Did President Jonathan Veto the 4th Alteration to the 1999 Constitution? Sylva Ogwemoh

By virtue of Section 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution), the Constitution is the supreme law of the Federal Republic of Nigeria and it prevails over every other law, and any law that is inconsistent with the provision of the Constitution shall to the extent of its inconsistency be void. Alteration or amendment of the Constitution is a very serious legislative business. A proposal for the alteration of the provision of the Constitution 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 members of that House and approved by a resolution of the Houses of Assembly of not less than two-thirds of all the States of the Federation. For the Constitution to be altered, not less than two-thirds of the Houses of Assembly of the 36 States of the Federation must pass a resolution approving the alteration. The reason for this is not far-fetched; the Constitution being the supreme law of the Federal Republic of Nigeria cannot be altered at the whim of 460 members of the National Assembly (Senate and House of Representatives) without the approval of two-thirds of Houses of Assembly of the 36 States of the Federation to ensure a wider and most robust debate on the alteration before it is passed into law.

Further, for a bill of the National Assembly to become law, it must receive the assent of the President of the Federal Republic of Nigeria except as otherwise provided under Section 58(5) of the Constitution, where the President withholds his assent. Where an agreement has been reached on a bill passed by either the House of Representatives or Senate, it shall be presented to the President for his assent. The President upon receipt of a bill presented for his assent has thirty days within which to assent to the bill or withhold his assent, and where the President withholds his assent and the bill is again passed by each House of the National Assembly by two-thirds majority, the bill shall become law and the assent of the President shall not be required.

On Wednesday, 15th April, 2015, the President of the Senate, Rtd Colonel David Mark, read on the floor of the Senate during a plenary sitting, a letter addressed to the Senate by President Goodluck Jonathan. In his letter to the Senate, the President pointed out what he considered as defects that may not make the bill for the 4th Alteration of the Constitution enjoy his assent unless and until such defects are reviewed or reconsidered by the National Assembly. Particularly, the President faulted Section 4 of the 4th Alteration Act, 2015, which attempts to alter Section 9 of the Constitution by inserting a new subsection 3A, which in effect has jettisoned the assent of the President in the process of constitutional alteration. The President advanced reasons for withholding his assent as he stated in his letter as follows:

''However, this alteration can only be valid if the proposal was supported by votes of not less than four-fifths 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 the light of the above, I am of the respectful view that I should withhold assent until it can be shown that the National Assembly 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.''

To further buttress the reasons for withholding his assent the President pointed out other anomalies in the proposed bill which contain new Sections 45A and 45B guaranteeing the right to free basic education and free primary and maternal care services as too wide and open-ended. The President specifically noted that the right to free education should have been qualified and or restricted to government schools. In justifying his position the President stated as follows:

''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.''

I have taken pains to quote extensively from the President's letter read on the floor of the Senate on 15th April, 2015, to show that the President's requests contained in his letter do not amount to the exercise of his veto powers under the Constitution but a polite request for a reconsideration, review and redrafting of the 4th Alteration in view of the issues raised in the letter of the President. There is no doubt in my mind that the issues raised in the President's letter are fundamental and require a patriotic fervour for our country on the part of our distinguished Senators of the National Assembly and not the kind of theatrics on display on the floor of the Senate on 16th April, 2015, where the distinguished Senators instead of addressing the fundamental issues in the President's letter to the amusement of many Nigerians demanded for the original copy of the bill earlier sent to the President with emphasis on the signature page. This attitude of the distinguished Senators has reduced a very important and fundamental national issue to a ridiculous level.

It is not uncommon, for the President to request the legislature to reconsider a bill sent to the President for assent in a democratic setting such as ours. This is distinguishable from the exercise of veto power. Where a reconsideration of a bill is requested by the President, the Legislature is given a second opportunity to re-examine the sections of the law it may have passed without due consideration of their contents and consequences as in this case, where the right to free education and free primary and maternal services is left unqualified. If the bill for the 4th Alteration is passed in its present state, it will definitely attract a floodgate of litigation which will in turn unnecessarily distract the executive from its primary duties to the citizens of this country. It is in this light, that I call on our distinguished Senators to take a second look at the President's letter and take necessary steps in addressing the fundamental issues raised therein in the overall interest of our country, Nigeria.