The making of the Constitution or its amendment in any country is an extraordinary legislative exercise. Hence it is either enacted via a referendum or through a special approval by the Parliament.
The making of the Constitution or its amendment in any country is an extraordinary legislative exercise. Hence it is either enacted via a referendum or through a special approval by the Parliament.
In either case it is anomalous to subject the enactment of a Constitution or its amendment to the fiat of a President. It is on record that the 1960 and 1963 Constitutions of the Federal Republic of Nigeria were not assented to by either the Governor-General or the Prime Minister. In the same vein the Constitutions of the regions were not assented to by the regional premiers in the First Republic.
However, all the Constitution Supremacy Decrees enacted by the successive military juntas from 1966-1979 and 1984-1999 had the imprimatur of the military Head of State. In particular, the Constitution (Promulgation) Decree 102 of 1979 (the 1979 Constitution) and the Constitution (Promulgation) Decree No 45 of 1999 (the 1999 Constitution) were signed into law by Generals Olusegun Obasanjo and Abdulsalami Abubakar respectively. Influenced by our experience under the defunct military dictatorship some lawyers have contended that the assent of the President is a sine qua non conditio for the legitimacy of any constitutional amendment under the current democratic dispensation.
Regrettably, some of my colleagues in the human rights community who should be campaigning for the approval of all constitutional amendments by a referendum are justifying the entrenchment of a military legacy in the constitution making process. Thus in a suit filed by Olisa Agbakoba, a civil rights advocate, the Federal High Court has annulled the 2010 Constitutional Amendment for want of a presidential assent. With respect, the decision of Justice Okechukwu Okeke cannot be justified under section 9(2) of the Constitution which provides that:
“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”.
From the foregoing, it is submitted that the President has no power to assent, or veto the Constitutional Amendment which has been validly passed by both Chambers of the National Assembly and ratified by the requisite number of the Houses of Assembly in the States of the Federation. Although Section 9 does not provide for a presidential assent it was held by Justice Okechukwu Okeke, the learned trial judge held that any amendment to the Constitution has to be assented to by the President by virtue of Section 58 of the Constitution. The reliance on Section 58 by the Federal High Court was totally unnecessary as there is no nexus between it and Section 9 of the Constitution.
Since the Nigerian Constitution is modeled on the American Constitution the Federal High Court ought to have adverted its mind to the case of Hollingsworth v Virginia (1778)3 U.S (3 D all.) 378 where the Supreme Court of the United States held that “While it is permissible, a presidential signature is unnecessary. By 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”.
In the instant case it is pertinent to observe that the constitutional amendment bill was not assented to by the governors when it was passed by the Houses of Assembly of the States. It is submitted that since state governors did not assent to the bill in line with Section 100 of the Constitution there is no legal basis for insisting on presidential assent to validate the constitutional bill pursuant to section 58 of the Constitution. It is indeed germane to note that any bill which originates from either of the two Houses of the National Assembly shall be passed by a simple majority of the members whereas the proposal for the amendment of the Constitution shall be passed by not less than two-thirds of the members and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.
Contrary to the argument that every bill passed by the National Assembly shall be assented to by the President we submit that the Act of the National Assembly passed pursuant to Section 8 of the Constitution does not require the assent of the President to become law. In other words, once a State House of Assembly has validly passed a law for the creation of local governments a return shall be made to the National Assembly. Once the return is received the National Assembly shall make consequential provisions with respect to the names and headquarters of the local governments as provided in Section 3 of the Constitution. As there is no reference to Section 58 of the Constitution the assent of the President is not required with respect to the creation of new local governments.
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It should however be pointed out that the Constitution requires the assent of the President in the domestication of treaties between Nigeria and other countries with respect to matters not covered in the Exclusive Legislative List. Specifically Section 12 (3) states that “A bill for an Act of the National Assembly passed pursuant to the provisions of sub-section 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 Houses of Assembly in the Federation”. It is therefore submitted that if the Constitution had wanted the President to assent to the amendment of the Constitution it would have been so stated in Section 9 thereof.
Finally, in order to ensure that the 2011 General Election is not disrupted as a result of the controversy surrounding the legitimacy of the constitutional amendment the Attorney-General of the Federation should initiate a suit at the Supreme Court to resolve the dispute quam celerime. In the alternative, the National Assembly should ask that the appeal filed against the judgment of the Federal High Court in Olisa Agbakoba v National Assembly be referred to the apex court for its authoritative pronouncement on the matter.
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