicon the word, ‘padding.’

“When the budget is presented before the legislature, the legislature is to consider the budget and pass as it deems fit.

“So, what the legislature passes becomes the Appropriation Act upon assent. Therefore, any word which has yet to crystallize in legislative lexicon, you cannot hear us mention it.”

Needless to say that many Nigerians have continued to feel a certain sense of being flayed and left to pine away on the pyre ever since Jibrin’s allegation against the Speaker broke.

In this connection, former President Olusegun Obasanjo reflected their frustration before newsmen a fortnight ago, when he called members of the Parliament mere rogues and robbers.

Worthy of note, however, is that the allegation against Yakubu Dogara is coming at a time many believe that even the budget was dead on arrival, considering that government has hardly ceased to complain that owing to the sharp fall in revenue from crude export due to oil price crash in the international market, plus the activities of so-called Nigeria Delta militants that have brought crude export to all-time low, the government is starving of funds required for working the budget as appropriated.

The allegation is also coming on the heels of an antecedent history of budgetary non-performance year-on-year. It is said that at no time in the recent past has budget performance in Nigeria been above 30 percent.

Be that as it may, the question that has arisen against the foregoing backdrop is: has the Speaker indeed committed any criminal offence known as or analogous to budget-padding for which he should be investigated; prosecuted and sent to jail if convicted?

In an exclusive chat with the Independent, former Nigerian Bar Association (NBA) President and renowned lawyer, Dr. Olisa Agbakoba said, Jibrin had made a mountain out of a molehill.

His words: “The National Assembly has the power to tinker with the budget, because the Parliament is not a robot for rubber-stamping any bill forwarded to it by the executive.

“One of the ways by which it could do this is to refuse to pass the budget as forwarded to it by the executive unless and until the executive reflects their wishes in the budget upon their formal request to that effect.

“If you recall, this sort of thing did happen in the United States during the presidency of Bill Clinton when the Congress bluntly refused to pass the Appropriation bill into law on account of the fact that the then US President failed to align the budget in such a way as to comply with certain wishes of the Congress.

“And if you recall this went so far as to starve the government the money it needed to function during the period until they found a solution to the impasse.

“Let me also add that when it comes to the budget for the National Assembly, it is not the Executive that does the appropriation for the Parliament. Rather, it is the National Assembly that does it own estimation.

“This is consistent with the constitutional provision that puts the expenditure of the Parliament on first line charge on the Consolidated Revenue Fund.

“It is the same with the Judiciary. The idea is to guarantee their independence.

“Unfortunately the Executive is still in the bad habit of making the budgetary estimate for the judiciary in contravention of statute and the judgment of a competent court of law.

“You would recall that I approached the court in this respect and even won the case wherein the court held that the judiciary is an independent arm of government and hence its budget should constitutionally be in the charge of the Consolidated Revenue Fund just like that of the executive and legislature.

“This means that the judiciary ought to raise its budget and submit directly to the National Assembly for approval independent of executive review.

“The Executive is only to raise its own budget and not that of the legislature or the judiciary.

“Keeping that in mind, on the question whether the National Assembly can tinker with the budget. Yes, directly, if it is its own budget for its own expenses for the fiscal year. It has absolute latitude here.

“Respecting the budget of the Executive, also yes but that is indirectly, by way of a refusal to pass the Appropriation Bill into Law unless and until the executive reflects its considered wish over certain items in the budget.

“On the issue of Constituency project, let me let you know this: it is not unique to Nigeria. You, for example, have an analogue of it in the US. It is called Pork barrel politics.”

Pork barrel is a metaphor for the appropriation of government spending for localized projects secured solely or primarily to bring money to a representative’s district. It is a technical term regarding legislative control of local appropriations.

“So, this hullabaloo about Rep. Jubrin trying to call out Speaker Dogara is unnecessary” Agbakoba stressed, adding, “But if you know politicians, you would observe that they always want to do things that would ultimately benefit them. I think the whole noise the guy is making is a self-serving, playing to the gallery gambit.”

Speaking in a rather tenuous departure from Agbakoba’s position, a lecturer at the Faculty of Law, University of Lagos, Mr. Wahab Shittu, said: “Budget Padding may be understood particularly where there are insertions into the budget or mutilations of the budget without the consent of the owner of the document (the president) or with intent to betray the initial objectives of the budget preparation.

“However, padding of the budget may not be established except it is shown that the budgetary process is either broken, corrupted or compromised.  This may have introduced the element of proof.  What proof?

“First it is important to find out the motivation for such insertions i.e. whether designed to defeat the objectives of the budget as laid before the national assembly by the president.

“Secondly, it must be shown that the act of insertion or mutilation was actually carried out by the national assembly and the persons involved in the illegal insertions or mutilations of the budget.

“Thirdly, whether the acts complained of was successful? And the last ingredient is the benefit derived from the process by the beneficiaries.

“It will also be useful to determine whether the culprits carried out the exercise without the knowledge of the body of the National Assembly as a whole as such a scenario will confirm its illegality.

“Except it is shown that the select few acted in defiance of the majority of the National Assembly, it may be difficult for the National Assembly to vote something and it is regarded as padding.”

The point to be gleaned from the submissions of Agbakoba and Shittu is that if the so-called padding bears the imprimatur of the House as a whole, then the action may not be said to be offensive.

But where it is undertaken by an individual stealthily and behind the knowledge and approval of the House as a whole, but for the accumulation of private benefit, then an offence may be said to have arisen which “may be likened to corrupt practices similar in nature to such offences as abuse of office, attempt to embezzle, diversion and misappropriation of public funds, conspiracy to act corruptly and illicit enrichment – all of which offences are recognized under United Nations Convention against corruption to which Nigeria is a state party.”

He added: “A clear scrutiny of legislations such as Corrupt Practices and Other Related Offences Act, Economic and Financial Crimes Establishment Act (EFCC) and Fiscal Responsibility Act respectively would reveal further offences that could come within the framework of budget padding.”

Born to Yakubu Ganawuri and Saratu Yakubu on December 26, 1967, Speaker Yakubu Dogara obtained a Bachelor of Laws (LLB) from the University of Jos in 1992.

Upon concluding his studentship at the Lagos campus of the Nigerian Law School, he was called to bar in 1993.

He later obtained a Master of Laws (LLM) in International Commercial Law at Robert Gordon University, Aberdeen, Scotland.