Knocks for lawmakers over declined presidential assent

The most apprehensive election in Nigeria’s history – the 2015 election has come and gone with pleasant surprises  from  the major political gladiators.

The outcome of that election came to anti-climax for all those beating the drums of war. It was a pleasant end to all forms of tensions and predictions of doom, which had pervaded the political landscape at the height of the campaigns.

And just as the country was been relieved from the never-to-be fear of ominous electoral catastrophy with a sigh of relief, the president declined consent to the National Assembly’s  constitution amendment.

He also explained the reasons for doing so. On Wednesday, 15th April, 2015, the President of the Senate, David Mark, read on the floor of the Senate during plenary sitting, a letter addressed to the Senate by President Goodluck Jonathan adducing reasons for his action.

In that letter, the President pointed out what he considered defects that denied the bill for the 4th alteration of the Constitution his assent, saying unless and until such defects are reviewed or reconsidered by the National Assembly, his assent will remain withheld.

The president particularly, faulted Section 4 of the 4th Alteration Act, 2015, which attempts to alter Section 9 of the Constitution by inserting a new subsection 3 (a), which in effect has jettisoned the assent of the President in the process of constitutional alteration.

The content of Mr. President’s letter reads: ‘’This alteration can only be valid if the proposal was supported by votes of not less than four-fifth majority of all the members of each House of the National Assembly and approved by a resolution of the House 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 was met in the Votes of  Proceedings of the National Assembly, it will be unconstitutional for me to assent to this bill…. “In the light of the above, I am of the respectful view that I should withhold assent until it can be shown that the National Assembly has complied with the threshold specified in Section 9(3) of the 1999 Constitution.

However, assuming without conceding that the necessary thresholds were met by the National Assembly, there are a number of provisions in the Act that altogether constitute flagrant violation of the doctrine of separation of powers enshrined in the 1999 Constitution and an unjustified whittling down of the executive powers of the federation vested in the President by virtue of Section 5(1) of the 1999 Constitution.

To further buttress the reasons for withholding his assent the President pointed out other anomalies in the proposed bill which contain new Sections 45a and 45b guaranteeing the right to free basic education and free primary and maternal care services as too wide and open-ended.

The President specifically noted that the right to free education should have been qualified and or restricted to government schools.

In justifying his position the President stated as follows: ‘’This is because a right, unless qualified or restricted, must be observed by all.

It follows therefore that the right to free basic education under this provision, if taken to its logical conclusion, will invariably apply to private schools, which could not have been the intendment of the legislature.

This same argument applies to Section 45b, which guarantees unqualified right to free primary and maternal care services. “The implication of this is that private institutions will be obliged under the Constitution to offer free medical services since it is a right and this is  not only impracticable, but also could not have been the intention of the law giver.

There is therefore the need for these provisions to be redrafted to restrict the enjoyment of these rights and place the obligation to provide the conditions necessary for the enjoyment of the rights on the government.

Reacting to this, a  Senior Advocate of Nigeria (SAN), Layi Babatunde, commended the President for his magnanimity towards  this  closing chapter of his administration  first, by conceding defeat before the presidential election results  becomes combustive, and following it up with a public appeal that our President-elect be supported to succeed.

Babatunde said that for the President to have acceded to such far reaching proposed amendments to the 1999 constitution, in the twilight of his administration, (especially with provisions capable of whittling down the executive powers of the Federation vested in the President) would portend bad faith and engender suspicion.

Accordint to him, it would have been a bad omen. Babatunde beliefs that  the president has done the right thing in the circumstances.

He noted that going by the serious and fundamental constitutional issues raised it suggests that the Legislature sought presidential consent rather prematurely.

Therefore, assenting to the bill would have caused serious constitutional problems, if not crisis, for the incoming administration for the seeming impracticability of some of the provisions of the Bill”, he stated.

Former NBA president of the Nigerian Bar Association (NBA) Dr. Olisa Abgakoba criticised the lawmakers and described the amendment as untimely. Agbakoba said there are lots of conflicting areas  in the constitution that really need to be resolved with diligence in the interest of  the people.

So I think the president, cannot  just do that now. Where were the National Assembly members all these while, that they just want to railroad the president to give assent to the constitution?  I think this call is not a popular one. It does not represent the interest of the people.

It should be one of the early task of the incoming president-elect, Gen. Buhari, to take time and look into all the issues of constitutional amendment, with attention being paid as well to the issues thrown up by the National conference convened by the  outgoing president and other administration before it”, he said.

Also speaking on the  failure  to comply with the constitutional requirements for the ammedment of the  constitution, Barrister  Oluwole Kehinde argued that the president was right to have declined his assent.

There were other reasons given such as disregard for principle of separation of powers. This is also a very important aspect of our constitutional arrangement. So if the amendment sought is in breach of it, then the president was right to decline assent.

Admittedly, the court may be in a position to determine that, and the president could have sought its intervention first on that”, he said. Human rights lawyer, Femi Falana also said that the National Assembly acted illegally and unconstitutionally when it conferred the National Economic Council, an advisory body, with the power to appoint the Accountant-General of the Federation.

His words: “As if that was not enough, the National Assembly wants the National Judicial Council (NJC) to appoint the Attorney-General of the federal government.

The legislators ought to have known that the NJC is only empowered to recommend to the appointing authorities (President and state governors) suitable persons for appointment as judges and recommend their removal from the bench. “Having taken away the powers of the President the National Assembly decided to increase its own powers.

As far as the legislators are concerned, an amendment of the Constitution will no longer require the assent of the President. Such self serving amendments were rightly rejected by the President.”

Falana however argued that the President goofed on the procedure for altering the provisions of the Constitution. According to him, 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.

The stringent requirement of section 9(3) of the Constitution is only applicable to the alteration of section 8 (on state creation), section 9 (on Consitutional amendment) or chapter four (on fundamental rights) thereof”, he submitted.

Principal partner, Marine partners, Sylva Ogwemo SAN said the issues raised by the President are fundamental and require patriotic fervour for our country on the part of our the lawmakers.

He described as amusing the demand by the senators for the original copy of the bill earlier sent to the President with emphasis on the signature page.

This attitude of the distinguished Senators has reduced a very important and fundamental national issue to a ridiculous level. It is not uncommon, for the President to request the legislature to reconsider a bill sent to the President for assent in a democratic setting such as ours. This is distinguishable from the exercise of veto power.

Where a reconsideration of a bill is requested by the President, the Legislature is given a second opportunity to re-examine the sections of the law it may have passed without due consideration of their contents and consequences as in this case, where the right to free education and free primary and maternal services is left unqualified.

If the bill for the 4th Alteration is passed in its present state, it will definitely attract a floodgate of litigation which will in turn unnecessarily distract the executive from its primary duties to the citizens of this country”, he explained.

However, former Chairman, NBA Ikeja branch, Monday Onyekachi Ubani has a different view. He said presidential assent to constitutional amendments is not necessary.

He argued that the president does not have any role to play with his signature on a new constitution or the amendment of it. “The constitution of any country is the grund norm of the land which ought to be brought into existence by the people or their representatives.

It does not require the signature of the President for validity provided it has complied with the process of its making or its amendment.

In the instant case, the process of amendment has complied with Section 9 of the 1999 constitution by undergoing the States Houses of assemblies’ input (about 2/3 of them)  and the requisite demand of both chambers at the national level, and to me that suffices as valid procedure which has given birth to amended version of the constitution.

Therefore, the signature of the president being sought can at most be regarded as erring on the side of surplus sage. “Assuming but conceding that the signature of the president is desirable or required, the legislative chambers have complied with same by sending the amended bill for the signature of the president which he has 30 days within which to assent or decline to assent.

If there is no basis in law and fact for the reasons adduced by the president, the legislators are hereby advised to override the veto power of the president and in accordance with the constitution of 1999 re-pass the amended bill once again at both Senate and House of representatives with 2/3 majority and the bill will automatically becomes a valid amendment of our constitution’, he declared.

Now the Federal Government has gone to the Supreme Court challenging the constitutionality of the adopted by the National Assembly in passing the law and an order setting aside those contentious sections in the alteration. As it is now, we just have to wait for the apex court.