BUDGET PADDING:- FEMI FALANA'S MISREPRESENTATION OF THE FACTS AND THE LAW- BASIL OKONKWO (OPINION)

Mr Femi Falana SAN has enjoyed unequaled public attention over the years because of his activism and principled stand on issues. When I saw his contribution on this padding subject which i have followed closely since its arrival in the public domain, I naturally picked interest. I was however shocked to read his latest piece, entitled “The criminality of Budget Padding”. I am constrained to lament that he has done himself a great disservice by manufacturing facts on the budget issue and making comments solely on facts cooked up suo moto. Based on these concocted stories dressed up as facts he posited legal comments on them rather like a layman on the street.

He claimed that it has emerged that about twenty people sat down after the Budget had been passed and inserted projects including Constituency Projects into it fraudulently. The truth, from my independent findings, is that Constituency Projects subhead or head of expenditure was included in the President’s budget proposals to the National Assembly as has been the practice in the last three years. It was not originated by the National Assembly even though it has undoubted right to do so.

I am sure that if the learned silk had adverted his legal mind to the Acts Authentication Act , 2004, he would have discovered that the only authority who can say authoritatively what the Senate and House of Representatives passed is the Clerk to the National Assembly who authenticated the copy of the Bill as correct and a true reflection of what was passed. We know that Mr Falana, who lives in Lagos is aware of “Oluwole Market” where fake documents are manufactured but that doesn’t give him the right to presume that a solemn document authenticated by the signature of the Clerk to the National Assembly is fake. The 2016 Appropriation Act has five signatories to it, Hon Abdulmumin Jibrin, Chairman House Committee on Appropriations, Senator Danjuma Goje, Chairman Senate Committee on Appropriations, Rt Hon Lasun Yusuf, the Deputy Speaker who was brought in by the National Assembly leadership to work the Executive to achieve harmony on the details of the Budget, Alh Maikasuwa, the then Clerk to the National Assembly, and finally, President Muhammadu Buhari, who assented to the Bill. Is Mr Falana seriously contending that these people endorsed a fake budget? How low can we go?

It should be noted that even Hon Abdulmumin has never claimed, in any of his statements, that the insertions into the budget were done outside the legitimate appropriation framework and process, his major claim is that some people padded more than others!! You see , he cannot say otherwise because since he, rather than even the Speaker signed the details of the budget, after due insertions and processing as allowed by law. if there is anything wrong with the signed budget he will be the first culprit. The Speaker’s signature is not contained in the budget rather it is Abdulmumin’s signature that is there!!. Indeed of the four functionaries he is accusing, only the Deputy Speaker is a signatory.

Having disposed of the fact that Constituency projects is part of Mr Presidents proposal, I will now interrogate another falsehood peddled by Mr Falana. He claimed that the National Assembly has no right to change the figures proposed by Mr President or introduce new budget items. He made no attempt to define what the Constitution means by ‘Heads of expenditure’. It may not be his fault altogether because Falana has never really set foot in any legislature, even though I recall from media reports when he was invited to address the House of Representatives in the 7th Assembly, he apparently does not know that the Appropriation Bill itself has a schedule that contains details of expenditure . It is in the body of the bill itself that the heads of expenditure are contained and even though the National Assembly can under Section 80(4) of the Constitution determine the MANNER of withdrawal from the Consolidated revenue Fund, and this includes discretionary power to add to the figures and propose new line items, it is new line items that some people confuse as heads of expenditure. In spite of introduction of certain words from the British parliamentary lexicon, Section 80(4), clearly has no equivalent in British parliamentary practice which some commentators have sought to rely on. It is indeed surprising that the utterances of Femi Falana, SAN, would seem to suggest that he lacks basic knowledge of the laws governing the budget and appropriation process.

The argument that any other law supersedes the Appropriation Act is patently unfounded. If any previous enactment is inconsistent with a later law, in this case the 2016 Appropriation Act, the later law impliedly displaces and overrides the earlier law. It is only the Constitution that cannot be overruled by a subsequent legislation.

It bears repeating for the umpteenth time that the 2016 AppropriationAct is a law of the Federation duly assented to by Mr President and Mr Falana insults Mr President when he claims that he didn’t know what he was doing when in fact he meticulously scrutinized the Budget before assenting to it. In any case, if he did not assent to the Bill , the National Assembly has power to override his veto. Undoubtedly the National Assembly has primacy in the budget process as provided in Section 59(4) of the Constitution.

Mr Falana further feigned ignorance of the provisions of Sections 3, 30 and even 24 and other enabling portions of the LEGISLATIVE HOUSES ( POWERS AND PRIVILEGES) ACT. Even though there are divergent decisions of the Courts on the constitutionality of Section 30 of the Act , it is clear that it applies in this context.

Permit me to set out the provisions of these sections as follows:
Section 3. “Immunity from proceedings:
No civil or criminal proceedings may be instituted against any member of a Legislative House—
(a) in respect of words spoken before that House or a committee thereof; or
(b) in respect of words written in a report to that House or to any committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him therein”.

Section 30. “Courts not to exercise jurisdiction over acts of President, Speaker or officer: Neither the President or Speaker, as the case may be, of a Legislative House nor any officer of a Legislative House shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by or under this Act or the standing orders of the Legislative House, or by the Constitution”.

24. “Publication of certain statements and writings an offence
(1) Any person who—
(a) publishes any statement, whether in writing or otherwise, which falsely
or scandalously defames a Legislative House or any committee thereof; or
(b) publishes any writing reflecting on the character of the President or
Speaker, as the case may be, of a Legislative House or the chairman of a Committee of a Legislative House in the conduct of his duty as such President, Speaker or chairman; or
(c) publishes any writing containing a gross, wilful or scandalous
misrepresentation of the proceedings of a Legislative House or of the speech of any member in the proceedings of a Legislative House,
shall be guilty of an offence and shall be liable on conviction to a fine of two hundred Naira or to imprisonment for twelve months, or to both such fine and imprisonment.

(2) In this section “publish”, in relation to any writing, means exhibiting in public, or causing to be read or seen, or showing or delivering, or causing to be shown or delivered, with the intent that the writing may be read or seen by any person”.

It is important to also highlight the fact that Falana’s charge of arrogant refusal by Speaker Dogara to submit himself to security agencies for investigation is not only faulty on point of law as analyzed above, but indeed faulty on facts because my inquiries reveal that, contrary to public impressions, no such agency has laid any charges or require him to submit himself for investigation. I should like to caution that while the general public may be forgiven for riding with the wind of every allegation it is incumbent that a legal practitioner enjoys no such liberty, he is bound to adopt a judicial mind in analyzing such situations so as not to submit himself to public misinformation and miseducation.

There is no doubt that the National Assembly did not go outside its legitimate lawmaking powers in the processing of 2016 Budget in spite of mischievous, ignorant and unwarranted assertions to the contrary by some loud mouthed pundits and, unfortunately, even gullible lawyers, with an agenda to derail the democratic gains achieved since 1999 by a very active and assertive legislature that has withstood the autocracy of a rampaging Executive. Attempts to weaken the legislature and render it impotent in the face of daily struggle to curb the excesses of the Executive on behalf of the Nigerian people ,will be regretted in due course especially by people like Mr Femi Falana who, having committed so much in the promotion of democracy, now appear to be aiding and abetting this course of action.

Hon Abdulmumin Jibrin’s tirades is clearly not an anti – corruption struggle but the tirades of a man who lost his job and is on a mission to destroy the National Assembly and destroy Nigeria’s image in the international community. He has become a clear and present danger to the security and stability of the country.