We The People Still Await Our Constitution

Nigeria has had several Constitutions since our amalgamation in 1914 and these can be broadly divided into two categories; those of the colonial period, which was marked by a total of five constitutions of Sir Hugh Clifford 1922, Sir Arthur Richards 1946, Sir John Macpherson 1951, Sir Oliver Lyttelton 1954 and the Independence Constitution of 1960 and the post-independence constitutions, namely the Republican Constitution of 1963 and subsequently those of 1979 and 1999. While each successive pre-independence constitution was enacted through an order-in-council of the British monarch, post-independence constitutions were enacted in two ways: by an Act of Parliament (1963 Constitution) and by military decree (1979 and 1999).

So far there have been three sets of amendments to the 1999 Constitution of Nigeria. The first Alteration Bill was passed by the National Assembly on 3rd of June 2010 and among other things it sought to provide for the financial independence of the National Assembly and the Independent National Electoral Commission. The 2nd such bill was passed by the National Assembly on the 4th of November 2010 and further altered the Constitution to provide for new time-lines for the conduct of national elections by the Independent National Electoral Commission. The 3rd Alteration Bill sought to establish the National Industrial Court and was passed by the National Assembly on 15th December 2010.

The 4th and current constitutional amendment process began in earnest in November 2012, when the House of Representatives held its peoples’ public sessions in the 360 federal constituencies across the country, and the Senate held its zonal public hearings at six zonal centres nationwide. For the North-Central, it held in Makurdi; North-East, Gombe; and North-West, Sokoto. The South-East public session took place in Enugu; South-South, Calabar; and South-West, Lagos.

Just as the 7th National Assembly is in the process of winding down come May 29th 2015, the current sitting Legislature have submitted a Proposed Amendment of the Constitution of the Federal Republic of Nigeria 1999 (as previously amended), for Presidential Assent, in line with the usual practice of seeking Presidential Assent to Bills before they are passed into law. The 4th Constitutional Alteration Bill had new Sections 45A and 45B introducing the Right to Free Basic Education and Free Primary Maternal Care; S.58A removing any requirement of Presidential Assent for future Constitutional Amendments when the Senate has sent the Bill to the Presidency for Assent and 30 (thirty) days have passed; S.82 limiting the period within which expenditure can be authorised in default of an Appropriation Bill (the Yearly Budget) from 6 months to 3 months; S.84A and 84F re the Creation and Appointment of an ‘Accountant General for the Government’ separate from the ‘Accountant General for the Federation’ and the Appointment of the Attorney General of the Federation by the National Judicial Council rather than the President, among myriad other amendments.

Exactly as expected the timing and content of some of the proposed amendments has generated a lot of debate and pitched the Executive against the National Assembly as they are at loggerheads over some of the key proposed amendments to the 1999 Constitution. The Federal Government has no doubt had it up to its neck with the National Assembly and has as a result, without hesitation, gone to the Supreme Court asking the court to declare the 4th amendments to the Constitution as unconstitutional. It all started when on 15th April President Goodluck Jonathan addressed the Senate and gave reasons why he would be refusing to give the requested Assent. His bone of contention was that the said constitutionality of a valid alteration was based on the requirement of s.9 (3) that four-fifths of each Chamber of the National Assembly (House of Representatives and the Senate) vote to approve it and two-thirds of the Houses of Assembly in the Federation (24 of 36) approve the amendments by resolution. He said that there was no credible evidence to show that these requirements had been met and so he would be withholding his Assent until it could be shown that the National Assembly complied with s.9 (3). This though is not the first time the President is going to court regarding the issue of his assent as he did so in 2010 when the National Assembly purported to alter the Constitution without Presidential Assent. The alteration was accordingly challenged in the Federal High Court where it was declared illegal and unconstitutional. The Constitution provides for the mode of altering provisions as stipulated in Section 9 which provides as follows: 9 (1) The National Assembly may, subject to the provisions 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. (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. However the Constitution is not specific on the steps to be taken in the event that the President refuses to give his assent to a constitutional amendment.

Some though have argued that the National Assembly does not require Presidential assent to alter the provisions of the Constitution. Advocates of this position would appear to be reading Section 9 in conjunction with Section 58. Section 58 (4) and (5) in particular state that (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. The above section, such advocates say, gives the power to override the presidential veto to the Legislature. Even if this interpretation was to hold, in the absence of any form of executive check and balance, our Constitution would be at the mercy of the Legislature to amend as they deem fit. It is therefore clear that this is a complex issue with many separate threads and these threads tend to be dealt with in a generic swathe under the term 'constitutional amendment' which in truth does not help the determination of whether the President's or the National Assembly’s stance is justified. Retrospectively, after all the brouhaha over (and humongous expensive of) the National Conference it is painfully obvious now, as this administration bows out, that it was a conference that was 'dead on arrival' and whose numerous recommendations will likely never see the light of day.

My considered opinion is that the doctrine of separation of powers is one of the essential elements of the rule of law because without a proper separation the rule of law will be jeopardised and likely compromised, as each arm of government currently acts as a restraint on the powers of the other two. What we fervently desire is good governance on all fronts.