Tuesday, November 9, 2010

Senate is wrong to cite US law

What is your reaction to the argument of the Senate spokesperson that the US democracy, which Nigeria is copying, has a ruling by the Supreme Court that the president's assent is not required to alter the constitution?

The American Law on Constitution Amendment and the Nigerian law on the same issue are radically different. Article V of the US Constitution, which governs Amendment in that country, was what the US Supreme Court interpreted. While it makes ratification of amendment proposals by required number of State Congresses at the end of the Amendment, Section 9(2) of CFRN 1999, which governs Constitution Alteration in Nigeria, requires that an Act must be passed by the National Assembly to make amendment effective. So here, when the required number of the State Houses of Assembly has supported a proposal to amend, the condition precedent for the National Assembly to pass the law has been met.

Put simply, in the US, no Act of Congress is required for amendment; in Nigeria, an Act is required. Since no Act is required in the US, the US president has nothing to assent to. In fact, the US Constitution expressly said amendment becomes valid as part of the Constitution once ratified by requisite number of State Congresses. In Nigeria, once an Act is passed by the National Assembly, it must go the way of all Acts; presidential assent or a veto thereof.

Note also that State Congresses can apply for amendment in the US and this has no place in Nigeria. Little wonder they don't amend with an Act. For example, where State Congresses propose an Amendment, can you still call it an Act? It should be a law! So they decided not to use law to amend! In Nigeria, you need a law passed by the National Assembly, an Act! This must follow the procedure for passing an Act, once the special condition precedent has been met. That's what I argued and won.

It is therefore wrong for the Senate spokesperson to apply a decision from the US on peculiar US Constitution to a peculiar Nigeria Constitution. This is why the Federal High Court held that US law does not apply.

Are there any precedents that can shed light on this judgement?

Yes. We have a very important Parliamentary precedent. A similar provision, as we have in Section 9(2), is contained in Section 4(2) of the 1960 Constitution. But when the First Republic Parliament wanted to amend the Constitution to alter Nigeria's territory in 1961 by bringing in Northern Cameroon, after the Plebiscite, they passed the Constitution First Amendment Act 1961. They took it to Dr. Nnamdi Azikiwe for assent. Chief Dennis Osadebey was acting for Zik and he gave the assent. Fifty years later, we have a Parliament reacting differently to the successor of the 1960 provision for alteration! Instead of appealing to America, the National Assembly should have been appealing to this powerful local precedent! So, there are local precedents, both in Parliamentary practice and case law.

What are the implications of the judgement?

The implication is that Constitutionalism won. Rule of Law won. Between my client, Olisa Agbakoba, and the National Assembly, I think I will adopt General Yakubu Gowon's "No Victor No Vanquished."

Everybody, including the National Assembly, wants the Constitution to reign. We only disagreed on what it says to agree again. Now that the Court has decided, I believe the days of ignorance have passed and you don't trade blames.

The National Assembly should now take the inchoate amendment to the president for his assent. There is no negative effect for Nigeria. Everything already done under the Inchoate Amendment is intact. That's the meaning of Inchoate used by the judge.

The Senate intends to appeal this judgement; is this, in your opinion, the right thing to do?

The National Assembly has the constitutional right to appeal. If they do, we will meet them at the Court of Appeal and repeat our argument and even bring further points we later discovered on the point. But allowing the matter to continue to linger in the Courts may not be in national interest.

Chijioke Ogham-Emeka is a counsel to the Plaintiff.
By Ayodele Okulaja

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