"My own assertion is simple: the US case of "no presidential assent" [Hollingsworth vs. Virginia (1789)] does not apply in Nigeria because in Section 12(3) of Nigeria's 1999 constitution on Treaty approval, the original drafters of our Constitution had shown their hand, together with Sections 9, 58 and 59(4).."
I am not a lawyer - in case some of my readers are confused - but I disagree fundamentally with Mr. Kayode Oladele, Esq., below that the ongoing Constitutional Amendments do not require presidential approval before having force of law. I scratch my head as to why this sudden flexing of muscle because, this being August already, the needles debate threatens to affect the election calendar of 2011. The danger is that if the National Assembly goes ahead thinking the amendments are already in effect, and if the Presidency's legal challenge all the way to the Supreme Court is successful, then any requirement by the Presidency to study the amendments further might see us deep into September or even October, messing up the calendar completely, particularly for January 2011 elections.
A stitch in time saves nine.
The central planks of my argument are simple and well-known:
- a Bill is a proposal of a law, that can be offered for consideration to either or both Chambers of the National Assembly by the Executive, a member or group of members of the NASS, or a citizen of the country;
- the Bill becomes an Act when the proposal is passed by the requisite number of the National Assembly;
- the Act becomes law if and only if the President assents and signs it, or failing that, his refusal to sign or his veto is overriden by another action of the National Assembly.
My argument starts with Section 58 of the Constitution:
58. (1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President.
(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 this section and 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 other 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.
(5) 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.
59. (1) The provisions of this section shall apply to:
(a) an appropriation bill or a supplementary appropriation bill, including any other bill for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public fund of the Federation of any money charged thereon or any alteration in the amount of such a payment, issue or withdrawal; and
(b) a bill for the imposition of or increase in any tax, duty or fee or any reduction, withdrawal or cancellation thereof.
(2) Where a bill to which this section applies is passed by one of the Houses of the National Assembly but is not passed by the other House within a period of two months from the commencement of a financial year, the President of the Senate shall within fourteen days thereafter arrange for and convene a meeting of the joint finance committee to examine the bill with a view to resolving the differences between the two Houses.
(3) Where the joint finance committee fails to resolve such differences, then the bill shall be presented to the National Assembly sitting at a joint meeting, and if the bill is passed at such joint meeting, it shall be presented to the President for assent.
(4) Where the President, within thirty days after the presentation of the bill to him, fails to signify his assent or where he withholds assent, then the bill shall again be presented to the National Assembly sitting at a joint meeting, and if passed by two-thirds majority of members of both houses at such joint meeting, the bill shall become law and the assent of the President shall not be required.
(5) In this section, "joint finance committee" refers to the joint committee of the National Assembly on finance established pursuant to section 62(3) of this Constitution.
Section 58(1) is pretty emphatic about the requirement of presidential assent, and does not oust his or her assent unless either by default or by veto override (Section 59(4)).
It appears, therefore, that the present confusion in the National Assembly must have arisen because an APPROVAL process by State Assemblies is constitutionally interposed FOLLOWING the approval by the two Chambers of the National Assembly - as is found when we have boundary adjustments (Section 8 of the Constittuion) and Constitution alteration (Section 9) - and whether this pari pasu ousts Presidential assent. I answer in the negative. I give a partial quotation of Section 8 (boundary adjustments) and a full quotation of Section 9 (the Constitution alteration Section) of the 1999 Constitution:
8. (1) An Act of the National Assembly for the purpose of creating a new State shall only be passed if- ......
(2) An Act of the National Assembly for the purpose of boundary adjustment of any existing State shall only be passed if- ....
(3) A bill for a Law of a House of Assembly for the purpose of creating a new local government area shall only be passed if - .....
(4) A bill for a Law of House of Assembly for the purpose of boundary adjustment of any existing local government area shall only be passed ....
(5) An Act of the National Assembly passed in accordance with this section shall make consequential provisions with respect to the names and headquarters of State or Local government areas as provided in section 3 of this Constitution and in Parts I and II of the First Schedule to this Constitution.
(6) For the purpose of enabling the National Assembly to exercise the powers conferred upon it by subsection (5) of this section, each House of Assembly shall, after the creation of more local government areas pursuant to subsection (3) of this section, make adequate returns to each House of the National Assembly
9. (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.
(2) An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.
(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 House of Assembly of not less than two-third of all States.
(4) For the purposes of section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution.
It should be noted that both the Boundary Adjustment bill and the Constitutional Amendment bill are termed "Acts" above. This is because they remain "Bills" (proposals) passed onto the State Assemblies, and it is only when the requisite number of State Assemblies have passed them can they return to the National Assembly to become "Acts". What was passed onto the State Assemblies were not ACTS of the National Assembly, but Approved Bills of the National Assembly. They only became ACTS upon re-approval by the National Assembly AFTER the State Assemblies have approved them. But again, Acts are not Laws until they have been assented to by the President.
In order to give more force to my argument above as to the ORIGINAL INTENTION of the drafters of the Constitution, I give the little-quoted Section 12 of the Constituton on treaties:
12. (1) No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.
(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the he Exclusive Legislative List for the purpose of implementing a treaty.
(3) A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the House of Assembly in the Federation.
Notice that Section 12(3), despite the requirement of ratification/approval by "a majority of all the House (sic) of Assembly in the Federation", still requires presidential assent. So why not the Constitutional amendments, which require similar extra-National-Assembly approval?
I rest my case.
The case has been made elsewhere - and by Oladele, but without much elaboration - that the United States President is not required to sign the constitutional amendments, despite the fact that Article One, Section 7, Clause 2 (The Presentment Clause) and Clause 3 (The Veto Clause) of the US Constitution clearly read:
Every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States; if he approves, he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
But in a curious Hollingsworth v. Virginia case of 1798, the Supreme Court of the USA held that presidential non-signature did not affect the legality of the amendments, in effect that it is not necessary to place constitutional amendments before the President for signature and, by the same logic, the President is powerless to veto a proposed constitutional amendment. However, the Court offered absolutely no rationale for its holding, did not SPECIFICALLY state that presidential assent was not necessary and hence its ruling can only be limited to the fact of the specific case. In any case, in that instance, the President PROCLAIMED his assent to the amendments - and thinking that he did not need to sign, did not sign - so that when it was legally challenged later on, the Supreme Court made the "the amendments are still legal" ruling, bearing in mind that the amendments were available more than ten days to the end of the legislative session anyway. If it had been less than 10 days, that would have been another matter.
My own assertion is simple: the US case of "no presidential assent" does not apply in Nigeria because in Section 12(3) of Nigeria's constitution, the original drafters of our Constitution had shown their hand, together with Sections 9, 58 and 59(4).
The debate is a distracting one, just like the argument of yore as to who should chair the Joint Constitutional Amendment committee that tore the two National Chambers apart. That debate unnecessarily delayed the final passage of the amendments. Another needless debate is brewing, imperiling our nation once more.
Our National Assembly must shape up - or be shipped out. Maybe their stubbornness will still make the more desirable April 2011 date for our elections the only practical one?
Inquiring minds want to know.