Senate’s decision to obey Supreme Court order against overriding the president’s veto on the Fourth Constitution (Alteration) Act draws the curtain on another attempt at amending the 1999 Constitution, Editor, Politics/Features, EMEKA ALEX DURU, writes.
“We the people of the Federal Republic of Nigeria:
Having firmly and solemnly resolved:
To live in unity and harmony as one indivisible and indissoluble sovereign nation under God and dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding:
And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the Unity of our people:
Do Hereby Make, Enact And Give Ourselves the following Constitution:” says the preamble of the nation’s grundnorm, the 1999 Constitution.
But it does not seem to encapsulate the expectations of highly perceptive Nigerians, at least, going by realities on the ground and expressions of dissatisfaction on some aspects of the document. Incidentally, none before it seemed to have met the people’s expectations.
So, the search for an acceptable law has been almost endless and may remain so, at least, for now, going by the Supreme Court ruling stopping the National Assembly from going ahead to pass the Fourth Alteration Bill which seeks to amend the 1999 Constitution into law.
Aside the disappointment occasioned by the turn of events, billions of naira in tax-payers’ money expended on the exercise may have just gone down the drain in what seems to have amounted to a regular wild goose chase.
Hopes of passing the bill into law were finally dashed last Wednesday, when the Senate backed down on its earlier threat of overriding President Goodluck Jonathan’s veto against it.
Genesis of impasse
The president, had, last month, withheld his assent to the bill, citing some irregularities on the amendment process. He had specifically written to the National Assembly to inform the lawmakers that he would not assent to the amendments because they did not satisfy the strict requirements of Section 9(3) of the 1999 Constitution.
He queried, for instance, the decision of the National Assembly to whittle down some executive powers of the President of the Federal Republic of Nigeria.
He also faulted some amendments which will give executive powers and duties to the legislature and the judiciary.
These, he observed, included non-compliance with the threshold specified in Section 9 (3) of the 1999 Constitution on amendments, arguing that alteration to constitution cannot be valid with mere voice votes unless supported by the votes of not less than four-fifths majority of all members of National Assembly and two-thirds of all the 36 Houses of Assembly.
He also questioned the right to free basic education and primary and maternal care services imposed on private institutions, as proposed in the bill.
Jonathan further frowned at what he considered flagrant violation of the doctrine of separation of powers. In this instance, he found unjustified the whittling down of the executive powers of the federation vested in the president by virtue of Section 5(1) of the 1999 Constitution.
He also faulted the bill’s intention at 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.
The president said, “In view of the foregoing and absence of credible evidence that the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Bill 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.”
Curiously, while the president sent the letter of denial of assent to the bill as empowered by law, he failed to attach the bill to it as required, fuelling suspicion that he may have already appended his consent before being prevailed upon to decline.
Against this backdrop and apparently considering the time and resources invested
in the project, the lawmakers threatened invocation of their constitutional rights to override the president and pass the bill into law.
Jonathan goes to court
The federal government did not want to take chances. To stop the National Assembly from going ahead to pass the contentious amendments into the constitution, the Attorney-General of the Federation (AGF) Mohammed Adoke, had applied for an order of interlocutory injunction restraining the lawmakers from taking any further step towards passing the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Bill, 2015 into law pending the final determination of the suit earlier filed before the court.
The application, which was filed by the counsel to the AGF, Bayo Ojo (SAN), was brought pursuant to Order 3 Rule 14 of the Supreme Court Rules as amended.
The AGF premised the application on the grounds, among others, that the National Assembly was determined to proceed with passing the constitution by overriding the veto of same despite the fundamental nature of the issues raised against it.
On Thursday, May 7, the Chief Justice of Nigeria (CJN), Mahmud Mohammed, leading six other justices of the Supreme Court, heard the suit. The apex court specifically warned the parties not to do anything that will affect the subject matter of the suit and adjourned the case till June 18, 2015.
The immediate interpretation of the ruling is that, again, the constitution amendment exercise has hit brick walls, given that the June 18 date would come well after the expiry of the Jonathan administration as well as tenure of the present seventh Assembly.
Senate blows hot and cold
Lawmakers had felt that it was very wrong for the judiciary upon the pleading of the executive arm of government to stop the legislature, from its constitutional duty of lawmaking.
The Senate particularly rejected the court ruling, arguing that the Supreme Court could not under any circumstance prevent it as an independent arm of government from proceeding with its constitutionally-assigned duties.
Senate spokesman, Enyinnaya Abaribe, articulated the frustration of the upper lawmaking chambers.
“The Supreme Court is wrong. The law does not allow one arm of the government to stop another from performing its duties.
“The Supreme Court cannot stop us from legislating, and if they say that the Supreme Court is stopping us from making laws, it is misleading and it amounts to misreading the powers of the Supreme Court,” he said.
Members of the House of Representatives, not particularly known to have had robust relationship with the presidency, were no less embittered. They and their colleagues in the Senate were gravely peeved by the decision of the president to veto the product of the constitution review embarked upon by the National Assembly almost four years ago.
Their major grouse was that with a stroke of the pen, the president poured into the drain the work that had consumed about N4 billion in direct funding, besides associated cost in time and resources by other stakeholders.
The unusual tough stance by the Senate and the consequent gazetting of the bill in both chambers of the National Assembly had given an indication of an apparent determination of the legislators to override the veto.
But even as the senators appeared determined – at least for once – to battle the executive on the issue, not many were actually convinced that they were actually prepared for any serious fight. For a chamber that critics have accused of lacking in the stamina to assert its independence from the executive on tetchy issues, there was also the fear of the capacity of its leadership to muster the two-thirds majority required for the exercise.
Only a few were, thus, surprised when, on Wednesday, May 13, the chamber backed down on its earlier threat of forging ahead with overriding the president’s veto, explaining its action in keeping with the rule of the law.
“We are law-makers and will not be law-breakers. We are not just law-makers, we are very senior responsible citizens and very senior lawmakers,” Senate President, David Mark, was quoted to have said, while prevailing on his colleagues to stay action on the veto override.
Dimeji Adekumbi, a lawyer, told TheNiche in his Lagos office that, legally speaking, “the action by the senators does not amount to exhibition of cowardice, but in line with the rule of law. What we are practising is democracy. In it, you have separation of powers among the three arms of government. You may not agree with the ruling of the court, but you are bound to obey, it unless you are able to get it upturned by an appellate court. In this instance, the ruling was made by the Supreme Court, the nation’s apex court. It would have been bad for the Senate to go against it. That would have amounted to arbitrariness and setting a dangerous precedence.”
He however faulted the executive and legislature on the timing of the amendment bill, accusing the two arms of playing games with the future and existence of the country. An issue of such importance, Adekumbi stressed, should have been tidied up long before now.
“How come an exercise that took the legislature four years is just being rushed at the twilight of this administration? Could it be that they were hoping to rig themselves back into their various offices so as to appropriate money for the exercise and go on with their bazaar?” he queried.
He also knocked the president for keeping his distance all the while that the process of constitution review was in progress and did not voice the objections he subsequently made in his letter last month where he wielded the veto.
The order of the court has, thus, effectively killed any attempt by the lawmakers at passing the amendments into law, thereby rendering the whole amendments process into an exercise in futility. This is because, with the tenure of Jonathan expiring on May 29, and the matter now pending before the Supreme Court, the matter will remain unresolved till after the expiration of this administration. What this means is that the eighth National Assembly may have to commence a new process, with additional funds committed to it. This is more so that any bill not signed into law by the president before the expiration of the lifetime of the administration automatically expires.
In search of enduring constitution
This would not be the first time the search for enduring constitution would not be yielding the desired result. Efforts by the previous National Assembly to improve on the law book had, for instance, been hijacked by the protagonists of former President Olusegun Obasanjo’s infamous third term agenda. Following the failure of the odious project, the amendment process was jettisoned.
The Supreme Court order on the amendment exercise may have the same effect on the current attempt, analysts fear.
Even then, history of Nigeria’s constitution and review has been fairly long. There was, for instance, the 1922 Constitution that was introduced by Sir Hugh Clifford. Ironically, Clifford, who introduced the constitution, expressed doubts on the ability of the Nigerian to rule his country. He rebuked the audacity of Nigerian politicians who suggested self-government as tilting to the extremes.
By 1944, the shortcomings of the Clifford Constitution, given the increasing agitation of Nigerian nationalists, led by Sir Herbert Macaulay, could no longer be swept under the carpet. On December 6, that year, Arthur Richards (Lord Milverton), the governor, put up a constitutional reform which he hoped would guarantee Nigerians greater participation in the discussion of their affairs.
On March 5, 1945, the scheme for the new constitution was laid at the legislative council. It made provisions for the establishment of consultative bodies at the regional levels. According to Richards, the aim was “to create a political system which is itself a present advance and contains the living possibility of further orderly advance – a system within which the diverse elements may progress at varying speeds, amicably and smoothly, towards a more closely integrated economic, social and political unity, without sacrificing the principles and ideals in their divergent ways of life.”
Perceptive analysts trace the regional arrangement that existed in the country up to 1966 to the Richard’s constitution. There were other constitutional reforms, including the 1951 Macpherson Federal Constitution. The snag with it however was that it was later discovered that the regions, with their wide differences in character and development, could not effectively function in a close-knit federation.
Subsequent constitutional conferences in Nigeria and London led to the 1959 Constitution that ushered Nigeria to an independence status.
Even with the setback occasioned by the Supreme Court order on the current amendment exercise, there are indications that the process may not have completely died down, but would be resurrected in subsequent NASS, probably in different guise.
