Senate may gazette Constitution Amendment Bill today
•Alleges President being blackmailed to frustrate law
•SANs differ over planned documentation
There are indications that the Senate has concluded plans to gazette the Fourth Alteration Bill 2015(Constitution Amendment) today against last Thursday’s Supreme Court ruling that all actions on the revision be suspended by the National Assembly and the Presidency.
Although the office of the Deputy Senate President and Chairman, Joint Committee on Constitution Amendment has declined comment on the issue on the ground that the matter is before the court, a source close to the Senate leadership who pleaded anonymity however told The Guardian that the Bill has been sent out for gazetting before the court ruling.
Even with the Supreme Court order that the issue be suspended until its rulings on June 18, when the National Assembly would be present in court, the source said there would be no going back on the gazetting.
In fact, he emphasized that the document is expected to be in the public domain today. Meanwhile, some Senior Advocates of Nigeria(SANs) have disagreed over the Senate’s planned move to gazette the Constitution Amendment Bill despite the apex court’s ruling.
The source also alleged that the Fourth Alteration Bill 2015 has been signed into law by President Goodluck Jonathan long ago, but it appeared some people somewhere have faulted making the Bill public. “
The truth is that the Bill has been signed into law. The President will have no reason to withhold assent to the Bill after all the human and material resources invested on the process.
“But it appeared some people are bent on blackmailing the President and have threatened to reveal certain things or perhaps, probe his administration over certain matters.
Consequently, he wrote to the National Assembly claiming to withhold assent”, the source added. Recall that the Supreme Court last Thursday ruled on a case brought before it by the Minister of Justice and Attorney General of the Federation, Muhammed Bello Adoke, seeking to restraint the National Assembly from planned veto of the Constitution.
Both Senate and perhaps, the entire National Assembly had enjoyed a relatively cordial working relationship with President Jonathan until April 13, when both arms respectively received a letter from President Jonathan, stating that he would not assent to the Fourth Alteration Bill based on certain shortcomings.
In a swift reaction, the Senate moved a motion of urgent national importance to enable it suspend every other matter on the Order Paper and commence process to veto the President’s assent.
Senate President, David Mark, however urged his colleagues to be patient pending when copies of the President’s letter were circulated to all senators.
According to him, the issues raised were so weighty that it required the contributions of every senator before a decision is taken on the issue.
But Senator Sadiq Yar’Adua, (Katsina Central) prayed the Senate to suspend its relevant rules to allow the Upper Chamber commence immediate debate on the President’s veto. He said : “I think it is important for us to discuss that letter and see whether there is need for us to consider the letter or not.
I think he has raised very serious fundamental issues, especially in terms of our conscience as lawmakers and his own position as the chief executive officer of the Federal Republic of Nigeria.
That is why I am raising this Point of Order”. Ruling on the Point of Order, Mark said: “Obviously, this letter is not like any other normal letter.
We cannot discuss the letter unless you have a copy of it. So, the first reaction is for me to make copies available to everybody and then, you go and study it. “And if you notice, there is an announcement also by the Constitution Review Committee that members are going to meet. So, it will straight away go to them. I agree with you that weighty issues have been raised.
It is a peculiar case and as such, everybody will be involved”. Among the issues raised by the President was Section 4 – Alteration of Section 9.
President Jonathan stated that Section 4 of the Fourth Alteration Bill 2015, which seeks to alter Section 9 of the 1999 Constitution by inserting new subsection 3A, which dispenses with the assent of the President in the process of constitutional amendment.
The President stated in his letter thus: “However, this alteration can only be valid if the proposal was supported by the votes of not less than four/fifth majority of all the members of each House of the National Assembly and approved by a resolution of the House of Assembly of not less than two/thirds of all the States as provided by Section 9 (3) of the 1999 Constitution.
“This is a fundamental requirement of the Constitution and in the absence of credible evidence that this requirement was met in the Votes of Proceedings of the National Assembly, it will be unconstitutional for me to assent to this Bill.
“In light of the above, I am of the respectful view that I should withhold assent until it can be shown that the National Assembly has complied with the threshold specified in Section 9 (3) of the 1999 Constitution.
“However, assuming without conceding that the necessary thresholds were met by the National Assembly, there are a number of provisions in the Act that altogether constitute flagrant violation of the doctrine of separation of powers enshrined in the 1999 Constitution and an unjustified whittling down of the executive powers of the federation vested in the President by virtue of Section 5(1) of the 1999 Constitution”.
The President also described the new Section 45A-45B, which guarantees the right to free basic education as too open ended. He noted that it should have been restricted to government schools. “This is because a right, unless qualified or restricted, must be observed by all.
It follows therefore that the right to free basic education under this provision, if taken to its logical conclusion, will invariably apply to private schools, which could not have been the intendment of the legislature.
“This same argument applies to Section 45B, which guarantees unqualified right to free primary and maternal care services. “The implication of this is that private institutions will be obliged under the Constitution to offer free medical services since it is a right and this is not only impracticable, but also could not have been the intention of the law giver.
“ There is therefore the need for these provisions to be redrafted to restrict the enjoyment of these rights and place the obligation to provide the conditions necessary for the enjoyment of the rights on the government,” Jonathan stated.
Under the amended Section 58, which empowers the Senate to veto a bill should the President withhold assent after 30 days from the day the bill is transmitted to him, Jonathan said the power vested in the President to withhold his assent to Bills passed by the National Assembly is part of the checks and balances contained in the Constitution.
According to him, withholding of assent constitutes a check on the exercise of legislative powers in a constitutional democracy especially as the Executive has the responsibility of enforcing laws passed by the National Assembly.
“However, some of the Acts of the National Assembly emanate from Private Members’ Bills, which in many cases, the Executive may not have had sufficient input.
“ It is also instructive to note that in some cases, more than one Bill is transmitted to the President for assent and the President requires the advice of relevant agencies of government before he can assent to the Bill.
“Against this background, the 30 days allowed for assent of the President may not be adequate in some cases for the President to make a decision as to whether or not to assent”.
He added that the provision failed to recognize certain variables inherent in the legislative process and the wisdom in requiring two-third majority to override the President’s veto.
“In the light of the above, I am of the view that the failure to signify assent by the President within the prescribed period of 30 days should rather be treated as dissent”.
Other sections faulted by President Jonathan include Sections 82, which seeks to limit the period when expenditure can be authorized in default of appropriation from the six months provided in the Constitution to three months; 84A and 84F which deals with the appointment of Accountant General, among others Sensing that the President was up to some games, the Senate on April 16 resolved to write him demanding for the original bill sent to him, which contains the signature page and the body of the bill.
The signature page has signature provisions for the Clerk of the National Assembly and the President. According to The Guardian source, the tenacious demand for the original copy, which President Jonathan has also refused to release, hinged on the knowledge of the Senate that the President had already given his assent to the bill but has perhaps been blackmailed into claiming he would not sign.
The senate enjoys the support of prominent lawyer, Chief Adegboyega Solomon Awomolo (SAN) on the fact that the apex court order does not have a retroactive power and therefore cannot affect a step already taken earlier by the lawmakers.
In Awomolo’s words: “I have not seen the order of the Supreme court but the order made, if directed to an act which had been completed, whatever had been done will not constitute a contempt of the court.
The order cannot take retrospective effect . The Supreme Court as an arm of government is not to frustrate the other arms of Government . The Supreme Court does nothing in vain and the case terminates by the June date.”
But Awomolo’s view does not enjoy the support of three of his colleagues in the inner bar namely Dr. Alex Aigbe Izinyon (SAN), Sebastian Hon (SAN) and Rotimi Oguneso (SAN). Reacting to the purported claims that the amendments had been released for gazetting, Izinyon said it was ridiculous and childish for the Senate to claim that the it had been sent for gazetting.
His words: “It is infantile to make such claims. Whether it was gazetted before the order of the Supreme Court, two immutable principles remain intact.
Firstly, there was a pending suit rightly or wrongly it was lis pendis no party can overreach the court even if no restraining order was made. Secondly, there was a pending Motion on Notice duly served. Why did the National Assembly not send legal representation.
Not even during the military can this happen as the Supreme Court deprecated the military in Ojukwu vs Military Governor of Lagos State,” Izinyon said the lawmakers ought to be cited for contempt, arguing that regarding a matter pending in court they cannot plead parliamentary immunity.
Sebastian Hon stated thus: This is contempt of the highest order, if that is true! By section 287 of the Constitution, all persons and authorities in Nigeria are mandatorily required to comply with decisions of the Supreme Court.
By taking this step, the Senate has pitched itself against the Nigerian people because they have impinged on the rule of law.
This should not be coming from the Legislative Arm of Government. I condemn this without looking back. Even if a new Senate is constituted, the apex Court will definitely annul the gazette and order a return to status quo.”
In the submission of Rotimi Oguneso (SAN), “their action is patently unlawful and illegal. Once they are aware of a suit, the decent thing for us to do, especially the Senate is to respect that fact and stay all actions regarding the subject matter of that suit. How can they claim to have sent the document for gazetting?
How many days has the dispute lingered to talk of the gazette? You cannot willfully foist a fait accompli on the court, not to talk of the highest court of our land the Supreme Court. Such action will be struck down.”
On whether the lawmakers should be punished, Oguneso (SAN) said there was no greater punishment that to strike down their act of illegality.