By Ifeanyi Ottah
Barely one month to hand over, a major constitutional crisis is looming, as a face-off between President Goodluck Jonathan and the National Assembly is imminent.
The bone of contention is President Jonathan’s rejection of amendments to the 1999 constitution and confusion over the President’s signature on April 13, 2015 letter sent to senate President David Mark in rejecting the alterations to the constitution. Jonathan’s refusal to assent to the bill seeking to amend the 1999 constitution has exposed the frosty relationship between the executive and the legislative arms of government.
To avert this, the President had earlier embarked on a reconciliation mission with the leadership of the National Assembly.
But on April 13, President Jonathan formally declined assent to the National Assembly’s fourth Alteration of the 1999 constitution and subsequently returned the bill to the legislature.
The Senate approved the alterations on Wednesday, February 18, 2015 and a clean copy of the Bill was forwarded to Jonathan for assent a week before the presidential and National Assembly elections in March. In a letter dated April 13, 2015, to the Senate, Jonathan raised objections to at least 12 alterations with specific rejection of the separation of the office of the Attorney General of the Federation and Minister of Justice.
The President had noted that the National Assembly’s alterations infringed on executive powers, as enshrined in the constitution. Also, the Senate has noted that the President’s letter, which made reference to returning the Bill, entitled: “Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act, 2015,” did not have attached bill.
At the plenary, Senate President David Mark read Jonathan’s letter to his colleagues and also announced the commencement of the retreat of the Constitution Review Committee (CRC) headed by Deputy Senate President, Ike Ekweremadu.
In the said letter titled: “Re: Constitution of the Federal Republic of Nigeria, Fourth Alteration Act 2015” Jonathan stated: “May I draw your Excellency’s esteemed attention to the constitution of the Federal Republic of Nigeria (Fourth Alteration) Act, 2015 that has been passed by the National Assembly and transmitted to me for assent.
“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 the Bill.
“In 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.
“The said section 45A of the Fourth Alteration Act 2015, which guarantees the right to free basic education is too open-ended and should have been restricted to government schools. He added, “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 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 the rights on the government.”
President Jonathan also queried the limitation of the power of the President to withhold assent to bills to 30 days. He said 30 days might not be sufficient for a president to go through such bills.
He said: “The power vested in the President to withhold his assent to Bill passed by the National Assembly is part of the checks and balances contained in the constitution.
Withholding of assent therefore constitutes a check on the exercise of legislative powers in a constitutional democracy especially as the Executive branch has the responsibility of enforcing law passed by the National Assembly…”
The Federal Government, however, dragged the National Assembly before the supreme Court over its contention that the National Assembly flouted constitutional stipulations on some of its recent amendments and as well usurped executive powers.
The Federal Government, among others accused the National Assembly of failing to observe a provision which require the support of the four fifths majority of members of the National Assembly before it can amend some sections of the constitution such as Section 9.
The Federal Government has written to the Senate President, David Mark, informing him of the suit it filed at the supreme court challenging the legality of the proposed amendments of the constitution.
In the letter, written on behalf of the Federal Government by Chief Bayo Ojo (SAN), it asked the Senate President to allow the supreme court determine the issues it raised in the suit.
The letter reads: “In view of this development and the dictates of the principles of the rule of law on which any democratic system thrive, we use this medium to urge that the supreme court be allowed to determine the suit under reference before any further step is taken by the National Assembly on the move to pass the fourth Alteration ACT alluded to earlier in this correspondence into law.
“May we add that adopting such attitude will not only commendably be in line with the decisions of the supreme court on the absolute need to avoid self-help by all persons and authorities in resolving disputes, but will also yield to the rule of law as espoused in the decisions of the court. One of such decisions is the case of Ojukwu Vs Military Governor of Lagos State (1986) 1 WNLR (pt 18) 621.
“To proceed with the process of passage into law of the fourth Alteration Act 2015 despite the pendency of this suit under reference will be an affront to the rule of law and democracy. We are convinced, particularly from the commendable record so far of the current National Assembly that it will not do it.”
Following the presidents refusal to assent to the amendment bill, the senate demanded the return of the original copy of the bill it sent to it earlier in the year. But instead of responding to senate’s demand, the Federal Government proceeded to the apex court, asking it to determine if the National Assembly had satisfied constitutional requirements for the amendments.
In the suit, the Federal Government is asking the court to nullify the amendments proposed by the National Assembly on the grounds among others that the amendments violated the constitution being proposed to be amended.
In the said suit, the plaintiff claims for determination of two questions on the constitutionally or otherwise of the procedure adopted by the National Assembly in passing the constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 particularly as it relates to sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 purporting to alter sections 8, 9, 34, 35, 39, 40, 42, 45, 58, 84, 150, 174 and 211 of the extant 1999 constitution of Nigeria and for an order nullifying and setting aside those sections of the Fourth Alteration Act.
The Federal Government also asked the Senate President to draw the attention of the House of Representatives to the pending suit.
Meanwhile, some senators had applauded Federal Government’s decision to drag the National Assembly to court over its latest amendments to the constitution, describing it as the right step in the right direction.
In reaction to the move to go to court some of the Senators described the move as a welcome development, saying it would help to ascertain which group is right or wrong.
Speaking on the development, chairman, Senate Committee on Judiciary, Senator Umaru Dahiru, hailed the Federal Government’s move, arguing that the decision would further go a long way to enhance democratization of the system.
“There is nothing wrong with that. The implication is that if the executive feels that something is wrong, then they can go to court. The constitution is very clear-if you do not agree with anything, either the National Assembly or the Federal Government can take the other to court. And in case the supreme court says otherwise, we have to comply.
“It is checks and balances. That is the beauty of this democracy. If you go beyond your limit and if you think you are right, we go for interpretation. If the President feels the procedure is technically wrong, then he can seek interpretation which he wants now.
“If the court says they are right, then there is nothing we can do. Otherwise we come for amendments. We are ready to take any correction. It does not matter what I believe or do not believe. It is for the court to determine,” he said.
Also in his view, Senator Ita Enang said the Federal Government’s decision was the proper step to take in this circumstance. He said: “I have always urged that in the relationship between the executive and the legislature, whenever there is a dispute, the executive or the legislature should be willing to approach the courts for interpretation as to who is right. This will enable the legislature to be guided if they are wrong. This was why we passed the supreme court Additional Jurisdiction Act in 2002.
“Although I have not seen the processes, I do not know whether they are coming under the supreme court Additional Jurisdiction Act which authorities said that if there is a dispute between the executive and the legislature at the national level, the original Jurisdiction of the supreme court should be invoked.
“Therefore, I am happy that the President, having doubts about the powers of the legislature to do what it has done, has not resorted to press attack on the legislature. He has sent a letter to the legislature and at the same time has approached the court to declare whether or not the legislature is right in the procedure adopted and in the subject matter,” he said.
Meanwhile, the House of Representatives on its part insisted that it did not flout any constitutional requirement in the process of amending the constitution, which President Jonathan rejected via a letter to the parliament dated April 13, and further sued the House.
The Deputy Minority whip of the House, Hon. Samson Osagie (APC, Edo) also gave explanations on aspects of the constitution review contended by the President.
On clause 4 (alteration of section 9), Osagie said: “The National Assembly met the requirement of the said section 9 (3) for a four-fifths votes of members of each House.
“A reference to the vote and proceedings of the House of Representatives for Wednesday, July 24, 2013, No.15 at page 117 shows that the alteration of section 9, attendance of members as registered was 338. A yes votes were 317, Nays votes were six, Abstain 15, totaling 338. The Senate also voted accordingly.”
“Further on the mandate given to the President to assent to bills sent to him within 30 days, the lower chamber said it was not strange.
“The only new thing is that the National Assembly introduced an amendment to the effect that if the President fails to assent to the bill or indicate his with holding of assent, the bill shall become law after the 30 days interval.
“Another clause which the President contested is clause 12, where new sections 45a and 45b were inserted, seeking to guarantee right to free education. On this portion, the House explained that it was silent on some salient points because the constitution is self explanatory on “institutions and organs against whom constitutionally guaranteed rights are usually sought to be obtained from are known by the citizenry. Besides in the event of a dispute on this, the interpretative role of the courts come into play.”
Osagie, who also co-chairman the ad-hoc committee on the constitution review, said: “The constitution envisages that the President shall communicate his withholding of assent before the National Assembly could invoke the powers to override the veto, or sustain it.
“But where this is not communicated, the National Assembly becomes hamstrung. Thirty days is certainly long enough for the President to do his solemn constitutional duty,” the House observed.
Turning to the reservation of the President on the separation of the Attorney-General of the Federation from that of the Minister of Justice, the lower chamber argued that the separation “is to guarantee the impartiality of the Attorney-General over public prosecutions while the minister of Justice serves as Chief legal adviser to government.”
Meanwhile, human rights lawyer, Mr. Femi Falana has warned the National Assembly against passing the bill without looking critically at some of the arguments given by President Jonathan.
Falana, who also criticized the refusal of President Jonathan to assent to the Bill, recalled that the last alteration to the constitution sanctioned by the President in 2010 and 2011, were passed by the same two-thirds majority of the federal and state legislators recalling further how former President of the Nigerian Barr. Association, Mr. Olisa Agbakoba, challenged an attempt by the National Assembly to amend the constitution without recourse to the President.
Falana also said, if the National Assembly failed to review that grey areas as raised by the President before overriding his assent, it could result in legal issues that could be challenged.
He said: “In 2010, the National Assembly had purportedly empowered itself to amend the constitution without the assent of President of the Federal Republic.
“The action was challenged in the Federal High Court by Olisa Agbakoba, SAN, a former President of the Nigerian Barr Association. The court declared the amendment illegal and unconstitutional and proceeded to set it aside in toto.
“In view of the fundamental error which have characterized the 4th Alteration to the constitution, the National Assembly members should go back to the drawing table.
“They should have no difficulty in jettisoning the alteration of section 9 of the constitution as it is the height of legislative dictatorship to amend the constitution of a country without the assent of the President and the endorsement of the people via a referendum.
“While the concern of the legislators for the rights of Nigerians to basic education and health is appreciated the inclusion of both rights in chapter four of the constitution is unnecessary as both rights have been statutorily recognized.
“However, if the members of the National Assembly refuse to remove the objectionable provisions before overriding the veto of the President they would have engaged in a futile exercise which is likely to be challenged in a law court.
“Apart from the serious observations raised by the President some of the provisions of the Amendment completely negate national interest.
“Whereas majority of Nigerians have consistently demanded for the removal of immunity clause from the constitution the amendment seeks to confer immunity on legislators in addition to the heads of the executive arm of government.
“Another objectionable proposition in the 4th amendment is the provision of pension for life for former leaders of the National Assembly. Indeed, one of the former speakers of the House of Representatives who will be a beneficiary of the largesse spent a few months in office and resigned for fear of impeachment.
“Another retired speaker who served for less than four years is barely 40 years old. The National Assembly should justify why Nigerians should pay pension for life to such legislators for rendering part time service in the parliament.”