Constitutional Amendment And The President’s Veto
As we celebrate this unity in diversity and our diversity in unity as accentuated by the election results and magnanimous acceptance of same by the incumbent president, the thorny issue of constitutional amendment has now resonated and is hovering over the nation as we speak.
The climaxing scenario was that Mr. President, Dr. Goodluck Ebele Jonathan, finally withheld his assent to the bill for the fourth constitutional amendment in our incipient democracy since 29th May, 1999.
This discourse succinctly examines the reasons adduced by Mr. President for withholding his assent as well as ruminates on the intention of the legislators.
In retrospect in 2002, I became a pioneer staff member of the maiden Joint Committee of the National Assembly on the Review of the 1999 Constitution.
At that material time I was the Special Assistant on Constitutional matters to the Deputy Speaker of the House of Representatives. Hon. Prince Chibudom Nwuche.
Our patriotic efforts in that regard were truncated by the vainglorious and selfish aspirations of same politicians in the Legislative and Executive arms of Governance.
After several failed attempts, the National Assembly amended the Constitution and has now proposed a fourth constitutional amendment bill which has been rejected by Mr. President.
Reasons for Mr. President Withholding Assent
From our Mr. President’s letter dated 13th April, 2015, consultations and enquiries, it was gathered that Mr. President raised 13 or more contentious issues for his action. Some of these include to wit:
• President no longer to assent future constitution amendments
• Non-compliance with the threshold specified in Section 9(3) of the 1999 Constitution on amendments
• Alteration to constitution cannot be valid with mere voice votes unless supported by the votes of not less than four-fifths majority of all members of National Assembly and two-thirds of all the 36 state Houses of Assembly
• Right to free basic education and primary and maternal care services imposed on private institutions
• Flagrant violation of the doctrine of separation of powers
• Unjustified whittling down of the Executive powers of the Federation vested in the President by virtue of Section 5(1) of the 1999 Constitution
• 30 days allowed for assent of the President
• Limiting expenditure in default of appropriation from six months to three months.
• Creation of the Office of Accountant-General of the Federation, distinct from the Accountant-General of the Federal Government
• Empowering National Economic Council to appoint the Accountant-General of the Federation instead of the President
• Allowing NJC to now appoint the Attorney-General of the Federation rather than the President
• Unwittingly whittling down the discretionary powers of the Attorney-General of the Federation.
It is evident from the above listed contentious issues, that no President worth his onions will speedily assent to such a constitutional amendment bill.
An amendment that proposes to circumscribe the powers of Mr. President under the Constitution is bound to fail.
Indeed, the appointment of the Attorney-General of the Federation as proposed, will be made by the National Judicial Council (NJC).
This appears to be unacceptable to say the least and a gross violation of the doctrine of Separation of Powers!
We cannot expect that a member of the executive should be appointed by the Judiciary! Whilst he remains accountable to the executive.
Alteration of Constitution
Mr. President also drew attention to the fact that the germane procedure for amending the Constitution was not followed. Specifically Section 9 (3) thereof provides that:
“9(3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the Houses of Assembly of not less than two-thirds of all the States”.
For the above reason, Mr. President contends that the amendment process was a nullity.
Specifically Section 5 of the 1999 Constitution, which confers wide powers on Mr. President is to be reduced by the amendment bill. The right to basic education and primary as well as maternal care services are imposed on private institutions.
This offends the doctrine of free enterprise and will affect investors as well as private partnership confidence on the nations economic policy and development.
Private institutions should be allowed to flourish and not bothered by constitutional provisions, which challenge and undermine their very existence.
Amendment of Section 58(4) of the Constitution
There is also the issue of Section 58(4) wherein the amendment bill seeks to alter and direct that if after 30 days when Mr. President has received a bill, same automatically becomes a law, if he withholds assent.
Indeed, the force behind Section 58 of the Constitution is to give the President a margin of appreciation and opportunity to reflect as well as to veto where necessary.
This power is so strong that if the President withholds assent, it requires the National Assembly to re-pass the bill through the same initial process with a two thirds majority before the Presidents power of veto can be overridden.
This principle was thoroughly and exhaustively encapsulated and postulated in the case of INEC V. Obasanjo (2003) 9 NWLR (Pt. 824) 104 at 131 paras D-F, specifically the Judgment of the sagacious Oguntade, JCA, (as he then was) to the effect thus:
“Presumably, the Electoral Bill went through the requisite stages before it was sent to the President i.e. 1st respondent/cross-appellant for his assent. However, it was not assented to within 30 days. Under section 58(5) of the Constitution, in order to override the veto of the 1st respondent, each of the Houses of National Assembly has to pass the bill again. The language used by section 58(5) is “and the bill is again passed by each house.” This means that the bill has to go through the same processes it has previously gone through when it was first passed. That is the clear import of ‘the bill is again passed’. It means a repetition of the earlier process.”
Another section that will emasculate executive power is that which directs that the Federal Government can only spend monies which are not appropriated only for a period of three months as against six months in the existing Constitution.
The right to education as recommended is a double edged sword. Whilst we oppose the implementation of this provision on private schools and institutions, we are deeply gladdened that Nigeria has thus come to terms with the new spirit of the importance of education in the comity of nations.
Question for the Legislators
It is I strongly believed that if the huge energy and resources expended on this amendment have been utilized productively in other areas of our nation’s life, such as practicing true federalism and resource control, Nigeria would have been a bastion hope to emerging democracies around the globe.
The question that arises therefore is why on earth did the legislators not await and examine the recommendations of the National Confab which suggested a fundamental restructuring of Nigeria, before rushing to pass these new constitutional amendment bill?
Why was the National Assembly in a hurry to pass to the amendment bill, whereas they are yet to pass a Revenue Allocation Formula Bill for Nigeria since 29th May, 1999 till date?
Indeed, there have been divergent views and opinion on this issue.
Whilst the likes of fiery lawyer Olisa Agbakoba SAN are of the view that the President’s assent is necessary and imperative, others have argued to the contrary.
However, Olisa Agbakoba SAN living up to his enviable pedigree, followed up his argument by filing an action at the Federal High Court, Abuja to test this issue. Conquently, the Federal High Court in Abuja held inter alia, that Mr. President’s assent is a sine qua non before a bill to amend the Constitution will become effective as a law in Nigeria.
It is this judgment the legislators are apparently trying to side step by expunging the need of Mr. President to assent to any future constitutional amendment bill in Nigeria.
As the stalemate continues, it will appear that this is one of the contentious issues the incoming President elect, General Mohammadu Buhari Rtd will have to thoroughly examine and contend with .
Nevertheless, it is our humbly view that the incoming legislature should embark on a more comprehensive and meaningful constitutional amendment that will incorporate total devolution of powers among the federating units as well as granting resources control to same and further protecting the existence of the ethnic minorities especially from the Niger Delta who produce the oil and gas resources that have been Regrettably sequestrated by the Nigerian State.
Dr. Odje, LL.D, LL.M (Merit)(London), B.L., (FIHNR), (MNIM), is of Dr. Mudiaga Odje SAN & Co., and writes from Warri, Delta State.