By Awa Kalu

If you asked me, I would be willing to state without equivocation that it is quite possible to alter or amend
the extant Constitution without eliciting any controversy. Unfortunately, after undertaking what had proved intractable in the past, the National Assembly, in my humble view, has managed to stir the hornets’ nest once again.

As at the date of writing this column, it seems certain that the Nigerian Bar Association (NBA) has empowered a crack team of lawyers to test the steps taken by the National Assembly to alter the provisions of the 1999 Constitution. Similarly, two other private practitioners have challenged the failure of the National Assembly to seek the assent of the President for the purpose of giving legal teeth to the alterations made to certain sections of the Constitution.

Let me confess that I have not seen any of the originating processes filed by any of the suitors presently in Court. Accordingly, I shall restrain the comments in this column to an examination of two principal sections of the Constitution which have a bearing on the process of altering any of the sections of the Constitution.

But before then, it is necessary to refer to the comments of late Mr. Justice Udo Udoma, of blessed memory, in Nafiu Rabiu v. The State [1981] 2 NCLR 293 concerning the function of a constitution.

He noted quite instructively ‘that the functions of the constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society and therefore, mere technical rules of interpretations of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution.’ His Lordship also noted that ‘the Constitution is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn’.

I have taken the liberty of adverting to the words of late Justice Udo Udoma in the hope that one or two members of the National Assembly may stumble on this humble article and perchance find time to dilate on the deep and timeless advice embedded in his dictum above. Should such luck be available, then it is to the effect that the Constitution is the supreme law of the land, meant to serve not only the present generation but several generations yet unborn. More central to our theme is the erudite Justice’s warning that the 1979 Constitution established a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several commitments must involve.

More telling is the reminder that ours is ‘a plural, dynamic society’. Perhaps, what His Lordship said of the 1979 Constitution, is unquestionably, relevant to the 1999 Constitution. In fairness to the present members of the National Assembly, it does appear that meticulous care was taken in identifying the sections of the Constitution which immediately pose some dangers to our nascent democracy. Possibly, it is the fear of endangering our democracy that prompted the National Assembly to initiate the presently controversial steps aimed at altering those sections of the Constitution. In attempting to throw away the bath water, the National Assembly is inadvertently attempting to throw away the baby at the same time. I am alluding to the looming confusion over which Constitution is in force at the moment,  is it the Constitution as it previously stood or the Constitution as ‘altered’? This question becomes very timely when juxtaposed with the fact that the President has assented to the new Electoral Act which o
stensibly is based on the Constitution as amended.

The controversy over the efficacy of the amended Constitution stems from the fact that the National Assembly seems to have taken the narrow view that the relevant provisions of the Constitution do not require presidential assent before an altered Constitution will become effective. Make no mistakes about it, each one of us is entitled to interpret the Constitution in order to receive instruction from what it enjoins.

However, whosoever takes it upon himself whether as a private citizen, a person in the public service,  be he in the executive or legislative arm,  but not being a Court, to interpret the Constitution, ought to be wary in order not to run foul of the prescriptions governing such endeavour. After all, a great American Jurist insisted that ‘when we study law we are not studying a mystery but a well known profession. We are studying what we shall want in order to appear before Judges, or to advise people in such a way as to keep them out of Court.

The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours, the command of the public force is entrusted to the Judges in certain cases, and the whole power of the state will be forth, if necessary, to carry out their judgement and decrees. People want to know under what circumstances and how far they run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the predictions of the incidence of the public force through the instrumentality of the Courts’. In order to enable you make a prediction as to what the attitude of the Courts might be to the absence of presidential assent on the altered Constitution, we need to revert to Nafiu Rabiu v. The State. In that case, Mr Justice Udoma stated that ‘the attitude of this Court’ (i.e. the Supreme Court) ‘to the construction of the Constitution should be, and
so it has been, one of liberalism probably a variation on the theme of the general maxim magis valeat quam pereat.

I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends’. It is my humble belief that the reason the National Assembly embarked on the process of altering the Constitution was to make it more responsive to the yearnings of the generality of Nigerians for a free and fair electoral process.

Most of the alterations to the Constitution are after all related to the need to provide a level playing field for our electioneering endeavours. Why then has the National Assembly chosen a more difficult path? It is our view that the decision to gazette the altered Constitution without the requisite presidential assent is a more difficult path. This view is informed by the fact that presidential assent would in no circumstance invalidate the altered Constitution but would rather be viewed as a surplus. However, should any Court decide that the want of assent is fatal, then the arduous process of altering the Constitution would have been in vain and may even create irreversible confusion.

A careful scrutiny of section 9 of the Constitution will reveal why the presidential assent is inevitable. Section 9(1) of the Constitution is to the effect that ‘the National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution’. Significantly, section 9(2) adds that ‘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’. The layman’s question ought to be: What does S. 9(2) of the Constitution enjoin? In our view, it is necessary to bear in mind that any alteration to the Constitution can only be dictated by the circumstances.

Guided by those circumstances, the National Assembly would table a proposal to alter named sections of the Constitution. It is that proposal that will be approved by ‘not less than two-thirds majority of all the members of that House’. In addition, the proposal after receiving the approval of the requisite majority in either House of the National Assembly will then be forwarded to all the States Houses of Assembly to enable the States legislatures to act as required. The requirement as seems obvious, is that each proposal for the alteration of any section of the Constitution must be approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

Granted that some of the proposals for the alteration of certain sections of the Constitution have been appropriately approved by the States Houses of Assembly, recourse to section 58 of the Constitution will show conclusively that section 9 of the Constitution is neither self governing nor can it be read in isolation. Again, this conclusion is inescapable because the Constitution itself prescribes for the legislative houses how their legislative power may be exercised and such power can only be exercised by bills passed by the legislative house in question. After a bill has been passed, section 58 directs that the bill must receive the assent of the President.

The National Assembly can only dispense with the assent of the President if such assent is withheld by the President. In such circumstances, the National Assembly would be within its rights to pass the bill again and the same shall become law. The procedure in the States Houses of Assembly is the same. It may thus be surmised that save in the procedure for the passage of resolutions (which are in strict constitutional parlance not bills), no legislative house in Nigeria under the present Constitution can legitimately exercise its legislative power without the requisite assent -whether presidential or gubernatorial. If this is the case with regard to ordinary pieces of legislation, can it be said that the National Assembly can in relation to the Constitution make the assent of the President irrelevant?

The lessons of history indicate that the immediate past National Assembly (2003 – 2007) made an abortive and futile attempt to alter the same 1999 Constitution. In that regard, I had the privilege and advantage of a casual perusal of the National Assembly Journal dated 12th April, 2006 (No. 8 vol. 3) and I considered the breadth and scope of the proposed ‘Bill for an Act to Amend the Constitution of the Federal Republic of Nigeria, 1999’ extraordinary.

The past National Assembly thought that once it got the Bill through, then the Constitution would have become a perfect document. Unfortunately, because of the awkward number of sections that the Bill sought to amend (over 100) and the now infamous ‘third term’ agenda, the effort blew up in smoke. Luckily, there is no hidden agenda discernible in the steps taken so far by the National Assembly but we must note the penchant by succeeding Nigerian governments for jettisoning the constitutional efforts of their predecessor. For instance, upon attaining independence, we had a constitution in 1960 which was supplanted by the 1963 constitution. In January 1966, our experiment in constitutional government was truncated and punctuated by a Military Coup d’état. As is usual, the 1963 constitution was suspended and only those portions that were unaffected by the first and subsequent Decrees remained in force. Of course, it must be recalled that the Military Government which took the reins of power assumed the toga of
a corrective regime. Far reaching policy changes were made in the years that followed. A democratization process followed later _ culminating in the 1979 Constitution.

The tortuous path from Military rule to constitutional democracy epitomized by the 1979 Constitution is clearly evident in the speech by Justice Udo Udoma in NAFIU RABIU’s case. He was so relieved by that constitution to the extent that he relished it as claiming “superiority to and over and above any other constitution ever devised for the governance of this country…”. All those who are familiar with our history will recall that the powers that be in the military did not believe it to be such a great constitution and suspended it soon after the December 1983 Coup d’état. Now, there was then another constitution made in 1989 which was to take effect in 1992 but owing to the circumstances with which we are all familiar, that constitution was never in use (save for the portions which were extracted and placed in the several Decrees which activated the different stages of Babangida’s transition programme). Despite the hurly burly attendant upon the efforts involved in the making of the 1989 constitution, it cann
ot be denied that the Abacha Administration accorded it scant recognition and went ahead to develop a new constitution in 1995. When the Abacha regime collapsed, another effort at constitution making began in earnest under General Abdulsalami Abubakar. The outcome is the 1999 Constitution. Make no mistakes about it, the present constitution has its shortcomings but cannot conclusively be blamed for our problems.

Notwithstanding the pitfalls that have been identified in our current Constitution, it is my humble view that rather than create a constitutional imbroglio by gazetting alterations that may not withstand legal and judicial scrutiny, we had better forge ahead without much ado. What may be considered instructive is that this is not the first time that a Constitution has been amended. Attention may therefore, be drawn to The Nigeria (Constitution) (Amendment) Order in Council, 1960, which amended several sections of the 1954 and 1959 Orders in Council and received Royal Assent. Similarly, the Nigeria Constitution First Amendment Act, 1961 was Assented to in Her Majesty’s name on the 20th day of July, 1961. Similarly, my feeble research indicates that the Nigerian Constitution Second Amendment Act, 1962 was Assented to. Furthermore, it must be noted that all the military decrees which had the effect of amending or suspending our previous constitutions always received the assent of our past military rulers. Were t
hese examples to serve as signposts, it would then be our preference that for whatever it is worth, the alterations to the present Constitution, for the avoidance of doubt, ought to receive the assent of the President. Deepening our democracy is imperative by correcting flaws in our Constitution which impede the democratic process but achieving that objective by obfuscating the validity of the fundamental law of the land (the Constitution) will amount to cutting the nose to spite the face.