The decision by the Hon Justice Okechukwu Okeke of the Federal High Court, Lagos in Agbakoba -v- The Attorney General of the Federation et al in which the learned Judge ruled that Constitutional amendment without president’s assent is null and void can best be described as yet another instance of judicial activism which is bereft of any reasonable interpretation of the 1999 Constitution.
The decision by the Hon Justice Okechukwu Okeke of the Federal High Court, Lagos in Agbakoba -v- The Attorney General of the Federation et al in which the learned Judge ruled that Constitutional amendment without president’s assent is null and void can best be described as yet another instance of judicial activism which is bereft of any reasonable interpretation of the 1999 Constitution.
At best, the Judge in the ruling had attempted to create his own rule thus legislating from the bench and at worst; it is equivalent to a substitution of his individual opinion for the applicable law which might be a fall out from the character of the 1999 Constitution itself as a military decree signed into law by the then head of the junta before it became effective. Nonetheless, it is trite that when a statute is unambiguous, Judges must refrain from judicial activism beyond its clear meaning, else, it will further compound the problem for which the considered opinion of the Court is sought in the first instance.
Furthermore, the decision is also not supported by any precedent. In legal parlance, a precedent is a a legal principle formulated by courts in previously decided cases of similar nature and character and provides guidance and reference point or legal authority for Judges to follow when deciding a case with similar issues. A critical aspect of precedent is that lower courts must apply the decision of higher Courts when faced with similar issues and these are called binding precedents.
I think the Judge should have been guided by practice and convention in older democracies like the United States in arriving at his decision. The United States also passed through this difficult process and controversy in its teething stages of constitutional amendment particularly during the passage of the bill of rights when the interpretation of Article V of the U.S Constitution which is analogous to section 9 of the 1999 Constitution of the Federal Republic of Nigeria was tested in court.
The U.S Supreme Court had settled the controversy whether or not the president’s assent is required in interpreting Article V of the U.S Constitution as far back as 1778 in the case of Hollingswort v Virginia, 3.U.S (3Dall.) 378. In the decision which could be regarded as the locus classicus or leading precedent in this controversy but which the learned Judge in Agbakoba v The AGF omitted or neglected to consider, the U.S Supreme Court held inter alia that: the president has no formal role in the process of amending the United States Constitution”.
The Supreme Court further held that “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 unreasonable to infer that a state governor is involved in the state’s constitutional amendment process”. Whilst the decision of the U.S Supreme Court in Hollingswort v Virginia may not be binding on Justice Okeke’s Court, the decision is nonetheless, persuasive and would have provided an immeasurable guidance to the judge in arriving at his decision in Agbakoba v AGF.
What can the National Assembly do when the court interprets the Constitution in a way the National Assembly considers inappropriate?
It should be borne in mind that the National Assembly has no power to either reverse or overrule the decision of the court in line with the principle of separation of powers. This is a constitutional matter. However, when the judiciary engages in the act of legislating from the bench and or interprets the constitution in a way the National Assembly considers wrong and not in accordance with the intention of the drafters of the Constitution, the National Assembly has two options.
The NASS may appeal the decision up to the Supreme Court in the hope that the higher courts would get it right, interpret the constitution correctly and lay the matter to rest. The second option flows from the first option. In the unlikely event that the Supreme Court affirms the ruling of the lower Courts that consider constitutional amendment without president’s assent illegal in violation of the Constitution; then it is up to the NASS to change that Constitutional provision in such a way that the problem is resolved. The NASS has the right to amend that provision of the Constitution. It should also be noted that if the Court decision has to do with a federal law not directly dealing with the constitution, the NASS can just amend or replace the law with another law. This is because if the courts had considered the matter under a different provision of the law with a clearer intention of the legislature, the Courts might have arrived at a different decision. The Courts would have had a clearly unambiguous different legal provision to interpret. Hence, other than the NASS changing the offending provision of the Constitution through a constitutional amendment, only the Court can overturn its decision.
However, in this case, we are dealing with the provision of the constitution. To this effect, the NASS may commence a new constitutional amendment process in which section 9 and all other sections dealing with the constitutional amendment process would be amended to reflect the true intention of the legislature or drafters of the constitution in other to resolve this lingering problem over the role of the president in constitutional amendment process. This new amendment process will have to be ratified in the same manner prescribed by the Constitution and approved by the required two third majority of State Houses of Assembly. And since it is the constitutional duty of the legislature to make laws; the Courts will have no other alternative than to interpret the Constitution in line with the new amendments that would reflect the real intention of the legislature.
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