By Dayo Benson
Monday judgment of the Federal High Court Lagos, has amplified the unconstitutionality of the last amendment which the National Assembly carried out on the 1999 constitution.
The court had in a judgment delivered by Justice Okechukwu Okeke pronounced that for constitution amendment to be valid, the president must assent to it in deference to provision of the constitution itself.
Legal opinion on the issue was divided.
National Assembly and its co-travellers are relying on Section 9 (1) Which says “The National Assembly may, subject to the provisions 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.”
Eminent scholar and constitutional lawyer, Prof. Ben Nwabueze, SAN, was among prominent voices that insisted that presidential assent was a constitutional requirement.
Former president of the Nigeria Bar Association, Mr. Olisa Agbakoba, SAN, was of similar persuasion. Perhaps to avoid any constitutional crisis ahead of 2011 general election, Agbakoba had filed a suit at the Federal High Court challenging the legality and validity of the constitution amendment without the President’s signature.
In its judgment, the court cited section 58(1) of the 1999 Constitution. According to Section 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 the subsection (5) of this section, assented to by the President.”
As the court explained in its judgment, since the amendment originated as a Bill, the Constitution requires that presidential assent is part of the process that will make it complete. If there is one thing the judgment has achieved, it is to clear the air on the legality of the last constitution amendment.
The implication is that the exercise and the ongoing amendment would amount to an effort in futility if the President does not assent to it. It is only when the President withholds assent that the National Assembly can override it after 30 days according to Section 58 (5), which says “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”.
Another major implication of the verdict is that everything done so far in pursuant to the amendment is a nullity.
For instance, the development has further heightened fears over 2011 polls especially as it relates to the Independent National Electoral Commission, INEC. The on-going amendment which allows the commission to fix the elections between March and April next year is provided for in the constitution. However, speaking in a telephone chat, INEC Resident Electoral Commissioner in Cross River State, Mr. Mike Igini, said the judgment has not thrown up any victor or vanquished.
According to Igini, who is also a lawyer, “the judgment of the Federal High Court is not a victory or defeat to any person but an advancement of democracy and constitutionalism because it is the judiciary that is vested with the power to adjudicate on laws made by the legislature as provided in S.6 of the constitution”.
In respect to INEC, nothing fundamentally has changed. Sections 76, 116, 132 and 178 of the constitution which were amended before and just amended again still give INEC enough window to conduct the elections. So people have only expressed fears without being specific.”
Speaking further on the suit itself, he said, “the matter before the court is about the form and not the substance of the amendment, that is, which form should it take and not the content of the law itself. But my call on the Attorney General of the Federation is to quickly proceed to the Supreme Court to fast track the entire process because there is really no time. Since the case will still go to the Supreme Court after the court of appeal.
Speaking in a similar vein, another constitutional lawyer Prof. Itse Sagay, SAN, said the matter has to get to the apex court before it can have binding effects on the parties.
According to him, “it has to go to the Supreme Court. I don’t agree with the judgment and I don’t think the President assent is necessary according to Section 9 of the constitution. Since the amendment is a law jointly passed by the National Assembly and State Houses of Assembly, the President cannot sign laws made by state Houses of Assembly because it is outside his jurisdiction.
Any law passed by the two assemblies automatically becomes law. The best thing is for the Senate to ask its lawyer to refer the matter to the Supreme Court. S. 295(2) of the constitution allows counsel or Court of Appeal to refer a matter to the Supreme Court for interpretations and once it pronounces on it, the judgment becomes binding on both parties.”
Now that the court of first instance had delivered judgment, any ambiguities on the status of the 1999 Constitution has been removed. Expectedly, the National Assembly had indicated its intention to appeal the judgment.
For now, the judgment of the Federal High Court is the law and it remains so until it is set aside by the Court of Appeal or the Supreme Court.
Indeed, until the apex court decides, the matter remains unsettled. But whichever way the pendulum of justice swings at the end of the day, there is no doubt that the nation’s democracy will be the ultimate beneficiary.