Presidential Assent is required in the Amendment of the Nigerian Constitution
The arguments that Presidential assent is not required in the amendment of the Nigerian Constitution is erroneous, specious, and without sound basis in law. There is no case law or statutory provision that backs these assertions. We don't need the United States law or other country's law as a precedent when our own laws are clear on the issue. The Nigerian Constitution is very clear on this issue and any statutory or case law that is inconsistent to the provision of the Constitution is to the extent of its inconsistencies void.
Section 9 of the Nigerian Constitution provided for the amendment of the constitution as follows:
(1) The National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution;
(2) Any 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 8m and 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 Houses of Assembly of not less than two-thirds of all the states
Although this power of the National Assembly is quite distinct from its ordinary law making power, the procedure is almost the same as in the case of ordinary bill. An amendment of the constitution involves the National Assembly, State House of Assembly and the President. Most commentators are interpreting section 9 in isolation and ignoring sections 58(1), (5) of the Constitution, and section 2 of the Interpretation Acts that mandated presidential assent to all bills or act.
Section 58 of the constitution stated above provides as follows: (1) 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.
(2) A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by this section and section 59 of this Constitution, assented to in accordance with the provisions of this section.
(3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented to the President for assent when it has been passed by that other House and agreement has been reached between the two Houses on any amendment made on it.
(4) Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent.
(5) 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."
Also, Section 2 of the Interpretation Act Cap 123, Laws of the federation of Nigeria provides that 'an act is passed when the President assents to the bill or the act, whether or not the act then comes into force'.
As stated above the only departure from presidential assent is when a President exercises veto and refuses to assent, to sign a bill into law, then members of the National Assembly can pass the bill all over again by two thirds majority.
There is no other way in which a law, including a law for the amendment of the Constitution, can be made, except it is passed by the National Assembly and assented to by the President as stated above. Furthermore, there is no provision which, either expressly or impliedly, take away from section 58, a bill for an Act to amend any of the provisions of the Constitution.
Section 9(2) does not take away the power of the president in the amendment process, what it does was to strengthen the amendment process and increase the people's participation in the process. This process is in no way in variance to the provisions of section 58 of the constitution.
It is interesting to note that Article 5 of the United States Constitution which provides for the amendment of its constitution at no point referred to the proposal of Congress or State government to amend the constitution as an 'Act'. The intention of the framers of the constitution is clear of the role of the US President in the amendment process as was affirmed by the Supreme Court in Hollingsworth v Virginia (3 US 378 ). The US Supreme Court held that the US President have no role in the amendment process.
It should be noted that unlike the Nigeria Constitution the amendment of the US constitution can emanate from either Congress or the States to call for a new Constitutional Convention to make the amendments. Also the states have two ways of ratifying an amendment. Either ¾ of the state legislature may approve an amendment; or each state can have a convention to approve the amendment. 27 amendments have been ratified and become part of the United States Constitution. All but one of the proposals became an amendment by passing State Legislature.The amendment provisions of both constitutions are different and should not be interpreted as same.
Suffice to state that the intentions of the drafters of the Nigerian constitution are not in doubt when they refer to the proposed amendment as an Act. An Act of the National Assembly can only become law after presidential assent as clearly stated in our laws. The language of Section 9(2) does not in any way obviate the President from the amendment process.
Felix Ayanruoh Esq.