By Femi Gbajabiamila
Since the request for Virement was passed by both Houses of the National Assembly, it has ignited a lot of debate as to its constitutionality especially in the Senate where the Deputy Senate President, Ike Ekweremadu objected and raised a point of order during the Senate Leader, Ali Ndume’s debate. The Deputy Senate President’s objection was indeed thought provoking. He said and correctly, that he had gone through the constitution and found nowhere in the Nigerian Constitution where a provision or the mention of virement and therefore because virement was not provided for. It was foreign to it and so had no constitutional imprimatur and must fall under the axe of unconstitutionality.
The Deputy Senate President argued that the only provision made in the Constitution was for Supplementary budget under Section 81. Senator Ndume was obviously caught off guard as would anyone by the DSP’s seemingly sound argument and his come back was to point to what he thought was the hypocrisy of the DSP who had been part of several virements during the PDP’s reign. Senator Ndume was right but that hardly addresses the legality or otherwise of the process of virement that was under consideration. Unfortunately, the ruling seemed to suggest that the DSP was right but for the sake of national interest the Senators should allow the virement though unconstitutional.
Since then many Nigerians have inquired on social media and various editorials whether or not virement was constitutional. Indeed one such editorial in “Sunday Tribune” of December 4th suggested that all the years past, the National Assembly had been committing illegalities by way of virement. The writer, Taiwo Adisa wrote: “The Constitutional Point of Order by Ekweremadu should serve as an eye- opener for the Senate and the House of Representatives going forward on the handling of virements. While the constitution provides for Supplementary Budgets, governments after the other have invented the short cut. This is the time to correct the anomaly” Because budgeting is an annual process and because this is a constitutional question that goes to the very heart of our appropriation process and its fundamentals, which we as a legislative body and as a country seek to streamline and reform, I am compelled to weigh in on this. Though the Deputy Senate President raises what appears prima facie a fine point of law, I am compelled to disagree. Supplementary Appropriation and Virement are two completely different legislative instruments and both are rooted in the Nigerian constitution. I will attempt to explain both first and then point out the major differences thereafter. Section 81(4) of the Constitution says: If in respect of any financial year it is found that, the amount appropriated by the Appropriation Act for any purpose is insufficient; or a need has arisen for expenditure for a purpose for which no amount has been appropriated by the Act. A supplementary estimate showing the sums required shall be laid before each House of the National Assembly and the heads of any such expenditure shall be included in a Supplementary Appropriation Bill.
The word virement is not found anywhere in the constitution as rightly pointed out by the DSP but neither is the word “amendment”. Yet the National Assembly amends Acts almost on a daily basis by way of amendment Bills. To stretch the Senate’s logic would mean an Act can never be amended. For that matter, the word “repeal” is found nowhere in the constitution. Does this mean a law can never be repealed either? The point to be made is that the fact that a particular word is not mentioned in the constitution does not mean the constitution forbids its application. That would be a ridiculously strict interpretation of the constitution and many of its intendments would be destroyed. Even the federalists who gave the U.S constitution very strict readings didn’t go that far. The constitution is meant to be given the most liberal and elastic interpretation or construction to make sense in any given situation. Virement is a legislative instrument used in all legislatures world over. However lets examine the Nigerian Constitution and why I contend that virement has constitutional backing.
Section 59 (1) of the Constitution which has as its marginal heading.. “Mode of exercising federal legislative power: money bill” states: The provisions of this section shall apply to – An appropriation Bill or a supplementary appropriation Bill including any other Bill for the payment , issue , or withdrawal from the Consolidated Revenue Fund or any other Public Fund of the federation of any money charged thereon or any alteration in the amount of such a payment, issue or withdrawal. Though the CAPS are mine, they are intended to show the specific portions of section 59 from which the authority to vire can come without necessarily by way of a supplementary budget. However, Section 80 (4) is more telling and speaks clearer to the point on the legality of virements.
Section 80 (4) states: “No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the federation , except in the manner prescribed by the National Assembly.”
The National Assembly in passing the 2016 budget (like it has done in all previous budgets), and in exercising the powers given to it by Section 80 (4) of the constitution quoted above, gave the Executive the power or right to bring requests for virement. The National Assembly in the Appropriation Act prescribed “The Manner”. For emphasis, the 2016 Appropriation Act in Section 3 states; “In the event that a need arises to vire amounts within the heads of expenditure to which sums have been appropriated under this Act, such virement shall only be effected with the prior approval of the National Assembly”
How then can the National Assembly that passed the Appropriation Act and authorized the President to bring requests for virement then turn around and argue that same provision is unconstitutional when the President exercises such a right or power according to the law passed by the National Assembly. Besides, Section 27 of the Fiscal Responsibility Act (another law passed by the National Assembly) gives the President through the Minister of Finance the power to vire. The section states in sub section 2: “…….the Minister may in exceptional circumstances and in the overall public interest, recommend for the approval of the National Assembly virements from sub-heads under heads of account, without exceeding the amount appropriated to such head of account”
This is a law passed by the National Assembly and one of the most important pieces of financial legislations ever passed!! As stated earlier, virement is an old and time tested legislative tool used by all legislatures in the budget process.
There are only 3 major differences between these two types of legislation. A Supplementary Budget is a Bill which must go through the necessary and rigorous Bill procedure in the legislature, from 1st to 3rd readings etc. On the other hand, a virement is a mere request for legislative approval to move monies around certain subheads. It is not a Bill and need not go through the time consuming and rigorous procedure Bills are subjected to. The legislative wisdom in this is very apparent as it helps to keep the wheels of governance moving. There are other such legislative tools though not found in constitutions are very constitutional. A case in point is the power of impoundment.
Gbajabiamila is Leader of the House of Representatives.