Constitution: Allow Supreme Court to Determine Legality of Amendments, FG Tells N’Assembly

Chief Bayo Ojo (SAN)

• Senators applaud govt’s decision to seek judicial interpretation

• House insists it did not flout requirements

Tobi Soniyi , Omololu Ogunmade and Muhammad Bello in Abuja

The federal government has written to the Senate President, David Mark, informing him of the suit it filed at the Supreme Court challenging the legality of the proposed amendments to the constitution.

In the letter, written on behalf of the federal government by Chief Bayo Ojo (SAN), it asked the senate president to allow the Supreme Court  determine the issues it raised in the suit.

Excerpts from the letter read: “In view of this development and the dictates of the principles of the rule of law on which any democratic system thrives, we use this medium to urge that the Supreme Court be allowed to determine the suit under reference before any further step is taken by the National Assembly on the move to pass the Fourth Alteration Act alluded to earlier in this correspondence into law.

“May we add that adopting such attitude will not only commendably be in line with the decisions of the Supreme Court on the absolute need to avoid self-help by all persons and authorities in resolving disputes, but will also yield to the rule of law as espoused in the decisions of the courts. One of such decisions is the case of Ojukwu vs Military Governor of Lagos State (1986) 1 NWLR (pt. 18) 621.

“To proceed with the process of passage into law of the Fourth Alteration Act 2015 despite the pendency of this suit under reference will be an affront to the rule of law and democracy. We are convinced, particularly from the commendable record so far of the current National Assembly that it will not do that.”

The federal government had on Wednesday dragged the National Assembly before the Supreme Court over its contention that the National Assembly flouted constitutional stipulations on some of its recent amendments and as well usurped executive powers.

The federal government, among others, accused the National Assembly of failing to observe a provision which requires the support of the four-fifths majority of members of the National Assembly before it can amend some sections of the constitution such as Section 9.

Following the president’s refusal to assent to the amendment bill, the Senate demanded the return of the original copy of the bill it sent to it earlier in the year. But instead of responding to Senate’s demand, the federal government proceeded to the apex court, asking it to determine if the National Assembly had satisfied constitutional requirements for the amendments.

In the suit, the federal government is asking the court to nullify the amendments proposed by the National Assembly on the grounds among others that the amendments violated the constitution being proposed to be amended.

In the said suit, the plaintiff claims for determination of two questions on the constitutionality or otherwise of the procedure adopted by the National Assembly in passing the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 particularly as it relates to Sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 purporting to alter Sections 8, 9, 34, 35, 39, 40, 42, 45, 58, 84, 150, 174 and 211 of the extant  1999 Constitution of Nigeria and for an order nullifying and setting aside those Sections of the Fourth Alteration Act.

The federal government also asked the Senate President to draw the attention of the House of Representatives to the pending suit.

Meanwhile, some senators yesterday applauded federal government’s decision to drag the National Assembly to court over its latest amendments to the constitution, describing it as the right step in the right direction.

In reaction to the move to go to court, some of the senators described the move as a welcome development, saying it would help to ascertain which group is right or wrong.

Speaking on the development, Chairman, Senate Committee on Judiciary, Senator Umaru Dahiru, hailed the federal government’s move, arguing that the decision would further go a long way to enhance democratisation of the system.

“There is nothing wrong with that. The implication is that if the executive feels that something is wrong, then they can go to court. The constitution is very clear - if you do not agree with anything, either the National Assembly or the federal government can take the other to court. And in case the Supreme Court says otherwise, we have to comply.

“It is checks and balances. That is the beauty of this democracy. If you go beyond your limit and if you think you are right, we go for interpretation. If the President feels the procedure is technically wrong, then he can seek interpretation which he wants now.

“If the court says they are right, then there is nothing we can do. Otherwise, we come for amendments. We are ready to take any correction. It does not matter what I believe or do not believe. It is for the court to determine,” he said.

Also speaking, a lawyer of about 30 years’ reputation, Senator Ita Enang, said the federal government’s decision was the proper step to take in this circumstance.

“I have always urged that in the relationship between the executive and the legislature, whenever there is a dispute, the executive or the legislature should be willing to approach the courts for interpretation as to who is right. This will enable the legislature to be guided if they are wrong or the executive to be guided if they are wrong. This was why we passed the Supreme Court Additional Jurisdiction Act in 2002.

“Although I have not seen the processes, I do not know whether they are coming under the Supreme Court Additional Jurisdiction Act which authorises that if there is a dispute between the executive and the legislature at the national level, the original jusrisdiction of the Supreme Court should be invoked.

“Therefore, I am happy that the president, having doubts about the powers of the legislature to do what it has done, has not resorted to press attack on the legislature. He has sent a letter to the legislature and at the same time has approached the court to declare whether or not the legislature is right in the procedure adopted and in the subject matter,” he said

On it part, the House of Representatives insisted that it did not flout any constitutional requirement in the process of amending the constitution, which President Jonathan rejected via a letter to the parliament dated April 13, and further sued the House.

The Deputy Minority Whip of the House, Hon. Samson Osagie (APC, Edo) yesterday gave  explanations on aspects of the constitution review contended by the president.

On Clause 4 (alteration of Section 9), Osagie said: “the National Assembly met the requirement of the said Section 9 (3) for a four-fifths votes of members of each House.

“A reference to the Votes and Proceedings of the House of Representatives for Wednesday, July 24, 2013, No. 15 at page 117 shows that the alteration of Section 9, attendance of members as registered was 338. Ayes votes were 317, Nays votes were six, Abstain 15, totalling 338. The Senate also voted accordingly.”

Further on the mandate given to the president to assent to bills sent to him within 30 days, the lower chamber said it was not strange.

“The only new thing is that the National Assembly introduced an amendment to the effect that if the president fails to assent to the bill or indicate his witholding of assent, the bill shall become law after the 30 days interval.

Another clause which the president contested is Clause 12, where new sections 45a  and 45b  were inserted, seeking to guarantee right to free education.
On this portion, the House explained that it was silent on some salient points because the constitution is self explanatory on “institutions and organs against whom constitutionally guaranteed rights are usually sought to be obtained from are known by the citizenry.

“Besides in the event of a dispute on this, the interpretative role of the courts come into play.”

On the amendment seeking to reduce the period when expenditure can be authorised in default of appropriation from six months to three months, Osagie, who also co-chairman of the ad-hoc committee on the constitution review, said:
“The constitution envisages that the president shall communicate his witholding of assent before the National Assembly could invoke the powers to override the veto, or sustain it.

“But where this is not communicated, the National Assembly becomes harmstrung. Thirty days is certainly long enough for the president to do his solemn constitutional duty,” the House observed.

Turning to the reservation of the president on the separation of the Office of the Attorney-General of the Federation from that of the Minister of Justice, the lower chamber argued that the separation “is to guarantee the impartiality of the  Attorney-General over public prosecutions while the minister of justice serves as chief legal adviser to government.”