By Prof. R.A.C.E Achara
It is slightly misleading to say that so-called budget-padding is a crime and to cite any section of our various codes on crime as justification for this somewhat legal heresy.
The budget is sent by the executive to the legislature as generally an itemised list of expenditure items to be funded by identified sources of income and debt.
The legislature transforms this financial proposal and plan into an appropriation legislation where it accepts, rejects or alters up and or down the said financial plan proposed by the executive.
As a passed legislative bill, this appropriation statute is sent back for endorsement to the relevant chief executive.
If the chief executive gives assent to this possibly “padded” output, it becomes law. If not, the passed bill is deemed to be vetoed and dead.
A vetoed bill is not law unless a special institution overrides the veto. This special institution is a constitution-designated super-majority of the legislature.
In Nigeria, this body consists (at central level) of at least two-thirds of the members of the bicameral legislature who vote to approve the bill in spite of presidential disapproval.
The same is the case at the level of states except for the requirement of the same ratio of a special majority being necessary from a merely unicameral legislature.
If this is the case, who can we say is the criminal? The legislature for altering upwards the estimates the executive has proposed? Or, is it the executive, for assenting to the Appropriation Act or Appropriation Law, which the legislature sent to the chief executive after rejecting the initial proposals and substituting the heads or some heads of expenditure with latitude for the executive to spend more on those items than they had originally proposed?
We must avoid the conflation of law with its abusive implementation. The constitution imposes on or empowers the legislature with lawmaking.
It is the corrupt and ludicrous politics of Nigeria that has, in recent times, offered the ontologically executive function of, as it were, implementing “constituency” projects and expending appropriated funds, to the legislature (and, potentially even more dangerously for our democracy and its citizen-protection checks and balances, to the judiciary).
Unless backed by constitutional amendment, therefore, it is the implementation by individual legislators or judges (not qua the special executive bodies set up by the constitution for them) of the projects permitted by the appropriation laws that could be criminal, not the mere increase or decrease of proposed expenditure items during the lawmaking process.
Lawyers should be careful not to misinform the general public when they offer public education on potentially misleading laws.
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
