On the decision of the Supreme Court to halt the constitutional amendment process being undertaken by the National Assembly, I think it is a good decision which will allow the incoming National Assembly the opportunity to start the process afresh, if need be. This raises the issue of setting up a separate Constitutional Court to whom all issues of political and constitutional implication ought to be submitted so as to free the Supreme Court proper to deal with the litany of cases before it.
It has to be noted that for now, the case has not been fully decided as what the court ordered is for parties to maintain status quo, which in effect put in abeyance or suspension the constitution amendment process for now.
The point the Federal Government is making is that the National Assembly appears not to have followed due process in the process of amending the 1999 Constitution. My own take is that, if you have been panel beating a car severally, is not better to buy a new one especially where you can afford it? Clearly, Nigeria can afford to make a completely new Constitution instead of the incessant amendments and alterations being undertaken on it. The confusion is so much that it is becoming difficult to know exactly what the provisions of the Constitution are especially since the National Assembly has not made any effort at producing one single document that incorporates all the amendments and alterations, excluding, by the document, all the deleted provisions.
The National Assembly seeks to amend the Constitution such that the process of amendment of same is made similar to what obtains in the amendment of an ordinary Act of the National Assembly. To me this is against the tenets of the principle of Checks and Balances, which modifies the principle of separation of powers to the effect that each arm of government should serve as a check on the other arms so that no single arm arrogates to itself absolute powers within the government. What the National Assembly seeks to do is to arrogate to itself absolute powers in the law and constitution making processes. Power corrupts and absolute power corrupts, so says Thomas Jefferson. I am not in support of the proposal by the National Assembly. I think the powers of the executive represented by the President to have a say in constitution making and amendment must remain sacrosanct.
We shall however have to wait for the decision of the Supreme Court as to the constitutionality or otherwise of the procedure being adopted by the National Assembly.
Another point to note is that the process of making or amending an ordinary Act of the National Assembly is quite different from the process of amending the Constitution, while the process of amending the Constitution itself is different from the process of amending Section 9, Section 8 and Chapter 4 of the 1999 Constitution (on fundamental rights).
Section 9 of the Constitution, which is the relevant section provides as follows:
“9. (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.
(2) An Act of the National Assembly for the altertion 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.
(3) 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.
(4) For the purposes of section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution.”
This provision is clear. For the National Assembly to amend the Constitution, it is enough if it gets two thirds of the entire membership of the National Assembly and two thirds of the States Houses of Assembly vote in support of the amendment. But for it to amend Section 9, it must get at least four fifths of the entire membership of the National Assembly in addition to the two thirds of the States Houses of Assembly. In purporting to amend Section 9 to make it unnecessary to get the President’s assent to amendment of the Constitution, did the National Assembly get the requisite four fifths of the entire membership of the National Assembly? Section 9 made reference to Sections 48 and 49 in deciding how members are required to vote. It clearly portends that the calculation must include all members (whether present or not) of both Houses, Senate and House of Representatives. This means 103 Senators plus 360 Members of the House of Representatives making a total of 463 members of the National Assembly. Four fifths of this figure is approximately 370 members. Has 370 members of the National Assembly voted in support of the amendment of Section 9? This is the question before the Supreme Court.
We cannot go into the answers at this stage since it will amount to subjudice and contempt of the Supreme Court to start commenting on the substance of the case until the court gives its decision.
But it must be stated that the step taken by the Federal Government is a good one submitting, as it were, to third arm of government.
Again, the Federal Government should also be commended because it might as well have left the National Assembly to do what it was doing knowing that the effects can only be felt by the incoming Buhari administration thereby possibly causing it problems.
All in all, we must wait on the Supreme Court to hear the case fully and give its verdict. For now, the court is asking whether or not the case was properly instituted or not in the sense of whether it was not better for the President to have brought the case in his own name instead of bringing it through the Attorney General of the Federation. The court’s decision in this regard will go a long way to enrich the Nigerian jurisprudence.
Source: THE NATION