Senior Lawyers Ask N’Assembly to Override Buhari’s Refusal of Assent to Constitution Alteration Bills

*Falana considers seeking judicial interpretation of Section 9

Gboyega Akinsanmi

Some senior lawyers yesterday called on the National Assembly to override the recent decision of President Muhammadu Buhari to withhold assent to 16 of the Constitution Alteration Bills, 2023 after exhausting 30 days within which he was expected to sign the bills.

Enraged by Buhari’s decision, human rights lawyer and former President of West African Bar Association, Mr. Femi Falana (SAN) has resolved to seek judicial interpretation of Section 9 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

In separate responses to THISDAY’s inquiries yesterday, ex-President of Nigerian Bar Association, Chief Joseph Daudu (SAN); a human rights lawyer, Dr. Mike Ozekhome (SAN); former Lagos State Attorney-General and Commissioner for Justice, Mr. Adeniji Kazeem (SAN), and a seasoned lawyer, Mr. Kunle Adegoke (SAN) urged the federal lawmakers to override the president’s decision.  

The debate arose from Buhari’s decision to withhold assent to 16 of the 32 amendment bills to the 1999 Constitution, which the National Assembly recently presented to him for assent.

President Buhari signed 16 other constitutional amendment bills into law. One of the  laws Buhari signed empowers state governments to generate, transmit and distribute electricity within their territories under the new regime.
Another law also empowers the federating units nationwide to undertake railway projects without undue interference from the federal government.
While the senior lawyers largely disagreed over whether or not the president could withhold assent to the Constitution Alteration Bills, 2023, they agreed that the lawmakers are constitutionally empowered to reconsider the amendment bills and override Buhari’s exercise of presidential veto.

Faulting Buhari’s resolve to withhold assent to the 16 constitution alteration bills, Falana explained that there are two sections of the 1999 Constitution, which according to him, provided for the alteration of the constitution and the amendment of other regular bills from the National Assembly.
He first cited Section 9 of the 1999 Constitution, which “absolutely empowers the National Assembly and 36 State Houses of Assembly to alter any part of the constitution. This section does not make provision for the president to withhold assent,” Falana said.

He also cited Section 58 of the 1999 Constitution, which according to him, literally provides for the process and requirements for amending or enacting other regular bills originating from the National Assembly.
Under Section 58, Falana argued that the president could exercise discretion “to assent or withhold assent to newly passed bills or amended bills. But constitution alteration is not like other regular bills.

“Section 9 is unambiguous on the power of the National Assembly and 36 State Houses of Assembly to alter any part of the 1999 Constitution. We are now considering interpretation of Sections 9 and 58 of the 1999 Constitution with respect to the power of the president.”
Ozekhome partly aligned with Falana’s argument that the president lacked the power to reject 16 constitution alteration bills duly passed by the three quarters of the National Assembly and two thirds of the 36 State Houses of Assembly.

He therefore faulted Buhari’s decision on three grounds, which he argued, the president should have duly considered before withholding assent to the constitution alteration bills.

Ozekhome, first, pointed out the requirements for the alteration of the Constitution enshrined in Section 9 of the 1999 Constitution “is very laborious and tortuous. “The requirements are different from the conditions for amending or enacting other regular bills from the National Assembly.

“In this case, 27 State Houses of Assembly passed 32 Constitution Alteration Bills, 2023. The process was on for over three years. To think the president will override the bills is curious to me. I do not think Mr. President should reject the resolution of the federal and state legislature. He should be advised to assent to these bills immediately,” Ozekhome explained.

He also explained the powers of the president under Section 58, which according to him, requires him to assent or withhold assent to any bill whether executive, individual or legislative.
Ozekhome, however, observed that the power of the president to exercise veto with respect to any bill, even in the case of constitutional amendment, “is not absolute and unlimited.”

He said: “If the president refuses to assent, then the bills come back to the National Assembly. After 30 days, the National Assembly can reconsider the bills and then overrides the veto of the president.
“Whether you call it a bill to amend the Constitution or any other regular bill, a bill is a bill whatever may be the purpose behind it. On this ground, the 16 constitution alteration bills should be taken back to the National Assembly. After 30 days, the National Assembly should veto the bills, and then they become laws immediately.”

In his argument, Adegoke toed the same path with Falana and Ozekhome, noting that the president “cannot override the resolution of the National Assembly and 36 State Houses of Assembly once the provisions of the 1999 Constitution are duly compiled.”

As it happened in this current situation, Adegoke said: “The National Assembly can reconsider the particular bills and pass them into law. There is no provision in Section 9 of the Constitution that mandates the President to assent to the constitution bills.
“The implication is that where there is exercise of veto by the President, the National Assembly can now pass the bills into laws and they have to become effective after a period of time required by the Constitution.”

In his own case, Daudu largely disagreed with Falana on the ground that Section 9, which prescribed the alteration procedure, did not expressly provide that the assignment excluded presidential assent.
He, thus, noted: “If that had been the intention of the framers of the Constitution, they would have expressly provided for it.”
He also pointed out that Section 58 “is the provision that states the procedures whereby all Bills transmute into legislation. Specifically, sub-sections 4 and 5 prescribe that all bills without exception must pass through the President for his assent or refusal to assent.

“Except and unless the instrument being sent to the President is not a Bill but is a resolution or other legislative document that same will not require Presidential assent.

“In this instance, all constitutional alteration proposals are couched in the form of bills. That being the case, it must be assented to by the President for it to become law,” Daudu said.
Like Daudu, Kazeem warned against reading Section 9 of the 1999 Constitution in isolation of Section 58, which according to him, stated that all bills, whether constitutional or regular, required the assent of the president to become effective.

He, therefore, argued that it remained within the exclusive competence of the National Assembly to make laws for the good of the entire country, though observed that the Constitution “has provided for checks and balances by making it a condition precedent for the president to assent to bills validly passed by the National Assembly.

“The power of the executive, which is vested in the President to veto a Bill, cannot be whittled down by any legislative overzealousness. In interpreting the Constitution, the Supreme Court has always recommended in a plethora of cases that all the sections are to be construed together and hence it is impermissible to construe sections in isolation,” Kazeem further observed.

He, however, noted that the power of assent “is not absolute as the President must act within the ambits of the law and not to unnecessarily withhold assent whimsically.
“The Constitution therefore provides for a means to dispense with this condition in the event that the president withholds assent against the majority interest of the society.”