Jokpa Utake: Is Presidential assent necessary for amending the Nigerian Constitution?

On May 31, 2018, history was purportedly made in Nigeria as President Muhammadu Buhari reportedly granted assent to the Constitution (Alteration) Bill 2016 which is now more popularly known as “Not-Too-Young-To-Run”. It has obviously taken months of agitation by young people across the country (and possibly, the globe) to effect this change and it is not unlikely that the enactment of this law would feature prominently in the incumbent Government’s list of achievements as the 2019 elections approach.

The whole episode of #NotTooYoungToRun however generates a very delicate question of constitutional interpretation – was the presidential assent required at all for the Constitution (Alteration) Bill 2016? If this question is answered in the affirmative, then we may need to consider the implication in the event that assent was withheld by the President as was quite recently done by President Jonathan in 2015. However, if answered in the negative, what is the implication on the newly enacted law? I hope to attempt answers to each of these questions in this piece.

Presidential assent under the Constitution

The doctrine of separation of powers is widely regarded as one of the underlying philosophies of the 1999 Constitution. This is demonstrated by the careful allocation of the three major powers of the State to the three separate arms of Government. Legislative powers of the Federation are vested in the National Assembly under section 4 of the Constitution while executive powers are vested in the President by virtue of section 5 and judicial powers are vested in the courts (i.e. the judiciary) under section 6.

It is however understood that the Constitution itself creates or recognises certain exceptions to the operation of the separation of powers doctrine. One of such exceptions is the requirement (under section 58) of presidential assent in respect of bills passed by the National Assembly. This derogates from the separation of powers theory since it contemplates an involvement of the executive arm in the legislative process.

Section 58 of the Constitution provides that the power of the National Assembly to make laws shall be exercised by both the Senate and the House of Representatives and assented to by the President. Where a bill is presented to the President for assent, he shall within thirty (30) days thereof signify that he assents or that he withholds assent. If the President withholds 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.

Alteration of the Constitution

Section 9 of the Constitution is entirely devoted to the procedure for alteration of the Constitution. Section 9(1) states as follows – “The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.” The applicable procedure for alteration of the Constitution is dependent on the actual provision of the Constitution which is sought to be amended.

The general requirement is that the proposal for alteration of the Constitution must be supported by the votes of not less than two-thirds majority of all members of the legislative House (i.e. Senate or House of Representatives) notwithstanding any vacancy. In this regard, the totality of members contemplated is not restricted to “members present and voting” (as prescribed under section 56) but the total number of members envisaged under sections 48
and 49 of the Constitution – that is, 109 Senators and 360 Representatives. The proposal for alteration of the Constitution must also be approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

If the proposed amendment relates to section 9 (i.e. the provision dealing with alteration of the Constitution), section 8 (i.e. State or Local Government creation/boundary adjustment) or Chapter IV (fundamental human rights), the proposal must be 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.

Requirement of presidential assent to Constitution Alteration Bills

A simple answer to this question could be that presidential assent is a requirement for all legislative bills by virtue of section 58 of the Constitution. To the extent that the alteration of the Constitution is an exercise of the National Assembly’s power to make laws, it can be argued that presidential assent is required for a law that amends the Constitution. In this regard, section 9(2) contemplates the alteration of the Constitution by an “Act” of the
National Assembly and under section 2(1) of the Interpretation Act, “An Act is passed when the President assents to the Bill for the Act…” This lends credence to the need for presidential assent before an Act can be enacted to alter the Constitution.

There is also the argument that the President’s power of assent, being a power conferred by the Constitution, must be presumed to exist unless expressly withdrawn by the Constitution. In other words, if it was intended that section 9 of the Constitution dispenses with the requirement of presidential assent, then such intention should have been expressly stated. An example in support of this argument is section 12(3) of the Constitution which expressly
excludes the requirement of presidential assent for bills passed for the purpose of implementing a treaty.

However, there are certain problems with the above view. The first glaring problem is the loud silence of section 9 on the requirement of presidential assent. The second problem which is related to the first is that section 9 appears to constitute a comprehensive code for alteration of the Constitution to the extent that whatever is not included therein must have been deliberately excluded. As stated above, the National Assembly’s power to alter the
Constitution is expressly subject to section 9 and none other.

The third problem is that section 58(5) of the Constitution provides that where the President withholds his assent to a bill, such bill may be passed again by two-thirds majority of each House in order to overrule the President’s veto. It is difficult to see how section 58(5) can be implemented in respect of a bill to alter the Constitution in view of certain peculiar features of the procedure under section 9 with regard to alteration of the Constitution.

For instance, section 9 requires approval by the Houses of Assembly of not less than two-thirds of all the States and this leads to the question of whether this approval would need to be sought again in order to overrule a presidential veto. Section 9 also requires (in certain situations) an approval by a four-fifths majority of all members of each legislative House of the National Assembly as against the two-thirds majority contemplated under section 58(5).
In the same vein, section 9 contemplates the entire membership of the legislative Houses of the National Assembly in the computation of the two-thirds or four-fifths majority and there is no similar stipulation under section 58.

It would be recalled that the quorum generally prescribed under section 54 for legislative business is one-third of all the members of the Legislative House – for the Senate, this is 37 members and for the House of Representatives, 120 members. Flowing from this, the computation of majority (either simple or two-third) for legislative business under sections 56 or 58 of the Constitution is done on the basis of “members present and voting”. This means a
simple or two-third majority among 37 present and voting Senators or 120 present and voting Representatives can pass a bill under section 58 of the Constitution. Section 9 of the Constitution however represents a significant departure from this general position for the purpose of altering the Constitution as the majority under section 9 is computed on the basis of all members of the Legislative House and not merely the members present and voting.

The above-stated problems with the notion that presidential assent is required creates the possibility that presidential assent is not required for any alteration of the Constitution. The ascertainment of legislative intention is a primary responsibility of the courts and in the execution of this responsibility; courts usually ascribe higher importance to specific provisions of an enactment in the event that such specific provisions appear inconsistent with
general provisions of the same (or any other) enactment. In the instant discourse, section 9 specifically deals with alteration of the Constitution while section 58 generally deals with the enactment of laws by the National Assembly.

Admittedly, section 318(4) of the Constitution expressly makes the above-referenced Interpretation Act applicable for the purpose of interpreting the Constitution. However, the problem with applying the definition of an “Act” under the Interpretation Act to the present debate takes us back to the supremacy of a specific provision over a general enactment. While the Interpretation Act defines an Act in a general sense, section 9 of the Constitution is
specifically descriptive of the procedure for enacting an Act of the National Assembly for the alteration of the Constitution. In this regard, section 1 of the Interpretation Act states that the Act shall apply “except in so far as the contrary intention appears in the …enactment in question.” It does appear sufficiently arguable that section 9 of the Constitution depicts a contrary intention with regard to an Act of the National Assembly for the purpose of altering
the Constitution.

There is also an additional consideration. Would it be plausible to suggest that the framers of the Constitution intended that after a proposed alteration is approved by not less than two-thirds of the Houses of Assembly of all the constituent States as well as the highest form of majority constitutionally contemplated in respect of each chamber of the National Assembly, the President would be entitled to withhold assent to such alteration and thereby (potentially) defeat the entire process? It must be recognised that the procedure for alteration of the
Constitution essentially requires approval by an overwhelming majority of the citizenry (through their elected representatives) and it is quite difficult to suggest that the President – one citizen – is vested with the proverbial “final say” in respect of such process especially in circumstances where there is no express provision to that effect.

To the best of this writer’s (limited) knowledge, no judicial pronouncement has been made by the Nigerian courts in respect of this issue as the 2015 veto saga did not elicit a pronouncement from the Supreme Court. It therefore remains an open debate which can swing either way. The silence of section 9 on the issue is ultimately problematic especially in view of the relative clarity of section 12. It may however be understood that presidential assent is reasonably not required for ratification of treaties since the treaty must have been signed by the President or his lawful delegate in the first place. Another problem with section 9 is the use of the word “proposal” in subsections (2) and (3) as against the word “bill” which is unanimously understood as the constitutional precursor to an “Act” of the National Assembly.

For the present purposes however, if pressed to answer the question, this writer prefers the view that presidential assent is not constitutionally required for bills to alter the Constitution as such requirement does not sit well with other related provisions of the Constitution. The follow-up question is the effect (if any) this view could have on the recently enacted Constitution (Alteration) Bill 2016 and other similarly enacted alterations to the Constitution.
That is however an easier question as the notion that presidential assent is not required only means that #NotTooYoungToRun became an operative law as soon as the requirements under section 9 of the Constitution were carried out and definitely before the presidential assent granted on May 31, 2018.

Genuine issues may however arise in a situation where a President withholds assent in respect of a bill to alter the Constitution as was witnessed in 2015. If presidential assent to such bills is indeed superfluous, it would mean such refusal of assent is of no effect and to that extent, the 2015 amendment effort may well have been successful even without President Jonathan’s assent. This is however an issue for the courts to decide and one can only hope that the occasion would present itself in due course.

Jokpa Utake is a Dispute Resolution Associate in Babalakin & Co Legal Practitioners and can be reached via jokparo@gmail.com or autake@babalakinandco.com