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Presidential assent on amended constitution diversionary – Ajibola

By Abdulwahab Abdulah

Adesegun Mohammed, son of a former World Court Judge, Justice Bola Ajibola, a senior advocate and former Attorney-General and Minister of Justice  read law at the University of Jos, Plateau State and was called to the Nigerian Bar 20 years ago. In this interview, Ajibola bares his mind on the controversy surrounding the President assent on the review of the constitution by the National Assembly, cumbersome procedure in the amendment of the constitution, postponement of the 2011 election, kidnapping and other sundry issues.

What is the position of the law as regards the President’s assent to the amended sections of the constitution?

On the amendment of the constitution, in fact, section nine specifically talks about the mode of altering the provisions and that will pass for what we call an amendment of that constitution and the whole of section nine which is up to four provides for the procedure by which the National Assembly can put to effect what it calls the alteration of the provisions of the constitution. Now, nowhere in the entire section or the sub-section of section nine is a requirement of the assent or the approval or otherwise of Mr. President required.

So if section nine is the guiding rules for the alterations of those provisions in the constitution any requirement for the assent to the passing of the act properly amending the constitution would be merely cosmetic and the argument academic because the provision of that section does not make it a requirement. So what is the statutory backing? Where is the authority for the requirement of the assent that has led to so much controversy. I think really it is a diversionary issue or argument to bring such important constitutional issue especially as far as the electoral act which is one of the fundamental issues we want to deal with, concerns.

But having said so, this assent is something that can be given in various ways, as a matter of fact, assents can be provided in various forms: there is what you call the ‘actual’ assent, ‘apparent’ assent, ‘constructive’ assent, ‘express’ assent, ‘implied’ assent, ‘mutual’ assent. Now, take implied assent, that is an assent which is inferred from one own conduct so once the National Assembly passes for example, an act which amend the constitution in certain parts and the executive represented by the President as the head is seen by his conduct to have accepted those amendments, he would be taken to have given an ‘implied’ assent to that amendment without any need to sign a document which a lot of people think is a requirement in this circumstance and which is not provided for in section nine.

We have ‘constructive’ assent which is similar to ‘implied’ assent. That too, got its inference from the conduct. You remember the argument in the past about the introductory part of the 1999 constitution which says: ‘We the people…’, there were arguments by a number of scholars sometime back that, that expression was fraudulent in that at what time did we as a people sit down together to fashion out what we now call the 1999 constitution?

Despite that argument or the ingenuity of it, we have lived and continue to survive in this country by the virtue of the 1999 constitution and we have accepted it by our conduct and our application of it to our everyday life so whether we the people sat down at that time to express ourselves in the way and manner the 1999 constitution is now been represented have become an academic argument because we have by our conduct accepted that constitution as our own. Basically the issue of assent which is not in section 9 as I have said earlier becomes, if at all added a cosmetic addition, if it’s an argument is purely academic because as far as section nine is concerned, it has no requirement for that assent at all.

It has been argued that the process of amending Nigerian constitution is cumbersome compare to what is obtained in other developed nations of the world. Is that true?

On this issue, I think that argument will fall into different classes of argument. For my own purpose, I think what the framers of this constitution had in mind, I will  argue, is that the constitution being the fundamental document by which the country is governed and regulated should not be a document that will be readily available for amendment as you will do to a subsidiary law of some enactments or other Acts of parliament because the need to tinker with the constitution must arise from a fundamental and a major issue rather than a cursory point or maybe some sponsored opinion or view of what some people think the law must be.

This is because if a document which outlast every other laws that comes into existence, is the foundation on which all other laws are built so if you continue to make readily available to tinkering, to amendment, to alteration, very easy, it is like having assess to the foundation of a building and regularly changing the amount of iron rods, cement, while you keep on doing so, you’re rocking the structure on which you build on that foundation.

The structure of the constitution of this country is the nation and all other laws built on that constitution so if you regularly tinker with it, you have a situation where uncertainty will sip in, there will be difficulties in following some people to assimilate and understand and follow through those amendment which keep on shifting from time to time and does not have a precise position. The rigorous requirement in the procedure form tinkering with the constitution is a desirable thing in my own view because if you look at the electoral law now, there’s been amendment over time, the recent one is just one in so many even though we all appreciates the fact that there’s need for a review stemming from our experiences in the last elections.

The need for concerted opinion about how we move forward as a country on any issue and it takes time to organize those opinions and match them so that the law or the constitution becomes a reflection of peoples yearnings and expectations so as to take into consideration as much as possible a large section of the opinions of the people in the country so that we don’t have at the end of the day a law in place which will now resuscitate agitation again on a regular basis so long we have everybody agrees to as much as possible that’s why the commensurate provision of the constitution usually has it as we the people so as too assume the fact that we’ve all agreed that this is what we want but there is a difficulty of one getting to the middle of the road and someone saying oh, this is not what we agree or we are not happy with what we have, if there has to be a disagreement about what we all agreed to in the middle of our journey then there has to be another forum for us to sit down and analyze and review the argu
ment which agitate the need for any change.

So generally, the document which is called the constitution is too fundamental a document to be left open to readily available desire of amendment or alteration which people may want from time to time. It must be a document which can last and endure and that is the reason why I said it should be kept as it is.

Due to the sudden approach of the conduct of the 2011 general elections, some Nigerians have been calling for the postponement of the 2011 election. What do you have to say on this ?

I think that is another dangerous proposition. So much resources, time and efforts have been committed towards ensuring that we have an election come 2011. The tenure of the elected officers has been defined by the constitution, the need for an election is in the spirit of the provisions for those elected offices that once you postponed it, in my own view, we are immediately in breach of the terms provided for those people to be in office and you’ve unwittingly given them an extension of their time which the law does not afford them at all. So for you to be able to postpone it, you will need to amend the constitution which provides for the terms of their office because they will be illegally occupying those offices if they go beyond the period of the term which the constitution has set for them.

Two, the agitation for change in leadership is national, it is entrenched. You will be swimming against a heavy tide of public opinion who expect to use the electoral process as a means to change leadership, how do you deal with that? If you postpone the election you have that problem to grapple with.

Yes, I agree, the needed reform, the time frame, between now and when we need to do so may be short but we need to live with our shortcoming, we ourselves are the architect of the problems that we have, the time frame available for us to conduct a free and fair election which is limited is our own making. We need to grapple with that problem and try and put in as much as possible, all the efforts we can to achieve as close as possible a free and fair election. In any event, time frame itself is not the sole determinant of a free and fair election, even if we say we won’t have elections in the next five years, it does not guarantee that the outcome of that election will be free and fair .


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