There is a big irony in all of this. To amend the 1999 Constitution, there is a troika involved: the National Assembly (House of Representatives and the Senate), the State Houses of Assembly and the President.  That is one view. The other view is that once there were public hearings conducted in all the six geo-political zones of Nigeria, views expressed there debated by members of the National Assembly and sent to the state houses of assembly, from where more than the required constitutional majority was received  and sent back to the National Assembly, then Nigerians have spoken and, therefore, there is no need for any President to assent to it.  This is the view of the leadership of the National Assembly.  And this is what has been causing ripples. The problem has not even started. Olisa Agbakoba, SAN, has gone to court, seeking  interpretation whether or not the President needs to assent to the bill before it becomes law or not. Now, based on the amendment to the 1999 Constitution  as passed by the National Assembly having received the resolutions of the state houses of assembly, general elections have been scheduled for  January next year. One of the questions to ask is: should the matter before the High Court drag on with a verdict that a presidential assent is required,  the process would then have to go through its possibly last but one leg of the cycle with the President either assenting or vetoing it within 30days as stipulated by the Constitution.  If he refuses to give his assent, then the National Assembly can override the presidential veto. So, how does that become a problem?  It would become a problem if the time for the court’s judgment comes too late in the day.  But the question some people are asking is: what is the problem with just sending the amendment bill to President Goodluck Jonathan for assent and in the event that he says no, override it. In these interviews with Chief Richard Osuolale Abimbola Akinjide, SAN, and Olisa Agbakoba, SAN, they dispute the position of the National Assembly that a presidential assent is not needed. Excerpts: Why National Assembly Should Seek Help, by Akinjide By Jide Ajani, Deputy Editor There seems to be a controversy regarding the ‘purported’ amendment of the 1999 Constitution by the National Assembly which is insisting that there is no need for a presidential assent; that the amendment was done by representatives of the people of Nigeria and, therefore, it stands amended? I don’t think all these debates and controversy are necessary.

Akinjide

I have the greatest respect for the members of the National Assembly and they have to act within the laws of Nigeria and within the constitution of the Federal Republic of Nigeria.  And in so acting, they do not need to look at the constitution of the United States or Australia or the UK or India or any other country. The guiding principles should be as enunciated in our constitution and in our laws. I think people are making fundamental mistakes by not seeking help within our constitution and our laws but by seeking help from abroad. Firstly, we must look at our own Interpretation Act, the laws of Nigeria.  The Interpretation Act of Nigeria makes it very clear that “an act is passed when the President assents to the bill or the act, whether or not the act then comes into force”. The only exception, where the assent of the president is unnecessary is when a President exercises veto and refuses to assent, to sign a bill into law, then members of the two houses, the Senate and the House of Representatives can now go back and pass that bill, that is the bill to which the president refuses to assent by using their overriding power, which is the two thirds majority. If they do that, without the assent of the President, that bill automatically becomes law as passed by law. That is the only circumstance when a bill can become law without the assent of the President. In all other cases, the assent of the President, putting his signature on the bill, is a sine qua non, it is absolutely necessary, and I have no doubt in my mind, before a bill becomes law. Which section of the Interpretation Act did you just refer to? I referred to Section 2, of the Interpretation Act, Cap 123, Laws of Nigeria. It is written in simple English. But the position of the Senate President is that the amendment, having passed through public hearings and passed by more than even the two thirds of the state houses of assembly made up of  representatives of the people, the assent of President Goodluck Jonathan is not needed? They are confusing amending the law or amending the constitution with a situation where a Constituent Assembly passes a bill, a constitutional bill into law. When you have a Constituent Assembly in place, that Constituent Assembly is the government of the day in that country, there is no other government which is superior to them and, therefore, whatever law they pass, they do not need any other body or person to assent to it. That was the situation in the United States. The Constitution of the United States was enacted through a Constituent Assembly. In any case, you can not amend the Nigerian Constitution except, as the National Assembly rightly did, by introducing a bill.  The moment you introduce a bill, it would have to go through processes and become an act. And for a bill under the Nigerian constitution to become an act, there is what we call the process of troika,  that is the House of Representatives, the Senate and the assent of President: Those three institutions must take part in making it to become law except where it was vetoed and the legislature used its overriding powers. It is as simple as that. You see, the Nigerian system is quite different from the American system and that is the confusion they are creating.  Even the French is quite different from that of the German while the Canadian’s too, is different from the American. What is the interpretation of Section 9(2) and, more importantly, Section 58(1) and (5) which states that (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”; and (5) which states that “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”.  And that is where the problem is arising from? Okay, then I’ll like anybody to come and show me where it is otherwise provided for in this 1999 Constitution of the Federal Republic of Nigeria. The only situation where that applies, that phrase “except as otherwise provided”, is where the President refuses to sign the bill and the Constitution provides – “except as otherwise provided for – that the National Assembly can override the veto of the President I would like somebody to show me which other way that section can be interpreted “except as otherwise provided for”.  Let somebody come and show me any other way. The intendment of their position is that Nigerians have generally spoken and as far as they are concerned, they have amended the constitution and it would affect the elections which are expected to hold in January? They are wrong.  This is because before the overriding power of the National Assembly can be used, the bill must have gone to the President. Two, the President must have vetoed it either by action or inaction – action by writing to them and saying he refuses to assent; or by refusing to put his assent within the number of days specified and for which the national assembly can then interpret that inaction as an action of non-assent. There is what is known as a doctrine of non-intervention which amounts to an intervention.  If the President refuses to sign that inaction amounts to an action and, therefore, the legislature can invoke their overriding power. You were one of those who drafted the 1999 Constitution one way or the other, what was the intendment of Section 9 and Section 58 of the 1999 Constitution? The intention is categorical and straight forward and it is as I have explained it to you because we were writing the constitution for Nigerians by Nigerians and not the Nigerian Constitution for Indians or Americans or for their situation.  That was the intention, the way I have interpreted it is what we intended. As a leader of the Peoples Democratic Party, PDP, some people are insisting that there was an agreement to zone the Presidency to the North for eight years.  What would be your take on that? First of all that was an internal in-house arrangement of the PDP which is not binding on all the other political parties in the country and secondly that type of agreement is even contrary to the 1999 Constitution of the Federal Republic of Nigeria.  And if it is tested in court, the court would declare that internal arrangement of the PDP as void. But there is also a view that a political party can create an internal arrangement of presenting candidates to members of the public for election? You can not enter into an agreement that is contrary to the Constitution of the Federal Republic of Nigeria.  You can not be lawless and at the same time say you want to govern the country. That is not possible.

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