I would like to start by welcoming you all to Abuja, especially our friends who have travelled from the various States and Local Governments and even from outside the country, to join us at this Summit. I am equally delighted and honoured to have been invited to deliver the keynote paper and by so doing set the tone for our discussion on effective management of political representation and constituency relations and intervention services in Nigeria.
2. The essence of representative democracy and government is that the people elect persons to represent their interests and their views. They also generally surrender their security and welfare to those representatives in trust. It is a well-known fact that the legislature in Nigeria and indeed all over the world performs the functions of law making, representation and oversight of government activities. The law making function is not controversial. It is basic to every legislative institution. Oversight activities of parliament has also become commonplace in Nigeria as a result of the activism of the National Assembly in recent years. It is the representational function of the Legislature that has not been adequately understood by Nigerians.
3. This Conference which is organized by the National Assembly and facilitated by the National Institute for Legislative Studies (NILS), is thus designed to assist legislators find practical ways of improving the performance of their representative role. It will also explore the ways and means of delivering effective Zonal and Constituency development and intervention services in Nigeria.
4. Who is a ‘Representative’ and what is meant by ‘representation’ has agitated the minds of legal and political scholars and philosophers over the ages. A school of thought posits that a representative should concern himself with national affairs rather than local matters. Another theory of representation believes that the sole duty of a representative is purely the protection of the interests of his local constituency and nothing more. The truth, it seems, lies in between. Robert Luce, writing in Legislative Principles: The History And Theory Of Lawmaking By Representative Government, 1930, said: “Many Congressmen and State Representatives live up to the belief that their first duty is to get all the favours they can for their districts. Many districts reward or punish their representatives according as they have succeeded or failed in getting appropriations for public buildings, roads, bridges, river and harbour improvements, or in getting appointments, pensions, or other local benefits”.
It is also in the same vein that Prof Emery in Politician, Party and People (P.114) said that: “Whatever theory we may hold regarding the relation of the representative toward public policies in the matter of independence and freedom of judgement, he is really a representative; that is, he represents the particular district from which he is elected and the men who vote for him have not done so solely from the idea that he should be a great statesman exercising his mind all the time on the problems of national welfare. They want part of his mind and part of his time themselves and, what is more, they have a right to expect a certain amount of attention from him. It is sometimes possible for a man practically to disregard his constituency and tell them that he will pay no attention whatsoever to their demands in the matter of patronage or appropriations, or their requests for assistance in personal matters, however legitimate. Such men, however, if they are to keep their positions in Congress at all, must have already achieved such a commanding position that their districts take sufficient pride in the power of their representative to offset their dissatisfaction at the neglect of their interests”.
5. In the United States of America, constituency projects are known as Pork Barrels or Earmarks or Distributive Politics.
As Diana Lewis said in her book: Greasing the Wheels: Using Pork Barrel Projects to Build Majority Coalitions in Congress(P.4)
“Pork barrel or distributive policy dates from the earliest years of the Republic. In the eighteenth and nineteenth centuries, Congress’s distributive policies consisted mainly of projects of physical improvement such as lighthouses, roads and canals, dams and harbors; the classic source of those benefits was rivers and harbours legislation. The purpose of such projects was described in 1888 by James Bryce, who wrote that “grants from the federal treasury for local purposes” were routinely employed by members of Congress seeking to secure their renominations (Bryce 1959, P 40). Today distributive benefits are found in nearly all policy areas, especially in appropriations bills, where targeted funding is granted for a broad range of purposes, including highway interchanges, supercomputer of universities, detention centers for illegal immigrants, and studies of agricultural pests, such as fire ants”.
The greatest player in the history of the Congress of the United States of America on the issue of Pork Barrel was former Representative Dan Rostenkowski of Chicago, erstwhile Chair of the House Ways and Means Committee. The New York Times described how he passed a major Bill:
“On a Friday morning in November …, hours before the Ways and Means Committee was to vote …, Mr. Rostenkowski sat with a list in the committee’s library and began calling other members to tell them of special tax breaks he had sneaked into the bill just for them. They included favourable tax treatment for stadiums in Cleveland, Miami and the Meadowlands in New Jersey, for waste-treatment plants in New York University in Manhattan, and not surprisingly, for a savings and loan association in Chicago. Members who planned to vote against the bill got nothing for their districts. Rostenkowski’s horse trading is part of the tradition commonly known as pork barrel politics”.
6. Furthermore, constituency projects, Port Barrel or whatever name it is known as, helps to ensure re-election of incumbent legislators. In the USA for example: “Clearly, pork barrel politics occurs because members of Congress believe that district benefits enhance their chances for reelection. In studies of distributive politics, the electoral connection is axiomatic. In his study of Congress’s allocation of water projects, Ferejohn speculates that there are three reasons why such projects are valuable to members. All of those reasons are related either directly or indirectly to reelection. First, members believe that bringing home projects gives them a record of constituency service on which they can campaign. A second and related benefit is that assiduous attention to constituents can help to create an impression of invulnerability, redirecting to more opportune targets the ambitions of high-quality potential election challengers. Third, like old-time machine politicians, members of Congress can buy with projects the freedom to do as they wish, or as their party leadership wishes, on issues of more importance to them on Capitol Hill..If you’re a congressman and you want to get reelected . . then you give things to the people who can vote for you. In return they keep electing you. The hell with what it means for the rest of the country” (Diana Lewis, P.5)
7. Constituency or Zonal intervention projects could be used by the political party in control of the legislature to save vulnerable incumbents. In the USA, it is the norm for Democrats or Republicans whenever they are in majority in Congress. As observed by Los Angeles Times, when Republicans were in majority: “…The more aggressive Republican approach has been to provide vulnerable incumbents opportunities to address their districts’ local concerns. And that, in turn, has meant that year-end appropriation bills are laden with local projects. “You can’t point to a single vulnerable incumbent who hasn’t been taken care of in the appropriations process,” boasts Tony Rudy, Deputy Chief of Staff to House Majority Whip Tom DeLay (R-Texas). “Since Day One, we’ve asked our vulnerable members what they need and how we can help them get it”.
In any country, voters assess a party’s performance not only by its ability to influence national issues but also by its relevance to their particular local concerns. As a former Speaker of the United States House of Representatives, Tip O’Neill, once observed, “All politics is local.” By effectively and consistently reaching out to the public through their elected representatives, who have attracted local projects, a political party has a better chance of success.
8. What is the meaning of Constituency and Zonal Intervention projects in Nigeria? Constituency or Zonal Intervention projects in Nigeria refers to developmental projects sited in the Constituencies of Honourable Members of the State Houses of Assembly, Members of the House of Representatives or Senators by various Ministries, Departments, and Agencies( MDAs) of government as appropriated in the Budgets of the Federation or State. The former Minister of Special Duties and Inter-Governmental Affairs, Alhaji Kabiru Turaki, SAN, at a Stakeholders Forum on Implementation of Constituency Projects, in 2015 said that “. . the idea of constituency projects is a noble one conceived to assist members of the National Assembly as elected representatives of the people to facilitate the development of their constituencies,” urging all stakeholders to, at all times, ensure their implementations with all sense of sincerity”.
9. THE BASIS AND RATIONALE FOR CONSTITUENCY INTERVENTION PROJECTS IN NIGERIA:
The idea of Constituency intervention projects arose as a result of the demand by Nigerians for equitable and even distribution of infrastructural development projects. The concept of federal character has already been enshrined in the Nigerian Constitution and it was felt that lopsided distribution of government amenities would offend the federal character principle and lead to concentration of resources in the hands of a few states or groups in Nigeria. The Fundamental Objectives and Directive Principles of State Policy, is the philosophical underpinning of the Nigerian Constitution and it provides in Section 14(3) that: “The composition of the Government of the Federation or any of its agencies and conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity..”
Section 15(4) is also in support of the point being made: “The State shall foster a feeling of belonging and of involvement among the various peoples of the Federation….”
Further provisions are made in Section 16 (1): “The State shall…harness the resources of the nation and promote national prosperity and an efficient , dynamic and self reliant economy and control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality…..”
Section 16 (2) says also that : “The State shall direct its policy towards ensuring .. (b) that the material resources of the nation are harnessed and distributed as best as possible to serve the common good”.
Section 13(1) shows that it is a mandatory duty on all arms of government, especially the legislature to ensure that provisions of Chapter 2 of the Constitution are adhered to. It says: “It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution”. Undoubtedly one of the major avenues for upholding these constitutional precepts which every legislator swore to uphold and defend is the annual Appropriation Bill. It is thus a significant constitutional duty and responsibility of a legislator to ensure that projects are evenly distributed to all federal constituencies in Nigeria.
10. Processing of Constituency projects especially at the federal level do not involve cash payments or any other form of payment to a legislator. It is not included in allowances payable to any legislator. Contracts for any constituency project is not required to be awarded to any legislator. The duties of the legislator is simply to identify the location and the type of project to be sited. Once this is done, it is included in the budget of the relevant MDA by the National Assembly. The processing and award of contract for execution of the project is squarely the responsibility of the Executive branch.
Senator Ali Ndume, who chaired the Senate Committee on MDGs in the 7th Assembly, and now Senate Leader, says that the failure of the three tiers of government in the country at the executive level on execution of critical projects peculiar for the development of the various constituencies in the federation, necessitated the idea of including constituency projects in national budgets every year.
“This, however, has over the years created wrong impressions in the polity that we, members of the National Assembly, are the deciders and implementors of the projects. Some even have the erroneous belief that we are directly collecting monies earmarked for the projects from the executive. All these are not true. Ours, as always said over the years, is to identify the projects for the executive for the needed implementation,” he said.
11. Can a legislator recommend a constituent to execute a constituency project or indeed any other contract award by the Executive?
The Independent Corrupt Practices Commission Act (ICPC Act) seems to suggests that it is a criminal offense to make recommendations of Business outfits to any government agency to execute contracts by a public officer. See Section 19 of the Act which says that “Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of the public officer or any other public officer shall be guilty of an offense and shall on conviction be liable to imprisonment for five (5) years without option of fine”. A close reading of this section may have exempted recommendation of a constituent who is not an associate or relation of the legislator. A constituent is not necessarily an associate of a legislator. It seems to us that part of the representational duties of a legislator is to promote the businesses and economic wellbeing of his constituents. This may entail recommending qualified companies to various MDAs where they have the necessary expertise to perform.
12. This practice is common in established democracies such as UK and USA. Let me give you an example. Speaker Paul Ryan was the Vice Presidential candidate of the Republican Party in the 2012 USA election. He claimed to be a fiscal conservative, a champion of small government and a critic of federal handouts. The media responded by digging into his activities as a member of Congress. It was found out that he asked for assistance by letters of over 8,900 pages of correspondence to many agencies of government on behalf of his constituents, for over a 12 year period. He wrote to federal agencies supporting expansion of food stamps in his Wisconsin district. He supported city officials and everyday constituents who sought stimulus package grants, federally guaranteed loans; grants to invest in green technology and money under the Healthcare law. When asked, his spokesman said: “Part of being a congressman is vouching for constituents and helping them navigate the federal bureaucracy when asked”. He wrote letters forwarding requests for projects for his constituents in a 2009 letter to the Environmental Protection Agency office asking for its “full consideration” in awarding the grant money to an organization in his constituency.
13. But let me not be misunderstood. We oppose any facilitation that smacks of corruption or quid pro quo. A legislator is not permitted to enrich himself in any manner whatsoever in the guise of assisting his constituents.
14. OTHER ASPECTS OF A LEGISLATOR’S CONSTITUENT SERVICES:
In societies that practice democracy as a form of government, legislators represent constituents’ interests and all other tendencies in their district. They deal with people with diverse political beliefs, religion, geographic and environmental differences or other characteristics, in government decision-making process. Constituent services and relations promote legislators image with the citizens and enhance their representational roles. It also contributes to provision of information that can help better execute their oversight and lawmaking roles.
The practice of modern constituency relations or services involves the following:
1. The Legislator must maintain effective communication and liaison with his constituents. This he does by being close to them as much as possible. Learning about their problems and concerns. He intervenes on their behalf before all the tiers of government, including Local Government Councils, State Governments and Federal Government and its agencies. The legislature is the branch of government that is closest to the people. Constituents identify more with a legislator than say, his LG Council Chairman, Governor, Hon. Minister, Head of MDA’s etc.
He uses the method of; conducting public hearing, or town hall meetings, regular constituency clinics; issuing newsletters and public announcements, news releases and News conferences; posting flyers; visiting and meeting with communities and constituents and touring the constituency; conducting opinion polling and needs assessment of constituency requirements; establishing and running a proper constituency office manned by experienced staff; tracking constituency demands; Using technology such as Website; email; Facebook, Twitter, Instagram; telephone services like text messaging; bulk mails; Apps like WhatsApp for effective communication etc. These activities helps a Representative keep in touch with his constituents and give governmental activities a human face.
Direct contact helps to build public confidence in the legislator and legislative institution itself. Indeed effective constituency relations helps to mobilise participation of citizens in the democratic process and sustain their interest in public affairs.
Regular Town hall meetings or constituency briefing sessions enable a legislator to inform his constituents on governmental activities and also serves as a feedback mechanism for the legislator on the views of his constituents. This also provides a platform to explain existing problems and seek the understanding or buy-in of the people, on certain decisions of government.
A very good example was in 2012 when the House of Representatives conducted the People’s Public Sessions in 360 Constituencies in Nigeria through the medium of town-hall style meeting to ascertain the views of Nigerians on various issues on Constitution amendment.
2. Citizen’s expectation of Legislators:
In dealing with constituents, legislators face the problem of lack of understanding of the constitutional role of the legislator. Many Nigerians believe that it is the duty of a legislator to pay school fees for all his constituents; pay hospital and maternity bills; fund business and trading activities; pay for burial expenses of constituents family members; provide food; provide shelter by either building houses or paying for House rents. He is expected to buy telephone handsets and recharge cards and also send money regularly to constituents and operate like an “ATM Machine”. The list is endless and includes anything imaginable.
Any legislator who is unable to do any or sometimes all of the above is regarded as a non-performer, an ingrate who has failed to reciprocate the electoral support given to him. He is harassed and abused as a failure. This perception of poor representation may follow a legislator even if he has sponsored many bills relevant to his constituents, or moved many motions of national importance or is an active participant who contributes meaningfully to debates on the floor of the House or Committees.
These demands bring undue pressure on a legislator and sometimes leads some to engage in activities unbecoming of their status in order to satisfy the demands of their constituents. In any case, let me further reiterate that whatever the pressure, the conduct of a legislator like Caesars wife, should always be above board.
The solution is to continue to enlighten and educate us all on the proper duties and responsibilities of a legislator, which is essentially law making, oversight and representation. There are acceptable matters that are within the purview of a legislators’ representational responsibilities. Certainly it does not include some of the things mentioned above.
15. THE ROLE OF THE PRESIDENT/EXECUTIVE IN CONSTITUENCY RELATIONS SERVICES:
In a Presidential system of government, the President has a major role to play on the issue of constituency relations services and indeed constituency intervention projects. It is true that the entire country is the constituency of the President. So he is notionally a member of every constituency, whether State, Federal or Senatorial. But he is too far removed from the local constituencies to know their needs, interests and aspirations at a micro-level. He deals at a macro-level. He sees the big picture. A legislator must also see the big picture, but must not be so engrossed in the big picture that he loses sight of the immediate requirements of his district or constituency. Indeed the major rationale for constituency projects intervention is the need to ensure minimum federal presence in each constituency. It is the legislator, especially if they belong to the same political party, that will carry the President in any election in his constituency based on federal projects in each locality which could be regarded as the President’s achievements too.
If the President is interested in passing a piece of legislation, it is an acceptable practice in advanced democracies to lobby legislators to pass a particular bill. Lobbying could mean, providing the necessary information required to enable a legislator make an informed judgement. It could also include direct Pork Barrel support, or provision of a particular project in the constituency of a member to ensure his support of pending legislation.
A few examples in the USA bears this out: Presidential historian Richard Neustadt in an op-ed article in Newsday said:
“Frederick Lawton, Harry S. Truman’s last budget director, who had been for decades a career official at the Office of Management and Budget (as it now is called), once told me of a summons to Franklin Roosevelt’s office in 1938, when the last big piece of New Deal legislation ever passed, the Fair Labor Standards Act, was teetering before the House of Representative. “Fred,” President Roosevelt said, as I heard the story, “I want you to go across the street (to the then State Department, now the Executive Office Building), find a vacant office with a desk, two chairs and a telephone, take a copy of the budget Document with you, call me and give me the room number and then wait there all day. From time to time, members of congress, sent by me, one by one, will knock on your door. And when they do, Fred, let them in, shut the door, open the Budget, and give them whatever they ask.” (Neustadt 1993).
President Bill Clinton also used pork barrel or distributive politics very extensively. This is illustrated by the methods he used to pass the North American Free Trade Agreement (NAFTA) Act. “On November 17, 1993, the House of Representatives approved NAFTA by passing H.R. 3450: The Clinton administration’s victory on the 234 – 200 vote had been in doubt until only a week earlier. By all accounts the administration prevailed in the end only with a series of concessions to members of Congress representing a long list of local interest that felt threatened by NAFTA’s liberalization of trade with Mexico and Canada. Interest groups that opposed the pact and editorial writers who generally favored it all condemned what they characterized as the blatant and very public vote buying that secured NAFTA’s victory in the House”.
Some pundits have criticized constituency intervention projects on the ground that it offends the constitutional separation of powers doctrine as legislators are perceived to be dabbling into exclusive functions of the Executive branch. I think that this criticism misses the point. At least in the last three budget cycles Mr President has always included constituency projects in the Appropriation Bills sent to the House, including that of 2016. So the Executive in effect initiates the projects under S. 81 of the Constitution, although with the tacit understanding of the Legislature. The legislature appropriates same pursuant to S. 4 and 80 of the Constitution. S.4 provides that ‘The National Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List..’
Irrespective of powers directly conferred on the National Assembly on budget matters under Sections 80 and 81 of the Constitution, it is beyond argument that the National Assembly has power to make laws on matters that are in the Exclusive Legislative List and even the Concurrent List as clearly shown in S.4. Constituency projects which include Power, Roads, Infrastructure, Health, Water, Education etc are all included in the law,- the Appropriation Act signed by the President. Are these not matters in the Exclusive or concurrent Lists? The projects, as already shown, is executed by the Executive branch. Wherein then lies the unconstitutionality?
16. MANAGEMENT OF CONSTITUENCY PROJECTS:
Arguably one of the most crucial challenges facing constituency service delivery in Nigeria relates to its sustainable management. The bulk of the projects are undertaken at the local level and there is no clear mechanism for handing over these projects to either the State or Local Governments once they are completed. Neither is there a machinery for maintenance on a sustainable basis. These challenges, among others, necessitate a deliberate mechanism to be instituted for managing constituency intervention projects.
There are some critical issues that need to be addressed for constituency development intervention projects to be really effective.
First, in light of the challenges identified above, project sustainability appears to be the greatest and most pertinent. In order to avoid waste that presently characterise constituency project delivery in Nigeria, it is imperative on us all to generate participatory policy frameworks that promote ownership of these projects through systematic decision making procedures. This guarantees successful participation of beneficiaries and host communities of these projects in decision-making. This has the obvious advantage of identifying the ‘right’ projects for implementation, the mode of implementation and builds sufficient follow-through capacity.
Secondly, this brings us to the need for Cooperative federalism, which emphasises cooperation between the different levels or tiers of government in a federation. Such cooperation is necessary for the proper functioning of the overlapping functions and responsibilities of these governments. Where cooperative federalism operatives, the various tiers of government have interdependent relationship among themselves despite the constitutional division of powers and the provisions for independence and autonomy.
The classic definition of Cooperative federalism is a concept of federalism in which national, state, and local governments interact cooperatively and collectively to solve common problems, rather than making policies separately. Nigeria practices various forms of cooperative federalism, but this has not been effectively introduced with respect to Constituency intervention projects. This is why I am very happy that this Summit involves representatives of the States and Local Governments who are very necessary participants for a workable system to evolve. The legal architecture for a planned economy that involves all tiers of government is provided for in Section 16( 2) of the Constitution which says that “The State shall direct its policy towards ensuring:(a) the promotion of a planned and balanced economic development”. This is why also the Constitution establishes the National Economic Council, Chaired by the Vice President with all State Governors as members.
Thirdly, and related to the above is the question of ownership. Once constituency projects are completed, there is scarcely any handing over protocol where ownership is transferred to the local community. In a few cases, these projects are commissioned by the legislator and that is the last of it. These projects thus become isolated intervention efforts with no clear ownership. Project ownership ensures that project initiatives come to fruition. Whatever framework that is adopted, all stakeholders including the legislators, MDAs at the federal level, States and Local Governments should ensure that maintenance of constituency projects is taken over by the States and Local Governments to ensure continuity and value for money. This should be so even if the federal government is involved in budgetary support for this initiative.
Fourthly, there is a palpable absence of objective monitoring, control and evaluation in the delivery and management of constituency projects in Nigeria. The emphasis, it would appear, is on yearly allocation for additional newer projects with little tracking of the performance of previous ones. If we put in place an effective monitoring system, this will ensure that constituency projects implementation proceed as anticipated. Modifications or further monetary allocations to projects will then be on the basis of identified need. In fact, there are many instances where majority of projects initiated were never fully completed, implying that the intended derivable benefits from these projects were never actually attained. In addition, if the evaluation and monitoring aspects of constituency intervention projects are strengthened, it will reduce the scourge of thousands of abandoned projects in Nigeria.
Fifthly, a very strong National Assembly Oversight mechanism needs to be put in place to achieve this. It has however been said that there is an inherent conflict of interest if the Legislature that has interest in constituency projects are also saddled with oversight over such projects. This reasoning is also not tenable as the contracts are all awarded by the Executive and there is an added incentive for legislative oversight activities to ensure that the projects are in fact executed for the wellbeing of constituents of legislators.
Sixthly, there ought to be a central coordinating office at the Federal level to ensure proper documentation of data on constituency intervention projects and to improve implementation of subsequent projects on account of lessons learnt. The documentation should include project design reports and data gathered as a result of monitoring and evaluation. In the 7th Assembly, the Executive in its wisdom, mandated the then Minister Of Special Duties And Inter Governmental Affairs to coordinate all MDAs where such projects are domiciled for effective and efficient delivery.
Seventhly, the policy on constituency intervention projects should expressly capture procedures for funding projects that are executed in phases or that require yearly incremental fund allocations. The provisions ought to include clauses on mandatory allocations to already accepted ongoing projects till their completion. This is especially important after political regime change or where a member that attracted the project loses his seat.
17. SUSTAINABLE LEGAL FRAMEWORK FOR CONSTITUENCY PROJECTS:
In many parts of the world, constituency intervention projects are regulated by an Act of Parliament. This has been the practice, for instance, in Kenya since 2003. The Kenyan Constituency Development Fund(CDF) Act provides that the government set aside at least 2.5% of its ordinary revenue for disbursement under the CDF program. Three quarters of the amount is divided equitably between Kenya’s 210 constituencies whilst the remaining 1/4th is divided based on a poverty index to cater for poorer constituencies.
We are privileged to have in our midst the Speaker of the Kenyan Parliament, Hon. Justin B.N. Muturi, who will be sharing the Kenyan experience with us. Suffice to say by way of background, however, that the main attributes of the Act is the establishment of the framework for the identification, design, development and execution of constituency projects. The Fund is managed by a Constituencies Development Fund Board. It is a matter of note that the Board is composed mostly of officials from the executive branch of the government, and does not include any member of the parliament. However, the actual allocation of funds to each constituency is required to be “with the concurrence of the relevant Parliamentary Committee”. In each of the constituencies, a Constituency Development Fund Committee is constituted to nominate projects for the eventual approval of the relevant Parliamentary Committee. Such Committee includes the legislators from the constituencies in issue (as ex -officio members) as well as some other stakeholders.
The CDF framework is spreading rapidly and to date at least 23 countries have adopted or are considering adopting CDFs: The countries are: Bhutan, Ghana, Honduras, India, Jamaica, Kenya, Liberia, Malawi, Malaysia, Mongolia, Namibia, Nepal, Nigeria, Pakistan, Papua New Guinea, Philippines, Rwanda, Solomon Islands, Southern Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.
The CDF framework has been tested in the Courts in some of the countries operating it. Two divergent trends has emerged in respect of judicial opinion to the CDFs in countries where they are practiced. The first school views CDF as contrary to the spirit of the constitutional principles of separation of powers between the Executive and the Legislative branches of government. In The Institute of Social Accountability v. The National Assembly & Ors, the constitutionality of the Kenya’s 2013 CDF Act was successfully challenged in the High Court of Kenya. The Court held that the Fund was not in conformity with the Kenyan Constitution. Some of the grounds for the decision among others were that the Fund went against the principles of separation of powers.
The contrary second judicial school of thought holds that CDFs are not unconstitutional, and such Funds are within the legislative competence of the legislature. The Philippines’ Supreme Court held in Philippines Constitutional Association v. Enriquez that the appropriation under the General Appropriation Bill, 1994, for the Countrywide Development Funds, (the precursor to the current Priority Development Assistance Fund) was a valid and proper exercise by the legislature of her constitutional power to legislate on budget. In reaching the decision the Court took into consideration the fact that: “The Constitution is a framework of a workable government and its interpretation must take into account the complexities, realities and politics attendant to the operation of the political branches of government”.
It would appear that the view in Philippines Constitutional Association v. Enriquez is preferable especially in a presidential democracy as Nigeria. Indeed the structure of some CDF legislation unduly mixes and muddles up the legislative and executive functions. It is patently unconstitutional to form a committee comprising both the executive and members of the legislature to supervise execution of constituency projects, as some CDF frameworks show, as execution is the prerogative of the Executive branch.
In Nigeria, it seems that the Lagos State Government blazed the trail in this area, when the Lagos State House of Assembly passed into law, the Lagos State (Constituency) Project Development Law, in the year 2000. The salient features of the Law provides for the setting aside of a minimum of 15 per cent of the annual capital expenditure budget of the State for release on a quarterly basis for distribution amongst the 40 State constituencies. The money is set aside for the provision and maintenance of public infrastructures and basic social amenities in each of the constituencies.
The Law further establishes a “Project Monitoring Committee” in each of the constituencies. The Committee for each constituency is composed of its representative in the House of Assembly and four other members, whose qualifications are that they should be community leaders. The Committee has the following functions – namely;
a. To determine the type of project the constituency shall embark on in a particular year
b. To convey the decision of the committee to the appropriate governmental agencies
c. To monitor the development of such projects and submit quarterly report of its activities to the House of Assembly.
In Nigeria, an attempt was made by the 7th House of Representatives to enact a legislation on Constituency Development Fund. The Bill, which went through Second Reading, provided that certain portion of the nation’s annual budget be set aside for rural development through constituency projects. Similarly, the Chairman, Senate Committee on Millennium Development Goals (MDGs) in the 7th Assembly and now Senate Leader, also sponsored a bill aimed at ensuring that constituency projects are not abandoned. These two efforts underscore National Assembly’s efforts at providing a new legal regime for constituency intervention projects management in Nigeria.
In the 8th House of Representatives, a bill has been introduced to regulate constituency projects in Nigeria. This has also passed Second Reading in the House. While the bill goes through the legislative mill, it is erroneous to contend that there is currently no legislative framework for Constituency projects in Nigeria. As I already said, the Appropriation Act is a law of the federation that contain the Constituency projects which are all domiciled in the respective MDAs. These MDAs process for tender and bidding by contractors like any other project and are awarded to qualified contractors in fulfilment of the Public Procurement Act, 2007.
18. CONCLUSION:
Permit me distinguished Ladies and Gentlemen to conclude by once again thanking all participants at this Summit and further charge you to come up with recommendations on whether the existing legal framework is sufficient or whether we need to introduce a CDF framework or to adopt any other model suitable for Nigeria, taking into consideration the federal structure of Nigeria and the presidential system of government enthroned under the 1999 Constitution. You will need to further examine whether the idea of setting aside a percentage of the budget is a workable idea in view of our budget process and many demands and other challenges facing the country?
19. I thank you all, may God bless you and bless the Federal Republic of Nigeria.
No comments:
Post a Comment