Nigeria: President’s assent not sine qua non for constitutional Amendments

The recent constitutional amendment has of late been a topical issue amongst a number of distinguished legal scholars, luminaries and jurists in Nigeria. The fact in issue is whether for the purposes of a constitutional amendment of the present Nigerian Constitution 'Constitution of the Federal Republic of Nigera 1999' is the President's assent a mandatory requirement? I respectfully submit that the President's assent is not a mandatory requirement. Furthermore I would add that under the provisions of the Constitution where the assent of the President is required it should not be construed as being mandatory to the passage of an Act of the National Assembly. This is because where the President fails to signify his assent or indeed withholds his assent there are mechanisms (as enunciated further in this discourse) that enables a bill to become law without the requirement of the President's assent save only for an Act pursuant to the provisions of Section 12. Thus it is erroneous to state in this regard that the President's assent is mandatory irrespective of the fact that in the case of Constitutional amendments his assent is not required under the law. Accordingly where an Act can be executed without the assent of the President how could that act be deemed as mandatory. I note references have been made to the constitutional history and constitutional law of the United States of America on whose Constitution our Constitution has been modelled since 1979. However given the present subject of this discourse it is non sequitur to make a comparative analysis of the US experience. This is because the process of enacting Constitutional Amendments is expressing provided for in CFRN 1999 as explicitly set out in Section 9 titled Mode of altering provisions of the constitution. Section 9 reads,

9. (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.

(2) An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

(3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is 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.

(4) For the purposes of section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution.

A reading of this Section 9 shows that the enacting clause of the section refers to the alteration of the Constitution and the procedure outlined in subsections (2) – (4) which do not require the assent of the President is only replicated in one other section of the CFRN 1999 (being Section 8 titled New states and boundary adjustment, etc.). Section 8 though expressly stated as an amendment in the Constitution it can be deemed as such stricto sensu because of the nature and the meaning such changes gives to the framework of the Constitution. More so as all States form a constituent part of the Federation and are listed in the First Schedule Part 1 States of the Federation in the Constitution. Hence intrinsically their inclusion in the Constitution means they are part and parcel of the Constitution and any creation of new states is effectively by implication a Constitutional amendment notwithstanding the fact that this is not expressly stated in the provisions of Section 8. This explains the reasons why an Act for the purpose of creating a new state does not require the assent of the President. In fact another distinction much overlooked is the fact that Sections 8 and 9 expressly state an, 'Act of the National Assembly' whilst the other Sections of the Constitution (explained further in this article) expressly state 'a bill'. Whilst in the ordinary meaning of the word within legislative parlance 'an Act' or 'bill' may have the same meaning, it is my view that 'an Act' under the legislative framework of the provisions where it is expressed its use is to give Sections 8 and 9 more purpose and clarity given the provisions of the enabling Sections. The use of the word 'Act' augments the intent of these Sections. In other Sections the use of the word 'bill' is used as a precursor to the word 'an Act' to read, 'A bill for an Act of the National Assembly' to give the provisions of those Sections meaning. The absence of 'A bill' in the Sections 8 and 9 is intentional to distinguish the force of the constitutional amendment provisions inherent and expressed in these Sections. It is also worthwhile to note that the similarities in provisions of Section 9 explained earlier and Section 8 (1) – (2) which for emphasis is stated below:

(1) An Act of the National Assembly for the purpose of creating a new State shall only be passed if-

(a) a request, supported by at least two-thirds majority of members

(representing the area demanding the creation of the new State) in each of the

following, namely -
(i) the Senate and the House of Representatives,
(ii) the House of Assembly in respect of the area, and

(iii) the local government councils in respect of the area,

is received by the National Assembly;
(b) a proposal for the creation of the State is thereafter approved in a

referendum by at least two-thirds majority of the people of the area where the

demand for creation of the State originated;
(c) the result of the referendum is then approved by a simple majority of all

the States of the Federation supported by a simple majority of members of the

Houses of Assembly; and
(d) the proposal is approved by a resolution passed by two-thirds majority of

members of each House of the National Assembly.
(2) An Act of the National Assembly for the purpose of boundary adjustment of any existing State shall only be passed if-

(a) a request for the boundary adjustment, supported by two-thirds majority

of members (representing the area demanding and the area affected by the

boundary adjustment) in each of the following, namely-

(i) the Senate and the House of Representatives,
(ii) the House of Assembly in respect of the area, and

(iii) the local government councils in respect of the area is received by the National Assembly; and

(b) a proposal for the boundary adjustment is approved by -

(i) a simple majority of members of each House of the

National Assembly, and
(ii) a simple majority of members of the House of Assembly in respect of the area concerned.

Whilst I am unable to read the mind of the framers of the Constitution it is my view that the President's assent is not required because the procedure envisaged in Sections 8 and 9 are such that they are designed, engineered and invoked only for Acts of the National Assembly which are of constitutional amendment format.

Under CFRN 1999 only three other bills of the National Assembly require the President's assent. These are 1) a bill for an Act for the purpose of implementing a treaty pursuant to Section 12 titled Implementation of treaties, 2) a bill for an Act pursuant to Section 58 titled Mode of exercising Federal Legislative power: general and 3) a bill for an Act pursuant to Section 59 titled Mode of exercising Federal Legislative power: money bills. There are similarities between the provisions of Section 58 (4), (5) and Section 59 (4). The common feature being that, an Act can become law where the President fails to signify his assent after the bill has been passed by two-thirds majority of both houses. For Section 58 (4) and (5) this is two-thirds majority passed by each houses whilst Section 59 (5) provides for by two-thirds majority of members of both houses at such joint meeting. However this two-thirds majority is not a requirement for an Act pursuant to Section 12. In fact Section 12 stipulates that a majority, which in the absence of any other reading should be construed as a simple majority, ratifies a bill. A notable feature of an Act under Section 12 is there are no provisions for it becoming law if the president fails to assent unlike the provisions explicitly stated in Sections 58 and 59. In essence this is the only provision of the Constitution where the assent of the President is mandatory.

It is respectfully submitted that where the words of specific provisions of the Constitution do not expressly provide for the President's assent in respect of an Act or bill of the National Assembly, his assent is neither mandatory nor discretionary for enacting an Act or bill into law. In conclusion it is my considered view that given the sanctity of the Constitution the framers and drafters of the Constitution deliberately erred on the side of caution to ensure that the legislature in the exercise of its powers to amend and alter the Constitution is not constrained by the executive arm of government in exercising its powers. Furthermore the process of constitutional amendment should not be done willy nilly and should be inclusive in encapsulating the desires and wishes of its people as stated in the preamble of the Constitution, “We the people of the Federal Republic of Nigeria…”

Omoba Oladele Osinuga Esq. Solicitor and Advocate Supreme Court of Nigeria, International Criminal Lawyer works in the Mission of a leading International Governmental Organisation in Europe and writes from Dagenham, Essex UK.