Stella Dimoko Korkus.com: Is budget Padding An Offence?:Lawyers Split Over Allegation

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Sunday, 7 August 2016

Is budget Padding An Offence?:Lawyers Split Over Allegation

Is budget padding an offence? Two Senior Advocates of Nigeria (SANs) Mallam Yusuf Ali and Sebastine Hon, a constitutional lawyer, believe it is not.
To them, it can only amount to an offence if the appropriation bill as passed by the National Assembly is signed into law by the President.




But a former Ikeja Branch chairman of the Nigerian Bar Association (NBA), Mr. Monday Ubani, University of Lagos (UNILAG) law teacher Wahab Shittu and Lagos lawyer, Fred Agbaje, are of the opinion that budget padding, even when not passed, constitutes not only an offence, but a violation of the constitution.


They spoke in separate telephone interviews in reaction to the statement made on Friday by Speaker Yakubu Dogara of the House of Representatives that budget padding does not violate any law of the land.

Ali said: “Padding means ‘adding to’. A budget is incomplete until it is passed and assented to by the president or governor.
“For now, it’s a bill, that’s why it’s called budget proposal. It’s not an act or law yet. The budget proposal is like any other bill to be passed into an act.
“If, for instance, the executive sends the Petroleum Industry Bill to the National Assembly, must it be passed the same way it was sent? Can they not alter some sections, as is done during public hearings? Will that be padding?

“The legislature is not bound under the constitution to pass a bill the way it is presented, either by a member or by the executive.
“You can’t say a budget has been padded except people inserted new things after the president assented to it, in which case they’re changing the texture of the law.

“What will amount to an illegality is when a bill has been passed into law and anybody now adds to it after it has been assented to. It’s like changing the sections of a law that has already been passed. That’ll be an offence.
“A budget proposal can be deducted from or added to. The total figure of a budget proposal may increase or decrease.

“More than any other thing, there’s nothing like the offence of padding under our law. For me, we should leave politics and sentiments and deal with the law.”
Hon holds a similar view, saying the House of Representatives leadership did no wrong by adding to the budget.
His words: “Section 81 (1) of the 1999 Constitution provides that the President shall lay before the National Assembly the estimate of expenditure and income, that it, the budget for the following financial year.


“Laying the estimate before the National Assembly does not contemplate that the estimate must be passed as laid. It contemplates that the National Assembly can deliberate on it, and in doing so can easily add or subtract from the estimate. Indeed if the National Assembly adds to, it can’t amount to padding of the budget or a crime. There’s no crime known to law as budget padding.
“Sections 36 (8) and (12) of the Constitution are to the effect that no person shall be punished for a crime not known to law. So, there’s never a crime known as budget padding.


“And the National Assembly is not a rubber-stamp assembly as to swallow hook, line and sinker what the President has sent to them. They deliberate on it and make input. That is why they’re part of the Federal Government of Nigeria.
“We should be very wary of bringing down persons and institutions in this country.”

But Ubani, the NBA Vice President-elect, believes there was a criminal intent in the bid to add to the budget.
He said: “The point is that if a certain amount of money is provided for, maybe for the building of road, and the amount of money provided by the executive is N20, and then you add N10 to it, there’s a criminal intent.
“If the budget is passed, that N10 you added becomes your own. You know how to get the money out because they know that the money is disbursed to members of the National Assembly.


“By adding that amount that was not meant for the road, there’s a criminal intent. Or that you add a certain amount of money for a heading that is not provided for by the executive, contrary to the provisions of the Constitution, that’s even unconstitutional.
“We must define who has the right to table before the National Assembly the estimate and income for the year. It is that of the executive. What the House needs to do is to appropriate. It’s either they add or reduce.
“But to add what is different from what the executive brought before them is clearly unconstitutional and to me it’s criminal.


“You have no right to do what the law does not provide for. What they can only do, if they want constituency projects, is to route it through the executive, which will insert it in the bill and present it before them.
“It’s not for them to add, and most times they add these things for own interests not for the nation. All those sums that have been provided for constituency projects, if they had been using them, by now our constituencies would have been eldorado, but they put the monies into their provide pockets. So, that’s why it’s criminal.

“I don’t think that Dogara should even say things like that (that it’s not an offence). In doing that, he’s provoking Nigerians the more. And that’s the impunity that we experienced under PDP.
“Even though we know most of them came from PDP, we don’t want such things to continue under this dispensation, especially under the mantra of change. It’s very unfortunate.”
Shittu said the issue as to whether budget padding is an offence is not debatable.
“There’s no doubting that budget padding is not only an offence, but a gross offence that is in violation of the Constitution.


“When you insert into a budget that is supposed to be laid by the executive matters that are alien to the budget, you have altered the character of budget as presented to you in a manner not contemplated by the person who initiated the document.
“And if you do that without consent and due procedure, and without following constitutional provisions, you have committed a crime – a breach of the constitution which is also gross misconduct.


“The issue as to whether it’s an offence is not debatable. Whether he (Dogara) is guilty of padding is another issue, which is a function of proof.
“I think he should rather say he’s not involved in padding rather than say that padding is not an offence. They should not continue to insult our intelligence,” Shittu said.
Lagos lawyer, Fred Agbaje, said Dogara and his supporters in the House of Reps have no respect for morality.
“What they did is totally unlawful and unconstitutional and must not be allowed to stand at all,” he said.
He added: “It is only the president that has the constitutional right to add and subtract anything from the budget. Therefore the addition by the House of Reps which was clearly with the intent to steal is criminal. It is the height of dishonesty and another name for it is fraud.


“I expect the Attorney General of the Federation ably represented by the EFCC and the Inspector General of Police to go after the leadership of the House of Reps. By now they should be fighting to get bail. I read through the papers that the Federal Government wants to intervene.


 This is absolutely wrong. We’re not under the leadership of the Peoples Democratic Party (PDP) who may want to consider such acts of criminality a family affair. If the Federal Government fails to act appropriately, it will be a serious dent on the fight against corruption.”


Source: nation

14 comments:

STARRY LARRY said...

Abeg, it's an offence




*Larry was here*

Anonymous said...

I dont even understand some SANs these days self. Biko what is Budget Padding. For selfish reasons we have coined a word budget padding , when lawyers know the right word is CONSPIRACY. NSOGWU DIKWA. any way this is my view- What is Conspiracy?

This simply means a secret plan by a group of people to do something harmful or illegal. For there to be conspiracy, there must be an agreement between two or more persons to prosecute an unlawful purpose through an unlawful means.

According to the provision of S.516 of the Criminal Code, anyone who conspires to commit a felony would, except another punishment is provided, be liable to imprisonment of seven years. If the felony to be committed is one that has a punishment that is less than seven years, that would be the punishment for the conspiracy.

If the conspiracy is done regarding an act which is not a felony, S.517 CC provides that such persons would be liable for a misdemeanour and would be imprisoned for two years. It should be noted that an offender for the offence of conspiracy cannot be arrested without a warrant.

This was the position in the case of Sule vs The State 2009 Vol 17 NWLR pt 1169 wherein Ogbuagu JSC had this to say on conspiracy:


“… An offence of conspiracy can be committed where persons have acted either by an agreement or in concert. A bare agreement to commit an offence is sufficient. The actual commission of the offence is not necessary.

Thus, conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related…”

Also, Philip Johnson in his book, The Unnecessary Crime of Conspiracy, defines conspiracy as:


“… An inchoate or preparatory crime permitting the punishment of persons who agree to commit a crime even if they never carry out their scheme or are apprehended before their objective…”
I got the conspiracy definition from the net.
Lets us stop decisiving ourselves. Yes it is a bill yet to be made law. But certain people conspired to tamper with the bill bcos it is a natural cause that must come into effect. And when it does it will no longer be conspiracy but treason, Forget budget padding and give it its proper name. Ww have provision of the crime in our criminal code and it is a crime in our law. MY OPINION.

SteffySoFynSoFly said...

Smh

Anonymous said...

The act in itself is not an offence as they did it with the intention of taking the excess fund off the real cost. It is a crime in progress whose cycle would only be complete when the excesses are taken.

Emy Wonder said...

OK. We've heard

chim_oma chim_oma said...

Is it not a criminal act, I mean 'WAYO', STEALING, or because he couldn't succeed?
It's a pure criminal act in capital letters.
Nawoo!

Anonymous said...

Your as ignorant as your write up. Conspiracy ke?!! Conspiracy to commit what?? How did you pass law school?? A budget proposal is just a proposal that is yet to be passed and the president can add or reduce and a "padding" can be added more or reduced. Budget padding is not a crime. I am lawyer qualified in the US, UK and Nigeria so I know a lot about all these.

Anonymous said...

U might know, but i am sure U did not get the grades i got in law school.

Anon said...

It's not a criminal offence

sisi eko said...

To be honest, under the law, all the arguments put up by the lawyers are valid. It all depends on the angle through which the alleged padding is scrutinized.

Whether it is viewed as a criminal intent or as a mere adjustment to the budget/ proposal. However, the accuser has to prove that it is the former, while the defendant has to prove that it is the latter.

It all boils down to the written constitution that guides the legislatures. Their matter don tire person.

sisi eko said...

Which conspiracy? You lost me here my dear.

No document was altered yet because none had been signed or put to law/practice. You should have read the postulation up there for a better understanding.

sisi eko said...

Spot on

adunniola20 said...

Love you, sisi eko. Always delighted with ur points.

Am Biodun.

sisi eko said...

Aduniola I'm honored. Thanks dearie

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