Falana: President Can’t Withhold Assent to Constitution Alteration Bills

*No, president must sign, Justice Okeke ruled in 2010

Gboyega Akinsanmi

A fortnight after President Muhammadu Buhari withheld assent to 16 of the 35 Constitution Alteration Bills, a human rights lawyer, Mr. Femi Falana, SAN, yesterday, said the decision by the president to withhold assent on some of the alteration bills to the constitution contravened Section 9 of the 1999 Constitution as amended.

 But Justice Okechukwu Okeke of the Federal High Court, Lagos, had ruled in November 2010 that the president must assent to bills before they become law.
 In other words, what this means in essence is that, if the bills compulsorily required the assent of the president, then, the president also withholds the right to decline his assent if he so wishes.

 Yet, Falana, a former President of West African Bar Association, further argued that the 16 constitution amendment bills, which the president refused to sign on March 17, would automatically become effective because their enactment had duly satisfied the requirements of the Constitution.  
He made these claims in a response to a THISDAY inquiry, pointed out that even though his assent “is required, there is no provision for the president to withhold assent to the constitution alteration bills,” adding, however, that both the state and federal legislatures were authorised by Section 9 of the constitution to make laws.

 Buhari had signed 16 Constitution Alteration Bills, 2023 into law out of the amendments bills to the 1999 Constitution presented to him by the National Assembly while he withheld assent to 16 other bills
The president’s assent to 16 constitution alteration bills had authorised the states to generate, transmit and distribute electricity. It equally empowered them to undertake railway projects with any interference from the federal government, among others.

 In his statement, Falana claimed that Buhari lacked the power “to reject the constitutional amendment bills passed by the required majority in the National Assembly and 27 out of the 36 houses of Assembly of the states.”
 The senior lawyer explained that the president’s power to withhold his assent “is limited to bills passed by the National Assembly pursuant to section 58 of the Constitution.”

 Section 58 (1-2) of the 1999 Constitution states: “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.”

Under Section 58(5), specifically, the Constitution states: “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.”
Falana argued that Section 58 of the 1999 Constitution “does not include the power of the president to withhold assent after the National Assembly and 36 Houses of Assembly have duly altered some sections of the Constitution.”

Even though a court of competent jurisdiction had declared that assent of the president “is required after the constitutional amendment,” Falana argued that the president lacked the power to withhold assent once constitutional requirements were met, arguing that it was Section 9 of the 1999 Constitution that provided for the process of amending the constitution contrary to Section 58 that the president relied on to withhold assent to the 19 amendment bills.

Section 9(1-3) of the 1999 Constitution states: “The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.
“An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

“An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States.”
Consistent with these provisions, the senior lawyer explained how the National Assembly voted and passed 44 constitutional amendment bills and forwarded them to the houses of Assembly of the 36 states.
Out of the 44 bills, Falana claimed that 27 houses of assembly “passed 35 amendment bills to the 1999 Constitution. The number of state houses of assembly that passed the 35 bills were more than the 24 states required by section 9 of the 1999 Constitution.
“Thereafter, the National Assembly sent the 35 bills to the President for his assent. The President was reported to have assented to only 16 out of the 35 bills. In this respect, the President lacks the power to reject the constitutional amendment bills passed by the required majority in the National Assembly and 27 out of the 36 houses of Assembly of the states.”
Okeke, in his ruling, contended that, the amendment to the 1999 Constitution carried out by the then National Assembly could not become operational without the assent of President Goodluck Jonathan.
Okeke, also ruled that the purported amendment to the Constitution remained inchoate until it was presented to the president for his assent and approval, adding that the the 2010 Constitution Amendment Act was null and void.
Justice Okeke came to the conclusion while delivering judgment in a suit filed by the former President of the Nigerian Bar Association (NBA), Olisa Agbakoba, challenging the refusal of the federal lawmakers to forward the amended Constitution to the President for his assent.
Agbakoba had sued the National Assembly and the Attorney General and Minister of justice, Mohammed Bello Adoke, challenging the legality of the claim by the lawmakers that President Jonathan’s assent was not required before the amendment to the Constitution can become operational.
In the same vein, Second Republic National Secretary of the National Party of Nigeria (NPN), Chief Richard Akinjide told Saturday Vanguard in his reaction to the development that the amended constitution required the assent of the President because that is the law.
“The National Assembly cannot  bypass the President . It is  unlawful. If the President does not assent those amendments, they will not be  valid.What they have done is an amendment to some sections of the constitution. It is not a wholesale review of the entire constitution.
“The National Assembly described it as an Act. You cannot pass an Act without the assent of the President. That is clear when you look at the interpretation of an Act and the provision of our constitution.”
In his opinion, too, Felix Ayanruoh Esq, said “The arguments that Presidential assent is not required in the amendment of the Nigerian Constitution is erroneous, specious, and without sound basis in law. There is no case law or statutory provision that backs these assertions. We don’t need the United States law or other country’s law as a precedent when our own laws are clear on the issue.
“The Nigerian Constitution is very clear on this issue and any statutory or case law that is inconsistent to the provision of the Constitution is to the extent of its inconsistencies void.It should be noted that unlike the Nigeria Constitution the amendment of the US constitution can emanate from either Congress or the States to call for a new Constitutional Convention to make the amendments.
“Also the states have two ways of ratifying an amendment. Either ¾ of the state legislature may approve an amendment; or each state can have a convention to approve the amendment. 27 amendments have been ratified and become part of the United States Constitution. All but one of the proposals became an amendment by passing State Legislature. The amendment provisions of both constitutions are different and should not be interpreted as same.
“Suffice to state that the intentions of the drafters of the Nigerian constitution are not in doubt, when they refer to the proposed amendment as an Act. An Act of the National Assembly can only become law after presidential assent as clearly stated in our laws. The language of Section 9(2) does not in any way obviate the President from the amendment process.”