The Federal High Court, Abuja, has ruled that the National
Assembly has the power to increase – or review upward – budget estimates laid
before it by the executive.
This followed a suit by popular advocate, Femi Falana, in
which he listed the President, the Attorney-General of the Federation, the
National Assembly and the Auditor-General of the Federation as respondents.
The Plaintiff (Falana) had asked the Court to determine four
questions whether;
1. By Section 81 of the Constitution, the National Assembly
can increase or review upward any aspect of the estimates of the revenues and
expenditure of the Federation for the next financial year prepared and laid
before it by the Executive;
2. By Section 85 of the Constitution, the National Assembly
can audit public accounts of the Federation, appoint auditors for statutory
bodies or conduct periodic checks of all government statutory corporations,
commissions, authorities, agencies, including all persons and bodies
established by an Act of the National Assembly in any manner whatsoever and
howsoever;
3. By virtue of sections 88 and 89 of the Constitution, the
National Assembly can summon corporate bodies and private individuals while
conducting an investigation into any matter, and;
4. By virtue of section 214 of the Constitution, NASS can
probe or investigate the allegations of corrupt practices, fraud, murder and
other criminal offences committed in statutory corporations, commissions,
authorities, agencies, including all persons and bodies established by an Act
of the National Assembly in any matter howsoever.
He, therefore, prayed the court to declare unequivocally
that by virtue of the stated sections, the legislative arm cannot increase
budget estimates, or audit accounts of the Federation (or appoint auditors to
do same), summon corporate bodies and private individuals while conducting an
investigation into any matter, or probe/investigate allegations of corruption,
fraud, murder and other criminal offenses committed by public officers,
corporate bodies and individuals in Nigeria.
He also sought an order of perpetual injunction restraining
the Parliament from increasing budget estimates laid before it by the
Executive, auditing or appointing auditors to audit accounts of statutory
bodies and public accounts of the federation or from conducting periodic checks
of the accounts of government statutory corporations, commissions, authorities,
agencies, including all persons and bodies established by an Act of the
National Assembly, and restraining NASS from probing or investigating
allegations of corruption, murder and other criminal offenses committed by
public officers, corporate bodies and individuals in Nigeria.
Judge Gabriel O. Kolawole, in his ruling, stated that the
questions as posed by Falana’s counsel, bordered on interpretations of the
specific provisions of the Constitution which relate to the exercise of the
National Assembly’s constitutional legislative powers, and that the essence of
the suit is that NASS, under the guise of exercising oversight functions,
usurps executive powers; an assertion which the judgment subsequently
nullified.
He stressed that the Nigerian Constitution, which is modeled
largely after that of the United States, has “as its underpinning principle,
the constitutional doctrine of separation of powers”, and that sections 4, 5
and 6 of the Constitution clearly state that the machinery of the government of
the federation at both federal and state levels, is predicated on three equal
and coordinate arms of government, i.e. legislature, judiciary and executive.
He also observed that the drafting of the Constitution makes cooperation
between all the arms compulsory, as, by design, none can operate by standing
aloof of the others, and his gives rise to the need for checks and balances,
which would help prevent dictatorship, as certain powers by an arm of
government are subjected to review or ratification by another.
The judge, in his verdict, further noted that the whole
purpose of sections 81, 85, 88 and 89 is to ensure that Executive and agencies
under its control are subjected to some form of oversight by Parliament, and
that since the National Assembly is constitutionally empowered to appropriate
funds to be expended for the running of government, it therefore has powers of
oversight to ensure those appropriated funds are properly administered.
“The legislature and the executive are subject to the
interpretative jurisdiction of the Court as to the constitutionality or
otherwise of the exercise of their respective powers”, he said, stressing the
fact that it is the Judiciary which has the constitutional responsibility of
preventing both arms of government from committing infractions of provisions of
the Constitution.
Addressing questions put to the court by Falana, the Judge
stated that “the National Assembly was not created by drafters of the
Constitution and imbued with the powers to receive ‘budget estimates’ which the
first defendant is constitutionally empowered to prepare and lay before it, as
a rubber stamp parliament. The whole essence of the budget estimates being
required to be laid before Parliament is to enable it, being the Assembly of
the representatives of the people, to debate the said budget proposals and to
make its own well informed legislative inputs into it.”
With regard to the question concerning the powers of the National
Assembly to audit public accounts or appoint auditors, the Judge stated that
while the Constitution does not explicitly grant this power, “in so far as that
duty is vested in the Auditor-General of the Federation, Parliament still
retains legislative oversight powers over the AGF even in respect of these
matters.”
On whether legislators can summon private citizens, the
Court also ruled that “when Parliament exercises powers to summon private
corporate bodies in contrast to public bodies, or where it summons a private
citizen, the inquiry it is going to conduct must be such that it is within
legislative competence”, i.e. relating to matters contained in the Exclusive
Legislative List, on which Parliament can legislate and/or amend existing laws.
On investigative powers, the court ruled that Parliament
can, via resolutions, “direct agencies of government to conduct investigations,
and where this is done in the legitimate and bona fide exercise of its
constitutional legislative powers, to turn its reports to such agencies to aid
them in their own investigations with a view, not to merely expose corruption,
but to prosecute those found culpable.”
All seven reliefs sought by Falana against the National
Assembly were, thus, not granted.
The judge further stated that; “no Court of law created and
established pursuant to the provisions of the Constitution, 1999 as amended, in
the legitimate exercise of its undoubted jurisdiction as the guardian of the
Constitution and on the basis of the doctrine of separation of powers enshrined
in the Constitution, can prospectively grant the restraining orders sought by
the plaintiff (Falana) against the 3rd Defendant (the National Assembly) as the
Legislative Arm of the Government of the Federation.”
The case, with number FHC/ABJ/CS/259/2014, was initiated in
2014, and judgment was issued in March, 2016 and was not appealed by any of the
parties.
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