Constitutional Amendment Details: Nigerian Senators Trying To Become More Powerful Than President, Get Life Pension, Immunity

David Mark

By Emma Aziken, Clifford Ndujihe, Dapo Akinrefon, Charles Kumolu, Johnbosco Agbakwuru &  Joseph Erunke

rescuedPresident Goodluck Jonathan, on April 15th, gave reasons why he refused to assent the constitution amendment bill forwarded to him by the National Assembly even as 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.
He also picked holes in whittling down the power of the President, allowing the National Judicial Council, NJC, to appoint the Attorney-General of the Federation, separating the office of the Accountant-General of the Federation from that of the Federal Government, and limiting the period when expenditure can be authorized in default of appropriation from six months to three months, among others.

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, yesterday, began a two-day retreat to look into the bill and the attendant consequence of the president’s action. It will come out with a definite position on the issue next week.

Mark stops senators from debating President’s letter

The President’s letter was read on the floor of the Senate during plenary yesterday by the Senate President, David Mark. But he stopped Senators from debating the President’s refusal to assent to the amended bill, when some senators, led by Senator Sadiq Yar’Adua, APC, Katsina Central, raised a Point of Order, seeking permission to that effect.

The President, in the letter also lamented what he termed as usurpation of powers of the executive by the legislature in the fourth alteration of the constitution.

Shortly after the Senate President finished reading the letter, Senator Abubakar Yar’Adua, APC, Katsina Central, raised a Point of Order, seeking that the Senate be allowed to debate the President’s letter.

He said: “I think it is important for us to discuss that letter and see whether there is need for us to consider the letter or not. I think he has raised very serious fundamental issues, especially in terms of our conscience as lawmakers and his own position as the chief executive officer of the Federal Republic of Nigeria. That is why I am raising this point or order.”

But the Senate President refused his request, saying he was earlier communicated by the Conference Committee on the Review of the 1999 Constitution, that it was holding a two-day retreat between yesterday and today, to discuss and take position on the president’s letter.

Mark said: “Obviously, this letter is not like any other normal letter. We can’t discuss the letter unless you have a copy of it. So, the first reaction is for me to make copies available to everybody. And you go and study it. And if you notice, there is an announcement also by the Constitution Review Committee that they are going to meet. So, that will straight away go to them. I agree with you that weighty issues have been raised. It’s a peculiar case, so everybody will be involved.”

Where lawmakers erred —Jonathan

buhari talkIn the letter, Jonathan said that the two chambers of the National Assembly failed to meet requirements for altering Section 9 (3) of the 1999 Constitution.

“Section 4 of the Fourth Alteration Act, 2015 seeks to alter Section 9 of the 1999 Constitution by the insertion of a new subsection 3A, which dispenses with the assent of the President in the process of constitution amendment. However, this alteration can only be valid if the proposal was supported by votes of not less than four-fifths majority of all the members of each House of the National Assembly and approved by a resolution of the Houses of Assembly of not less than two-thirds of all the states as provided by Section 9 (3) of the 1999 Constitution.

“This is a fundamental requirement of the constitution and in the absence of credible evidence that this requirement of the constitution was met in the votes and proceedings of the National Assembly, it will be unconstitutional for me to assent to this Bill,” he explained.

Besides, the President said there were a number of provisions in the Act that altogether constitute flagrant violations of the doctrine of separation of powers enshrined in the 1999 Constitution and unjustifiably whittle down the executive powers of the federation vested in the president by virtue of Section 5 (1) of the 1999 Constitution.

Jonathan observed that the power vested in the President to withhold his assent to bills passed by the National Assembly was part of checks and balances contained in the constitution.

He said Sub-section 5a of Section 58, which provides that the bill becomes law after the expiration of 30 days in the event that the president fails to signify the withholding of his assent, may be inappropriate.

“The provision appears not to have taken cognizance of the afore-mentioned variables, the vagaries inherent in the legislative process and the wisdom in requiring two-thirds majority to override the President’s veto.

“In the light of the above, I am of the view that the failure to signify assent by the President within the prescribed period of 30 days should rather be treated as dissent, which would require two-thirds majority to override.”

Jonathan faults NASS over alteration

senateJonathan also faulted the National Assembly over its alteration, seeking to limit the period when expenditure can be authorized in default of appropriation from the six months provided in the constitution to three months, saying: “I am of the view that this provision has the potential of occasioning financial hardships and unintended shut-down of government business, particularly where for unforeseen reasons and other exigencies in the polity, the National Assembly is unable to pass the Appropriation Act timeously.

“Our recent experiences with the process of passing the Appropriation Act do not justify the reduction of six-month time limit in the constitution,” he insisted.

The President also faulted Section 84a that created the new Office of Accountant General of the Federation distinct from the Accountant General of the Federal Government, saying it did not address the funding requirements for establishment of the office.

“It is necessary to clarify, for instance, who staffs and funds the office of Accountant- General of the Federation and from whose budget he will be paid since he serves the three tiers of government,“he stressed.

He also said it was important to state who will exercise oversight powers over the office, noting that the National Economic Council, which was mainly an advisory body, was now charged with the responsibility of recommending those to be appointed to the office of the Accountant-General.

The President equally faulted the National Assembly in separating the Office of the Attorney General of the Federation from the Minister of Justice and the Attorney General from the Commissioner for Justice in the respective states of the federation and also the provision for independence of the Office of Attorney General by guaranteeing tenure and funding.

He said as desirable as the alterations were, there were some provisions that violate the doctrine of separation of powers and also negate what he called “the age-long independence and absolute discretion that the office has enjoyed for centuries since its creation in the middle ages.”

He said the first setback was that the alteration was silent on who was the Chief Law Officer of the Federation, noting: “This is a serious lacuna, which may create implementation challenges.”

President has minor justification—Sagay

On the controversy, 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.

Sagay 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 the National Judicial Council appointing the Attorney-General, I do not think it is a good idea. It is going too far because the Attorney-General exercises executive powers in the sense that he can decide to institute a criminal case and he can decide to end a criminal case. I think that should remain with the executive and not with the judiciary.

“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).

All told, he has some minor justification but the bulk of what has been rejected would have been positive for the federation.”

President did the right thing —Ngige

On his part, 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.”

Jonathan is correct —Keyamo

festus keyamoIn like manner, 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.

He said: “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.’’

On separation of Attorney General and Minister of Justice

“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.

“You are now saying that the judiciary should appoint him or recommend him to the President for appointment subject to the approval of the Senate, so that appointment is coming from the judiciary whereas in the past the NJC only recommended judges.

“Now, the danger is that when a government fails in its anti-corruption war, you blame the president; meanwhile the person who is responsible for anchoring the anti-corruption war of the government is the attorney general who is not appointed by the government but may actually be destroying the anti-corruption war and yet the government cannot touch him.

“So it is a two-edged sword, but the government gets the consequence. So you could have a case where the attorney general can destroy the government’s anti corruption battle but the government cannot sack him.”

It’s constitutionalism in action—Ajulo

On his part, Mr Kayode Ajulo commended the president for using his discretion, saying this is constitutionalism in action.

“When you look at it very well, the president has the discretion to either sign the amendments or not. What the President has done is the right thing because this is constitutionalism in action. It is well inscribed in the law and if the President exercises his discretion, so be it. Either rightly or wrongly, it now lies with the Supreme Court to do the required.”