Here we go again, every issue in Nigeria is contentious, from whether a sick President abroad should hand over to his Vice, to whose zone is next to “come and chop” to how to amend our own Constitution. It does not look like this will go away in a hurry.
Here we go again, every issue in Nigeria is contentious, from whether a sick President abroad should hand over to his Vice, to whose zone is next to “come and chop” to how to amend our own Constitution. It does not look like this will go away in a hurry.
One thing I found amusing in most of the comments by our legal scholars so far is our quickness to find interpretation to our local laws in the laws of the United States. It is true that the Nigerian Constitution is modeled after the United States Constitution but they operate under different structures and come with different traditional and historical backgrounds.
Interpreting them with the same logic will generate wrong conclusions most of the times. The American federal system is fundamentally different from Nigeria’s “federal” system. We should look towards the USA only where there is no adequate provisions under our own laws.
I intend to make this as simple as possible, S.58 of the 1999 Constitution provides for the mode of exercising legislative power in general as follows:
(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.
However Section 9 (1) (2) of the Constitution provided an additional process where it involves Constitutional amendment thus:
(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.
The contention here is whether S. 9 (1)and (2) represents a total picture of what is required to pass an amendment to the Constitution or that the power of the President to assent a bill as stipulated under S.58 (1) and (3) is required.
S.9 (2) started with the phrase “ An Act of the National Assembly for the Alteration of this Constitution…shall not be passed…” I am going to stop right there, before looking 6000 miles away to the United States for an interpretation, let us examine the provisions of our laws, the Constitution itself and other relevant laws. What constitute an “Act of the National Assembly?” How does an Act “passed” It will appear that S. 9 (2) is merely an additional requirement for passing an amendment.
In solving this puzzle we will first of all have to look for the definition of “Act of National Assembly and what it take to pass it. That is, the process for “passing”. The process for passing is stipulated by S. 58, this is what must be supported by the States Houses of Assembly along the line.
Chapter VIII of the Constitution at Part IV, that deals with interpretation states at S. 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;”
I will like to underscore the phrase “any law which takes effect under the provisions of this Constitution” an amendment would appear to me to take effect under the provisions of S.9 (2) as an Act of the National Assembly. That this section is applicable is therefore settled.
Section 318 (4) states as follows:
“The Interpretation Act shall apply for the purpose of interpreting the provision of this Constitution”
Then let us look at the provision of the Interpretation Act Cap 123 of 2004 :
The Act at its preamble described it as : “An Act to provide for the construction and interpretation of Acts of the National Assembly and certain other instruments; and for purposes connected therewith”
There is only one recurrent phrase that undeniably binds these provisions together including S. 9 (2) that deals with amendment to the Constitution and that is “Acts of the National Assembly…”
The Interpretation Act went further at S. 2 (1) to state that “An Act is PASSED when the President assents to the Bill for the Act whether or not the Act then comes into force”
Meaning no Act of National Assembly is PASSED until assented by the President.
So far our law is clear, nothing known or described as an Act of National Assembly in Nigeria is passed without the President’s assent, simple.
Therefore other requirements of S.9 (2) as explained under the Interpretation Act is not met until the President assent’s the Bill.
Now let us consider some matters arising, some people have asked me, what if the President vetoes the bill, since the 2/3 majority required to override veto was the majority required to pass an amendment in the first place.
The question is being asked because of the misconception of the purpose a veto is meant to serve. A veto is a balancing power given to the President to act as a check in the legislative process. A President does not just veto a bill, but will send it back to the House where it originated with his objection. This objection may trigger a rethink by some members who might want to consider the objection when the bill is sent back. Therefore there is no absolute guarantee that the bill will still pass by the same majority after the President must have raised his objection, since a change of mind by some National Assembly members is possible. Getting less than 2/3 vote required to over ride a veto is a possibility.
Then if the 2/3 majority is still inclined to passing the bill, then it becomes a law despite Presidential objection which will now become a part of the records. The 2/3 provision at section 9 (2) therefore neither substitute Presidential assent or veto, nor negate the 2/3 over riding power of the National Assembly, it is rather a process, compared to S. 58 (5) which is an automatic process.
Some asked me using S.8 of the Constitution as a corollary of the S. 9, whether referendum requirement of S.8 is not an attempt to vest the absolute power of state creation in the people and the National Assembly.
This question overlooks the fact that the Presidency is also a representative of the people as much as the NA with a requirement for a vote spread of at least 1/3 of 2/3 of states in the federation to be elected, specifically for widespread acceptance. Then the referendum is not an end in itself but a voice of the people to trigger an “Act of the National Assembly” and the “Act of the National Assembly” itself will have to follow its own due process when triggered.
On why Governors’ assents are not required at the State level–A Constitutional amendment is an Act of the National Assembly in transit through State Assemblies following due process, not an Act of the State Assembly that ends with State Assembly requiring a Governor’s consent, what is required in State Houses is “resolution” but “passed” by the National Assembly. State Governors do not sign resolutions!
The provisions our own laws are clear, no Act of National Assembly is a law in Nigeria until assented by the President.
Ayo Turton Esq.
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