THE CONSTITUTIONALITY OF CONSTITUENCY PROJECTS IN NIGERIA


ABSTRACT
The constitutionality of constituency projects has been questioned in some democratic jurisdictions across the globe including Nigeria. In Nigeria, there is always a dispute or controversy between the executive and the legislature in every financial year as to the constitutionality and the inclusion of constituency projects in the annual budgets. This study therefore among other things examined the constitutional basis for the operation of constituency projects in Nigeria; the effects of constituency projects on the operation of the doctrine of separation of powers as provided in the 1999 Constitution as Amended; the legal effects of the inclusion of constituency projects in the annual budget; and some problems besieging constituency projects in Nigeria. Doctrinal Method was used while data were elicited from both the primary and secondary sources. With a combination of hermeneutical, comparative and analytical techniques, the researcher found out that constituency projects are unconstitutional, and a violation of the doctrine of separation of powers in the constitution; and that the annual budgets do not constitute a legal framework for constituency projects; and that corruption, abandonment, lack of maintenance are some of the problems confronting constituency projects in Nigeria. The researcher inter alia recommended a constitutional amendment or alternatively, enactment of an Act/Law as the case may be, in emulation of Lagos State (Constituency) Projects Development Law 2000, which would limit the participation of the legislators in constituency projects to only determining the nature of the projects as well as monitoring while the executive carries out the actual execution of the projects; and that the said amendment of the constitution or enactment of an Act/Law should establish a Constituency Projects Committee in every constituency which a legislator representing such constituency should be a member; and that priority should be placed on completion and maintenance of already embarked projects before executing new ones to avoid problems of abandonment and lack of maintenance.
TABLE OF CONTENTS

Cover Page………………………………………………………………………………………...i
Title Page………………………………………………………………………………………….ii
Approval………………………………………………………………………………………….iii
Certification………………………………………………………………………………………iv
Dedication………………………………………………………………………………………...v
Acknowledgement………………………………………………………………………………..vi
Abstract…………………………………………………………………………………………..vii
Table of contents………………………………………………………………………………..viii
Table of Cases……………………………………………………………………………………xi
Table of Statutes…………………………………………………………………………………xii
Table of Abbreviation…………………………………………………………………………...xiii
CHAPTER ONE
1.0 GENERAL INTRODUCTION…………………………………………………………….…1
1.1 Background to the Study………………………………………………………………………1
1.2 Statement of the Problem……………………………………………………………………...4
1.3 Purpose of Study………………………………………………………………………………6
1.4 Scope of Study………………………………………………………………………………...6
1.5 significance of Study………………………………………………………………………….7
1.6 Methodology…………………………………………………………………………………..7
1.7Organisational Layout………………………………………………………………………….8
1.8 Definition of Terms……………………………………………………………………………9
1.8.1 Constitution………………………………………………………………………………….9
1.8.2 Constituency………………………………………………………………………………...9
1.8.3 Constituency Projects……………………………………………………………………….9
1.8.4 Separation of Powers………………………………………………………………………..9
1.8.5 Legislature…………………………………………………………………………………...9
1.8.6 Constitutionality……………………………………………………………………………..9
1.8.7 Federalism…………………………………………………………………………………...9
1.8.8 Legislative Oversight………………………………………………………………………..9
CHAPTER TWO
2.0 THE CONCEPT OF CONSTITUTION ……………………………………………………10
2.1 The Definition of the Concept of Constitution………………………………………………10
2.2 Characteristics of the Constitution…………………………………………………………...11
2.3 Types of the Constitution…………………………………………………………………….12
2.4 The Roles of the Constitution………………………………………………………………..13
2.5 The Nature of Nigerian Constitution………………………………………………………...15
2.6 Constitutional powers of the Legislature, the executive and the judiciary…………………..15
2.7 The Doctrine of Separation of Powers……………………………………………………….21
2.8 Overlapping Powers of the Organs of Government………………………………………….24
2.9 Functions of the legislature in Nigeria……………………………………………………….27
CHAPTER THREE
3.0 THE OVERVIEW OF CONSTITUENCY PROJECTS AND ITS CHALLENGES IN NIGERIA………………………………………………………………………………………..29
3.1 The Political Division of Nigeria into Constituencies……………………………………….29
3.2 The Election of Political Office Holders in Nigeria on the Basis of Constituencies………..30
3.3 Constituency Projects as Dividends of democracy………………………………………….31
3.4 The Definition of the Concept of Constituency Projects……………………………………32
3.5 The Origin of Constituency Projects in Nigeria……………………………………………..33
3.6 The Rationale for Constituency Projects in Nigeria…………………………………………33
3.7 Schools of Thought on Constituency Projects……………………………………………….35
3.7.1 The Constitutionality/Even Development School…………………………………………35
3.7.2 The Unconstitutionality/Conventional school……………………………………………..37
3.8 Legal Frameworks on Constituency Projects in Nigeria…………………………………….38
3.9 Problems of Constituency Projects in Nigeria……………………………………………….40
3.9.1 Problem of Corruption …………………………………………………………………….40
3.9.2 Problem of Abandonment and Maintenance………………………………………………41
3.9.3 Problem of Constitutional Backing………………………………………………………..42
3.10 Constitutionality of Constituency Projects in other Jurisdictions………………………….42
CHAPTER FOUR
4.0 EVALUATION OF CONSTITUTIONAL BASIS OF CONSTITUENCY PROJECTS IN NIGERIA………………………………………………………………………………………...45
4.1 Constituency Projects and Legislative Functions in the Constitution……………………….45
4.2 Constituency Projects and Separation of Powers in the Constitution……………………….49
4.3 Constituency Projects and Constitutional Federalism……………………………………….51
4.4 Constituency Projects and Federal character Principles……………………………………..52
4.5 Annual Budget: A Legal framework for Constituency Projects…………………………….55
4.6 Institutionalization of Constituency Projects for even Development………………………..57
CHAPTER FIVE
5.0 CONCLUSION AND RECOMMENDATIOINS…………………………………………..59
5.1 Conclusion …………………………………………………………………………………..59
5.2 Recommendations……………………………………………………………………………60
Bibliography












TABLE OF CASES
Abaribe v Abia State House of Assembly (2002) 14NWLR pt 788 p. 466 …………………... 17,
Adediran v Inter land Transport Ltd (1991) 9NWLR pt 214 p. 155 SC………………………..20
AG Bendel v AG Federation & 22 Ors (1982) All NLR 85……………………….11, 16,25,27,45
AG Ondo State v AG Federation (2002) 9NWLR pt772 p. 222 SC……………………………..16
AG Abia State v AG Federation (2001) 11 NWLR pt 725 p. 689………………………………16
AG Abia State V AG Federation (2002) 6 NWLR pt 763 p.264 SC……………………………22
AG Abia State v AG Federation (2006) 16 NWLR (pt 1005) p. 265………………………........51
AG Osun State v Inter’l Poweries (2001) 7NWLR Pt 713, P. 647 CA………………………….17
Ag Federation v Guardian Newspaper (1999) 9 NWLR pt 618 p.187 SC…………………..19, 21
AG Federation v Times Newspaper Ltd (1973) 3 All ER……………………………………….20
Ahmed v SSHA (2002) 15 NWLR pt 797 p. 539 CA…………………………………………...16
Ajakaiye v Idehai (1994) 8 NWLR pt 364 p. 504 SC…………………………………………...23
Aliku v Oduntan (1991) 2 NWLR pt 171 p. 1 SC……………………………………………….20
Babarabe Musa v Kaduna State House of Assembly (1982) 3 NCLR 463……………………...26
Commissioner for Local Government, Anambra State v Ezemokwe (1991) 3NWLR pt 181 p. 615 CA…………………………………………………………………………………………..23
Elufioye v Halilu (1993) 6 NWLR pt 301 p.570 SC…………………………………………….20
Ex parte Robinson, 86 US 505 (1874)…………………………………………………………...20
Fawehinmi v Babangida (2003) 3NWLR pt 808 p. 604 SC…………………………………16, 21
Governor of Bendel State v Obayuwana (1983) 4NCLR 96…………………………………….20
Governor of Kaduna State v House of Assembly of Kaduna State (1981) 2 NCLR 444 HC…..22
Governor of Lagos State v Ojukwu (1986) 1 NWLR pt 18 p. 621 SC………………………18, 19
Iffie v AG Bendel State (1987) NWLR pt 67 p.972 CA………………………………………..17
Institute of Social Accountability v National Assembly & Ors. Petition N0. 71 of 2013, Kenya High Court……………………………………………………………………………………….52
Keyamo v LSHA (2000) 12 NWLR pt 680 p. 196 CA………………………………………….17
Kilburn v Thompson (1981) 103 US 168 At 197………………………………………………..22
Lakanmi & Anors v ag Western State (1971) 1 U1LR 201……………………………17, 19, 22
Mabury v Madison 5 US 154 (1980)…………………………………………………………….15
Mora v Mc Namara 389 US 934 (1967)…………………………………………………………19
Nafiu Rabin v State (8-11) SC 130………………………………………………………………11
National Assembly v President (2003) 9 NWLR pt 824 p. 104 CA…………………………16, 28
Ogele v Nuhu (1995) 10 NWlr Pt 523, P. 109 CA……………………………………………....17
Ojokolobo v Alamu (1987) 3 NWLR pt 61 p. 377 SC…………………………………………. 19
Okogie v AG Lagos State (1983) 1NCLR 218, HC 2NC LR 337 CA………………………….18
Omoijahe v Umoru (1999) 8 NWLR pt 614 p. 178 SC………………………………………….20
Oloyo v Alagbe(1983) 2 SCNLR 35……………………………………………………………45
Orlando v Laird 404 US 869 (1971)…………………………………………………………… 19
Philippines Constitutional Association v Enriquez 238 SC RA 507 (1994) ……………………44
Togun v Oputa (2001) 16 NWLR pt 740 p. 597 CA…………………………………………….16
US v Nixon 418 US 683 (1974)…………………………………………………………………28
Williams v Majekodunmi (1962) 1 All NLR 410………………………………………………..18
Zamora (1916) 2AC 77 At 107…………………………………………………………………..19













TABLE OF STATUTES
Constitution of Federal Republic of Nigeria, 1999 as Amended
Kenya Constituency Development Fund Act 2013
Lagos State (Constituency) Projects Development Law 2000
























LIST OF ABBREVIATIONS
AG Attorney General
ALL ELR All English Law Reports
ALL NLR All Nigerian Law Report
CA Court of Appeal
CDF Constituency Development Fund
CFRN Constitution of Federal Republic of Nigeria
FRN Federal Republic of Nigeria
NLR Nigerian Law Report
NWLR Nigerian weekly Law Report
SC Supreme Court

CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study
The controversy over the inclusion of constituency projects in the annual budget has become a recurring trend in some modern democratic states across the globe. Constituency project is known with different names in different jurisdictions. According to Dogara , in the United States of America, constituency projects are known as Pork Barrels or Earmarks or distributive politics. While in Kenya, it is known as constituency Development Fund (CDF). A constituency project is any project that is conceived, designed or executed within a legislative constituency with the collaboration, input or influence of the legislator representing that particular constituency in the legislature, and such projects are funded from the national or state budgets. Musa traces the concept of constituency project in Nigeria to the second Republic and it is usually a sort of inducement by the executive arm of government to the legislature.
In Nigeria, constituency project has since its inception been a serious source of controversy between the legislature and the executive as to its constitutionality among other things. Various constitutions adopted in Nigeria since her independence have maintained a federal political structure. Federalism as complex political arrangements that emphasizes on constitutional division of governmental powers is usually associated with conflict among the tiers and organs of government as to limits of powers devolved to each. Nigerian constitution provides for vertical and horizontal sharing of governmental powers. Vertically, powers are shared between the federal, state and local government. While horizontally, powers are shared between the three organs of government at each level; they are the legislature, executive and the judiciary. Keeping tenor with the democratic arrangements for proper and adequate representation; the entire country is divided into federal and state constituencies from which federal and state legislators are elected.
Furthermore, the extant Nigerian constitution in sections 4, 5 and 6 provide for the operation of the doctrine of separation of powers among the three organs of government; the legislature, executive and judiciary to enhance smooth running of the government and prevent tyranny. However, due to the complexity of pattern of power devolution and intergovernmental relations that characterized Nigerian federalism, the emergence of conflicts of one organ or tier of government interfering with the powers of another becomes inevitable, hence the legislative and executive controversy over the constitutionality of constituency projects in Nigeria. Although, the primary functions of the legislature are law making, oversight functions and representation. It has no power to execute law or projects which is within the exclusive power of the executive.
In most jurisdictions including Nigeria, the political trend seems that there is a problem of lack of understanding of the constitutional role of the legislators by their constituents. The constituents adjudge the performance of their legislators based on the number of projects they are able to attract and execute in their constituencies. Any legislator who is unable to attract projects is regarded as a non-performer, an ingrate who has failed to reciprocate the electoral support given to him. In fact 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 on the legislators to execute visible projects bring undue pressure on them especially those who would like to be re-elected, thus the struggle to include constituency projects in the annual budgets.
The legislative and executive dispute over constituency projects has in several occasions brought about delay in the passage of the appropriation bills. Even when the appropriation bills are eventually passed into law; there are increased differences between the estimates submitted by the executive and the amount eventually approved by the legislature as the budget. The increase, no doubt was in several instances due to the accommodation or the inclusion of constituency project.
Moreover, divergent views have emerged from different quarters of the country as to the constitutionality, essence and justification of constituency projects. Though, some strongly believe that it is the avenue for the law makers to illegally enrich themselves. It is the currency of this controversy and the need for its resolution that prompted this researcher.
1.2 Statement of Problem
The constitutionality of constituency projects in Nigeria has been questioned as many scholars are in doubt of the particular provisions of the constitution that sustain them. No wonder there is always a dispute between the executive and the legislature in every financial year as to the inclusion or non-inclusion of constituency projects in the annual budgets. The Constitution of Federal Republic of Nigeria 1999 as amend does not expressly provide for constituency projects. Though many writers have cited some sections of the constitution from which it could be implied. Thus, the examination of the veracity of their position constitutes the greatest task of the study.
Secondly, those projects purported to be executed as constituency projects can not in any measure justify the huge amount of fund budgeted for them annually. According to Obasanjo, members of the National Assembly are corruptly enriching themselves through the constituency projects. He described constituency projects as veritable sources of corruption. One of the accusations against the legislators regarding constituency projects is that apart from nominating the projects, they equally nominate contractors, who after getting paid settles the legislator and abandons the projects.
Thirdly, another problem with constituency projects is that it amounts to usurpation of the executive powers by the legislature. The primary function of the legislature is among other things to make law for the peace, order and good government of the country. Execution of projects is purely the executive functions. Therefore, allowing the legislators to perform core executive functions would amount to a fragrant violation of the doctrine of separation of powers and checks and balances. A part from the fact that constituency projects may not be in harmony with separation of powers, it also appears to run contrary to the principle of federalism that devolves areas of authority and operations among the levels of government. The federal government operates within the legislative exclusive lists and shares powers with the state on matters within the concurrent lists. State on the other hand exercises powers on matters in concurrent list and residual matters. Many federal legislators have executed projects which were outside the exclusive and concurrent powers of the federal government, thus exercising the powers of the state and the local governments.
Fourthly, it is painfully regrettable that constituency projects across the country are left in disrepair after the tenure of the legislators who executed them. The successive legislators find it difficult to maintain them since doing so would amount to working for another man’s glory. This ugly attitude constitutes a huge lost to the nation.
This study is designed to examine these and other problems that characterize constituency projects and recommend possible solutions. Consequently the above problems are reduced to these mind-boggling questions-
1. Is constituency projects expressly or impliedly provided for in the 1999 Constitution as amended?
2. Does the annual budget serve as a legal framework for the operation of constituency projects?
3. To what extent does constituency project run contrary to the doctrine of separation of powers as provided into 1999 Constitution as amended?
4. Should constituency projects be institutionalized or scraped?
1.3 Purpose of Study
The study sets to achieve the following purposes:
1. To examine the constitutional basis for the operational of constituency projects in Nigeria.
2. To find out whether the annual statutory budgets is a legal framework or authority for constituency project in Nigeria.
3. To evaluate the effect of constituency projects on the operation of the doctrine of separation of powers as enshrined in the 1999 Constitution as amended
4. To x-ray the hydra-headed problem of corruption in the execution of constituency projects in Nigeria
5. To proffer ways of resolving the controversy between the executive and the legislature over constituency projects.
1.4 Scope of Study
This study is designed to cover all the salient issues surrounding the constitutionality of constituency projects in Nigeria. The study looks at the origin of constituency projects in Nigeria. The work covers all the federal and state constituencies across the federation that is the National Assembly and the State Houses of Assembly. Constitutional issues such as federalism, separation of powers, statutory budgets, federal character principle etc are analyzed vis-a-via the constituency projects.

1.5 Significance of Study
A study of this magnitude is very relevant especially at this time there is a hot dispute between the National Assembly and the Federal Executive Council on the inclusion of constituency projects in the national budget. This work has both theoretical and practical relevance.
Theoretically, this study contributes enormously in enriching the existing body of knowledge on the constitutionality of constituency projects. It provides ingredients for theory building on the need or otherwise of institutionalizing constituency projects in Nigeria. This study will serve as a good material for anyone who will do more research on this topic.
On the other hand, this study is also practically relevant as it empirically reveals the problems besieging the funding and execution of constituency projects in Nigeria. This study will also provide us with knowledge as to the position of the constitution in respect to constituency projects. It will provides us with pragmatic steps to be adopted to improve, sanitize and effectuate the institutionalization of constituency projects in Nigeria so as to resolve this recurring dispute between the legislature and executive; and spread dividends of democracy across the federation.
1.6 Methodology
The type of legal research deployed in this work is doctrinal. The doctrinal legal research involves analysis of case law and statutory provisions by application of the power of reasoning. It is a research into law as it stands in the books. By these methods, this study is organized around legal propositions.
This study combines both primary and secondary sources of data collections. Primary sources are case law, statutes etc while the secondary sources are, text books, journals, newspapers, magazine articles, internet sources etc.
A combination of comparative, hermeneutical, analytical and phenomenological methods used to realize the salient purposes of the study.
1.7 Organizational Layout
This study is organized into five chapters in order to achieve the purposes of the study.
The chapter one looks at the background of Nigerian federal democracy and the phenomenon of constituency projects. It discusses the underlining problems which the research set to address. More so, the purposes and relevance of the study are also appreciated here.
The chapter two appreciates the concept and nature of the constitution, the character of Nigerian constitution, the powers of different organs of government, the doctrine of separation of powers and the legislative functions in Nigeria.
The chapter three makes an overview of the concept of constituency projects, ‘it examines the two major schools of thought on constituency projects in Nigerian. This chapter also considers the legal frame works on constituency projects and the problems besieging constituency projects.
The chapter four makes a critical analysis of the constitutional basis for constituency projects in Nigeria by juxtaposing the constitutional legislative functions and constituency projects; constituency projects and constitutional federalism; constituency projects and federal character principles. The chapter further appraises the status of the annual budget as a sufficient legal framework for constituency projects. Constituency projects in some foreign jurisdictions are appreciated. Chapter five presents the conclusion and recommendations of the research.
1.8 Definition of Terms
1.8.1 Constitution: A constitution is an instrument of government made by the people, establishing the structure of a country, regulating the powers and functions of government, right, and duties of the individual and providing remedies for unconstitutional acts.
1.8.2 Constituency: Constituency may be defined as an electoral district carved out for the purpose of representing the interests and opinions of people of the area in the legislature.
1.8.3 Constituency Project: Constituency project is any project that is conceived, designed or executed within a legislative constituency with the collaboration, input or influence of the legislator representing that particular constituency in the legislature.
1.8.4 Separation of powers: This is defined as the division of governmental political powers that exist in any given state into the three organs of government; the legislature, executive and judiciary.
1.8.5 Legislature: This is the organ of government that is assigned the function of law making. The legislature can be one house (unicameralism) or two houses (bicameralism)
1.8.6 Constitutionality: This is defined as the state of being allowed by or in agreement with a constitution.
1.8.7 Federalism: this is defined as one in which governmental powers that exist in the country are shared between a central government that represents the whole country and government of component units or states, so that each government is legally and constitutionality independent and autonomous.
1.8.8 Legislative Oversight: This is the legislative review, monitoring and supervision of government agencies, programs, activities and policy implementation in the country.

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