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Constitution amendment: The noise, the threat and the u-turn

By Johnbosco Agbakwuru

About N4 billion may have gone down the drain in the process of amending the 1999  Constitution. The National Assembly went round the 360 federal constituencies across the country to conduct public hearing on the constitution amendment which representatives of the Federal Government attended.

It is also known that President Goodluck Jonathan returned the amended Constitution to the National Assembly and dragged the parliament to the Supreme Court for non-compliance with constitutional provisions and the National Assembly in turn threatened fire and brimstone to override the President’s veto. But what is not certain is why the National Assembly developed cold feet to use its threat at the eleventh hour.

The journey to alter the 1999 Constitution for the fourth time started about four years ago after the attempt by the 5th Assembly of the 4th Republic, during President Olusegun Obasanjo’s administration to amend the Constitution failed on May 16, 2006 following the alleged attempt by the then President to smuggle third term into it.

However, there appears to be a break through by the 7th Assembly with the passage of the Constitution Amendment Bill by the two chambers of the parliament. The Fourth Alteration Bill was then forwarded to the President for his assent. After some time, the Constitution Amendment Bill was returned to the National Assembly by the President who alleged the usurpation of presidential powers and constitutional breaches in the process of the amendment.

There were anger, lamentation and threats by the lawmakers to override the President’s veto. One of the contentions of the National Assembly members was that the executive and, by extension, The Presidency was carried along during the process of the amendment and the public hearings where the Attorney General of the Federation was represented.

Senate President, David Mark; President Jonathan and House of Reps Speaker, Tambuwal
Senate President, David Mark; President Jonathan and House of Reps Speaker, Tambuwal

While returning the Constitution Amendment Bill, Jonathan, in  a letter, addressed to the Senate President, read at the plenary session on Wednesday, April 14, 2015, noted that the withholding of his assent came after an examination of the procedure laid out in Section 9(2) of the 1999 Constitution (as amended) as well as other observations to the amendments that were passed.

In the letter, the President pointed out that the National Assembly had failed to prove that it had complied with the stringent requirements of Section 9(2) of the 1999 Constitution (as amended) as it had not accompanied the requisite votes and proceedings of both Houses with the Fourth Alteration Act that was transmitted to him to prove that the alterations were supported by at least two-third majority of all the members of the Senate and the House of Representatives in line with the aforementioned Section.

He noted that the amendment to Section 9 in the 4th  Alteration Act, that would dispense with the assent of the President for the purposes of altering the Constitution would constitute a flagrant breach of the doctrine of separation of powers and whittle down the powers of the Executive as provided in Section 5(1) of the 1999 Constitution (as amended).

The President also noted that the amendment to Section 58(5) that would enable a bill to become law at the expiration of 30 days where the President neither signifies nor withholds assent should be revisited with the view of retaining the current provision[1], as withholding assent was an intricate part of checks and balances in a democratic society.

Furthermore, the time frame of 30 days encapsulated in the amendment could prevent further consultation with stakeholders that would enable him arrive at deciding whether to signify or withhold assent; where the need arose.

The President observed that Section 84(A-F) that provided for a distinct office of the Accountant-General of the Federation failed to address how the office would be funded and on which budget line the office would be placed.

He was worried that the creation of the Office of the Minister of Justice as separate from the Attorney General of the Federation might affect the current structure of the Ministry of Justice in the absence of a statute that would properly define the functions and powers of both offices.

Jonathan explained that the appointment of the Attorney General as espoused in the amended 174(A-H) in the 4th  Alteration Bill, 2015 should be subject only to the confirmation of the Senate as his appointment was a prerogative of the President.

The President queried why the Attorney-General’s powers should be subject to the determination of the courts despite a plethora of Nigerian and English case laws that decided otherwise.

Consequently, he was of the view that it was the President and not the Chief Justice of Nigeria, as contained in the amendment, that could properly administer oaths on the Attorney General.

The Senate and the House had passed the Constitution (Fourth Alteration) Bill last year and transmitted the amendments to the state Houses of Assembly after which the National Assembly  adopted the resolutions and transmitted same to the President for his assent in February 2015.

The Senate President promised to avail members of copies of the letter for further debate when Senator Abubakar Yar’Adua (APC, Katsina) questioned the propriety of the President rejecting the amendments despite the large budget allocated and spent by the National Assembly for the  constitutional amendments.

Options

Following the development, a principal officer of the Senate, who spoke to Sunday Vanguard on the condition of anonymity, had said that there were two options before the National Assembly on the matter.

He said it was either the National Assembly accepts the position of the President or go ahead to override it.

He said, “We don’t know why he (Jonathan) decided to go this way. It is something that Nigerians, have been looking forward to and as we managed to break the jinx, we thought it was a legacy the 7th Senate is going to leave behind.”

Commenting on the President’s action, the Chairman, Senate Committee on Rules and Business, Senator Ita Enang, Akwa Ibomm North East, said the decision of Jonathan was a welcome one as he preferred to follow the legal option instead of lampooning the National Assembly on the pages of newspapers.

Enang said that the action of the President was an indication that he (Jonathan) was a patriotic Nigeria interested in the good of the country and not personal interest.

He, however, faulted the time it took The Presidency to raise objection to certain aspects of the amendment, stressing that it will be the duty of the court to determine whether the National Assembly followed the legal procedure in the process or not.

Enang, who said that whatever he said was his personal opinion as a lawyer of about 30 years standing and that the National Assembly, when served the court process, would apply for accelerated hearing in order to ensure that the case is dispensed of before the end of the 7th Senate.

Regret

The Senate Leader, Senator Victor Ndoma-Egba, SAN, said it was regrettable that The Presidency had taken the path of rejecting the amendment even when it had the opportunity during the public hearing to raise any objections on the exercise.

On the letter to the President to return the original copy of the bill, Ndoma-Egba said the Senate was still expecting it.

The Deputy Senate President, Senator Ike Ekweremadu had also said that no amount of propaganda from any quarter would deter the National Assembly from going ahead with the constitution amendment.

ConstitutionSpeaking at the induction certificate course on legislative studies for new legislators, penultimate week, Ekweremadu, who was the Chairman, Constitution Review Committee, had said that the National Assembly read in newspapers the suit filed by The Presidency stopping the Constitution amendment, stressing that there was no court process served it.

He said, “  As I speak to you, there is no court process that has been served on the National Assembly. So, as far as I am concerned, there is nothing in court.

“We also read in the papers that Bayo Ojo wrote a letter on behalf of the government, asking us not to deliberate on the matter pending the matter in court. I want to also say that no letter was received from Bayo Ojo or anybody whatsoever. It’s just media propaganda. But I want to assure Nigerians that we will resist it.”

With the threats and  loud noise coming from the National Assembly, it was thought that the stage was set for a showdown between the National Assembly and The Presidency. As the loud noise was coming from the lawmakers, the President, in a show of seriousness, secured a ruling from the Supreme Court, penultimate Thursday, in which the court declared that the status quo should be maintained on the matter.

But the Senate spokesman, Senator Enyinnaya Abaribe, while reacting to the ruling and also in a bid to give bite to the previous threats and even make them look so real and serious, last Sunday, said the nation’s apex court lacked the powers to stop the National Assembly from performing its legislative duties.

Abaribe said that as far as the process of amending the 1999 Constitution was concerned, the Supreme Court could not stop the National Assembly from carrying out its constitutional role.

He said, “The Supreme Court is wrong. The law does not allow one arm of the government to stop another arm of government from performing its duties.

Mark, had attended the last Council of State meeting under President Jonathan on Tuesday. There was no inkling that the meeting would change a lot in the Constitution amendment debacle. Sources close to the Senate President said that he was advised at the meeting not to do anything that will put the legislature and the judiciary on collision course.

Even before then, there was the allegation that the All Progressives Congress, APC, senators had got in touch with the Attorney General of the Federation and Minister of Justice, Mohammed Adoke, to prevail on the President not to sign the Amendment Bill even when it was gathered that the bill had been assented to by Jonathan.

The intention of those that met with the Minister according to the information was that if the Constitution was signed, it would whittle down the powers of the President on the judiciary and the finance of the nation.

The argument was that if the Office of the Attorney General of the Federation is separated from the Office of the Minister of Justice, the National Judicial Council, NJC, will be saddled with the responsibility of appointing the Attorney General, while the Office of the Minister of Justice will only coordinate the affairs of the ministry.  The implication is that the Attorney General will be in charge of litigations involving the Federal Government.

But after the Wednesday closed-door meeting, the Senate President said the Senate had decided to obey the court order so that the National Assembly would not be seen as a law breaker, while it was  elected for lawmaking.

In what has been described as a face-saving measure, Mark said the Senate will not allow the executive to take the legislature for granted in the present democratic dispensation.

He said, “  As we finished our discussion, I think it is proper for me, because of the importance of the issue, make a very simple, straight forward unambiguous statement.

“We are lawmakers and we will not be law breakers. We are not just lawmakers, we are very senior responsible citizens and very senior lawmakers and this is the apex of law making in this country.

“Therefore on the issue of the current constitutional review that is before the Supreme Court, we want to assure Nigerians that we will not break any law in this country.

“We will take appropriate action that will ensure that democracy survives but I will also want to warn that we should not be taken ‘for granted by the executivesm but once more, let me assure Nigerians that as lawmakers, we will not be law breakers.”

Briefing journalists after the plenary, the Senate Leader, Ndoma-Egba, said, “The Senate commenced today’s proceedings with an executive session. The reason is simple: if you had seen the Order Paper yesterday and today, you would have noticed the first reading of the Constitution Amendment Fourth Alteration Bill.

“We had to defer it yesterday (Tuesday) and today (Wednesday) to another legislative day for one simple reason: that at the level of the Committee on Constitutional Amendment, we had reviewed developments that I believe you are already familiar with concerning amendment.

“But we did not have the opportunity of briefing the Senate in plenary. That opportunity we had this morning of briefing the Senate in plenary as to the developments and circumstances surrounding the bill so that the Senate in plenary will be in the full picture, that is what we did today in the executive session.”  On whether, if the 18th June in which the Supreme Court adjourned the matter after declaring that the National Assembly should maintain status quo will not come after the expiration of the Seventh Senate, he said that it was dependent on the outcome of the court matter even as he said that the matter will come up as soon as possible.

On the allegation that the Senate was cajoled to succumb to the fact that it did not get the required numbers to pass the bill, he said, “First of all, our records are very clear, the votes and proceedings are there. And we have gone through the records again and again and we certainly met the constitutional requirement of four-fifth.

“So, that one is not an issue. The Attorney General who is alleging that we didn’t meet that constitutional requirement has not exhibited any document to show that we did not. But from our records, we certainly did. We clearly met the four-fifth requirement.

“On the issue of jam packing the amendment, let me say that this process has taken us close to three years. We started off with a retreat in Akwa-Ibom. We had another retreat in Lagos.  “Then we had public hearings in Abuja, the six geo-political zones, 36 state capitals, the 360 Federal Constituencies. And when you say public hearings, it means the hearings are open to the public at large including members of the executive.

“I recall quite a number of those hearings. The Executive was very strongly represented. It is at these public hearings that you are supposed to highlight your reservations or concerns about each of the amendment.

“They didn’t use any of those opportunities provided by these various public hearings; only for us at this point, when the Houses of Assembly have passed amendment and we were to conclude, then we are suddenly confronted with this ambush. We think it’s in bad fate and it is regrettable.”

Way forward

On the way forward on the matter, he said, “We are going to court to challenge the court order which was made ex-parte. We were not on notice, we were not represented.”

Explaining on what transpired at the closed-door meeting, the Senate Leader said, “You know we received a letter from Mr President and the committee met to discuss that letter and agreed to make certain recommendations to Senate in plenary.

“Before we could do that, we had the court order, which again, is another development. And we had to thoroughly review those developments at the executive session today to agree on the way forward.”

On what becomes of the bill with less than a month to the end of the 7th Senate,Ndoma-Egba said, “Let’s say before we leave, we have legal options.  And the legal option is to vigorously challenge the order of the court  made ex-parte.

“It was made without us being put on notice. And I believe that we can get the court to quickly determine that. And we intend to pursue that option.”

On whether  Jonathan had returned the original copy of the Constitution Amendment Bill, as requested by the  National Assembly, he said the Senate was yet to receive it.

According to him, “There was a resolution taken on the Floor of the Senate for the original copy of the bill to be returned. That resolution has been communicated to Mr President and Commander-in-Chief and up till now, we haven’t gotten back the original. We have our suspicions why the original has not been returned.”

He said that the suspicion of the National Assembly was that the original bill was signed by the President.

Ndoma-Egba also debunked the claim that about N4 billion was spent on the constitutional amendment.

He said, “The total budget of the National Assembly in the last five years was N150 billion. In the 2015 budget, it has been reduced to N120 billion. And that includes capital and recurrent expenditures.

“It includes salaries and allowances of senators and members of the House of Representatives, it includes the bureaucracy, National Assembly Service Commission, Institute of Legislative Studies, our aides. So where will the money come from?”

But on the specific amount spent on the constitutional exercise, he said, “I wouldn’t know. The Chairman (of the committee on the review of the 1999 Constitution) is in the best position to address that.

“But I will like to say right away that the funding of the exercise is from the National Assembly’s budget that is currently N120 billion. So, the story out there, I don’t know where it is coming from.”

‘Apex court didn’t have facts’

Meanwhile, the National Assembly is set to approach the Supreme Court to seek a quick discharge of the ruling barring it from further work on the alteration of the Constitution.

This move, Sunday Vanguard learnt, follows the concerns in the National Assembly that  Jonathan had failed to produce the signature page of the Fourth Alteration Act sent to him for his assent.

A top official of the National Assembly, said that it was erroneous to conclude that the Fourth Alterations of the 1999 Constitution was dead, stating that facts about the amendment process were being collected to be presented to the Supreme Court.

He said that the National Assembly needed to act fast to explain its own side before the Supreme Court and before the expiration of the 7th Assembly.

The principal officer, who spoke in confidence, said that the NASS believed that the apex court did not have all the facts of the matter and that its position on the matter was not a judgement “but just a position and understandably so.”

According to him, the National Assembly, wanted to explain to the apex court that it complied fully with Sections 8 and 9 of the Constitution by getting four-fifths of both chambers and two-thirds of the state Houses of Assembly in the process of passing the alterations.

The official said, “I don’t think that the alterations are dead as being insinuated in some quarters. It is not over until it is over. The 7th National Assembly has not expired.

“We need to approach the Supreme Court to hear our position because the National Assembly has to present its own position to the Supreme Court. The interface will be formal. The Supreme Court has to be fully briefed on the matter.”

He confirmed that  Jonathan did not return the signature page of the Constitution alterations forwarded to him as requested by the National Assembly.

According to him, the Senate requested the return of the signature page formally “but it was not returned.”

The principal officer stated: “Mr. President refused to sign the alterations but he did not return the bill that was signed by the clerk of the National Assembly.”

He explained that the National Assembly will not over ride the President’s veto on the bill, adding that no arm of government would want to truncate the goodwill the country is currently enjoying locally and internationally.

The source said that for conceding defeat, Jonathan had brought good will to the country.

The NASS official stressed that when the National Assembly is sending a bill for the assent of the President, it does not normally attach votes and proceedings of the parliament.

With the misunderstanding over the amendment of the Constitution between The Presidency and the National Assembly, it appears the exercise has been a wasted effort.  There is no guarantee that the apex court will hear the suit on the matter in less than three weeks when the tenure of the 7th National Assembly will elapse which then means that, if the Constitution Amendment will be a reality and see the light of the day, it has to start afresh with the next parliament.


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Comments expressed here do not reflect the opinions of vanguard newspapers or any employee thereof.