1999 Constitutional amendment: Falana, others speak

Senior lawyers yesterday expressed dismay over the Senate’s amendments to the 1999 Constitution.

They said most of the amendments would fail as they are not well intended but self-serving.

The Senior Advocates of Nigeria (SAN) included Femi Falana, Babatunde Fashanu, Sebastin Hon and Seyi Sowemimo.

While they agreed that the National Assembly (NASS), comprising the Senate and the House of Representatives, has the power to amend the Constitution as laid down in Section 9 of the 1999 Constitution, they said the on-going exercise may not be in good faith.

Activist lawyer Falana described the amendment as another exercise in futility.

He claimed that when the immunity conferred on the legislators is considered and the vote against devolution of powers,” the proposed amendment is going to be another exercise in futility”.

“If the amendment is passed, it will not affect the on-going review of the Constitution as it cannot have a retrospective effect.

“The proposed amendment bill will have to be signed into law by President Muhammadu Buhari. If he withholds his assent, the votes of two thirds majority of National Assembly members and 24 states will be required to pass the proposal”, he stated.

Fashanu said some of the amendments will fail because of the heavy conditions imposed on them. He listed those that fall into that category to include the amendments made on states creation and boundary adjustment.

The lawyer maintained that many of the amendments by the Senate to the Constitution are “obviously self-serving, like removing assent to bills from the president, giving immunity to lawmakers from criminal prosecution and membership of the Council of States”.

He, however, admitted that some of the amendments may be viewed as progressive, “like devolution of power to states and putting a lid as to time for budgetary and appropriation matters and appointment of ministers.

“I take the position of my teacher, Professor Akin Oyebode of the Faculty of Law, University of Lagos, that what the National Assembly should be doing right now is to be deliberating on and enacting laws for the setting up of a Constituent Assembly to produce a brand new constitution”, he said.

He said this would enable the nation to “take the opportunity to rebrand itself for proper devolution of powers, restructuring and real federalism. One cannot but agree with him when we realise that the 1999 Constitution of the Federal Republic of Nigeria (CFRN) itself was drawn up by the military without the involvement and participation of the citizenry and so many problems have arisen in its implementation because of this fundamental flaw including the current agitations for secession and restructuring”.

Hon queried the Senate for wanting to preclude the President from the constitutional process of amending the constitution.

“It is not well intended. It is a sharp break from our constitutional history of amending the constitution.

“The Senate needs to convince Nigerians if they have good intentions for introducing that amendment.

“The President had been assenting to all constitutional amendment. There is no possible reason why that constitutional tradition should break at this point.

“Additionally, the President is the number one citizen at any time and a major stakeholder. One begins to wonder why the Senate will propose to exclude the President from his constitutional functions.

“I do not support that amendment. I think we should maintain status quo” he said.

Sowemimo reasoned that a law in favour of stripping the President’s power of veto was not one of the important areas engaging the minds of the nation at the moment.

He said Nigerians are more preoccupied with “issues that can help devolution of powers, more or less political and economic restructuring.

“Those are the sort of things I think they should be concentrating on in order to help defuse the heat in the polity.

“Presently, the topic engaging the minds of the people now is usually restructuring. I don’t think scrapping the president’s power to assent to amendments is what we need now. They were supposed to deal with issues such as removal of the Land Use Act, but they probably didn’t want to deal with that because they felt it would impact on the issue of resource control.

“Those are the important areas. The areas they have dwelt on now to me, are not really the important areas we require constitutional amendments. They should focus on devolution of powers, restructuring generally, not this other things which they have done.”

Two other SANs, Dr. Paul Ananaba and Abiodun Owonikoko backed the senators’ bid to remove the President’s power to veto constitutional amendment.

Ananaba said: “The president shouldn’t have a veto over constitutional amendment. When a bill goes through the National Assembly and state houses of assembly, it is an expression of the will of the people, the constitution says ‘We the people…’ So, it’s different from any other bill. The president can assent to those other bill, but there’s no need for presidential assent for constitutional amendment.”

Ananaba noted that the president himself is from a constituency “and is represented by those in the National Assembly.”

He, however, disagreed with the passage of a bill requiring former Senate Presidents and Speakers of the House of Assembly to attend council of state meetings.

“It would make Council of State meetings a rowdy crowd. I don’t agree with that. With the way we change speakers, it will become another National Assembly,” Ananaba said.

Owonikoko shared Ananaba’s view on the president’s veto powers.

He said: “The bill for removal of presidential assent to constitutional amendment is well reasoned. In a republic, the groundnorm is the constitution. It should derive its validity from the people directly or through their duly elected representative. The interposition of presidential assent for its coming into effect is an aberration. Though not so stipulated by the constitution, it generated animated controversy in the past.

“When it is recalled that a bill for such an amendment requires special and greater majority of votes in parliament as well as concurring resolution of super majority of state houses of assembly afterwards, I can see no functional benefit in subjecting it to potential veto of the president by requiring his assent.

“The normal effect of a veto is to return the bill for passage by two-third majority of the National Assembly in the case of simple legislation. That reassurance of popular override is not provided in the case of constitutional amendment. The threshold would already have been crossed at the first passage. The amendment will therefore bring clarity to the constitutional amendment legislative process.

“The first, second and third alterations Act of 2010 and 2011 were assented to by President Goodluck Jonathan though many scholars thought it a surplus age but the propriety was never tested as it became an academic issue .

“This present effort however implies a concession that for the present fourth alteration to the constitution to come into force a presidential asset will be required. It may then be the last time a president will ever have an opportunity to assent to a bill amending the constitution. That will further entrench the republican underpinning of our constitution.”

Owonikoko, however, expressed reservations about the lawmakers’ attempt to “entrench privilege and immunity of the legislature sitting in plenary and in committee.”

He said: “I must say it is debatable whether it is desirable. The Legislative House Privileges Act already provides for that. I cannot see the amendment as being responsive to any threat or lacuna in the protection the lawmakers already enjoy.

“The only issue is that as against mere privileges; they are legislating immunity for themselves. The history of abuse of such licentiousness by the executive does not inspire endorsement of the amendment which merely extends the space for impunity into the legislative realm.

“Immunity unlike privilege excuses illegality whereas privilege merely legitimises some predetermined conduct on the part of the protectee. I will be loath to support the initiative being entrenched in the constitution. Privilege -Yes ; Immunity – total no. The present law and Sections 88-89 of the constitution suffice. Same holds for state houses of assembly.”

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