Constitution Amendment and Supreme court’s costly order

The controversy over refusal of President Goodluck Jonathan to assent to the Constitution amendment sent to him by NASS last month prompted him to approach the Supreme Court to determine areas of contention. In its ruling, the apex court ordered the parties to maintain status quo till June 18. Senior Correspondent, ONYEWUCHI OJINNAKA, dissects the issue with views of some lawyers.

Jonathan, Mohammed and Senate President, David Mark

The row between President Goodluck Jonathan and members of the National Assembly (NASS) over the former’s refusal to append his signature on the Fourth Alteration Bill, which seeks to further amend the Constitution of the Federal Republic of Nigeria 1999, has continued to deepen.

 

NASS had, through the Clerk, presented the amended constitution to Jonathan for his assent as the constitution stipulates; but the president declined to append his signature.

 

In a letter to both the Senate and the House of Representatives on April 13, Jonathan had stated that he would not assent to the bill because of certain shortcomings. He specifically faulted Section 4, an alteration to section 9, stating that Section 4 of the Fourth Alteration Bill 2015, which seeks to alter Section 9 of the 1999 Constitution by inserting new Subsection 3A which dispenses with the assent of the president in the process of constitution amendment.

 

The president also faulted new Section 45A to 45B which guarantees the right to free basic education, by saying that it is too open-ended, positing that it should have been restricted to government schools only.

 

“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.

 

“The 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 the 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 lawmakers.”

 

President Jonathan asked the lawmakers to redraft the areas he faulted, including Section 82 which seeks to limit the period when expenditure can be authorised in default of appropriation from the six months provided in the constitution to three months, 84A and 84F which deals with the appointment of Accountant-General, and other amended sections which seeks to separate the office of Attorney-General of the Federation (AGF) from the office of Minister of Justice.

 

Apparently not certified with the president’s refusal to assent to the bill, members of the National Assembly are making moves to veto the president by passing the bill into law by two-thirds majority. Sensing that the bill may be passed into law by the legislators, the president through the AGF approached the Supreme Court to determine the issue of veto and to restrain NASS from passing the Fourth Alteration Bill into law without his assent.

 

In its ruling on the interlocutory injunction filed by the AGF, the Supreme Court restrained NASS from taking any further step to pass the Fourth Alteration Bill, which seeks to further amend the Constitution of the federal Republic of Nigeria 1999.The Apex court presided over by the Chief Justice of Nigeria (CJN), Mahmud Mohammed, cautioned all the parties against taking any action that would affect the substantive matter and adjourned the suit till June 18 for hearing.

 

But apparently not comfortable with the ruling of the apex court and having at the back of their minds that their tenure may have been expired before June 18, members of NASS may have concluded plans to gazette the said controversial Fourth Alteration Bill 2015 (Constitution Amendment), against the order of the Supreme Court that parties should hold action pending the hearing of the suit.

 

Public opinion analysts and lawyers posit that if the lawmakers go ahead to gazette the bill as has been speculated, it would amount to ‘lawmakers disobeying the order of the court’, constitute a contempt of the court, will portend danger and cause disharmony between the legislature and the judiciary.

 

Commenting on the issue, a Lagos-based lawyer, Onyebuchi Aniakor, said one thing is clear on the pronouncement of the Supreme Court, that parties should maintain status quo. He however sympathised with NASS because the members see that their tenure will elapse before June 18, which is the next adjourned date, but he asked if NASS will disobey the court order because of that.

 

“They have no power to override the Supreme Court order. If there is a dispute between the executive and the legislature, it is taken to the Supreme Court to adjudicate. The same thing applies in a dispute between the states and the federal government. It is constitutional.

 

“If the Supreme Court made an order directing the parties to withhold any action on the issue, and if NASS proceeds in its action, it is a clear disobedience of the court, and the constitution gives the Supreme Court the power to penalise parties involved for contempt,” he said.

 

He noted that the order is for both the president and the legislature, saying that it is not only for one party but for both, and therefore they should obey the Supreme Court order.

 

In the opinion of Lagos State Solicitor-General and Permanent Secretary, Lagos State Ministry of Justice, Lawal Pedro (SAN), the issue between the president and the legislature is constitutional, if truly the Supreme Court has made an order. “For every action, there is a reaction.”

 

Pedro noted that the Senate should reconvene to debate further on the issue.

 

“It is expected that they are going to debate the issue, including the Supreme Court order, and know if they will contest the order.

 

“Once a court says stay, you must stay and, perhaps, go back to contest the order if not satisfied. That is the ideal thing to do.

 

“They should debate the development and they have counsels to guide them. There must be rule of law,” he stressed.

 

“The Senate should be allowed to debate the new development, including the court order, but if the Supreme Court says no or yes, its decision is the final, being the apex court in Nigeria. However, both sides must be heard by the Supreme Court.”

 

Commenting on the tenure of the current legislature, which will expire before the adjourned date, Pedro said there is continuity in governance, and that NASS is an institution and is acting as such.

 

According to him, the next NASS may continue or discontinue with the issue, depending on the perception of the new legislature. They may take a decision. “It does not matter whether their tenure has elapsed or about to end.”

 

Another Lagos lawyer and a Senior Advocate of Nigeria (SAN), Joseph Nwobike, said he has not been following the drama between the president and the legislature, but summarised his position thus: “If the Supreme Court says that parties should maintain status quo, the National Assembly should obey the court, respect the order.”

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