The 1999 Constitution of the Federal Republic of Nigeria ushered in a Presidential System of government relatively patterned after the system in the United States of America. Whereas the American system is based on a pure federalism where the federating units enjoy a wide autonomy from the Central Government in D.C. Washington, the Nigerian federalism is pseudo-federal as it is more of unitarism in real terms. One major similarity of the American and the Nigerian constitutional orders is the supremacy of the constitution in the presidential system of government.
Section 1(1) of the Nigerian 1999 Constitution expressly emphasises the supremacy of the constitution thus: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”. And Section 1(3) further states “if any other law is inconsistent with the provisions of this constitution, this constitution shall, prevail and that other law shall to the extent of the inconsistency be void”.
The effect of the combined provisions of the constitution is that all authorities and persons within the Nigerian territorial and legal jurisdiction shall exercise such powers and enjoy such rights as expressly entrenched in the constitution. All extant laws, Acts of the National Assembly and subsidiary legislations must conform to the letters and spirit of the Nigerian 1999 Constitution for such laws/legislations to remain valid.
It is in the light of the foregoing that the decision of the Federal High Court, sitting in Lagos, which nullified the first purported amendments of the 1999 Constitution as acclaimed by the National Assembly, becomes a veritable point of interest. In a suit filed by the former President of the Nigerian Bar Association, Olisa Agbakoba, SAN, the court presided over by Justice Okechukwu Okeke, had on Monday, 08 November 2010, declared the purported amendments null and void due to non-compliance with the letters of the constitution. At best, the purported amendments remain inchoate. It is pertinent to note that the legislative powers of the Nigerian National Assembly are clearly spelt out in Section 4 of the 1999 Constitution.
As wide as the powers appear, relevant limitations are stated thereof: Section 4(8) stipulates that the legislative powers of the National Assembly or any of the Houses of Assembly of the states are subject to the jurisdiction of the courts of law and judicial tribunals established by law; while Section 4(9) precludes them from enacting any laws that have retroactive effect on criminal offence.
While Section 9(1) of the constitution stipulates that the National Assembly may alter any of the provisions of the constitution, the provisions specifically state that such alterations must be in accordance with the provisions of the constitution. Section 9(2)-(4) spelt out the other conditions to be met in order to alter provisions of the constitution which include: two-third majority of the two houses of the National Assembly and resolution in support by Houses of Assembly of not less than two-thirds of all the states of federation. The required two-thirds majority of the National Assembly required for a constitutional amendment is the number on the roll (and not merely present and voting) in compliance with the provisions of sections 48 and 49 of the 1999 constitution.
This position of the law has been confirmed by the Supreme Court in the case of National Assembly v. President of the Federal Republic 2002. To alter the constitution in any form, Section 9 expressly states that such must be by AN ACT OF THE NATIONAL ASSEMBLY...The powers vested in the National Assembly to make laws (which obviously includes an ACT TO ALTER the Constitution) are expressly spelt out in Section 58 of the constitution. This includes: passing a bill by both houses and forwarding same to the President for assent in order to become law.
The only exception where a bill passed by the National Assembly could become law without a presidential assent is where and after the President refuses to assent to the bill within 30 days or vetoes the bill – in that respect section 58(5) empowers each house of the National Assembly to pass the same bill (now the second time) with two-thirds majority and such an Act of the National Assembly would become law without a presidential assent.
The essence of the foregoing is to appreciate the logical sequence of enactment of law and the process laid down for the amendment of the 1999 Constitution. Sections 8, 9, 48, 49 and 58 have to be read together in order to fathom the appropriate modalities for the alteration of the constitution. Regrettably, the National Assembly, rather than adhere strictly to all the relevant provisions of the constitution, chose, picked and did whatever it thought convenient on the erroneous premise that it had the legislative prowess to perform its constitutional duties, including the alteration of the constitution, whichever way it deems fit.
The misguided position of the National Assembly has been emboldened by some unfortunate developments in the polity which remained unchecked as appropriate. One of such incidents is the arbitrary jumbo quarterly allowances to the members which had remained unchallenged until recently when the Nigerian Bar Association filed a suit questioning the propriety or otherwise of the legislative action which has never been approved by the Revenue Mobilization and Fiscal Commission as required. Another incident is the acclaimed ‘doctrine of necessity’ purportedly invoked by the National Assembly to confer an ‘Acting President’ status on the then Vice President Goodluck Ebele Jonathan on 9th of February, 2010.
The legislative decision, although generally applauded, was the height of unconstitutionalism – and remained unchallenged because it suited the prevailing political milieu which was glaringly threatened by the antics of the cabal surrounding the late President Yar’Adua at the time.
Basking in the euphoria of its ability to coin any doctrine unknown to the Nigerian Constitution, the National Assembly thought it could exercise any power whichever way it felt without recourse to the rule of law, the doctrine of separation of powers and supremacy of the constitution – the major portals on which Nigerian nascent democracy rests. It is in furtherance of the misconceived viewpoint that the National Assembly has continued to input into the purported amended version of the constitution, timeline for the 2011 elections – an issue that ordinarily should have been provided for in the 2010 Electoral Act.
Similarly, the National Assembly tended to enlarge the scope of the provisions of Section 239 of the 1999 Constitution for the Court of Appeal to serve as Election Petition Tribunal for Governorship elections in 2011 with such petitions ultimately terminating at the Supreme Court as opposed to the present situation where they terminate at the Court of Appeal. Out of delusion that it could do and undo without being accountable to the generality of Nigerians, the National Assembly has just passed a bill providing life pensions for past military rulers and coupists who ruled the country illegally through the barrels of the guns.
This is not only an affront to Nigerians; it offends the spirit of Section 1(2) which forbids an unconstitutional take-over of power; because such a bill is an open reward for unconstitutionalism. If Section 4(9) curtails their power to legislate for criminal offences retroactively, in the same spirit, they cannot legislate retroactively to reward criminality which payment of pensions to past military rulers is.
The declaration by the court that the purported amendments is null and void portends danger for the successful conduct of the 2011 elections because of the close nexus between the nullified Amendment Act and 2010 Electoral Act. The ruling of the Court has however emphasised the rule of law in a constitutional democracy that the constitution is supreme and not the parliament as the National Assembly appears to erroneously believe.
And instead of the National Assembly to take the verdict of the court in good faith, retrace their steps and adopt the proper procedures in amending the constitution, they indicated their desire to appeal against the judgment. Even if they opt to regularise the purported amendments now, there would be time constraints as regards issues that affect the 2011 elections.
The obvious misadventure of the National Assembly to override constitutional supremacy portends serious challenges for the polity particularly as time tickles for the 2011 elections.
Ajayi Olatunji Olowo writes from Abuja, Nigeria.
olaajayiolowo at yahoo.com
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Habeeb Ameen Ilorin, Nigeria May 16, 2013
this is a very good and educative compilation. More of these works might change the life of many people.Good work, AJAYI.O.OLOWO. Keep it up.
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