[Editor’s note: This is Part IV of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here, Part II is available here. and Part III is available here.]
Background
The Minister of Finance and Economic Affairs tabled a Supplementary Estimate[i] on the 11th of December 2018 before the National Assembly, seeking approval for additional payments from the Consolidated Funds amounting to D1,128,337,519.7. It is important to note that the Supplementary Estimate was for the period 1st January to 31st December 2018 and was made in the last quarter of the year, literally less than two weeks before the end of the 2018 budget year. Secondly, the request was in addition to the already approved budget of D19.74 Billion Dalasi for the financial year 2018, which was already exhausted as at the time of the 11th hour request.
The National Assembly after extensive deliberations and debate rejected the Supplementary Estimate in its totality and did not get to consider the Supplementary Appropriations Bill. Many reasons were advanced by members of the National Assembly, ranging from the timing of the submission of the estimates, the quantum of estimates (too high), exorbitant amount identified for non-priority sectors and to some, it was unconstitutional.
The focus of the article is to examine the legal framework that govern the procedures, requirements and governance of Budget Supplementary Appropriation with a view to determine the legality and propriety of the Supplementary Estimate of 2018.The author shall review the current constitutional provisions and the existing laws that govern Supplementary Appropriation, to inform the discourse on this topic. To this end, the author seeks to establish whether the proposed Supplementary Estimate and Bill submitted to the National Assembly was in conformity with the supreme law of the 1997 Constitution of the Gambia and other enabling legislation, which derive their legal authority from the constitution? .[ii]
Legal Framework
The governance and legal framework of Public Finance Management is provided for in chapter IX of the 1997 Constitution, the Finance Act of 2014 and Government Budget Management and Accountability Act 2004. The 1997 Constitution provides the primary legal framework for the management of Public Finance in Gambia and the relevant sections germane to the subject of this article are found in sections 150 – 154 which shall be discussed in below in detail.
For the purposes of this article, it is important to note that by law all budgetary appropriations are through the Consolidated Fund by virtue of section 150 of the Constitution. [iii] Section 150 allows for separate accounts to be created in specific circumstances only by an Act of Parliament.[iv]
The specific provision that the governs the Supplementary Appropriation is section 153 (1) and (2) which is reproduced below:
Section 153
(1) Subject to section 154[v], if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure has been incurred. [Emphasis mine]
(2) Where a supplementary estimate or estimates have been approved by the National Assembly, a supplementary appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.
The first limb of section 153 (a) provides the basis upon which a Supplementary Estimate should be approved by the National Assembly. In summary, there are two scenarios -
1. Budget Appropriation shortfall (insufficiency i.e. under budgeted) or
2. An unforeseen contingency need arises
It is very clear from the wording of the provision that the section 153 is to be invoked only if there is a short fall and/or a need that was not envisaged at the time of preparing the main budget estimate. The operative words in the provisions are “need” and “insufficiency.” It is my view that a close look at the budget items comprised in the 2018 Supplementary Estimate could not have passed the “needs” or “Insufficiency” Test as prescribed by the Constitution. The specific line items that constitute the Supplementary Estimate have been exhaustively debated by the national assembly members prior to the rejection of the Supplementary.[vi]
It is my contention that section 153 (a) envisages and necessitates the creation of a Contingency Fund by a statutory enactment before a Supplementary Estimate can be presented to cater for additional expenditure for the reasons stipulated in the section. The purpose of the Contingency Fund as implied in the name is to provide/cater for unplanned/unbudgeted contingency expenditures as long the amount sought does not exceed 1% of the budget approved for that year. The provision thus sets a cap of 1% of the approved estimate for the year, which in my view restricts the use of Supplementary Appropriations for marginal budget over runs. To the best of my knowledge and information, our National Assembly as required by Constitution did not create a Contingency Fund, which is a condition precedent for the application of section 153.
In a nutshell, the Hon Minister cannot apply for additional funds to be appropriated to the Consolidated Fund in the absence of the creation of a Contingency Fund, which in essence would have been the source of the additional funding within the cap set by the Constitution. The Supplementary Estimate presented for approval is for the sum of D1,128,337,519.77, which by any stretch of imagination exceeds 1% of the approved budget of 2018.[vii] In fact it represents close to 17% of the current 2018 budget.
In the final analysis, the 2018 Supplementary Estimates should not have been presented for approval, given that the amount sought was in excess of the constitutional limit set. Secondly, it appears that the Minister of Finance already approved expenditures prior to coming to seek for the approval of the National Assembly. This, in my view is in contravention of the spirit and substance of section 153. The ultimate power to approve expenditure is the National Assembly and the Constitution makes it very clear that no expenditure can be appropriated without prior approval of the National Assembly. Finally, the National Assembly can only approve the Supplementary Estimate within the limits set by the constitution. In order words, the National Assembly Public Finance Committee should have advised the Assembly that the amount presented in the Supplementary Estimates exceeds the 1% cap set by the Constitution.
Conclusion
A review of the Constitution, the applicable legislation confirms that the Minister of Finance’s 2018 Supplementary Estimate is not consistent with the dictates of the Constitution and the enabling Legislation viz. Government Budget Management and Accountability Act 2009 and the Public Finance Act 2014. The author reiterates that the application of the enabling laws mentioned above and any power purported exercised by the Honourable Minister or his predecessor are subject to the Constitution, which is the supreme law of the land.
The Supplementary Estimate 2018 dubbed SAB2018 has exposed a fundamentally flawed budgetary process that needs to to be overhauled and reset. The old ways of budgeting in the good old days is not longer acceptable in this era of transparency and probity. The Minister of Finance is our gatekeeper of our public funds and we expect him to ensure financial /fiscal discipline is enforced to the letter without fear or favour.
Thus, there is need for the National Assembly to seek independent legal advise on such legal matters to ensure they discharge their functions within the confines of the Constitution. The fact that the National Assembly Public Finance Committees considered the approval of the Estimate with a 45% reduction is cause for concern, as that would have flouted our constitution. It is timely for the National Assembly to appropriate sufficient resources to establish its support services in the area of legislative and legal support inter alia.
The buck stops at the Minister of Finance who has a duty to restrain Executive financial indiscipline and maintain spending within the approved budget. The Minister of Finance, by extension the Government should not use the Supplementary Appropriation Estimates as an overdraft facility and expect our National Assembly to simply rubber stamp the excess spending retroactively.
In the interest of the betterment of our country and judicious management of our scarce financial resources, I humbly make my little contribution on this very important topic.
Suggested citation: Salieu Taal, Was the recent Supplementary Appropriation Estimate 2018 presented by the Minister of Finance in accordance with the dictates of the law and Constitution?, Law Hub Gambia Blog, 20 November 2018, at https://www.lawhubgambia.com/lawhug-net/is-supplementary-appropriation-constitutional.
For the Gambia Our Homeland
Salieu Taal
Initiator/Co-Founder #GambiaHasDecided
Managing Partner, Temple Legal Practitioners
[i] Supplementary Appropriation is governed by Section 153 of the 1997 Constitution which reads;
(1) Subject to section 154, if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure has been incurred.
(2) Where a supplementary estimate or estimates have been approved by the National Assembly, a supplementary appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.
[ii] Section 4 of the Constitution “ The Constitution is the supreme Law of the Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”
[iii] Section 150 of Constitution defines the Consolidated Fund
(1) There shall be a consolidated Fund into which shall be paid
(a) all revenues or other money raised or received for the purpose of, or on behalf of, the Government
(b) any other money raised or received in trust for or on behalf of the Government
[iv] This raises the issue of whether banks collection of taxes on behalf of GRA is within the law in the absence of specific legislation authorizing the collection of state revenue.
[v] Section 154 of 1997 Constitution
(1) An act of National Assembly may make provision for the establishment of a Contingencies Fund and for authorising the President to make advances from that fund if he or she is satisfied that there has arisen an unforeseen and urgent need for expenditure for which no other provision exists:
Provided that the President shall not authorize any expenditure from the contingencies Fund in excess of one percent of the estimates approved by the National Assembly for the current year before he or she has caused a supplementary estimate in respect of such excess expenditure to be presented to the National Assembly.
(2) Where any advance is made from the Contingencies Fund, a supplementary estimate shall be presented, and a Supplementary Appropriation Bill shall be introduced for the purpose of replacing the amount so advanced within ninety days of the advance being made.
[vi] See. Intervention of Sidia Jatta, PDOIS NAM, Sana Jawara etc Hansard Records
[vii] Budget Estimate for 2018 approved was D19 (Billion Dalasi)