AN illegality remains one no matter how ennobling its purposes may be. It is worse when the illegality is a wanton affront on sections of the Constitution.
President Umaru Musa Yar’Adua’s proposed power emergency plan falls fully into the sort of unconstitutionality that Olusegun Obasanjo promoted in his eight-year presidency.
The President claims he has agreed with the 36 state governors to withdraw $5 billion from the Excess Crude Oil Account Fund, an illegality Obasanjo created to warehouse funds, in excess of the budget benchmark for the sale of crude oil. The funds are outside the control of the National Assembly, illegal and prone to abuses.
Sections 80 and 81 of the 1999 Constitution are extensive on federal revenues. According to Section 80 (1) All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation.
(2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorised by an Appropriation Act or an Act passed in pursuance of Section 81 of this Constitution.
(3) No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of the moneys has been authorised by an Act of the National Assembly.
(4) No moneys shall be withdrawn from the Consolidated Revenue Fund or any other fund of the Federation, except in the manner prescribed by the National Assembly. Under Section 81, the President must present his budget to the National Assembly for approval. The President or governors have no constitutional powers to appropriate the Consolidated Revenue Account of the Federation, under any guise. With Sections 120 and 121 of the Constitution, governors cannot expend or allocate state funds outside the approval of their state Houses of Assembly.
Section 162 (3) states: “Any amount standing to the credit of the Federation Account shall be distributed among the Federal and state governments and the local government councils in each state on such terms and in such manner as may be prescribed by the National Assembly.
The Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC), has limited powers to appropriate federal funds. Its legal powers are in the confines of the revenue sharing formula. RMAFC’s proposal that the surplus revenue from crude oil sales should be invested in infrastructure is good, but it is not legal.
RMAFC must distinguish between revenue allocation and budgeting. Its proposal confuses both. Any agreements that scuttle Sections 80, 81, 120, 121 and 162 would amount to illegal amendment of the Constitution.
The current setting raises serious doubts about any deep thinking behind the power emergency, which has been in the works for more than 18 months. If the President wants to fund it illegally, what about his trumpeted respect for the law? Nigerians want improved electricity supply, and more. However, unconstitutional application of the federation account to achieve this purpose is illegal, diminishes our democracy and delays compliance with the law.
Options abound. The President should have the entire money left in the Excess Crude Oil Account to be shared among the various tiers of government. These tiers of government, relying on agreements, will appropriate the money through their legislative houses as their stake in the national power programme. It is a form of lending to the Federal Government.
If this is too cumbersome, the President can present a bill to the National Assembly for permission to borrow $5 billion for electricity. It will get accelerated passage and the President can execute his programme legally.
The National Assembly must stop this glaring illegality and spare us probes, years on, to unearth how Yar’Adua abused Sections 80 and 81. If the National Assembly checked Obasanjo, it would have saved scarce public resources now being wasted in probing breaches of Sections 80, 81 and 162, which the National Assembly conveniently ignored for eight years!
