By Ben Nwabueze
The Constitution review exercise embarked upon by the National Assembly has led it to a distorted view of the process prescribed by section 9 for altering its provisions.

The Senate President, in his Speech handing over to the state Houses of Assembly, the amendments to the Constitution agreed by the National Assembly, and his Deputy, in an interview reported in Daily Independent newspaper of Monday June 21, 2010 maintained that the process begins and ends in the National Assembly and the State Houses of Assembly, and that the assent of the President of the country is not required as part of that process.

The legislative assemblies, federal and state, says the Senate Deputy President, are “the last bus stop” in the process.

In an effort to rationalise this view of the Constitution amendment process, the Senate President, in the Speech referred to above, says:

“Under the present democratic dispensation, the legislators are the true representatives of the people to whom sovereignty belongs. Legislators exercise powers on behalf of the people, including the powers to make laws and alter the Constitution for the peace, order and good governance of the country.”

The rationalisation based on the above premise is entirely misconceived, and betrays an arrogance of power characteristic of that body, i.e. the National Assembly. Given that both the National Assembly and the President of the Republic are directly elected by the people by votes cast in separate popular elections and are therefore alike representatives of the people, it is a fallacy, a “fundamental misconception”, as the U.S. Supreme Court has described it in Myers v. United States 272 U.S. 52 (1926), to claim for the National Assembly that it is “the true” representatives of the people, implying that the President of the Republic is not, or is less than, a true representative of the people.

In the emphatic words of the u.s. Supreme Court in the case mentioned above, Myers v. United States, “the president is a representative of the people just as the members of the Senate and of the House are, and it may be said that the president elected by all the people is rather more representative of them all than are the members of either body of the legislature whose constituencies are local and not countrywide.” McConnell puts it perhaps more pungently thus:

“The president represents the nation as a whole, while the Congress represents it as a collection of states and congressional districts … It would be comforting to assume that the many different positions that congressmen and senators take add up together to a position as national and as public-spirited as the president’s …. The men of Capitol Hill represent different publics, different from each other’s and from the president’s.

Their constituencies are vastly different, some consisting largely of farmers, some of large cities, some of working class districts, some of states where mining is overwhelmingly important, and so on; but the president’s constituency consists of all the people. Because the smaller constituencies emphasize particular interests, the aggregate representation offered by Congress does not equal that of the presidency.”

The President, as Head of State under section 130(2) of the Constitution, represents or incarnates the artificial entity known as the Federal Republic of Nigeria “in the totality of its relations within and without the country”, which therefore makes it necessary that he should be part of the process for altering the basic law embodied in the constitution for the peace, order and good government of the Republic.

In any case, the view that the process prescribed by section 9 for altering the law embodied in the constitution begins and ends in the legislative assemblies, federal and state, and does not require the assent of the President, has no basis or support in law. It is utterly misconceived. The provision of section 9(1) of the constitution vesting in the National Assembly, power to “alter any of the provisions of this constitution” partakes of the same nature as the power vested in it by section 4(1) and (2) to “make laws for the peace, order and good government of the Federation or any part thereof’ on matters within federal legislative competence.

The power conferred by section 9(1) is only a re-affirmation of the power conferred by section 4(1) & (2), and is embraced in the latter power. Both powers are subject to, and therefore limited by, the provisions of the constitution, notably sections 54 (which relates to quorum), 56, 58 and 59, prescribing the manner in which the power in both cases may be exercised.
Additionally, the power conferred by section 9(1) is made “subject to provisions of this section”.

The wording of the provisions of section 58 has a significant bearing on the issue in contention, and need therefore to be set out in their exact terms. They read:

“58. – (1) The power of the National Assembly to make laws [not excluding a law for altering the provisions of the Constitution] 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.” (emphasis supplied)

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 provided in section 58 above. And there is no provision which, either expressly or by necessary implication, exempts from section 58, a bill for an Act to amend any of the provisions of the Constitution.

What section 9(2) does is to entrench the provisions of the Constitution by prescri bing additional manner and form for their alteration over and above, but not in substitution or replacement of, the manner and form prescribed by section 58 above. This is what is called entrenchment of the provisions of the constitution, the object being to make their amendment difficult, and so, by placing it on a higher pedestral than other laws, to provide some rationale for its status as a law supreme over other laws. Entrenchment is thus essentially the superaddition of extra requirement to the normal manner and form prescribed for making law. The difficulty varies with the degree of entrenchment, according as it is double or triple entrenchment.

A constitution may, in some cases, be entrenched by requiring for its amendment an altogether different form of law-making, i.e. by the people directly in a referendum, the people being the repository of a country’s sovereignty and constituent power, and the ultimate law-maker. In line with this approach, the amendment to certain aspects of the Constitution is reserved to the people in the Constitution of Ghana (1957), Kenya (1963), Zambia (1964), Gambia (1965), Botswana (1966) and Australia (1900).

Indeed, of the 55 articles of the Republican Constitution of Ghana (1960), 17 were made alterable only by the people in a referendum. Even in countries where the people is recognised as a constituent power, with authority to bestow the force of law on a constitution or amendments to it, which now embrace a large and increasing number of the countries of the world, adherence to formalism still requires that, after adoption by the people in a referendum, the President, as Head of State, should formally promulgate it (or the amendments to it) into law binding on the community.

The most extreme form of entrenchment that needs to be mentioned here for the sake of completeness is to make the constitution or portions of it altogether unalterable, even by the people as a constituent power and ultimate law-maker. For example, the German Basic Law 1949 forbids any alteration of the territorial units of the federation, of the right of thc Laender to participate in legislation, of the guarantee of human rights, and of the status of Germany as “a democratic and social federal state;” (art. 79 (3)); in France under the Fifth Republic (1958) the republican form of government is not subject to amendment; (s. 89),while in Ceylon the guarantee of freedom of religion is unalterable; s.29(2). In Cyprus some forty eight articles incorporated from the Zurich Agreement cannot be altered at all.

It is questionable whether a total prohibition of this kind is really meaningful as a limitation upon the people’s constituent power. If the people do really desire a change, can such a prohibition effectively p
revent it? A total prohibition might invite the overthrow of the constitution by revolutionary means when a genuine need for change has arisen but cannot be effected by constitutional methods.

—Prof. Nwabueze SAN, constitutional lawyer, is a former Minister of Education

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