By Abdulwahab  Abdulah
Though, it seemed that the issue of  the President’s assent to the amendment of the constitution has been laid to rest with the verdict of the Federal  High Court, Lagos following the suit  by Chief Olisa Agbakoba, SAN,  Chief Robert Clarke, SAN, however, insist that the President’s assent was not necessary, since the state Houses of Assembly had also passed the bill into law.

He noted that tAhe President cannot veto a law passed by the state Houses of Assembly, as it was the entire Nigerian people that passed such a bill into law. He also spoke  on other national issueAs, including the Electoral Act and the froth coming elections.

Excerpts:

What is your view on  pronouncement of the Federal High Court, that Presidential assent was compulsory before amendment to section of the constitution can take effect?

Chief Robert Clarke, SAN

Amending the constitution occupies special provision in the constitution. Many people believe that a Bill of the National Assembly, when passed automatically goes to Mr. President for assent. So, everybody is looking at a Bill to amend the constitution as a normal Bill envisaged in the constitution.

The Bill to which a President must assent is the one that emanates either from Mr. President himself to the National Assembly or the National Assembly itself originating it and sending it to Mr. President. That is the Bill  the constitution says Mr. President must assent to. But when you look at Section 9 of the constitution, which now creates an amendment to the constitution, you will find that by the special provision of that section, it is not a Bill that is being sent by Mr. President.

Secondly, it is not a Bill solely raised by the National Assembly. It is a Bill for all Nigerians, which mean it is a Bill that affects the President and all the 36 states of the federation.
In what way?

If you look at Section 9 (2), it says  the proposal for the amendment of the constitution, not the Bill itself.  The proposal that will form the Bill must first be approved by two-third majority of the National Assembly.

That is, the National Assembly must first consider the proposal, approve them by two-third majorities and then, send  it to the 36 states, which must also pass the proposal by two-third majority. So, by that time the state Assemblies must have approved the proposal by two-third majority, it will then be returned to the National Assembly to be made into an Act of the National Assembly.

Therefore, it is not an Act of the National Assembly per-se that must  go to Mr. President, because, it has become the Act of the entire country.

I  ask, can the President give assent to a Bill passed by Ogun State House of Assembly?  Can Mr. President give assent to a bill passed by Sokoto State House of Assembly.  Can Mr. President give assent to a Bill pass by other states of the federation? The answer is capital No.

Only the Governors can give assent to a Bill pass by the state legislative Houses.  Therefore, because of the input in Section 9, Mr. President cannot give an assent to such Bill. That position also has an inbuilt provision that the passage of that Act must be by two-third majority.

This is very significant, because in an ordinary Bill, when it goes to Mr. President, having been passed, by the National Assembly and he refuses to assent it, it comes back to the National Assembly and once re-passed with two-third majority, it automatically becomes law.

It no longer requires the assent of Mr. President. Therefore, the constitution,  in Section 9, which deals with amendment of  the constitution, has an in-built  provision that two-third  must pass the amendment, so that whether Mr. President  likes it or not, it does not need his assent.

It is a special type of Bill, which requires the proposal to come from the National Assembly. The proposal must be approved by the National Assembly by two-third majority before it is transmitted  to the state Houses of Assembly, which also must pass it by two-third majority.

When these proposals are now agreed upon, they are then return to the National Assembly, which has the power to pass it into an Act of Parliament. And that is why you will observe that the latest proposal passed by the National  Assembly were sent to the Speakers of the 36 state Houses of  Assemblies and they promised that by November  22, they would have finished  with them.

My question now is, where is the Act that my good friend, Olisa Agbakoba, SAN took to the court?  Where is the Act that the judge took jurisdiction to pronounce upon, when that Act has not been passed into law?

What is presently being done across the 36 states is to consider the proposals that will now make the final Act that would be passed into law.

Are you suggesting that Agbakoba’s suit was premature?

I will tell you why it is premature. What  if the proposals were not adopted by two-third majority of the 36 state Houses of Assembly? That would be the end of the process. Then, there would be no Bill to be enacted into the Act of the National Assembly. So what did you go to court for?

What was on hand at that stage that he, (Agbakoba) went to court, were mere proposals, which were to be considered, not only for National  Assembly, not for the purposes  of passing them into law immediately but to enable them start a process that would go round the 36 states.

Now, where does Independent National Electoral Commission, INEC stand in view of the confusion created by the amendment?

Let me point out here that the National Assembly simultaneously amended both the Constitution and the Electoral Act. It should be noted that there are certain aspects of the Electoral Act that are exclusively within the purview of the National Assembly. So you must be able to differentiate amendment of the Electoral Act, which INEC was talking about and the amendment of the Constitution, which involves the whole country.

And Mr. President cannot give assent because it is not the Bill of the National Assembly alone or an Executive Bill. It is a Bill of all Nigerians. That is why that section on amendment has the two-third majority requirement of both the National Assembly and the 36 states of the federation. That is why it does not require the assent of Mr. President.

There is nothing the President can do about it, because the two-third of the representatives of the entire citizenry has spoken. The President cannot veto such Bill, because his veto has been overruled during the processes at the National Assembly and the state Houses of Assembly.