A constitutional lacuna has arisen over the president’s decision to return the constitution amendment proposals to the National Assembly, as the constitution made no provision on the steps available to the legislature should the president refuse to assent to the amendment, Thisday reports.
A source in the National Assembly informed THISDAY on Wednesday that the veto had created a quagmire, given the fact that the constitution does not make any provision for the next steps to take if the president refuses to assent to the constitutional amendment because the framers of the constitution did not envisage this.
“Now the president has created a dilemma because there is no provision in the constitution on how to override the president’s veto on a constitutional amendment,” the source said.
He however added that the lawmakers might be left with no option than to override the president’s veto, saying it would be unwise for them to allow the president to throw the amendment back at them without an effort to salvage the proposals.
He further said the Senate Committee on the Review of the Constitution, which had met on the matter yesterday, would address the press on it very soon, adding that the public would know National Assembly’s decision on the development next week.
A demand by Senator Sadiq Yar’Adua (Katsina Central) for a debate on the president’s letter after it was read on the floor yesterday was overruled by Senate President David Mark, saying it would be untimely for the Senate to debate the letter when copies had not been circulated to senators.
Mark also said it would be wise to wait for the outcome of the review committee meeting which he said had been scheduled to hold yesterday.
However, THISDAY learnt that the president had previously signed the bill but subsequently changed his mind.
The source, who preferred not to be named, said that members were privy to information that the president had already signed the amendment of the constitution before he was prevailed upon by the Attorney General of the Federation (AGF) and Justice Minister, Mr. Mohammed Adoke, to withdraw his assent.
The AGF was said to have enumerated the consequences of assenting to the proposals by the president.
According to the source, those who prevailed on the president to withdraw his assent might not have necessarily done so in the interest of the president or the nation but rather in the interest of those who stand to benefit from the veto.
“The president had signed it before the AGF prevailed on him to reject it. Yes, we were aware that he had signed it. It was self-preservation. Those who prevailed on him, pretended to be working for him, but were in actual fact working for somebody else,” he said.
The president on Tuesday returned the amendment proposals sent to him by the National Assembly last January, saying they did not adhere to strict constitutional requirements for amendment as provided in Section 9(3) of the 1999 Constitution.
In a seven-page letter addressed to Mark and the Speaker of the House of Representative, Hon Aminu Tambuwal, he cited deliberate attempts by federal lawmakers to whittle down presidential powers.
The president also highlighted the flaws he discovered in the amendments to include non-compliance with Section 9(3) of the 1999 Constitution on amendments; mere use of voice votes to alter the constitution without being supported by the votes of not less than four-fifths majority members of the National Assembly as well as two-thirds of all the 36 state Houses of Assembly; imposition of the right to free basic education and primary and maternal care services on private institutions; as well as perceived violation of the doctrine of separation of powers.
Other flaws, according to the president, were the decision to whittle down executive powers as contained in Section 5(1) of the 1999 Constitution; 30 days limitation provided for president’s assent; reduction of the time frame of expenditure in default of appropriation from six months to three months; and the creation of the Office of the Accountant-General of the Federal Government with different functions from those of the Accountant-General of the Federation.
Others were the decision to transfer the president’s powers to appoint the Accountant-General of the Federation as well as the Attorney-General of the Federation to the National Economic Council and National Judicial Council, respectively; and the decision to whittle down the discretionary powers of the Attorney-General of the Federation as its separation from Minister of Justice.
Jonathan described the amendment on the separation of the Office of Attorney-General of the Federation from the Minister of Justice as ambiguous.
He said: “These alterations encapsulate a wide-ranging provision that seek to separate the Office of Attorney-General of the Federation from the Minister of Justice and the Attorney-General from the Commissioner for Justice in the respective states of the federation. They also provide for the independence of the Office of Attorney-General by guaranteeing tenure and funding.
“However, as desirable as the separation is, there are some provisions that validate the doctrine of separation of powers and also negate the age-long independence and absolute discretion that the office has enjoyed for centuries since its creation in the middles ages.
“The potential challenging provisions are discussed below: The first noticeable setback is that the Fourth Alteration Act 2015 is silent on who is the Chief Law Officer of the Federation/State. This is a serious lacuna, which may create implementation challenges.
“It will be recalled that the Attorney-General of the Federation (AGF) and Minister of Justice and the Attorney-General and Commissioners for Justice in the respective states of the federation are under Sections 150 and 195 of the 1999 Constitution, the Chief Law Officers respectively.
“Apparently, it is the fact that the AGF is the Chief Law Officer and has the power to guide the MDAs on legal issues by way of legal advice and represent the government on other legal matters including civil litigations, contract, treaty obligations, legal drafting, etc., is derived.
“With this amendment, which limits the power of the AGF to criminal prosecution and is silent on who is the Chief Law Officer, it appears to erode the constitutional and legal basis for the current structure and functions of the Ministry of Justice and the Law Officers employed therein, in the absence of a statute that provides for the exercise of these powers and functions.
“Consequently, if it is the intendment of the National Assembly to make the Minister of Justice the Chief Law Officer, it should be expressly stated. This will enable these functions to continue to be traditionally performed by the Ministry under the supervision of the Minister of Justice while the Office of the AGF, which is to be independent and separated from the Ministry, concentrate on prosecutions.”
In clear terms, the president remarked: “In view of the foregoing and absence of credible evidence that the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 satisfied the strict requirements of Section 9(3) of the 1999 Constitution, it will be unconstitutional for me to assent to it.
“I therefore withhold my assent and accordingly remit Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 to the Senate/House of Representatives of the Federal Republic of Nigeria.”