By Kayode Oladele
The controversy whether or not the amended constitution by the National Assembly of the Federal Republic of Nigeria requires presidential assent is an academic exercise. This is because presidential assent to constitutional amendment is superfluous, unnecessary and not required by the provisions of Section 9 of the 1999 Constitution.
What the amendment requires to become effective or operational is for the amendment to beÂ supported by two-thirds majority of members of the National assembly and approved by not less than two-thirds majority of all the members of the state legislatures. For avoidance of doubt,Â Section 9Â of the Constitution states as follows: (1)Â The National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution;
(2)Â Â 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)Â Â An Act of the National assembly for the purpose of altering the provisions of this section, section 8m andÂ Chapter IV of this constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes ofÂ not less than four_fifths majority of all the members of each House and also approved byÂ resolution of the Houses of Assembly of not less than two-thirds of all the states.
The effect of this is that in the case of any alteration to the fundamental human rights provisions in Chapter IV of the constitution, what is required is 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. Therefore, any amendment to alter the fundamental human rights provision of the Constitution must be supported by not less than four-fifth of members of the National assembly. This provision is to underscore the importance the framers of the constitution gave to the fundamental human rights provision in Chapter IV of the Constitution.
Be that as it may, what makes the amendment effective is not the resolution or approval of the National Assembly per se but final ratification or approval of the same by Two-thirds majority of the State legislatures presumably in the name of â€œThe Peopleâ€. What the National Assembly therefore does is actually to approve the proposal forÂ the amendments and send the approved proposalsÂ to the state legislatures for approval.
Once the National Assembly receives the required approval of the State legislatures, it then sets a timetable for the effective date and commencement of the new constitution. This process of ratification is what is contained in section 9 of the 1999 Constitution and no other meanings should be read into it. The reason is simple, what would happen if the president refuses his assent after being approved by the National Assembly and ratified or approved by the State legislatures as provided for under Section 9 of the Constitution? Can the president veto it because he has the power of veto? The answer is No. Presentation of the amendment constitution to the President for assent is unsupported by law and may constitute an infraction of the constitution itself. It should not be contemplated at all.
Legally speaking, constitutional amendment is not treated like an ordinary bill; it is an extra-ordinary act of National Assembly in form of an approved proposal or recommendation from the National Assembly to the State legislatures for approval. It is not the approval of the National Assembly alone that gives it the force of law but the contemporaneous approval by the State legislatures. It is therefore, superfluous and surplus to constitutional requirement in section 9 of the 1999 Constitution to have the assent of the President before the amendments can become effective. In the same manner, the president can neither sign nor veto any amendments to the constitution.
The drafters of the 1999 Constitution knew that at some point, it would be necessary for the constitution to be amended particularly since the constitution was not a product of the people. Nonetheless, they were also determined to make such changes difficult to achieve so as not to turn the constitution into a cheap and ill-conceived document while at the same time maintaining a delicate balance for amendment in order not to unduly frustrate the wish of the people; hence, the requirements in section 9 of the 1999 Constitution. If the framers wanted a presidential assent, they would have unequivocally stated that in the Constitution and would not be a subject of legal debate.
The United States Constitution is the oldest written Constitution in the world today and it has undergone 27 amendments to date. In all of this, regardless of how the amendments were proposed by the Congress, they were only ratified by Three-fourth of the State legislatures for them to become effective. There are also no records to indicate that any of the amendments was signed by the president before becoming operational. Rather, what is written in the US Constitution is the date each amendment was ratified.
It is also instructive to note that an amendment to the United States constitution may be done in three ways namely: The new amendment may be approved by two-thirds of both houses of Congress, then sent to the state legislatures for approval, Two-thirds of the state legislatures may apply to Congress for a Constitutional Convention to consider amendments, which are then sent to the states for approval and finally, Congress may require ratification by special Convention. The convention method has been used only once, to approve the 21st Amendment repealing prohibition, (1933). Regardless of the method of proposing an amendment, final ratification requires approval by three-fourths of the states and no consent or signature of the president is necessary.
In conclusion, the only method for amending the 1999 constitution is as prescribed in Section 9 of the Constitution. And that being the case, the approval of the Two-thirds of the state legislatures is what is needed to ratify the amendment. What is therefore, left is for the National Assembly to set the effective date of commencement of the new constitution without any further delay.