Prominent legal scholars in Nigeria have written divergent opinions on whether the president’s assent is required in the constitutional amendment process; particular mention must be made of the opinions of Chief Richard Akinjide, SAN, Prof Taiwo Oshipitan, SAN, Mr. Olisa Agbakoba, SAN and most recently the official position of the Nigerian Bar Association who have argued that the proposal for the alteration of the 1999 Constitution as passed by the National Assembly and approved by more than two-thirds majority of the State Houses of Assembly cannot take effect as amendments to the 1999 Constitution in the absence of the assent of the President.
Prominent legal scholars in Nigeria have written divergent opinions on whether the president’s assent is required in the constitutional amendment process; particular mention must be made of the opinions of Chief Richard Akinjide, SAN, Prof Taiwo Oshipitan, SAN, Mr. Olisa Agbakoba, SAN and most recently the official position of the Nigerian Bar Association who have argued that the proposal for the alteration of the 1999 Constitution as passed by the National Assembly and approved by more than two-thirds majority of the State Houses of Assembly cannot take effect as amendments to the 1999 Constitution in the absence of the assent of the President.
I hasten add here again and with due respect to the contrary views of the proponents of president’s assent that the president whose functions are well articulated in Part Two, Section 5(1)(a) and (b) of the 1999 Constitution has no formal constitutional role in the amendment process as stipulated by Section 9 of the Constitution even though, like any other Nigerian, he would be free to express or articulate his opinion. Be that as it may, the president can neither veto an amendment proposal by the National Assembly nor the approval of two-thirds majority of the Houses of Assembly.
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Even though, I have had the opportunity of commenting on this topical issue and expressed a similar opinion in the recent past, I am constrained to add my voice once again because of the insistence of the advocates of the president’s assent and the recent action filed by the Nigerian Bar Association calling for the assent of the President before the amendment of the constitution can take effect. It is my opinion that the call for the president’s assent is fallacious and lacking any legal substance or foundation.
The reference made to section 58 (5) is otiose and constitutes a total misdirection in law. That section deals only with the situation where the assent of the President shall be dispensed with where the President withholds his assent to a bill which had been passed by the National Assembly and which will necessitate the National Assembly to override the assent of the President by passing the bill into law. However, under Section 9, the president’s assent is not required at all and therefore, Section 58 is inappropriate.
As I have said in my previous opinion, constitutional amendment process is an extra-ordinary act of the National Assembly, which takes effect without the consent of the President. Part IV, Section 318 (Interpretation, Citation and Commencement) of the Constitution states that:
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318 (1) – “In this Constitution, unless it is otherwise expressly provided or the context otherwise requires: “Act” or “Act of the National Assembly” means any law made by the National Assembly and includes any law which takes effect under the provisions of this Constitution as an Act of the National assembly”.
The effect of this is that a proposal for the amendment of the Constitution is not a bill. Section 9(2) specifically refers to the proposal for the amendment as an “Act” of the National Assembly; hence, the president’s assent is not required ab initio. Another act of the National Assembly where the president’s assent can be dispensed with is the process envisaged under Section 58 where the president fails to assent to a bill requiring his assent thereby necessitating the National Assembly to override the president’s assent and pass the bill into law.
If the framers of the 1999 Constitution wanted the president’s assent to the amendment, they would have stated so expressly without any ambiguity as they did in other Sections of the Constitution. For instance, in section 12 dealing with the implementation and ratification of treaties, the Constitution expressly provides for the assent of the president. The Section, 12 (3) states as follows:
“ 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”.
It is trite that the express mention or inclusion of one thing in a statute is an exclusion of others not mentioned (Expressio Unius Est Exclusio Alterius) and when a word is ambiguous, its meaning may be determined by reference to the rest of the statute. Fortunately, there is no such ambiguity in the provisions of section 9 of the 1999 Constitution; there is therefore, no need to refer to Section 58 of the Constitution, which is inapplicable anyway. Section 9 is sacrosanct and cannot be departed from, varied or added to by the proponents of presidential assent. Anything done to the contrary will be a nullity and an exercise in futility.
Even assuming arguendo that there is an ambiguity, it also trite that when a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter. To this effect, a cursory look at the provision of Article V of the United States Constitution relating to the amendment of the U.S Constitution will provide a relevant guidance. Article V of the U.S Constitution provides:
“Amendments may be proposed by either two-thirds of both houses of the United States congress or by a national Convention. This convention can be assembled at the request of the legislatures of at least two-thirds of the several states. To become part of the Constitution, amendments must then be ratified either by approval of the legislatures of three-fourths of the states or ratifying conventions held in three-fourths of the states. Congress has discretion as to which method of ratification should be used. There is one exception to the three-fourths requirement, specified in the last clause of Article V: "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
The Supreme Court of the United States had settled the question whether or not the president’s assent to the amendment is required in interpreting Article V of the U.S Constitution as far back as 1798, in the case of HOLLINGSWORT V. VIRGINIA, 3 U. S. (3Dall.) 378 which laid the matter to rest.
In Hollingsworth, the United States Supreme Court ruled early in American history “the President of the United Sates has no formal role in the process of amending the United States Constitution”. The Court further ruled, “While it is permissible, a Presidential signature is unnecessary. By the same logic, a President is powerless to Veto a constitutional amendment, which has been officially proposed to the states to ratify. Further by the same logic, it is reasonable to infer that a state’s governor is uninvolved in the state’s Constitutional amended process”.
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