To the utter embarrassment of the members of the National Assembly, President Jonathan decided to withhold his assent to 4th amendment to the Constitution. In his comprehensive letter addressed to both chambers of the National Assembly last week, the outgoing President challenged the procedure and the substance of the proposed alteration of the Constitution. Having regard to the enormous resources invested in the constitutional review, the President ought to have convened a meeting with the leadership of the National Assembly with a view to ironing out the grey areas. No doubt, the National Assembly members have themselves to blame for engaging in the instalmental amendments of a Constitution imposed on the Nigerian people by military dictators.
In view of the clear provisions of the Constitution on separation of powers the National Assembly acted illegally and unconstitutionally when it conferred the National Economic Council, an advisory body, with the power to appoint the Accountant-General of the Federal Government. As if that was not enough, the National Assembly wants the National Judicial Council, NJC, to appoint the Attorney-General of the federal government. The legislators ought to have known that the NJC is only empowered to recommend to the appointing authorities (President and state governors) suitable persons for appointment as judges and recommend their removal from the bench. Having taken away the powers of the President, the National Assembly decided to increase its own powers. As far as the legislators are concerned, an amendment of the Constitution will no longer require the assent of the President. Such self serving amendments were rightly rejected by the President.
However, the President goofed on the procedure for altering the provisions of the Constitution. The President’s view that an amendment of the Constitution requires the votes of four fifths of the National Assembly and approved by the resolution of the Houses of Assembly of not less than two-thirds of all the States is patently wrong. The stringent requirement of section 9(3) of the Constitution is only applicable to the alteration of section 8 (on state creation), section 9 (on Constitutional amendment) or chapter four (on fundamental rights) thereof. In other words, the alteration of any of the other provisions of the Constitution requires the resolution of two-thirds majority of the National Assembly and the Houses of Assembly of all the States of the Federation. It is on record that the last three alterations of the Constitution were passed by the two-thirds majority of the federal and state legislators and signed into law by President Jonathan in 2010 and 2011.
Notwithstanding the approach adopted by the President in rejecting the proposed alteration, the members of the National Assembly should refrain from exhibiting arrogance of power in the circumstance. The letter calls for a sober examination of the reasons adduced by the President for rejecting the controversial amendments. More so, that some of the amendments are patently illegal and unconstitutional. For instance, one of the most objectionable propositions in the 4th amendment which was not even captured in the President’s letter is the provision of the scandalous pension for life for former leaders of the National Assembly. If the amendment had been signed into law by the President, some of the beneficiaries who are in their 40s would have been entitled to earn pension for the rest of their lives for rendering part time legislative service for less than four years. Not unexpectedly, the amendment is silent on the jumbo emoluments of the members of the National Assembly which Nigerians have consistently rejected since 1999.
Since the President rejected the amendments based on the erroneous belief that the requisite constitutional requirement was not met he ought to withdraw the letter addressed to the National Assembly and review his position on the constitutional amendment. During the campaign, President Jonathan did promise to implement the recommendations of the 2014 national conference. In fact, the federal executive council has since passed a resolution for the immediate implementation of the resolutions of the confab. One of the most important recommendations is that chapter two of the Constitution on the fundamental objectives and directive principles of state policy be made justiciable. Since that recommendation and a few others are in tandem with the proposed amendment of the Constitution, President Jonathan ought to have endorsed the relevant provisions.
In rejecting the proposed amendment that every child be entitled to free education the President said that there was no dichotomy between public and private schools. The attention of the President ought to have been drawn to section 15,of the Child’s Rights Act, 2003 and section 2 of the Compulsory, Universal, Free Basic Education Act, 2004 which have made education free and compulsory from primary to junior secondary school for every Nigerian child. Before rejecting the amendment on the right to basic health care the President ought to have been reminded that the National Health Bill 2014, signed into law by him in November last year has directed the federal government to fund basic health care with not less than one per cent of the consolidated revenue of the federal government. Since the amendment has merely enshrined the right to basic education and basic health care in the Constitution, the President ought to have signed that aspect of the proposed amendments in the interest of the poor and vulnerable segment of the country.
In 2006, the 108 amendments of the Constitution were thrown away with the third term agenda of President Olusegun Obasanjo. If care is not taken, the over 70 proposed amendments proposed by the legislators may suffer the same fate. Therefore, President Jonathan should be advised to convene an urgent meeting of all the stake holders with a view to removing the controversial clauses from the proposed amendment. Once that is done the National Assembly should pass the bill and send it back to the President for his assent. Instead of throwing out the baby with the bath- water the provisions of the 4th amendment to the Constitution should be supported to the extent that it has recognized the right of the Nigerian people to enforce their socio-economic rights enshrined in chapter two of the Constitution.Femi Falana is a Senior Advocate of Nigeria.