By Tunde Oisamoje

The controversies surrounding the necessity or otherwise of a presidential assent to make the amendments to be Constitution Law is unfortunate. This is a feat that has not been achieved in Nigeria before, hence, we should pour accolades on the National Assembly for this history making feat instead of diminishing the achievement with the uncalled for controversy.

However, there is always a benefit to be derived for this type of controversy, and it is that our jurisprudence will become richer.

The 1999 Constitution of the Federal Republic of Nigeria (herein after referred to as “Constitution”) has provided in very clear language how the procedure for amending the Constitution in its Section 9. Some legal egg heads have posited that this section cannot stand on its own but should be read in conjunction with Section 58 of the Constitution for a complete mode of Constitutional amendment. I do not agree with them.

Section 9 (1) of the Constitution says “The National Assembly may subject to the provisions of this section, alter any of the provisions of this Constitution.” Subsection (2) States

“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 of all the members of that House and approved by resolution of the House of Assembly of not less than two-third of all the States.”

Section 9(1) clearly states that the procedure for the amendment of the Constitution is Subject only to the said Section 9. what is the implication of “subject to? The Twentieth Century Dictionary, 1971 Edition at its page 1288, defines “subject to” as, under rule, government jurisdiction, or control: owing allegiance: under obligation: subordinate: subservient: dependent: liable.

It follows that if the amendment of the Constitution is only subject to Section 9, then any procedure not contained in Section 9, will be void and of no effect. Nigerian Courts have defined “subject to” in a number of cases. In NDIC vs Okem Ent Ltd (2004) 118LRCN 4191 at 4229UJJ and 423OA, the Supreme Court said on the meaning of “subject to” ‘In regard to Section 272 of the Constitution, Section 251 is directly relevant in that the former is made subject to it. The expression “subject to” means liable, subordinate, sub servant, or inferior to; governed or affected by; provided that or provided; answerable for: see Black’s Law Dictionary 6th edition page 1425. It must therefore be understood that “ subject to” introduces a condition, a restriction, a limitation, a proviso: see Oke v Oke (1974) 1 All N.L.R. (pt. 1) 443 at 450.

It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section: see LSDPC v Foreign Finance Corporation (1987) pt. 50) 413 at 461: Aqua Ltd v. Ondo State Sports Council (1988) 4 N.W.L.R. (pt. 91) 622 at 655. The expression generally implies that what the section is subject to shall govern. Control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject conditional upon compliance with or adherence to what is prescribed in the provision referred to.

In Tanko vs the State (2009) 169LRCN 65, AT 101JJ and 102 AF the Supreme Court had this to say with respect to interpretation of status thus: “It need be stressed, and this is also settled that in the interpretation of statuses, there the words used in the provisions of any law are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the law….”

In sub Section (2), (3) and (4) mention is made of Sections 8, 48 and 49 and Chapter IV of the Constitution. No where within Section 9 is any reference made to Section 58, of the Constitution which deals with the law making powers of the National Assembly. How can any person suggest that section 9 must be read in conjunction with Section 58 to have a clear picture of the mode of amending the Constitution? The maxims used for interpretation of statutes include: “Expressis unis est exclusion alterius,” which means, “the express mention of a thing is the exclusion of another.” It implies that since Section 9 (1) clearly states that the amendment of the Constitution is only subject to Section 9, any reference to Section 58 is unconstitutional. This maxim is judicially noticed in Attorney_General Bendel State vs. Aideyan (1989) NWLR (Pt 118) 646.

In discussing this maxim, the Supreme Court in Attorney_general, Federation vs. Atiku Abubakar (2008) 2 CCLR 483, had this to say
“When translated into English the language means: the express mention of one person or thing is the exclusion of another or the inclusion of one of the exclusion of another.”
Now, let us assume that the assent of the President is needed before the amendments to the Constitution can become Law. What happens if the President withholds his assent? Here is what Section 58(5) says should that happen:

“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.”
Constitutional amendments can only pass in the two Houses of the National Assembly with two-third majority, and must also be approved by resolution of the Houses of Assembly of not less than two-third of all the States.

In the event of the President withholding his assent to the amendment, what ratio will be required to override his veto? Will it be two_thirds or three quarters? How will the State Hosues of Assembly be involved in overriding the Presidential veto? These are questions to which the Constitution has not provided answers. Clearly, Section 9 of the Constitution did not envisage a reading of Section 58 in the mode of amending the Constitution. This will be contrary to the decision of the highest Court of our land, when it held in Buhari vs. INEC (2009) 167LRCN 1 at 82JJ and 83A, thus: “Courts of Law, in interpreting the Constitution or a statute have no jurisdiction to read into the Constitution or statute what the Legislators did not provide for, and afortiori read out of the Constitution or statute what is provided for by the Legislators.

In either way, the courts are abandoning their Constitutional functions, and straying into those of the Legislature by interpreting or interloping with them. As that will make nonsense of the separation of powers provided for in Section 4 and 6 of the Constitution, Courts of Law will do no such thing, whatever is the pressure by the Counsel.

If Courts of Law will not read into the Constitution what it did not provide, not read out of the Constitution what it provides, no other institution or person can. Since Section 9 of the Constitution which is the governing law for Constitutional amendment does not provide for assent by the President, call on the presiding officers of the National Assembly to send the amendments to the President for his assent is misplaced.

The Supreme Court in A.G. Federation vs. Abubakar (2008) Volume 2 C.C.L.R, on page 624, in construing the maxim, “generalia specialibus non derogant,” held as follows: “The principle expressed in the Latin maxim, generalia specilibus non derogant.

The principle simply is that where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision. Section 143 of the Constitution provides for the removal of the President or Vice President. And Sections 144, 146 and 306 provides for when the office of the President or Vice President can become vacant.

Each of a special provision written in a plain language and for the purpose of the removal or vacation of the office of President or Vice President each is excluded from any other general provision of the Constitution.” Applying this decision to Section 9 which is written in plain language, Constitutional amendment cannot be governed by Section 58 which is a general provision governing law making powers and procedures by National Assembly.

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