Rage over Constitutional Amendment

In what appears to be a constitutional crisis, the Executive and Legislative arms of government have for over two weeks been pitched in a battle over the recent amendments made by the National Assembly.

And perhaps to be able to have an overhand in the ongoing war, the Executive Arm of the Federal Government last Wednesday approached the Supreme Court asking it to declare as a null and void the ‎passage of the proposed amendment of the constitution by the National Assembly.

The Attorney-General of the Federation, Mr. Mohammed Adoke, instituted the fresh suit with SC/214/2015 on behalf of the executive arm of government asking the court to nullify any attempt by the National Assembly to override the President’s veto powers.

President Goodluck Jonathan had earlier vetoed the amendment passed by the legislators when he withheld his assent on the bill already passed by the assembly.

In the suit, the executive arm argued that the bill was not passed by at least four-fifths majority of all members of each House of the National Assembly as stipulated in sections 48 and 49 of the Constitution.

The suit follows the crisis that had developed over President Jonathan’s refusal to assent the fourth Alteration Bill of the Constitution. After his veto, the President wrote to the National Assembly last week listing some grey areas that he said were contentious.

But the National Assembly threatened to override the President’s veto powers as it relates to the bill as a result of which the president went to court.

Already, 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, in a statement, said if the National Assembly failed to review the grey areas as raised by the President before overriding his assent, it could result in legal issues that could be challenged.

Falana, who also criticised the refusal of President Jonathan to assent to the bill, recalled that the last alterations 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 Bar Association, Mr. Olisa Agbakoba, challenged an attempt by the National Assembly to amend the constitution without recourse to the President.

Falana stated: “In 2010, the National Assembly had purportedly empowered itself to amend the Constitution without the assent of the President of the Republic.

“The action was challenged in the Federal High Court by Olisa Agbakoba SAN, a former President of the Nigerian Bar Association. The court declared the amendment illegal and unconstitutional and proceeded to set it aside in toto.

“In view of the fundamental errors which have characterised 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 recognised.

“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 interests.

“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”, Falana stressed.

In an originating summons filed by Chief Bayo Ojo , SAN, on behalf of the Attorney-General of the Federation (AGF), Mohammed Adoke (SAN), the Federal Government averred that the purported Fourth Alteration Act 2015 passed the National Assembly was not done with the mandatory requirement of four-fifths majority of members of the Assembly as mandated by the relevant sections of the extant Constitution of the Federal Republic of Nigeria 1999 as amended.

It ‎therefore asked the Supreme Court to make an order nullifying and setting aside Sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 of the Fourth Alteration Act, 2015 purportedly passed by the National Assembly.

In the summons, the Federal Government also wants the apex court to ‎determine the following two questions: Whether the proposed amendment to the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the Constitution) by the Defendant through sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, ((Fourth Alteration) Act 2015 (hereinafter referred to as The Fourth Alteration Act 2015) which purportedly altered sections 8, 9, 34, 35, 39, 42, 45, 58, 84, 150, 174 and 211 of the Constitution without compliance with the requirements of section 9(3) of the Constitution is not unconstitutional, invalid, illegal, null and void?

Whether in the absence of compliance by the Defendant with the mandatory requirement of section 9(3) of the Constitution in the passage of the Fourth Alteration Act, 2015, the Defendant can competently exercise its powers under section 58(5) of the Constitution to enable the purported Act to become Law?‎

The Federal Government therefore asked the apex court to hold that ‎the proposed amendments to the Constitution through sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 of the Fourth Alteration Act, 2015 which purportedly altered sections 8, 9, 34, 35, 39, 42, 45, 58, 84, 150, 174 and 211 of the Constitution and passed by the Defendant without complying with the mandatory requirement of section 9(3) and (4) of the said Constitution stipulating passage by at least four-fifths majority of all members of each House specified in sections 48 and 49 of the Constitution is unconstitutional, invalid, illegal, null and void and of no effect whatsoever.

It also prayed the court to ‎declare that in the absence of compliance by the Defendant with the mandatory requirements of section 9(3) of the Fourth Alteration Act, 2015 which purportedly altered sections 8, 9, 34, 35, 39, 42, 45, 58, 84, 150, 174 and 211 of the Constitution, it is unconstitutional for the Defendant to exercise its powers under section 58(5) of the Constitution to enable the purported Act to become Law.

The originating summons is supported by an affidavit deposed to by a lawyer in Bayo Ojo’s chambers, Mr Theophilus Okwute, who claimed the AGF told him that the purported Fourth Alteration Act 2015 was not passed with the mandatory requirement of four-fifths majority of members of the Defendant and the mandatory due processes provided for under the relevant sections of the extant Constitution of the Federal Republic of Nigeria 1999 as amended.

‎He said the Defendant is making moves, with the tacit consent of all the State Houses of Assembly to employ certain provisions of the Constitution to now pass the purported Fourth Alteration Act, 2015 into Law.

He also claimed that the said purported Fourth Alteration Act 2015 contains many proposed amendments inconsistent with the spirit of federalism, separation of powers and checks and balances, all of which constitute the hallmark of the Constitution and democracy. ‎

Maintaining that most of the provisions of the purported Fourth Alteration Act 2015 are contrary to public policy and good governance, he said that it will be in the interest of justice to grant all the prayers sought in the suit.

In withholding his assent, President Jonathan queried the decision of the National Assembly to whittle down some executive powers of the President of the Federal Republic of Nigeria, whilst also faulting some amendments which gives executive powers and duties to the Legislature and the Judiciary.

In a seven-page letter to Senate President David Mark and House of Representatives Speaker Aminu Waziri Tambuwal, President Jonathan explained his position on the amendment and why he declined to sign the document into law.

The President concluded by saying: “In view of the foregoing and absence of credible evidence that the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 satisfied the strict requirements of Section 9(3) of the 1999 Constitution, it will be unconstitutional for me to assent to it.

“I therefore withhold my assent and accordingly remit Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 to the Senate /House of Representatives of the Federal Republic of Nigeria.”

He listed some faults in the amendment:

• Non-compliance with the threshold specified in Section 9(3) of the 1999 Constitution on amendments;
• Alteration to constitution cannot be valid with mere voice votes unless supported by the votes of not less than four-fifths majority all members of National Assembly and two-thirds of all the 36 State Houses of Assembly;
• Right to free basic education and primary and maternal care services imposed on private institutions
• Flagrant violation of the doctrine of separation of powers,
• Unjustified whittling down of the Executive powers of the Federation vested in the President by virtue of Section 5(1) of the 1999 Constitution;
• 30 days allowed for assent of the President; and
• Limiting expenditure in default of appropriation from 6months to three months
• Creation of the Office of Accountant-General of the Federation distinct from the Accountant General of the Federal Government
• Empowering National Economic Council to appoint the Accountant-General of the Federation instead of the President;
• Allowing NJC to now appoint the Attorney-General of the Federation rather than the President;
• Unwittingly whittling down the discretionary powers of the Attorney-General of the Federation.