A brilliant legal mind once said the reason why those who wish to give a particular interpretation to a nebulous provision in the United States Constitution often refer to the “intent” of the framers of the constitution is because the framers of that constitution are all dead. In the case of the framers of the 1999 Constitution of Nigeria, the majority of them are still alive, thereby making speculations about their intent unnecessary since they can be summoned to explain what they intended with particular provisions.
A brilliant legal mind once said the reason why those who wish to give a particular interpretation to a nebulous provision in the United States Constitution often refer to the “intent” of the framers of the constitution is because the framers of that constitution are all dead. In the case of the framers of the 1999 Constitution of Nigeria, the majority of them are still alive, thereby making speculations about their intent unnecessary since they can be summoned to explain what they intended with particular provisions.
The ongoing legal fight over the necessity or otherwise of the President’s consent to an Act amending the Constitution is once again threatening to expose the weak underpinnings of a legal system that has on several occasions demonstrated a willingness to dance to the gallery in interpreting the provisions of our laws, including the supposedly sacred Constitution.
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Under the 1999 constitution, the National Assembly can override a presidential denial of assent or veto with a 2/3 majority vote of its members pursuant to section 58 of the Constitution, yet a 2/3 majority vote is not a prerequisite to the exercise of the National Assembly’s powers to pass Bills under that section. A 2/3 majority vote of not only the members of the National Assembly but also of the members of the Houses of Assembly of all the states of the federation is a prerequisite to the exercise of the National Assembly’s powers to pass an Act amending the Constitution under section 9. Yet, the implied argument exists that the President can withhold his assent to or veto an Act passed pursuant to section 9 of the Constitution.
Many of the proponents of a lack of presidential assent to a Constitutional amendment have referred to the United States case o f Hollingsworth v. Virginia. 3 U.S. (3 Dall.) 378. With due respect, I take the position that as handy as the case may come in dismissing the requirement for presidential assent to a constitutional amendment in a democratic dispensation with a constitution similar to ours, the decision should be limited to it facts. In that case, the Bill evidencing the proposed amendments was submitted to the president more than ten days before Congress went on recess and the court’s decision was that presidential assent was not required in a situation where the bill was submitted to the president at least ten days before the Congress went on recess. Although this decision now stands for the proposition that a president’s assent is not required for constitutional amendments in the United States, the court has not had to deal with a situation where the president got the Bill less than ten days before Congress went on recess or when Congress was actually on recess.
Despite the opinion expressed in the paragraph immediately above, I take the position that the President’s assent is not required to effect a constitutional amendment that has complied with all the requirements of s.9 of the 1999 Constitution of Nigeria. Absent any compelling local jurisprudence in this area of our constitutional law, and seeking to avoid stirring up the nationalistic hornet’s nest often associated with reliance on foreign, though similar jurisprudence, for the interpretation of our laws, I submit that the language of the relevant provisions are fairly straightforward enough to lead us to the right answer to this legal impasse. This is not an implied acceptance that the drafting of those provisions cannot be improved upon. For the benefit of those who do not have a copy of the 1999 constitution handy, I hereby reproduce sections 9 and 58 of the Constitution for easy reference.
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9. (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of t his 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.
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.
There will be no attempt at magic here nor will there be a pulling of feathers out of the hat. Rather, I will adopt a varied Socratic approach, one in which the person asking the question will also be involved in attempting to answer the questions. While conscious of the loss of some objectivity when the person asking the question is also the one answering them, I believe such defect is compensated for by the enhanced comprehension and understanding enjoyed by the reader by way of being able to participate in and understand the questions and issues underlying the conclusions reached.
While Sections 9 and 58 enunciate the processes through which the national Assembly can exercise its powers to make ordinary laws, and amendment of the Constitution respectively, there is something unique in the language employed in the drafting of both sections and the procedures required before the powers conferred can be exercised. The reference in section 9 is to an Act while section 58 refers to a Bill. A Bill and an Act are not the same. The first is a product in the making while the latter is a finished product. Before a Bill can become an Act, certain things would have to happen and some of them will be considered latter in this article. The difference in the language employed in both sections raises certain question. One of them is whether the choice of different words in these sections were unintentional and inconsequential? Could it be that the framers of the 1999 Constitution were not alert to the difference in the words employed in the sections or thought they had the same meaning? Did the framers intend different procedures for the passing of a Bill, and an Act and therefore chose different words and procedures to drive home the point?
Section 58 describes how the National Assembly should go about initiating a Bill, sending it to the President for assent or veto and in the case of a veto, the procedure for overriding the veto. On the other hand, section 9 of the same Constitution describes the process the National Assembly should employ in passing an Act. Section 9 does not make mention or reference to Presidential assent, veto or procedure for overriding a veto, yet it authorizes the passage of an Act by the National Assembly. It is important to bear in mind the difference between a Bill and an Act and the different journeys they take to their destinations. A Bill becomes an Act after it has received Presidential assent or where such assent is not forthcoming, the National Assembly has overridden a presidential veto with the required 2/3 majority. On the other hand, an Act can be described as a Bill that does not require presidential assent or subject to a presidential veto because it becomes law once it is passed and section 9 of the 1999 Constitution authorizes the National Assembly to pass an Act with respect to constitutional amendments once all the other conditions of the section have been complied with. Since a Bill requires presidential assent or veto override to become an Act, why did the framers of the 1999 constitution describe the output of the National Assembly under section 9 of the 1999 Constitution as an Act rather than a Bill?
Another pertinent observation in the language employed in both of these sections is the different requirements for passing a Bill and an Act. Under section 58 of the Constitution, the National Assembly can only pass a bill at the first instance with a simple majority of both houses. Its power to pass an Act can only be exercised after the President has withheld his assent or vetoed the bill. Thereafter, the National Assembly can convert it’s hitherto Bill into an Act though a 2/3 majority vote which has the legal implication of dispensing with presidential assent. The procedure under section 9 is quite different. Under that section, the National Assembly cannot, even at first instance, attempt to pass an Act “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” Section 58 does not require that Bills coming out of the National Assembly be supported by 2/3 majority, yet section 9 stipulates that no Act can be passed by the National Assembly under section 9 unless such Act is supported by 2/3 majority of the members of both Houses of the National Assembly and the Houses of Assembly of all the states. Is this a mistake or a deliberate attempt to create two different regimes for the enactment of two different sorts of laws with different implications?
If we are to accept for a moment that the requirements for passing a Bill under section 58 are the same as those for passing an Act under section 9, why were the two sections needed when one would have been good enough? How can one explain the incongruence created by the fact that the 2/3 majority needed to override a presidential veto under section 58 in order to convert a Bill into an Act is the basic prerequisite for passing an Act under section 9?
Given the differences in the language employed in drafting both sections 58 and 9, the differences in procedures and conditions precedent to the exercise of the powers granted under each section, I have come to the conclusion that section 9 of the 1999 Constitution authorizes the National Assembly to amend the Constitution without the President’s assent for several reasons. I believe the use of the words Bill and Act in the respective sections is deliberate. I submit that section 58 is intended to give the President some measure of control over Bills coming of the National Assembly unless popular support for such Bills can be demonstrated through a 2/3 majority. These Bills, being proposed laws for the ordinary administration of the country take or find their roots in the Constitution and are subject to broader constitutional and other legal challenges. On the other hand, I believe section 9 is designed to put the issue of constitutional amendment in the broader political domain by requiring the approval of two thirds majority of the Houses of Assembly of the states and the National Assembly. I believe the National Assembly’s powers to pass an Act at first instance under section 9 of the 1999 constitution is the inevitable concomitant of the stringent 2/3 basic requirement under that section. If the President’s denial of assent or veto of a Bill can be defeated with a 2/3 majority of the members of the National Assembly only under section 58, does it make any political or legal sense that the same President is able to deny assent for or veto an Act passed by representatives of the people from at least 2/3 of the Houses of Assemblies of all the states of the federation and 2/3 of the members of the National Assembly?
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