By Jide Ajani, Deputy Editor & Anthonia Onwuka

Without being contemptuous of your case before the High court, what is the intendment of that suit?
I’d expected that regarding such a huge matter, the President or the National Assembly would have sought the views of the Supreme Court and the Supreme Court being the ultimate court, the President can go to the court as a court of first instance but because that would be final I thought the best place to clear the issue would be at the high court and I waited and nobody wanted to pursue the matter in the court, so I proceeded.

Agbakoba

My own feeling  why I went to the High Court is that it could then go through the Appeal Court and then the Supreme Court.  Why I’ve always been in this public interest work is for the same reason the National Assembly has given because the National Assembly was actually contemptuous of Nigerians and dared us to go to court. They said we could go to court and that’s why I’m in court because the right thing has to be done.  The way I see it, because I am not a judge and that is why I am seeking the declaration by the court, is that the President’s assent is needed.  I believe he has a role to play in this process of law making.

So, where is the mistake or the confusion coming from?
The mistake I think being made is – without sounding like a judge – to think that a bill to amend the constitution is not an Act; it’s an Act.  There are Acts referred to as money bills, there are Acts that are made in the process of law making and there are Acts made to deal with issues that are entrenched in the constitution and I think that is where the confusion is coming from because some of the things in the constitution contains some entrenched issues.

To alter the Land Use Act, for instance requires a special process of amendment and there are others like that and for those reasons we all agree that the National Assembly can make laws or has powers to amend the constitution and those powers are derived from Section 9.  The power to alter the constitution is not the same thing as the power to make a law.

The proposal comes to the National Assembly and it is debated, it goes to state houses of assembly and they pass their resolution (achieving two third majority) and that ends stage two. And the fact that it is a bill to amend the constitution does not in any way make it a special bill. It’s just like every other bill and that is why Section 9 (2) says this bill will be an Act and it goes on like that – proposal, resolution, bill, Act.  It is so clear. The error that I have asked the court to interpret in my favour is to regard Section 9 as providing the power to amend the constitution.

The provision that says “except as otherwise provided”, what does it mean?
The key word is to see how this Section 9 (2) and (3) keeps referring to “An Act of the National Assembly”, (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. It keeps talking about An Act of the National Assembly.

What is the linkage between Section 9 and Section 58?
Section 58 is the one that discusses the power of the National Assembly to make laws and an Act is a law and it shall be by bills and it can come from the House of Representatives or the Senate and that section says. So, a bill ends up being an Act and a bill would require both the House of Reps, Senate and the President.

For a bill to be converted from a legislative proposal into an Act by the application of Section 58 makes very clear what the procedure is. Section 9 did not say the Act to amend Constitution of the Federal Republic of Nigeria shall not require the assent of the President, it did not say so.

The rules of interpretation are that unless there is a specific exclusion; or better put, to make a bill into an Act as recognized by Section 58 and there are different Acts and all of them require that presidential assent but as I’ve said, my own is not about any partisan position it is just that the right thing must be done.

But the National Assembly, based on the amendments to the 1999 Constitution stipulates that elections must be conducted  in January.  All this beating back and forth might at the end of the day affect the dates?
Well, what can we say if that is going to offend the constitution?

The Constitution is supreme and I do not think we should begin to debate whether some would be proper or not proper if it is out of the Constitution.  Should we violate the Constitution?  Section 1 (3) doesn’t allow that at all and it is supreme.  It states that “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”.

As I said, my motive for going to court has nothing to do with whether I’m right or wrong and I must tell you, I try to reason with those who ask ‘why must the President have a say in this matter, when all Nigerians have spoken’?  And they even ask ‘what if the President overrides the amendment’? It is simple.  The National Assembly can override the President after the stipulated number of days as provided for by the same Constitution. In any case, if members of the National Assembly members do not want the President to have anything to do with it, there are provisions made in that same Constitution on how to proceed. If the court finds out that I am right then good for me.

For me, I do not understand what this fuzz is all about because….?
(Cuts in) Yes!  I do not see it too.  There is nothing.  That’s what guiles me.  There is absolutely nothing.  All this time wasting that is going on would have been saved if the right thing, in my view has been done.  I don’t understand it.

But I’m sure you would have heard people say this that ‘well, Agbakoba, brilliant lawyer’ having lost out on the Independent National Electoral Commission, INEC, chairmanship job, just wants to endear himself to President Jonathan?

That’s not my problem but my motive of going to court is just to see the right thing is done.  I don’t mind whether the President is excluded or not, let us just be seen to be doing the right thing.  I have no interest in the way the Constitution is amended so long as the right thing is done. I can understand the sentiments saying the American approach excludes the President.

If that is what we want, let us put that in our law.  But for now, I think the President has a say in it. My only interest in politics was when Femi Falana, Gani Fawehinmi and I, went to court with a view to opening the political space but I lost and I lost because Justice Okeke ruled that I had no locus as an individual; that I wasn’t leading an association and I came back again with the Green Association and while we were arguing the case, Gani won in the Supreme Court and that was when he formed his National Conscience Party, NCP.

From the 1999 Constitution

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.

58. (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.