By Abubakar Jimoh
The recent refusal of President Goodluck Jonathan to assent to the amendment of 1999 Constitution submitted to him by the National Assembly owing to 13 ground reasons, has drawn the ire of the lawmakers, raising some questions as what other options left to the national legislative chamber.
What appears as last minute presidential muscle flexing is also being interpreted as a constitutional crisis in some quarters.
It would be recalled that after the passage of the Bill by National Assembly, it was transmitted to the state assemblies and returned to the Senate in December last year and passed. However, a new twist emerged last week as President Goodluck Jonathan refused assent to the bill on some grounds of constitutional breaches.
President Jonathan further gave reasons behind his refusal to assent the constitution amendment bill forwarded to him by the National Assembly and some eminent lawyers backed his decision. Raising about 13 grounds, President Jonathan in a letter entitled: “Re: Constitution of the Federal Republic of Nigeria, Fourth Alteration Act, 2015,” questioned the power the National Assembly has to arrogate to itself the power to pass any constitution amended without the assent of the President.
Jonathan made his position known in a seven-page letter to Senate President David Mark and House of Representatives Speaker Aminu Waziri Tambuwal. He said he would not assent to the amendments because they do not satisfy the strict requirements of Section 9(3) of the 1999 Constitution. He queried the decision of the National Assembly to whittle down some Executive powers of the President of the Federal Republic of Nigeria; and faulted some amendments which will give Executive powers and duties to the Legislature and the Judiciary.
The President’s decision is in consonant with Section 58 (2-4) of the Constitution which provides thus: “(2) A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by section 59 of this Constitution, assented to in accordance with the provisions of this section. (3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented to the President for assent when it has been passed by that House and agreement has been reached between the two Houses on any amendment made on it. (4) Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent”.
The return of the Constitution Amendment Bill surprised Senators and members of the House. The listed 12 errors in the amendments by the President listed are: 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 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; and Limiting expenditure in default of appropriation from 6months to three months.
Others are: 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.
The identified leading lawyers, who endorsed the president’s action were Professor Itse Sagay (SAN), Chief Emeka Ngige (SAN), Mr. Festus Keyamo and Mr. Kayode Ajulo. Shocked by the President’s letter, the National Assembly Conference Committee, comprising members of the Constitution Review Committee in both the Senate and the House of Representatives, began a two-day retreat to look into the bill and the attendant consequence of the president’s action.
The Senate immediately announced that the Senate Adhoc Committee on Constitution Review led by Senator Ekweremadu was going on a two-day retreat where its members will deliberate and decide whether to override the president’s veto.
However, the committee could not go ahead with its two-day retreat which was supposed to start on Wednesday April, 15th because the president did not return the original bill, which is against the practice.
Ekweremadu therefore demanded that the Senate should ask the president to return the original copy specifically containing the signature page to the chamber. He said: “The president raised a number of objections with respect to the fourth alteration of our constitution. That letter was appropriately referred to the Senate Committee on Constitutional Review.
“We had slated to have a two-day retreat to consider the letter and advise the Senate appropriately. In the course of our sitting yesterday, we noticed that in the second to the last paragraph of that letter, the president said he was returning the bill with the letter. Unfortunately, the bill was not returned with the letter and we could not proceed because we would like to see the returned bill.
“The committee has asked me to raise this point, to request the president of the Senate, to ask the president of the Federal Republic of Nigeria to send back the original copy of the Bill as sent to him, especially the signature page, to enable us proceed with our work especially since he had indicated in his own letter that the letter was accompanied by the bill. So, we would like to have the bill in its original form especially the signature page”, Ekweremadu said.
In his response, Mark promised to accede to the mandate of the Senate by promptly sending the letter to the president, bearing in mind the urgency involved.
The House of Representatives in its reply to President Jonathan’s rejection insisted that the House did not flout any constitutional requirement in the process of amending the constitution. The House Minority Whip, Hon. Samson Osagie while reeling out the House position on the constitution amendments contested by the President, submitted that on Clause 4 (alteration of Section 9), National Assembly met the requirement of the said Section 9 (3) for a four-fifths votes of members of each House.
“A reference to the Votes and Proceedings of the House of Representatives for Wednesday 24, July 2013, No. 15 at page 117 shows that the alteration of Section 9, attendance of members as registered was 338. Ayes votes were 317, Nays votes were 6, Abstain 15, totalling 338. The Senate also voted accordingly.” Osagie submitted.
Following the veto of amendment by the President, it was rumoured that the President had changed his mind about the bill after already signing it. The Senate reportedly made the demand in order to ascertain if the President had signed the bill before deciding to reject it.
Some observers have wondered why President Jonathan failed to point out the sections he objects to during harmonisation period of the exercise since he has an unhindered access to the leadership of the National Assembly. However, it was gathered that part of the under-current that informed the President’s action are some powerful forces in the office of the Attorney-General of the Federation and Minister of Justice, who are said to be uncomfortable with the provision that separates the office of the AGF and Justice Minister.
In order to stop the legislators from taking action on the Bill, the President reportedly dragged the National Assembly to the Supreme Court, where he filed the case on Wednesday, April 22, 2015, seeking for an order nullifying all the proposed amendments to the 1999 constitution. The government, through an originating summons prayed the court to declare the amendments unconstitutional.
While commenting on the action of President Jonathan, Chief Emeka Ngige, SAN, said the president’s action was in order. He said: “My view is that I whole-heartedly support the President’s action by not signing the bill. It is only a fool that will append his signature to something that would make him look foolish. I am surprised that the National Assembly wanted the President to sign off his powers in the constitution amendment process.
“The President did the right thing and it is now left to be seen whether the legislators would override the President’s action. I am, however, in doubt that they will get the required number needed to do that as things stand now in the country. My advice is that they suspend the constitution amendment process until the next dispensation.”
Similarly, Lagos lawyer, Mr. Festus Keyamo, backed the President on rejecting the constitution amendment bill. According to him, the National Assembly failed in attaching the votes and proceedings on the sitting that approved the clause to change the mode for constitution alteration. He also sided with the President in rejecting the proposal to give the National Judicial Council the responsibility of appointing the attorney general, asserting that it breaches the doctrine of separation of powers.
“I think the President is correct and he divided his objection into two. In the first one, he gave reasons he could not sign the issues dealing with healthcare, education and all that. In the second one, dealing with four-fifths requirement needed to alter the mode for constitution amendment is a special provision in the constitution and if you need to change the provision by which the constitution should be amended, you need a higher number than the normal two-thirds and the President said that they did not attach the votes and proceedings to show that that number was met. That was very fair by him. There is no evidence that you have met the requirements before sending it to me. So he is correct on that one.
“On the requirement for free education and all that, what the President is saying is that you cannot impose free healthcare on private hospitals and private schools; you should restrict it to government schools. So do you want people to start taking private schools to court? It should be restricted to government hospitals because you would otherwise destroy the spirit of free enterprise in the country.
“What the President said was that they would be infringing on the principle of separation of powers. For example, it would mean giving the judiciary the power to appoint the attorney general who is an executive member and don’t forget that the attorney general sits in the exco,” he said.
Warri based lawyer, Akpo Mudiaga Odje, SAN said it was strongly believed that if huge amount of money and resources expended on the amendment had been utilized productively in other areas of national life such as practicing federalism and resource control, Nigeria would have been a bastion hope to emerging democracies around the globe. He questioned action of the legislators to pass amendment Bill to the constitution without waiting to examine the recommendations of the confab, which suggested a fundamental restructuring of Nigeria.
The Chairman, Senate Committee on Rules and Business, Senator Ita Enang, has described President Jonathan’s refusal to assent to Constitution Amendment Bill 2015 as another act of statesmanship. He however, observed that the observations made by the president were coming late as the National Assembly had already passed the bill. He said that aides of the president ought to have pointed out the observations for amendment at the point of the public hearings.
On the contrary, Professor Itse Sagay, SAN, said though the President has a minor justification in refusing to endorse the amendment in the 1999 Constitution, some of the sections he rejected would have been good for the country.
He said: “There is the main issue of whether the President is really entitled to sign the constitution, that is the constitution could have been changed without him, that issue is not yet resolved and probably won’t be resolved until it gets to the Supreme Court because every constitutional change goes through a process of two thirds vote in the National Assembly and approval by state Houses of Assembly.
“So, it raises the question of after going through that process, is it still necessary to present it to the President for his signature. That issue is there but the way the people behave this time is as if they needed the President to vote.”
Speaking further, the legal icon said: “If you look at his reasons for refusing to endorse the amendment, his main reasons are that the executive powers are being depleted to the advantage of the National Assembly and the National Judicial Council. For example, he said the office of the Accountant-General was split into two—One for the federation and the other for the Federal Government. That is a very good thing. I do not know why he should be against that because the present Accountant-General of the Federation operates more as the Accountant-General of the Federal Government. It is usually unfair to other parts of the federation, that is why that position was made, it was a sensible provision.
“As for meeting the provision of Section 9 (3), I do not know what he expects them (National Assembly) to meet. They have met the Two Thirds requirements. The only provision of the constitution which requires three quarter votes are those that affect human rights. These ones do not affect human rights as far as I know. I don’t see why he is complaining about Section 9(3)”.
Also, Lagos based human rights lawyer, Mr. Femi Falana (SAN) has faulted the decision of President Jonathan to reject, in its entirety, the 70 amendments the National Assembly had proposed to the Constitution. He warned that the 70 proposed amendments might suffer the same fate that led to the rejection of the 108 proposed amendments to the 1999 Constitution in 2006.
He expressed grave concern over the reasons the president gave for rejecting the 70 proposed amendment to the constitution in a statement he personally signed, thereby warning against throwing baby away with the bath water. Falana identified some controversial sections in the newly proposed amendments, which he said the president should have withheld his signature rather than rejecting the entire amendments.
He, however, argued that the president goofed on the procedure for altering the provisions of the constitution, citing that the president’s view that an amendment of the constitution “requires the votes of four-fifths of the National Assembly and approved by the resolution of the Houses of Assembly of not less than two-thirds of all the states is patently wrong.
Most Nigerians are of the opinion that lawmakers are underworked but overpaid due to many recesses and their failure to pass bills that have direct benefits to the people. The review of the 1999 constitution was one of such bills. The committee on the review of the 1999 Constitution is headed by deputy Senate president, Ike Ekweremadu, who took on this journey over two years ago and which has cost the National Assembly about N4billion. After various consultations with constituents and public hearings, the constitution was ammended last year.
Other options for NASS
Section 58 (5) of the Constitution confers on National Assembly to pass into Law any Bill that the President refuses or fails to assent into. The Section provides that where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required. In this case, if the president vetoes a bill, National Assembly still has an opportunity to enact the law with an override vote in which both legislative chambers decide whether to honor the president’s veto or to enact the law without his signature. An override requires a two-thirds roll call vote of the members who are present in sufficient numbers for a quorum in each chamber. At this time, no debate is allowed before the vote on a veto. After this, if both houses override the veto, the bill becomes a law, having the same effect and power as if approved by the president.
As part of the option National Assembly can explore in view of the development, Senator Enang, has said National Assembly would hold close consultations with the president to look at the observations made and vote on some of them.
On his own part, Falana urged members of the National Assembly to remove the objectionable provisions in the amendment, noting that if they refused to do so before overriding the veto of the President, they would have engaged in a futile exercise, which could be challenged in a law court.
The frontline lawyer advised them to go back to the drawing table to tackle the fundamental errors that characterised the Fourth Alteration to the Constitution. He said: “They (National Assembly) should have no difficulty in jettisoning the alteration of Section 9 of the Constitution, as it is the height of legislative dictatorship to amend the Constitution of a country without the assent of the President and the endorsement of the people via a referendum.
“While the concern of the legislators for the rights of Nigerians to basic education and health is appreciated, the inclusion of the both rights in Chapter Four of the Constitution is unnecessary as both rights have been statutorily recognised.”
Dayo Benson, a writer highlighted three options before the legislatures: “The first is to address the issues which the President raised. This will involve returning the bill to the state houses of assembly. Considering the time, energy and resources already gulped, it is like starting afresh. With barely a month and few days to hand-over date, there is certainly no time for that. The second option is to leave the entire process to the incoming national assembly. Doing so may render the whole exercise a nugatory as it may be put aside. The outgoing lawmakers would obviously not want their efforts wasted. Perhaps, to avoid any of the two options above, the way to go is to override the President’s veto as provided in Section 58 Sub-section (4) of the Constitution.”
A principal officer in the National Assembly revealed to journalists, two choices before the National Assembly on the case: “Either the institution approves the position of Jonathan or goes ahead to override it”.
As the seventh Assembly ends in May, most of the legislators felt betrayed over the president‘s moves as they feel all their efforts and a chance to etch their names in the history books may be fruitless.