N’Assembly, Executive Head for Showdown over Unapproved $496m Withdrawal from ECA

• PDP, lawmakers call for sanctions against Buhari

Damilola Oyedele and Onyebuchi Ezigbo in Abuja

Lawmakers in both chambers of the National Assembly are set to take on the Executive over the withdrawal of $496 million (N151.4 billion) from the Excess Crude Account (ECA) for the procurement of 12 Super Tucano aircraft from the United States government without appropriation by the federal legislature.

Citing the need to meet the deadline given by the U.S. government for the aircraft order, President Muhammadu Buhari had given anticipatory approval for the withdrawal of the said sum from the ECA and transferred it to the U.S. Treasury in February 2018 without recourse to the National Assembly.

THISDAY had exclusively reported Monday that Buhari had written to the leadership of the legislature on April 13 and by his own admission stated that he had given anticipatory approval for the withdrawal of the $496 million for the 12 Embraer manufactured fighter aircraft.

In the letter obtained by THISDAY, Buhari had said he was seeking the inclusion of the amount in the 2018 Appropriation Bill that the National Assembly was finalising, further explaining that the U.S. government had given a payment deadline for the aircraft purchase, otherwise, the contract would lapse.

Buhari had written: “It would be recalled that, for a number of years, Nigeria had been in discussions with the United States Government for the purchase of Super Tucano Aircraft under a direct Government-to-Government arrangement. Recently, approval was finally granted by the United States Government, but with a deadline within which part payment must be made otherwise, the contract would lapse.

“In the expectation that the National Assembly would have no objection to the purchase of this highly specialised aircraft, which is critical to national security, I granted anticipatory approval for the release of US$496,374,470.00. This was paid directly to the treasury of the United States Government.

“I am therefore writing, seeking approval of this House for the sum of US$496,374,470.00 (equivalent to N151,394,421,335.00) to be included in the 2018 Appropriation Bill, which the National Assembly is currently finalising. The balance of the requirements for critical operational equipment is still being collated from the different security services and will be presented in the form of a Supplementary Appropriation Bill, in due course.”

The president’s letter helped to expose the lie propagated by the presidency, which had insisted a few weeks ago that Buhari had not ordered the withdrawal of $1 billion from the ECA for the procurement of arms to fight the insurgency in the North-east and would not do so until he had obtained the approval of the National Assembly.

THISDAY gathered that the clear constitutional breach would be discussed in both chambers Tuesday or during the week.
Already, both chambers of the National Assembly had summoned the Minister of Finance, Mrs. Kemi Adeosun, her defence ministry counterpart, Brigadier-General Mansur Dan Ali (rtd.), the Governor of the Central Bank of Nigeria (CBN), Mr. Godwin Emefiele, and the Accountant General of the Federation, Mr. Ahmed Idris, on the issue.

They are expected to appear before the Committees on Appropriation later this week.
THISDAY further gathered that a joint meeting of the leadership of the National Assembly was scheduled to hold Monday night where the matter was likely to top the agenda.

According to a highly placed source in the legislature, close aides of the president were worried Monday that the constitutional breach and attempt by the presidency to misinform the public was now in the public domain, particularly the admission in writing by Buhari that he had given anticipatory approval for the withdrawal of the $496 million from the ECA without legislative backing.

The source disclosed that the president’s aides had started to reach out to the National Assembly leadership to see how to minimise the damage to Buhari.
“He was supposed to have stayed back in London (where he had gone to attend the Commonwealth Heads of Government Meeting (CHOGM), and head to the U.S. to meet Trump (U.S. President Donald Trump). Remember there was no date released to Nigerians on when he would return from London.

“But this issue has forced Mr. President to come back to see how the situation can be managed,” the source explained.
But even as some lawmakers on the platform of the All Progressives Congress (APC) were of the view that an unlawful act had been committed, they stopped short of calling for the president to be sanctioned.

On the other hand, lawmakers of the opposition Peoples Democratic Party (PDP) were determined to tackle the president on the matter on the grounds that the un-appropriated expenditure was an impeachable offence.
PDP members in both legislative chambers were of the opinion that the administration, which claims to uphold the rule of law, had perpetrated a major illegality.

Commenting on the issue, Senator Ibrahim Abdullahi Danbaba (Sokoto, APC) said it was not legal for the president to unilaterally dip his hand into the ECA.
“The amount in the ECA is a pool that ought to be credited to the Federation Account for the benefit of all tiers of government and others, in accordance with the revenue sharing formula. The funds are yet to be appropriated at the various levels,” he said.

Danbaba, a member of the Committee on Appropriation, said the ECA should be treated as one of the many options through which the national budget deficit could be minimised, adding: “Our foreign debt portfolio is currently alarming.”
Another lawmaker of the APC from one of the South-west states, who chose to speak off record for fear of a backlash, added: “The president in the letter already committed an illegality, he breached the constitution. It is no longer a matter of speculation.”

The senator also queried the haste in making the payment since the aircraft were expected to be delivered in 2020.
“The Minister of Defence earlier said the terms of the contract were too stringent for Nigeria and more favourable to the U.S. So what changed? Were the terms re-negotiated?” he queried.

Senator Ben Murray Bruce (Bayelsa PDP), in a terse text message sent to THISDAY, said the expenditure was illegal. “No, it is not legal,” he said.
Hon. Kingsley Chinda (Rivers PDP) accused Buhari of financial rascality, adding that the constitutional breach committed by the president was an impeachable offence.

“The president is recklessly in breach of Section 80 of the Constitution and the Financial (Control & Management) Act and the financial impropriety is not in tandem with Section 83 of the Constitution. The theory of anticipatory approval is not recognised by law.

“The expenditure is unconstitutional, reckless and amounts to financial rascality to unconstitutionally conclude an act and come back to retrospectively clothe it with legality,” he said.

PDP Calls for Sanctions

Also, in reaction to the revelation on the unapproved spending by the president, the PDP Monday called on the National Assembly to commence “constitutional processes” against Buhari for violating his oath of office.
The party accused the president of committing the violation by “illegally withdrawing and spending $1 billion (sic) from the ECA without the constitutionally required legislative appropriation”.

In a statement issued Monday by its National Publicity Secretary, Kola Ologbondiyan, PDP said it had nothing against any effort to ensure adequate security in the country, but held that such efforts should have been done within the ambit of due process, the law and the Constitution.

The main opposition party also reminded U.S. President Donald Trump, who will be hosting Buhari next week, to note that the $496 million paid for the purchase of military aircraft forms part of the proceeds of illegal activities by the Nigerian president, who it said had violated the statutory provisions of the Constitution to pursue a selfish agenda.

“We therefore charge the National Assembly to investigate the whereabouts of the balance from the $1 billion ECA funds and the purposes for which it has been used, as well as save our democracy and constitutional order by invoking the appropriate legislative processes against President Buhari for this violation before it becomes too late,” said the PDP.

According to the party, the president was aware that his unilateral spending of $496 million from the ECA without recourse to the National Assembly was a gross violation of the laws and Constitution of Nigeria and a direct affront to the statutory order as a democratic state.

“By this action, President Buhari has technically suspended the 1999 Constitution (as amended), plundered the inherent powers of the National Assembly as the principal institution of democratic rule, while re-enacting a sole administratorship in governance as if our nation is operating a military regime.

“More disturbing is the revelation that President Buhari paid the $496 million for the purchase of military aircraft from the United States, ignoring allegations of overpricing and issues concerning due process, just to achieve political expediency of currying President Donald Trump’s support for his 2019 re-election bid,” it said.

PDP further said that Buhari’s action amounted to a gross misconduct and betrayal of public trust because, in the bid to push a personal agenda, he deliberately side-stepped statutory legislative scrutiny and acted in clear breach of Section 80(3) and (4) of the 1999 Constitution.

It noted that whereas Section 80(3) states that “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 those moneys has been authorised by an act of the National Assembly”, Section 80(4) provides that “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”.

“It is shocking that President Buhari whose administration prides itself on claims of transparency and zero tolerance for corruption, and was elected on a platform that lays claim to the height of progressivism, who boasts of the highest standards of integrity, can mundanely resort to a violent abuse of our Constitution just to suit a desperate passion of seeking re-election,” the party added.

PDP further recalled that when there was an outcry after the defence minister, Dan-Ali, revealed earlier this month that Buhari had given approval for the withdrawal of the $1 billion from the ECA, the presidency had strenuously denied it.

“It would be recalled that following the public outcry over the announcement that President Buhari had unilaterally approved the withdrawal of $1 billion from the ECA, the presidency, through the president’s Special Adviser on National Assembly Matters, Senator Ita Enang, on April 9, 2018 stated that no such approval had been made, adding that President Buhari would never act in breach of Section 80 of the constitution. Yet, they were aware that payment had been made.
“The resort to falsehood, deception and secrecy in the withdrawal from the ECA and the reported $496 million payment for the military aircraft raises very serious issues regarding the integrity of the Buhari presidency,” said the PDP.