President Goodluck Jonathan, on April 15th, gave reasons why he
refused to assent the constitution amendment bill forwarded to him by
the National Assembly even as some eminent lawyers backed his decision.
Raising about 13 grounds, President Jonathan in a letter entitled:
“Re: Constitution of the Federal Republic of Nigeria, Fourth Alteration
Act, 2015,” questioned the power the National Assembly has to arrogate
to itself the power to pass any constitution amended without the assent
of the President.
He also picked holes in whittling down the power of the President,
allowing the National Judicial Council, NJC, to appoint the
Attorney-General of the Federation, separating the office of the
Accountant-General of the Federation from that of the Federal
Government, and limiting the period when expenditure can be authorized
in default of appropriation from six months to three months, among
others.
Leading lawyers, who endorsed the president’s action were Professor
Itse Sagay (SAN), Chief Emeka Ngige (SAN), Mr Festus Keyamo and Mr
Kayode Ajulo.
Shocked by the President’s letter, the National Assembly Conference
Committee, comprising members of the Constitution Review Committee in
both the Senate and the House of Representatives, yesterday, began a
two-day retreat to look into the bill and the attendant consequence of
the president’s action. It will come out with a definite position on the
issue next week.
Mark stops senators from debating President’s letter
The President’s letter was read on the floor of the Senate during
plenary yesterday by the Senate President, David Mark. But he stopped
Senators from debating the President’s refusal to assent to the amended
bill, when some senators, led by Senator Sadiq Yar’Adua, APC, Katsina
Central, raised a Point of Order, seeking permission to that effect.
The President, in the letter also lamented what he termed as
usurpation of powers of the executive by the legislature in the fourth
alteration of the constitution.
Shortly after the Senate President finished reading the letter,
Senator Abubakar Yar’Adua, APC, Katsina Central, raised a Point of
Order, seeking that the Senate be allowed to debate the President’s
letter.
He said: “I think it is important for us to discuss that letter and
see whether there is need for us to consider the letter or not. I think
he has raised very serious fundamental issues, especially in terms of
our conscience as lawmakers and his own position as the chief executive
officer of the Federal Republic of Nigeria. That is why I am raising
this point or order.”
But the Senate President refused his request, saying he was earlier
communicated by the Conference Committee on the Review of the 1999
Constitution, that it was holding a two-day retreat between yesterday
and today, to discuss and take position on the president’s letter.
Mark said: “Obviously, this letter is not like any other normal
letter. We can’t discuss the letter unless you have a copy of it. So,
the first reaction is for me to make copies available to everybody. And
you go and study it. And if you notice, there is an announcement also by
the Constitution Review Committee that they are going to meet. So, that
will straight away go to them. I agree with you that weighty issues
have been raised. It’s a peculiar case, so everybody will be involved.”
Where lawmakers erred —Jonathan
In
the letter, Jonathan said that the two chambers of the National
Assembly failed to meet requirements for altering Section 9 (3) of the
1999 Constitution.
“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
constitution amendment. 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 Houses 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 of the constitution
was met in the votes and proceedings of the National Assembly, it will
be unconstitutional for me to assent to this Bill,” he explained.
Besides, the President said there were a number of provisions in the
Act that altogether constitute flagrant violations of the doctrine of
separation of powers enshrined in the 1999 Constitution and
unjustifiably whittle down the executive powers of the federation vested
in the president by virtue of Section 5 (1) of the 1999 Constitution.
Jonathan observed that the power vested in the President to withhold
his assent to bills passed by the National Assembly was part of checks
and balances contained in the constitution.He said Sub-section 5a of Section 58, which provides that the
bill becomes law after the expiration of 30 days in the event that the
president fails to signify the withholding of his assent, may be
inappropriate.
“The provision appears not to have taken cognizance of the
afore-mentioned variables, the vagaries inherent in the legislative
process and the wisdom in requiring two-thirds majority to override the
President’s veto.
“In the light of the above, I am of the view that the failure to
signify assent by the President within the prescribed period of 30 days
should rather be treated as dissent, which would require two-thirds
majority to override.”
Jonathan faults NASS over alteration
Jonathan
also faulted the National Assembly over its alteration, seeking to
limit the period when expenditure can be authorized in default of
appropriation from the six months provided in the constitution to three
months, saying: “I am of the view that this provision has the potential
of occasioning financial hardships and unintended shut-down of
government business, particularly where for unforeseen reasons and other
exigencies in the polity, the National Assembly is unable to pass the
Appropriation Act timeously.
“Our recent experiences with the process of passing the Appropriation
Act do not justify the reduction of six-month time limit in the
constitution,” he insisted.
The President also faulted Section 84a that created the new Office of
Accountant General of the Federation distinct from the Accountant
General of the Federal Government, saying it did not address the funding
requirements for 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,“he
stressed.
He also said it was important to state who will exercise oversight
powers over the office, noting that the National Economic Council, which
was mainly an advisory body, was now charged with the responsibility of
recommending those to be appointed to the office of the
Accountant-General.
The President equally faulted the National Assembly in separating the
Office of the 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 and also the provision for
independence of the Office of Attorney General by guaranteeing tenure
and funding.
He said as desirable as the alterations were, there were some
provisions that violate the doctrine of separation of powers and also
negate what he called “the age-long independence and absolute discretion
that the office has enjoyed for centuries since its creation in the
middle ages.”
He said the first setback was that the alteration was silent on who
was the Chief Law Officer of the Federation, noting: “This is a serious
lacuna, which may create implementation challenges.”
President has minor justification—Sagay
On the controversy, Professor Itse Sagay, SAN, said though the
President has a minor justification in refusing to endorse the amendment
in the 1999 Constitution, some of the sections he rejected would have
been good for the country.
Sagay said: “There is the main issue of whether the President is
really entitled to sign the constitution, that is the constitution could
have been changed without him, that issue is not yet resolved and
probably won’t be resolved until it gets to the Supreme Court because
every constitutional change goes through a process of two thirds vote in
the National Assembly and approval by state Houses of Assembly.
“So, it raises the question of after going through that process, is
it still necessary to present it to the President for his signature.
That issue is there but the way the people behave this time is as if
they needed the President to vote.”
Speaking further, the legal icon said: “If you look at his reasons
for refusing to endorse the amendment, his main reasons are that the
executive powers are being depleted to the advantage of the National
Assembly and the National Judicial Council.
“For example, he said the office of the Accountant-General was split
into two. One for the federation and the other for the Federal
Government. That is a very good thing. I do not know why he should be
against that because the present Accountant-General of the Federation
operates more as the Accountant-General of the Federal Government. It is
usually unfair to other parts of the federation, that is why that
position was made, it was a sensible provision.
“As for the National Judicial Council appointing the
Attorney-General, I do not think it is a good idea. It is going too far
because the Attorney-General exercises executive powers in the sense
that he can decide to institute a criminal case and he can decide to end
a criminal case. I think that should remain with the executive and not
with the judiciary.
“As for meeting the provision of Section 9 (3), I do not know what he
expects them (National Assembly) to meet. They have met the Two Thirds
requirements. The only provision of the constitution which requires
three quarter votes are those that affect human rights. These ones do
not affect human rights as far as I know. I don’t see why he is
complaining about Section 9(3).
All told, he has some minor justification but the bulk of what has been rejected would have been positive for the federation.”
President did the right thing —Ngige
On his part, Chief Emeka Ngige, SAN, said the president’s action was
in order. He said: “My view is that I whole-heartedly support the
President’s action by not signing the bill. It is only a fool that will
append his signature to something that would make him look foolish. I am
surprised that the National Assembly wanted the President to sign off
his powers in the constitution amendment process.
“The President did the right thing and it is now left to be seen
whether the legislators would override the President’s action. I am,
however, in doubt that they will get the required number needed to do
that as things stand now in the country. My advice is that they suspend
the constitution amendment process until the next dispensation.”
Jonathan is correct —Keyamo
In
like manner, Lagos lawyer, Mr. Festus Keyamo, backed the President on
rejecting the constitution amendment bill. According to him, the
National Assembly failed in attaching the votes and proceedings on the
sitting that approved the clause to change the mode for constitution
alteration.
He also sided with the President in rejecting the proposal to give
the National Judicial Council the responsibility of appointing the
attorney general, asserting that it breaches the doctrine of separation
of powers.
He said: “I think the President is correct and he divided his
objection into two. In the first one, he gave reasons he could not sign
the issues dealing with healthcare, education and all that.
“In the second one, dealing with four-fifths requirement needed to
alter the mode for constitution amendment is a special provision in the
constitution and if you need to change the provision by which the
constitution should be amended, you need a higher number than the normal
two-thirds and the President said that they did not attach the votes
and proceedings to show that that number was met. That was very fair by
him. There is no evidence that you have met the requirements before
sending it to me. So he is correct on that one.
“On the requirement for free education and all that, what the
President is saying is that you cannot impose free healthcare on private
hospitals and private schools; you should restrict it to government
schools. So do you want people to start taking private schools to court?
It should be restricted to government hospitals because you would
otherwise destroy the spirit of free enterprise in the country.’’
On separation of Attorney General and Minister of Justice
“What the President said was that they would be infringing on the
principle of separation of powers. For example, it would mean giving the
judiciary the power to appoint the attorney general who is an executive
member and don’t forget that the attorney general sits in the exco.
“You are now saying that the judiciary should appoint him or
recommend him to the President for appointment subject to the approval
of the Senate, so that appointment is coming from the judiciary whereas
in the past the NJC only recommended judges.
“Now, the danger is that when a government fails in its
anti-corruption war, you blame the president; meanwhile the person who
is responsible for anchoring the anti-corruption war of the government
is the attorney general who is not appointed by the government but may
actually be destroying the anti-corruption war and yet the government
cannot touch him.
“So it is a two-edged sword, but the government gets the consequence.
So you could have a case where the attorney general can destroy the
government’s anti corruption battle but the government cannot sack him.”
It’s constitutionalism in action—Ajulo
On his part, Mr Kayode Ajulo commended the president for using his discretion, saying this is constitutionalism in action.
“When you look at it very well, the president has the discretion to
either sign the amendments or not. What the President has done is the
right thing because this is constitutionalism in action. It is well
inscribed in the law and if the President exercises his discretion, so
be it. Either rightly or wrongly, it now lies with the Supreme Court to
do the required.”
-Vanguard