CONSTITUTION AMENDMENT HEADACHE, LAWYERS WARN AGAINST IGNORING PRESIDENT'S ASSENT
The National Assembly might have ruffled the legal beehive, with its position that its planned constitution amendment does not need the president's assent. All the lawyers Saturday Sun spoke with, said there is no law that could be validly made as an Act of the National Assembly without the input of the president by way of consent, unless he declines such endorsement.
However, chairman, House of Representatives Committee on Information, Hon. Esime Eyibo, disagrees with the lawyers. He told Saturday Sun , on phone, that the constitution provides for its amendment and 'you people and all Nigerians should be wary of these public commentators and analysts who jump into conclusions easily and deceive the people.'
As far as the federal lawmaker is concerned, the National Assembly has just done job and would not be swayed to take a contrary position of seeking presidential assent before the amendment takes the full force of law.
'We have observed the rules set out in the constitution by passing it at the National Assembly and sending it to the state Houses of Assembly for their input. We got the two-third majority endorsement required and the bill is today at the final stage of the process. Immediately those ones are tidied up, it takes effect as law. We don't need the assent because the procedure never directed us to do that.'
However, lawyers, quoting copiously from the constitution, cautioned the legislators to apply caution and retrace their steps as well as send the amended sections of the constitution to the president for his endorsement or the effort would be a futility.
Mr. Emeka Ngige (SAN) warned that the planned non-inclusion of Mr. President would be 'legislative arrogance,' adopting the words of renowned constitutional lawyer, Prof. Ben Nwabueze. He said that if the National Assembly rushes out the amendment, as planned, without compliance with its general rule of law enactment, the billions of naira Nigeria spent in the effort would be a waste, as someone would later go to court to quash and rubbish it.
The position of constitutional lawyer, Chief Azubuike Obiekwe, on the matter is not different. He asked: 'Where did the National Assembly get such legal powers to validly enact a law without the president giving his endorsement? The National Assembly members were elected by the people. We know that. Then who elected the president, whose constituency is the entire nation?'
To Mr. Fred Agbaje, constitutional lawyer, such act of not seeking the president's signature is never contemplated in law.
'Tell them that they would be wasting their time to try that. Such procedure is not known to the law of Nigeria. Nobody empowered them to do so. And if they insist on traveling that wrong road, let them be sure the whole effort will amount to nothing at the end of the day. We know it is about political interest and 2011 election and not about the people.'
Emeka Ngige (SAN)
'My answer to your question on whether the consent of the president is needed to make the amended constitution a valid law is an emphatic yes. We need it because it is an Act of the National Assembly. The constitution we plan to amend stated it clearly that all Acts of the NASS must become law only after they must have gone through the legislative processes and at last got the consent of the president. But if it goes to him and he withholds endorsement, the National Assembly, after the stipulated time, has the right to withdraw it and re-pass the law into an Act without further requirement of the president's consent.
'I would adopt the thesis of the erudite Prof. Ben Nwabueze on this matter, where he said that it the height of legislative arrogance for the National Assembly to think it can validly make any law without the input of the president. If that is the situation that means the president is just there at the mercy of the National Assembly even when he is the symbol of Nigeria's nationhood. If he has no role to play in this amendment, that means one day the National Assembly would smuggle 70 new states into the constitution, and since it is constitution amendment, the president can't say or do anything about it.
'It will be a waste of time and the billions of naira the nation spent on that amendment if they at last gazette the law without presidential ratification because someone will quickly go to court and void it. It has to be thorough before it will be a normal law and whoever advises the National Assembly on this procedure, as a lawyer, is not worth his wig and gown.'
Concerning the judgment of the court over the tenure of re-run governors, he said: 'I need to see the Originating Summons to know the issues formulated and the conclusion the court gave. But generally speaking I read the news and I think if the judgment made pronouncement, particularly about Governor Segun Oni, the subject of the suit and judgment, the decision should apply to him alone. That is the case of judgment in personam. But if it is judgment in rem, it would be stretched to also include all the other governors who came back after re-run. And I know the other governors would have reason to contest the decision if they were affected. Like in the mention of re-run election holding in some parts of the state and not all, the Oni's case in Ekiti is peculiar. But I know that oath taking is just one and never renewable. If a candidate or governor involved in this gets a renewal of his tenure from the day he took the second oath, it amounts to allowing him to benefit from his wrong, and that is not consistent with justice.'
On the effective date of the amendment of the constitution, especial as it affects the tenure of governors re-elected after a re-run, Ngige said: 'The general principles of interpretation of a statute abhors retroactive application of any law. But the normal thing in lawmaking is that the makers of the law should state and include the day the law takes effect. The National Assembly should rightly include in the amendment the effective date. If it keeps quiet on the day, it normal follows that the effective date is the day it came into force after signing. If on the other hand it ratifies that the effective date is 1999, the day the constitution came into force, even though retroactive, nothing could be done about it. After all, that is the constitution and no one can argue that a provision of the constitution is unconstitutional.
'I know that Section 9 of the Constitution empowers the National Assembly, in concert with the state Houses of Assembly, to amend any part of the constitution, but that part should not be read in isolation. It must be read with Section 58(1) and (5) on president's assent.
'Section 58. (1) says: 'The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President.'
'In subsection (5), it says: 'Where the President withholds his 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.'
'My view remains that Section 9 is not isolated from other relevant parts of the constitution. The president has the constitutional right to assent to every Act of the National Assembly, and any law enacted by the National Assembly without the endorsement of the president is null and void.
'In as much as the members of the national and state houses of assembly were elected by the people and have gone through the amendment, they should not forget that the same people elected the president. In fact, the president has a larger constituency, which is the whole nation, quite unlike the legislators; so there is no justification that any law should be passed as an Act of the National Assembly without the assent of the president. It is legislative aberration to think that way. My position on this matter is the right position of the law and the position I know every constitutional lawyer, like myself, will take because such law passed without the president's assent is incomplete.'
While addressing the issue of the effective date of the amendment, Obiekwe said there is no place for retroactive laws in the constitution. Therefore, the date the law is passed after the president's assent is the day it takes effect and becomes operational.'
His position on the tenure of the governors who returned to office after a re-run election is that having taken an earlier oath, in line with the constitution, there is no need for a repeat.
He said: 'You can't take oath of office, as provided in Section 185(1), twice for the same office,. As a result, the tenure of such governor can't be extended because the earlier oath was never invalidated. That someone challenged an election result after the one declared winner had been sworn in does not imply that that person was never sworn in, otherwise the person will be unduly benefiting from an error he probably might have caused to start all over again.
'That is the latest position of the law and it is logical and proper. Until the decision is appealed and upturned, it remains the position of the law from the judicial decision and everyone can see that the decision makes a lot of legal sense because what brought about the new oath taking was just a challenge of a flawed process and not a fresh election. The second oath is not on a fresh mandate, but a consolidation of the earlier one found faulty.
'The only exception to this rule is a situation where someone had not taken oath of office earlier, like in the Governor Peter Obi's case. We have to make a distinction between the Peter Obi's case and what we have in these states, where the re-run governors are boasting that their tenures started afresh. The tenure of a governor, according to Section 180(2)(a), must run for four years from the day oath of office is first taken.'
'You asked for my position on the plan of the National Assembly to pass an amendment to the constitution into law and my position is simple: That while most Nigerians and constitutional lawyers, like my humble self, want the constitution amended, we don't want it the wrong way or handled in a mad rush and hurry as the legislators are doing today. It has to be done clearly, lawfully and consistent with the constitution on lawmaking. Constitution amendment is an Act of the National Assembly, and every Act of the National Assembly must get the consent of the president, otherwise it would be a waste of time and effort.
'The problem we have in Nigeria is that we have political leaders who don't understand the constitution. Section 9 of the 1999 Constitution can never be a ground to derogate from the principles of sui generis. It is only when the president declines assent that the National Assembly can take back the bill after the stipulated 30 days and do a second passing during, which the assent would not be required any longer and the bill becomes and Act. Every Act of the NASS must pass through the same crucible of proper lawmaking and anything outside that is null and void.
'All over the world, constitution amendment is never rushed. It must go through the mills – the relevant participatory processes. So far, the process adopted by the National Assembly is flawed and to worsen the situation, they canvass that the president's assent is not needful. Whereas we want the amendment, we can't overlook thoroughness.
'The constitution amendment I know is a process that moves from the people in a plebiscite or some other process to the legislature, but what we see is a top-down process. The tail now wags the dog instead of the dog wagging the tail. They are in a hurry to get certain things done for their political interest next year, and therefore, they should railroad into their self-serving process. Constitution amendment that should be for the people is now by this process for the politician
'I accept that the amendment of the provisions relating to election is important but some other aspects also need amendment. A part of the constitution that requires immediate attention is the vital power structure, and you can see that where they started does not address that issue or benefit the real people - the majority or the masses. What happened to the troubled issue of the minority in the nation, like myself from Akoko Edo? Where does the amendment leave me or benefit me?
'They should be sure that someone would go to court soon and annul the amendment if they don't, at last, go through the proper channel. Tell them that we won't applaud the rushed bad job they have done.'