Constitutional Amendments that Put Presidency, Senate on Different Pages
anyone not to honour legislative summons.
The parliamentarians also incorporated payment of pensions to leadership of the National Assembly. By this provision, every past Senate president, his deputy as well as a former Speaker of the House of Representatives and his deputy “shall be entitled to pension for life at a rate equivalent to the annual salary of the incumbent president or deputy president of the Senate, speaker or deputy speaker of the House of Representatives.”
Finally, the legislators succeeded in renaming the Nigeria Police Force as the Nigeria Police.
The President’s Objections
The president in his letter of rejection addressed to both the Senate President David Mark and Speaker of the House of Representatives, Aminu Tambuwal, did not hesitate to expose the perceived incompetence and ignorance of the federal lawmakers on constitution amendment. For instance, the president said whereas some amendments required the support of fourfifths majority of the members of the National Assembly, the lawmakers merely passed the amendments by two-thirds majority support and hence made the process flawed.
In the president’s six-page letter, he highlighted the flaws he discovered in the amendments to include non-compliance with Section 9(3) of the 1999 Constitution on amendments; mere use of voice votes to alter the constitution without being supported by the votes of not less than four-fifths majority of all members of National Assembly as well as two-thirds of all the 36 State Houses of Assembly; imposition of the right to free basic education and primary and maternal care services on private institutions as well as perceived violation of the doctrine of separation of powers.
Other flaws, according to the president, were the decision to whittle down executive powers as contained in Section 5(1) of the 1999 Constitution; 30 days limitation provided for president’s assent; reduction of the time frame of expenditure in default of appropriation from six months to three months and the creation of the Office of the Accountant General of the Federal Government with different functions from those of the Accountant-General of the Federation.
Others were the decision to transfer the president’s powers to appoint theAccountant-General of the Federation as well as the Attorney-General of the Federation to the National Economic Council and National Judicial Council respectively and the decision to whittle down the discretionary powers of the AGF.
Hear him: “I have accordingly examined the substance of the provisions and the procedure adopted by the National Assembly to pass the Act and wish to observe as follows: Section 4 of the Fourth Alteration Act, 2015 seeks to alter Section 9 of the 1999 Constitution by the insertion of a new subsection 3A, which dispenses with the assent of the President in the process of constitutional amendment.
“However, this alteration can only be valid if the proposal was supported by the votes of not less than four-fifth majority of all the members of each House of the National Assembly and approved by a resolution of the House of Assembly of not less than two-thirds of all the States as provided by Section 9 (3) of the 1999 Constitution.
“This is a fundamental requirement of the Constitution and in the absence of credible evidence that this requirement was met in the votes of proceedings of the National Assembly, it will be unconstitutional for me to assent to this bill. In light of the above, I am of the respectful view that I should withhold assent until it can be shown that the NationalAssembly has complied with the threshold specified in Section 9 (3) of the 1999 Constitution.
“However, assuming without conceding that the necessary thresholds were met by the National Assembly, there are a number of provisions in the Act that altogether constitute flagrant violation of the doctrine of separation of powers enshrined in the 1999 Constitution and an unjustified whittling down of the executive powers of the federation vested in the President by virtue of Section 5(1) of the 1999 Constitution.
“Section 45a of the Fourth Alteration Bill 2015, which guarantees the right to free basic education is too open ended and should have been restricted to government schools. This is because, a right unless qualified or restricted must be observed by all. It follows therefore that the right to free basic education under this provision if taken to its logical conclusion, will invariably apply to private schools, which could not have been the intendment of the legislature.
“This same argument applies to Section 45B, which guarantees unqualified right to free primary and maternal care services. The implication of this is that private institutions will be obliged under the Constitution to offer free medical services since it is a right and this is not only impracticable, but also could not have been the intention of the law giver.
“There is therefore the need for these provisions to be redrafted to restrict the enjoyment of these rights and place the obligation to provide the conditions necessary for the enjoyment of the rights on the government,” he said.
He also objected to the decision to place a limitation on the power of the President to withhold assent to bills to 30 days just as he described the amendment which separated the Office of Attorney General of the Federation from that of the Minister of Justice as ambiguous.”
He further said: “These alterations encapsulate wide-ranging provisions that seek to separate the Office of Attorney General of the Federation from the Minister of Justice and the Attorney General from the Commissioner for Justice in the respective states of the federation. They also provide for the independence of the Office of Attorney General by guaranteeing tenure and funding.
“However, as desirable as the separation is, there are some provisions that validate the doctrine of separation of powers and also negate the age-long independence and absolute discretion that the office has enjoyed for centuries since its creation in middles ages. The potential challenging provisions are discussed below:
“The first noticeable set back is that the Fourth Alteration Act 2015 is silent on who is the Chief Law Officer of the Federation/State. This is a serious lacuna, which may create implementation challenges. It will be recalled that the Attorney- General of the Federation (AGF) and Minister of Justice and the Attorney General and Commissioners for Justice in the respective states of the federation are under Sections 150 and 195 of the 1999 Constitution, the chief law officers respectively.
“Apparently, it is the fact that the AGF is the Chief Law Officer has the power to guide the (ministries, departments and agencies) MDAs on legal issues by way of legal advice and represent the government on other legal matters including civil litigations, contract, treaty obligations, legal drafting, etc., is derived.
“With this amendment, which limits the power of the AGF to criminal prosecution and silent on who is the chief law officer, it appears to erode the constitutional and legal basis for the current structure and functions of the Ministry of Justice and the law officers employed therein, in the absence of a statute that provides for the exercise of these powers and functions.”
He also rejected the amendment which provides that the National Economic Council (NEC) shouldhenceforthappointtheAccountantGeneral of the Federation.
He said: “The provision of section 84A that creates the new Office of Account-General of the Federation distinct from Accountant- General of the Federal Government has not addressed the funding requirement for the establishment of the office. It is necessary to clarify for instance, who staffs and funds the Office of Accountant General of the Federation and from whose budget he will be paid since he serves the three tiers of government.
“It is also important to state who will exercise oversight powers over the office. Furthermore, the National Economic Council, which is mainly an advisory body, is now charged with the responsibility of recommending those to be appointed to the Office of Accountant General of the Federation.”
Senate Flex Muscles
Twenty four hours after the President’s rejection letter was read on the floor of the Senate, the parliament asked the President to return the original copy of the amendment bill as sent to him by the National Assembly.
This resolution followed a motion moved by Deputy Senate President and Chairman of the Senate Committee on the Review of the Constitution, Senator Ike Ekweremadu. After adopting the motion, the parliament mandated the Senate President to write a letter to the President, demanding the return of the original copy of the bill containing the amendments as sent to him by the National Assembly.
THISDAY was reliably told by one of the senators that the Senate’s decision to demand for the original copy of the bill was spurred by the information at its disposal that the President had earlier signed the bill before he was prevailed upon to withdraw his assent.
It was learnt that the President had earlier signed the amendment bill before the Attorney General of the Federation (AGF) and Minister of Justice, Mr. Mohammed Bello Adoke (SAN), prevailed on him to withdraw his assent.
The senator therefore said the demand by the Senate for the letter was a move meant to ascertain the authenticity or otherwise of the information that he had earlier signed the bill before he later changed his mind.
The senator also said there were beliefs that the president opted to veto the bill as a vendetta agenda following perception that some members of the National Assembly failed to work for his re-election.
But Ekweremadu claimed that the review committee had resolved to make the demand because the President had said in his letter that he was returning the bill because of his observations and yet failed to return the bill along with the letter. He argued that non-availability of the bill had stalled progress in its two-day retreat on the development as he placed emphasis on the desire of the committee to see the signature page.
Constitutional Lacuna
THISDAY also learnt that the president’s decision to veto the amendments had already created a constitutional lacuna, bearing in mind that the constitution did not make any provision for the next step to take if the President refuses to assent to constitution amendments because it did not envisage it.
“Now, the President has created a constitutional crisis because there is no provision in the constitution on how to override the President’s veto on constitutional amendment,” a source told THISDAY.
Hence, there were insinuations last week that despite the lacuna, the lawmakers might be left with no option than to override the President’s veto as there was an insinuation that it would be unwise for them to allow the President to throw the amendments back at them without blinking an eye.
Nevertheless, the President’s response to Senate’s demand is expected to spell the way out of the quagmire as the development has left the lawmakers confused on the way forward. But will the president respond positively to the demand? Time will reveal this.