Introduction Suppose a Joint Conference Committee of the Nigerian House and Senate, having conferred on the separate bills, has agreed on the following clause contained in the hypothetical bill:
"Clause XYZ: All males of Sokoto State, Adamawa State, Benue State , Edo State and Rivers State
18 years and older shall be given a sum of N100,000 each from the Federation Account."
The National Assembly presents it to the President for his signature constitutionally THROUGH the Senate President and the House Speaker, NOT through the Chairman of the Joint Conference. Which of the following modifications can be agreed to WITHOUT re-consideration of ALL the members of the House and Senate:
deletion of the clause entire.
Its modification by any one of the following:
instead of "men", replace by "women";
instead of "men", replace by "men and women";
add Ogun State to the list of states;
change N100,000 to N200,000;
change "and older" to "and younger";
add this sentence: "Furthermore, all women of Kogi, Delta and Ekiti shall receive N20,000"
Re-write as: "All people of the male gender in Adamawa, Benue, Edo, Rivers and Sokoto States shall be given a sum of N100,000 each"
Even without being a rocket scientist, the simple answer is "NONE" - although they might get away with the identical (in meaning) version (2)(vii) - otherwise the questions would be: why do you need all those members of the House and Senate? Did they not know beforehand that there were women too in Nigeria, or that Ogun, Kogi, Delta and Ekiti were states in Nigeria before the bill was passed? All those changes are SUBSTANTIVE to the Bill agreed to in Conference.
This is to preface my assertion that the action of the Joint Committee of the National Assembly to accede to the request to President Obasanjo with respect to Clause 80 of the 2001 Electoral Bill recently signed into Law is unconstitutional, period. [ See my article Sunday Musings: The National Assembly, the President and the Electoral Law]. Thus, primarily it was procedurally unconstitutional according to the 1999 Constitution - notwithstanding what loopholes anybody in Nigeria finds in the Regulations of the House and Senate to change:
The Harmonized "Clean" Copy of Offending Clause 80 [Agreed in Conference] "At the close of nominations for the general elections, any political party that fails to sponsor at least 15 per cent of candidates for councillorship, council chairmanship, governorship and state House of Assembly, throughout
the federation spread among two-third of the states of the federation and Abuja shall not participate in the general elections."
Into:
The Signed "Dirty Copy" of Offending Clause 80 [Signed 4:00 am, Thursday, December 6, 2001] "At the close of nominations for the general elections, any political party which fails to sponsor at least 15 per cent of the candidates for councillorship, council chairmanship and state House of Assembly, respectively, throughout the federation and the Federal Capital Territory shall not participate in the general elections, provided that a newly registered political party shall first participate in the local government elections and win at least 10 per cent of the councillorship and chairmanship positions throughout the federation and the Federal Capital Territory to be eligible"
It is certainly alien to practice in the United States whose two-house procedure we have copied.
And there are members of the National Assembly who know so, despite earlier attempts to "tamper" by the Senate and PDP leadership:
…The leader of the House Harmonization Committee , Hon. Mohammed Kumalia said in Abuja that it was too late to make any changes on the four year tenure for Local Government elected officials .
Kumalia who is the Leader of the All Peoples Party (APP) in the House of Representatives told newsmen yesterday ahead of the first meeting of the joint National Assembly committee that "any discussion between the Senate President, Chief Anyim Pius Anyim, the Peoples Democratic Party (PDP),and some selected members of the harmonization committee did not form part of the committees mandate on the harmonization of the electoral bill as passed separately by the two arms of the National Assembly."
Last week, it was reported that the Senate Harmonisation Committee met with some governors with a view to re-negotiating the tenure of councils.
According to Kumalia " it is too late in the day for the governors to call for any change as regards the electoral bill which we have already passed .
"As aim of the harmonization committee of the National Assembly on the electoral bill is for it to look out for areas of differences as passed by both arms of the Senate and the House.
"As far as our mandate is concerned , the four years tenure for the councils does not form part of the mandate . As far as we are concerned, it is not in any dispute between the both arms of the National Assembly," he said. He explained that the meeting that took place Tuesday last week between some governors , the Senate President, Chief Anyim Pius Anyim the Minister of Works and Housing ; Chief Anthony Anenih at the residence of Anyim was a PDP affair, which had nothing to do with the harmonization of the electoral bill by the committee.
Kumalia said "The two arms of the National Assembly conducted two separate public hearings on the electoral bill. The governors did not make any presentation on this matter . How come that they will be making consultations now after the bill has been passed by both the Senate and the House. That is not how laws are made . The aim of a public hearing is to hear all dissenting views and such views are taken into consideration at the committee level "
He said that at the moment " the question of four year tenure of office for the elected councils was a fore gone matter . It is beyond us . We have no powers to tamper with any thing that was agreed upon by the two arms of the National Assembly "
The 2001 Electoral Law and Offending Clauses 80 and 15
The Players: The President and Commander-in-Chief: Olusegun Aremu Okikiolu Obasanjo, from Ogun State.
The National Assembly: 109 Senators and 360 House of Representative Members [President of Senate: Anyim Pius Anyim of Ebonyi; Speaker of the House: Ghali Umar Na'Abba of Kano]
INEC: Independent National Electoral Committee, headed by Dr. Abel Guobadia, which submitted a draft bill to both Houses in early April 2001.
The Joint Committee of the National Assembly:
From the Senate: Senator O. A. Osunbor (PDP; Edo State Central), Chairman, Senators Tunde Ogbeha (PDP; Kogi West), Jonathan Zwingina (PDP, Adamawa South), Adebayo Ogunlewe (AD, Lagos East), Alex Kadiri (APP; Kogi East) and Ibok Essien (PDP; Akwa-Ibom North-West).
From the House of Representatives: Reps. Mohammed Kumalia (APP; Borno; Maiduguri Metropolitan Constituency), Abdullahi Gumel (PDP; Jigawa; Gumel/Maigatari ), Ibrahim Zailani (APP; Bauchi; Toro Constituency), Nnamaeka Celestine Ughanze (PDP, Anambra, Oyi/Anamelum), Idris Abdullahi (PDP, Gombe, Yamaltu/Deba) and Okechukwu Udeh (PDP; Anambra; Orumba North/South). Consultant: Law Prof. Ebere Osieke
Some Dates
INEC presents draft Electoral Bill to House and Senate separately [April 2001]
Senate and House [November 15, 2001] pass their own final versions of the bill separately
Inaugural Meeting of House/Senate Joint Conference [Tuesday, November 27, 2001]
INEC Writes to Joint Conference about Multi-Day Elections Preference [Thursday, November 29]
Joint Conference harmonizes bill [Tuesday, December 4]
President receives "Clean Copy" Bill from National Assembly [Wednesday, December 5]
President writes letter to Chairman, Joint Committee through Senate President and House Speaker [Wednesday, December 5]
Senate President, House Speaker caucus with Joint Conference Members [midnight Dec. 5?]
"Dirty Copy" of Bill Signed [4:00 am, Thursday, December 6]
President Addresses Nation, asking aggrieved to "Go to Court" [Thursday, December 6]
Afterwards, everybody [and his mother] is up in arms!
Decoding the "Dirty Copy" Is there a difference between a "any political party" and a "newly registered political party?" If you were "newly registered" in 2003, obviously you could not be so described AGAIN in 2007. So even if a party did not win 10% in 2003, does Clause 80 apply to it in 2007?
"Any political party" : both new and old (eg PDP, AD, APP, all three registered; are DAM, MDJ, NSM, PRP; UDP, UPP - still considered registered?) ?
General Elections: Federal, state and local government elections. Any alternative interpretation that "General Elections" mean only Federal elections does not appear logical.
Close of Nominations date: apparently will be uniform for all those elections.
15% sponsorship: There are 744 local government chairmen, 8811 councillors, and about 700 Assembly seats nationwide, meaning that any political party must have at least (0.15 x10,200) or 1530 candidates nationwide. Even an EXISITING political party (AD, APP or PDP) that does not have this minimum number of candidates will not be allowed to participate in the General Elections!
10% win: must win about 1020 seats nationwide. (This will not affect AD, APP or PDP in the 2003 election, but could affect in 2007 any that do not satisfy Clause 80). How the heck can a new party win this many seats when it had not made any showing in the foregoing Federal and State elections?
….After considering all the arguments for and against each version of the Bill the Committee adopted the Senate version of the sequence of elections. In essence, the general elections shall take place in three phases, starting with the Federal Election, then state elections, and lastly, local government elections. A period of two weeks must elapse between one election and the other.
Implication of Clauses 80 + 15 Meaning of Clause 80 and Clause 15 taken together: New parties must wait till AT LEAST 2007 to take part in Federal and State elections. If they does not satisfy Clause 80 in 2003, and if the Clause 15 order of elections does not change, then it MIGHT mean that the party will have to wait till 2011! Absolutely unfair, and downright unconstitutional.
Verdict # 1 There is NOTHING in the Constitution that prevents registered parties from taking part in ALL the elections in the country. Therefore the above restricting outcome is very SUBSTANTIVE, not germane to any earlier considerations PRIOR to the Conference Meeting, and is hence substantively UNCONSTITUTIONAL.
Presidential Action in Bill Signing Can the president be blamed for not assenting and for making a suggestion? Absolutely not! However, he had ample time to send in his own suggestions in WHILE either House was still debating the clauses. After then, all he could do was, like INEC'S Guobadia did, suggest to the Joint Conference his preference for one of the suggestions already ON THE TABLE.
Can he be blamed for signing on a document if it can be shown that it was not properly arrived at procedurally arrived, to the best of his clear knowledge? As the Chief Executive Law Enforcer, absolutely yes!
Thus, in addition to the unconstitutionality of the political parties restriction, the adoption process of the Electoral Law was procedurally wrong. Sections 58 and 62, Chapter 5 of the 1999 Constitution clearly state the following:
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 subsection (5) of this section, assented to by the President.
A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by this section and section 59 of this Constitution, assented to in accordance with the provisions of this section.
Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented to the President for assent when it has been passed by that other House and agreement has been reached between the two Houses on any amendment made on it.
Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent.
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.…
Section 62
The Senate or the House of Representatives may appoint a committee of its members for such special or general purpose as in its opinion would be better regulated and managed by means of such a committee, and may by resolution, regulation or otherwise, as it thinks fit, delegate any functions exercisable by it to any such committee.
The number of members of a committee appointed under this section, their terms of office and quorum shall be fixed by the House appointing it.
The Senate and the House of Representatives shall appoint a joint committee on finance consisting of an equal number of persons appointed by each House and may appoint any other joint committee under the provisions of this section.
Nothing in this section shall be construed as authorising such House to delegate to a committee the power to decide whether a bill shall be passed into law or to determine any matter which it is empowered to determine by resolution under the provisions of this Constitution, but the committee may be authorised to make recommendations to the House on any such matter.
Thus since President Obasanjo had "withheld his assent", Section 58(5) clearly implies that a reconsideration by both Houses was required. Even if the section gives implicit ROOM for the President to given reason for not assenting, and make "suggestions" to a bill presented to him, he is only given explicit privilege of ASSENT within 30 days - in which case he signs it - or DISSENTS, in which case the bill returns to both Houses for reconsideration. The bill DOES NOT return to the Joint Conference for reconsideration - which has done its work and essentially is disbanded - but rather to the National Assembly (naturally) VIA the same way that it should come to the President: the Senate President and Speaker of the House. Any other way would implicitly make the President a member of the Joint Conference Committee, thereby violating the Separation of Powers principle. And in case there is doubt, Section 62(4) removes ANY pretension of any committee of the National Assembly as to its power make law on behalf of the Committee of the Whole of the National Assembly.
The cover which the National Assembly leadership and the Joint Committee wishes to take from Sections 83(c) and 88(c) of the Assembly rules which state that “if the joint conference committee accepts the president’s amendments to the House of Representatives and Senate, then the bill shall again be sent to the president for his assent” is really naked because the spirit AND letter of their action clearly violate Rules 82 (c) and 87 (c) respectively of both the House and the Senate, as well as the SUPERIOR sections of the 1999 Constitution: Sections 58(5) and 62 (4).
Comparing Nigeria with the United States Constitution/Regulations of Congress One must grant that Nigeria is not the United States, but law looks to precedence ANYWHERE in the world for guidance, and no where can we in Nigeria be guided better in this procedural matter than by the Congress of the United States.
Unlike in the United States, the Nigerian President has no VETO power in Nigeria's constitution, and hence cannot send a "veto message" as can happen in the United States. Whatever lobbying he wishes to do has to be BEFORE the Bill reaches him, or AFTER it has been returned the two Houses for reconsideration, NOT between conference decision and assent/dissent time.
Article I Section 7. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
RULE XXII
House and Senate Relations Conference reports; amendments reported in disagreement
9. Whenever a disagreement to an amendment has been committed to a conference committee, the managers on the part of the House may propose a substitute that is a germane modification of the matter in disagreement. The introduction of any language presenting specific additional matter not committed to the conference committee by either House does not constitute a germane modification of the matter in disagreement. Moreover, a conference report may not include matter not committed to the conference committee by either House and may not include a modification of specific matter committed to the conference committee by either or both Houses if that modification is beyond the scope of that specific matter as committed to the conference committee.
US Congress Enactment of a Law Conference Committees and Reports When the Senate requests a conference or agrees to the House's request for a conference and names its conferees, it informs the House of its action by message. After the second House agrees to the conference, appoints conferees, and apprises the first House of its action by message, all the papers relating to the measure sent to conference (referred to as the "official papers") are transmitted to the conference. This includes the original engrossed bill, engrossed amendments, and the various messages of transmittal between the Houses.
Since the conferees of each House vote as a unit, the House, like the Senate, may appoint as many conferees as it chooses to meet with the Senate conferees to reconcile the differences between the two Houses--the sole purpose of a conference. Thus, having a larger number of conferees than the other House does not provide an advantage.
After deliberation, the conferees may make one or more recommendations; for example, (1) that the House recede from all or certain of its amendments; (2) that the Senate recede from its disagreement to all or certain of the House amendments and agree to the same; or (3) that the conference committee report an inability to agree in all or in part. Usually, however, there is compromise.
Conferees dealing with an amendment or a series of amendments are more limited in their options than conferees dealing with a bill passed by the second House with an amendment in the nature of a substitute. They can only deal with the matters in disagreement. They cannot insert new matter or leave out matter agreed to by both Houses, and if they exceed their authority, a point of order will lie against the conference report. Each House may instruct its conferees, but this is rarely done. Such instructions are not binding since conferences are presumed to be full and free--one House cannot restrict the other House's conferees.
Where one House passes a bill of the other House with an amendment in the nature of a substitute and the measure then goes to conference, the conferees have wider latitude since the entire matter is in conference. They may report a third version on the same subject matter; all of its provisions, however, must be germane modifications of either the House or Senate version, or it will be subject to a point of order.
B. US Congress Enactment of a Law Presidential Action - Approval or Veto The President, under the Constitution, has 10 days (Sundays excepted) after the bill has been presented to him in which to act upon it. If the subject matter of the bill is within the jurisdiction of a department of the Government, or affects its interests in any way, he may in the meantime, at his discretion, refer the bill to the head of that department for investigation and a report thereon. The report of such official may serve as an aid to the President in reaching a decision about whether or not to approve the bill. If the President does approve it, he signs the bill, giving the date, and transmits this information by messenger to the Senate or the House, as the case might be. In the case of revenue and tariff bills, the hour of approval is usually indicated. The enrolled bill is delivered to the Archivist of the United States, who designates it as a public or private law, depending upon its purpose, and gives it a number. Public and private laws are numbered separately and serially. An official copy is sent to Government Printing Office to be used in making the so-called slip law print.
In the event the President does not desire to approve a bill, but is unwilling to veto it, he may, by not returning it within the 10-day period after it is presented to him, permit it to become a law without his approval. The Archivist makes an endorsement on the bill that, having been presented to the President of the United States for his approval and not having been returned to the House of Congress in which it originated within the time prescribed by the Constitution, it has become a law without his approval.
Where the 10-day period extends beyond the date of the final adjournment of Congress, the President may, within that time approve and sign the bill, which thereby becomes a law. If, however, in such a case, the President does not approve and sign the bill before the expiration of the ten-day period, it fails to become a law. This is what is known as a pocket veto. The United States Court of Appeals, in the case of KENNEDY v. SAMPSON, 511 F.2d 430 (D.C. Cir., 1974), held that a Senate bill could not be pocket-vetoed by the President during an "intrasession" adjournment of Congress to a day certain for more than three days, where the Secretary of the Senate had been authorized to receive Presidential messages during such adjournment. In the case of BARNES v. KLINE, 759 F.2d 51 (D.C. Cir., 1985), the Court held the same with regard to an intersession adjournment.
If the President does not favor a bill and vetoes it, he returns it to the House of origin without his approval, together with his objections thereto (referred to as the "veto message"). It should be noted that after the final adjournment of the 94th Congress, 1st session, the President returned two bills, giving Congress the opportunity to reconsider and "override" the vetoes.
The constitutional provision for reconsideration by the Senate is met, under the precedents, by the reading of the veto message, spreading it on the Journal, and adopting a motion (1) to act on it immediately, (2) to refer it, with the accompanying papers, to a standing committee: (3) to order that it lie on the table, to be subsequently considered, or (4) to order its consideration postponed to a definite day. The House's procedures are much the same.
If, upon reconsideration by either House, the House of origin acting first, the bill does not receive a two-thirds vote, the President's veto is sustained and the bill fails to become a law.
If a bill which has been vetoed is passed upon reconsideration by the first House by the required two-thirds vote, an endorsement to this effect is made on the back of the bill, and it is then transmitted, together with the accompanying message, to the second House for its action thereon. If likewise reconsidered and passed by that body, a similar endorsement is made thereon. The bill, which has thereby been enacted into law, is not again presented to the President, but is delivered to the Administrator of the General Services Administration for deposit in the Archives, and is printed, together with the attestations of the Secretary of the Senate and the Clerk of the House of its passage over the President's veto.
Thus we see that even in conference between the US House and the Senate, ANY change made which is not a germane modification cannot stand, otherwise a point of order will be raised. And there you have it: no where is the Joint Conference reconvened simply because the US President refuses to assent, or vetoes the Bill.
In a presidential system with separation of powers, it is absurd to expect otherwise.
Final Verdict Whatever clear and present danger made the president and the coterie of National Assembly leadership stir the hornet's nest in this way is yet to be revealed. Considering that the ruling party has an overwhelming majority in both Houses and in the state houses, one wonders what the real desperation is. Whatever it is, this 2001 Electoral Law should be upturned for the sake of our "nascent democracy." Asking people to "go to court" - so as to string legal action out (for example beyond April 2002) until the remedy if any becomes moot - is a cheap trick that should not be fallen for by all.
The Electoral Law 2001 is unconstitutional, and the procedure for arriving at it was unconstitutional, period. It should be reconsidered by the National Assembly at its earliest convenience.
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