Compelling the Performance of Duty of A Public Officer (I)

A Case Reference

A human rights lawyer, Chief Nkereuwem Akpan, commenced a suit against the 36 state governors of Nigeria, the Minister of the Federal Capital Territory, the Economic and Financial Crimes Commission and the Independent Corrupt Practices and other Related Offences Commission before the court to challenge the legality of the security vote deductions. His application included:

Ø a prayer for the court to declare that the EFCC and the ICPC were in breach of their statutory mandate for failing, or neglecting, to investigate the security vote deductions made by the state governors and the FCT minister.

Ø An order of mandamus asking the court to order the EFCC and ICPC to immediately commence investigations into the security vote deductions, and prosecute the governors and the FCT minister once their immunities expire upon leaving office at the end of their term or removal from office, whichever comes earlier.

Ø He urged the court to determine whether the policy of security vote was recognised either by the 1999 constitution or any other law in the country.

The applicant in his originating summons asked the court to declare that the sums deducted from statutory allocation by governors as security votes were illegal, fraudulent and unconstitutional and prayed the court to interpret sections 16(2) and 120 of the 1999 Constitution and determine whether state governors have powers to deduct monies from statutory allocation of states.

Meanwhile the Defendants applied that the matter be dismissed on grounds of lack of jurisdiction and locus standi of the plaintiff.

This case is pending before an Abuja Federal High Court awaiting judgment, adjourned to 23^rd December, 2013.

What does Security vote mean?

This refers to public funds appropriated for the purpose of enhancing security. In Nigeria, a governor of a state would set aside a sum of money for disbursement on security matters in a state. However, state governors do not give account neither is accountability demanded for the funds spent on ‘security matters’.

It is estimated that on the average, a Nigerian governor gets a minimum of N300 million per month as security vote- a sum enough to pay the minimum wage of N18,000 of more than 16,000 Nigerians. It is also believed that some states allegedly set about N700 million as security vote per month. [1]

Is the appropriation of such funds constitutional? After a careful perusal of the constitution, I didn't come across any provision which provides for security vote and it’s really baffling to note that this has continued for years without any challenge.

Although section 14 (b) of the 1999 Constitution of the Federal Republic of Nigeria provides that:

14. (1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice

(b) the security and welfare of the people shall be the primary purpose of government:

There were no express provisions that such security should be guaranteed or provided by allocation of funds to be termed as ‘security vote’.

Furthermore, Section 120 of the 1999 Constitution of the Federal Republic of Nigeria provides:

120. (1) All revenues or other moneys raised or received by a State (not being revenues or other moneys payable under this Constitution or any Law of a House of Assembly into any other public fund of the State established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the State.

(2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the State 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 Law, Supplementary Appropriation Law or Law passed in pursuance of section 121 of this Constitution.

(3) No moneys shall be withdrawn from any public fund of the State, other than the Consolidated Revenue Fund of the State, unless the issue of those moneys has been authorised by a Law of the House of Assembly of the State.

(4) No moneys shall be withdrawn from the Consolidated Revenue Fund of the State or any other public fund of the State except in the manner prescribed by the House of Assembly.

Section 120 does not provide that state governments should allocate or disburse funds without accountability. It is provided that monies raised or received by a state which is not payable under the constitution or any law of the House of Assembly shall be paid into the Consolidated Revenue Fund of the State. And such monies can only be withdrawn in a manner prescribed by the House of Assembly.

Moreover, it has not been stated that the security vote is provided for under any appropriation law or supplementary appropriation law.

Therefore, what this means is that the policy of security vote which is not recognized by the constitution and for which there’s no other statute or act of the federation providing for its existence is illegal and unconstitutional. And it will be in the public interest that this be declared to be unconstitutional by the court.

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[1] See more at: http://www.vanguardngr.com/2013/05/insecurty-what-has-the-security-votes-secured/#sthash.Jj9Fznmm.dpuf