On Saturday, eminent Nigerian attorneys urged the National Assembly to overturn President Muhammadu Buhari’s recent decision to withhold assent to 16 of the Constitution Alteration Bills, 2023, after the 30-day window for his signature expired.
Mr Femi Falana (SAN), a human rights attorney and former president of the West African Bar Association, has decided to seek judicial interpretation of Section 9 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
In separate responses to THISDAY’s inquiries on Saturday, the ex-president of the Nigerian Bar Association, Chief Joseph Daudu (SAN), a human rights lawyer, Dr. Mike Ozekhome (SAN), the former Lagos State Attorney-General and Commissioner of Justice, Mr. Adeniji Kazeem (SAN), and an experienced lawyer, Mr. Kunle Adegoke (SAN) urged the federal lawmakers to overturn the president’s decision.
Buhari’s decision to withhold assent to 16 of the 32 amendment bills to the 1999 Constitution that the National Assembly recently presented to him for assent sparked the debate.
President Buhari signed into law sixteen additional constitutional amendment measures. Under the new regime, one of the laws signed by Buhari grants state governments the authority to generate, transmit, and distribute electricity within their respective territories.
Another law enables the federating entities across the nation to undertake railway projects without undue federal interference.
While the senior lawyers were largely divided on whether or not the president could withhold assent to the Constitution Alteration Bills, 2023, they all concurred that the legislature has the constitutional authority to reconsider the amendment bills and override Buhari’s veto.
Falana countered Buhari’s decision to withhold his signature on the 16 bills to amend the constitution by citing two sections of the 1999 Constitution that, according to him, allow for both the amendment of the constitution and the amendment of other regular bills from the National Assembly.
He began by referencing Section 9 of the 1999 Constitution, which “surely empowers the National Assembly and 36 State Houses of Assembly to amend any portion of the Constitution.” This section does not allow the president to withhold assent, according to Falana.
In addition, he cited Section 58 of the Constitution of 1999, which, according to him, specifies the procedure and requirements for amending or enacting other regular legislation from the National Assembly.
Falana argued that, under Section 58, the president has the discretion “to assent or withhold assent to newly passed or amended legislation.” However, amendments to the constitution are not like other legislation.
“Section 9 makes clear the authority of the National Assembly and the 36 State Chambers of Assembly to amend any portion of the 1999 Constitution. We are currently contemplating the interpretation of Sections 9 and 58 of the Constitution of 1999 with regard to the president’s powers.”
Ozekhome partially agreed with Falana’s claim that the president lacked the authority to veto 16 constitution amendment measures duly approved by three-quarters of the National Assembly and two-thirds of the 36 State Houses.
Therefore, he faulted Buhari’s decision on three grounds, which he argued the president should have taken into account before refusing to sign the legislation amending the constitution.
First, Ozekhome noted that the requirements for amending the Constitution, as outlined in Section 9 of the 1999 Constitution, are “extremely cumbersome and convoluted.” These requirements differ from those for amending or enacting other regular legislation from the National Assembly.
In this instance, 27 state legislatures passed 32 Constitution Amendment Acts, 2023. The duration of the process exceeded three years. I find it peculiar to believe the president will veto the measures. I believe Mr. President should not oppose the resolution passed by the federal and state legislatures. “He should be advised to sign these bills promptly,” explained Ozekhome.
He also explained the president’s powers under Section 58, which, according to him, require him to grant or deny assent to any executive, individual, or legislative measure.
However, Ozekhome noted that the president’s veto power over any measure, even in the case of a constitutional amendment, “is not absolute and unrestricted.”
He stated, “If the president refuses to sign, the measures will be returned to the National Assembly. After thirty days, the National Assembly can reconsider the legislation and then override the president’s veto.
“Whether you label it a bill to amend the Constitution or a regular bill, a bill is a bill, regardless of its purpose.” On this basis, the sixteen constitutional amendment proposals should be returned to the National Assembly. After thirty days, the National Assembly should veto the bills, at which point they would promptly become law.”
In his argument, Adegoke followed in the footsteps of Falana and Ozekhome, asserting that the president “cannot override the resolution of the National Assembly and the 36 State Houses of Assembly once the provisions of the 1999 Constitution have been properly compiled.”
As was the case in this instance, Adegoke stated, “The National Assembly can reconsider and adopt these particular bills.” No provision in Section 9 of the Constitution requires the President to sign constitutional amendments. The implication is that when the President vetoes a measure, the National Assembly can now pass the bill into law, and it must take effect within the time period specified by the Constitution.”
In his own case, Daudu disagreed with Falana on the basis that Section 9, which outlined the procedure for amendment, did not expressly state that the assignment did not require presidential approval.
Thus, he remarked, “If that had been the intent of the Constitution’s framers, they would have expressly provided for it.”
He also noted that Section 58 “is the provision that specifies the procedures by which all bills become laws.” In particular, sections 4 and 5 stipulate that all bills must transit through the President for his assent or rejection of assent.
“Except and unless the instrument being sent to the President is not a Bill, but rather a resolution or other legislative document, the same will not require Presidential assent. “In this case, all constitutional amendment proposals are drafted as bills. Therefore, the President’s approval is required for it to become law,” Daudu stated.
Kazeem, like Daudu, cautioned against reading Section 9 of the 1999 Constitution in isolation from Section 58, which, according to him, stated that all legislation, whether constitutional or ordinary, required the president’s signature to become law.
Therefore, he argued that it remained the sole responsibility of the National Assembly to make laws for the benefit of the entire nation, despite the fact that the Constitution “has provided for checks and balances by requiring the president’s approval of bills passed by the National Assembly.”
“The power of the executive to veto a bill, which is vested in the President, cannot be diminished by legislative overzealousness. Kazeem added, “In interpreting the Constitution, the Supreme Court has always recommended in a multitude of cases that all sections are to be construed together, so it is not permissible to interpret sections separately.”
He noted, however, that the power of assent “is not absolute, as the President must act within the confines of the law and not arbitrarily withhold assent.”
“Therefore, the Constitution provides a means to waive this requirement in the event that the president withholds assent contrary to the majority interest of society.”
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