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C/Amendment: NASS, Supreme Court Head For Showdown

Peterclaver Egbochue writes on the lingering feud between President Goodluck Jonathan and National Assembly over the amendment of the 1999 constitution.

First it was the Senate. Now it the House of Representatives. Both chambers of the National Assembly are up in arms against the Supreme Court, asking it to respect its place in the mutual interdependence of the three arms of government, namely the Executive, the legislature and the Judiciary.

According to the Federal lawmakers the Supreme Court lacks the authority and competence to prevent the National Assembly from conducting its constitutional legislative functions. The point at issue is the suit brought before the Apex Court by President Jonathan seeking to stop the NASS from overriding his veto powers on Constitutional Amendments.

To this end, there are indications that the National Assembly has concluded plans to undermine the apex court ruling and gazette the amended Constitution. If gazetted, the two chambers of the National Assembly would pass the amended constitution by two-thirds majority for it to become law.

Following the footsteps of the Senate whose Chairman, Senate Committee on Information, Media and Public Affairs, Senator Eyinnaya Abaribe, had last week declared in reaction to the Supreme Court order, which mandated the National Assembly to maintain the status quo in its quest to amend the 1999 Constitution, that it was wrong for the apex court to stop the parliament from performance its legislative duties, the House yesterday take a more drastic turn. It amended the House rules to enable it override the veto powers of the President.

In plenary, the House amended Order XIII to introduce the new rules (10)-(13) which seeks to override the veto powers of President Jonathan in withholding assent to the amendment of the 1999 Constitution initiated by the NASS. In the motion entitled: “Amendment of Standing Orders of the House of Representatives: Order XIII, Rule 98” Rep Sam Tsokwa, Chairman, Rules and Business Committee and 22 others stated that the Order provides for altering the 1999 Constitution.

This new sub rule of Order XIII states that” where the President withholds assent, the bill if passed by two- thirds majority of the House as required by Section 58 of the 1999 Constitution that Bill shall become law.” Abaribe in his earlier reaction had stated that “The Supreme Court is wrong. The law does not allow one arm of the government to stop another arm of government from performing its duties.

The Supreme Court cannot stop us from legislating and if they say that the Supreme Court is stopping us from making laws, it is misleading and it amounts to misreading the powers of the Supreme Court,” The Supreme Court, had two weeks ago ordered the Federal Government and the National Assembly to maintain status quo in the ongoing constitutional amendment exercise. The court ruled in a suit brought by the Attorney General of the Federation and Minister of Justice, Mohammed Adoke, against the two chambers of the National Assembly over the lawmakers’ insistence on amending the Constitution despite President Jonathan’s objection.

According to sources, the court order, including the ruling of the apex court, was served on the Senate President, David Mark and the House Speaker, Aminu Tambuwal a fortnight ago. The Chief Justice of Nigeria, Justice Mahmud Mohammed, personally signed the ruling, according to sources. The order specifically states that all the parties should maintain the status quo. A Presidential source said, “Should the National Assembly override the President’s veto, the Federal Government may return to the apex   court.

“Once a matter is in court, it is subjudice to act on it. And Order 53 (5) of the Senate Standing Rules states that ‘reference shall not be made to any matter on which a judicial decision is pending in such a way as might in the opinion of the president of the Senate prejudice the interest of parties thereto. The lawmakers, it was learnt, had on options to override the President’s veto “because these amendments are just too fundamental to be halted as a result of judicial process”, said a source. The House rule is one of the ways they had devised.

The Supreme Court had granted an order of interlocutory injunction restraining the lawmakers from taking any further step towards passing the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act, 2015 into law, pending the final determination of the suit earlier filed before the court. President Jonathan had vetoed the amendments to the constitution in a seven-page letter to the Senate President, David Mark and the House Speaker, Aminu Tambuwal.

The move likely to degenerate into a supremacy battle between the Federal lawmakers and the Justices is attracting reaction from the men and women of the learned professor, with some speaking for and some others against. In his reaction, Chief Adegboyega Awomolo (SAN), argued that the apex court’s order does not have a retroactive power and therefore canifnot affect a step already taken earlier by the lawmakers.

His words, “I have not seen the order of the Supreme court but the order made, if directed to an act which had been completed, whatever had been done will not constitute a contempt of the court. “The order cannot take retrospective effect. The Supreme Court as an arm of government is not to frustrate the other arms of Government. The Supreme Court does nothing in vain and the case terminates by the June date.”

However, in the view of Dr. Alex Izinyon (SAN), said it was ridiculous and childish for the Senate to claim that it had been sent for gazetting. His words, “It is infantile to make such claims. Whether it was gazetted before the order of the Supreme Court, two immutable principles remain intact. Firstly, there was a pending suit rightly or wrongly, no party can overreach the court even if no restraining order was made.

Secondly, there was a pending Motion on Notice duly served. Why did the National Assembly not send legal representation? “Not even during the military can this happen as the Supreme Court deprecated the military in Ojukwu vs Military Governor of Lagos State,” Izinyon said the lawmakers ought to be cited for contempt, arguing that regarding a matter pending in court they cannot plead parliamentary immunity.”

In his view, Sebastian Hon, described the development as the contempt of the highest order   canif true. His words, “By section 287 of the Constitution, all persons and authorities in Nigeria are mandatorily required to comply with decisions of the Supreme Court. By taking this step, the Senate has pitched itself against the Nigerian people because they have impinged on the rule of law.

“This should not be coming from the Legislative Arm of Government. I condemn this without looking back. Even if a new Senate is constituted, the apex Court will definitely annul the gazette and order a return to status quo.” In the submission of Rotimi Oguneso (SAN), “their action is patently unlawful and illegal. Once they are aware of a suit, the decent thing for us to do, especially the Senate is to respect that fact and stay all actions regarding the subject matter of that suit. How can they claim to have sent the document for gazetting?

Background The Federal Government had on April 23 instituted a suit at the Supreme Court to nullify the proposed amendments to the 1999 Constitution. President Jonathan had withheld his assent to the amendments to some sections of the document sent to him by the National Assembly. In a seven-page letter to the Senate President, David Mark, and the Speaker of the House of Representatives, Aminu Tambuwal, the president queried the decision of the National Assembly to whittle down some executive powers of the President of the Federal Republic of Nigeria. He faulted some amendments, which gives executive powers and duties to the legislature and the judiciary. Mr. Jonathan explained his position on the amendment and why he declined to sign the document into law.

However, the National Assembly said after 30 days, it would override the veto of the president. But in an originating summon filed by a former Attorney General of the Federation, Bayo Ojo, on behalf of the incumbent AGF, Mohammed Adoke, the Federal Government posited that the purported Fourth Alteration Act 2015 passed by the federal legislature did not have the mandatory requirement of four-fifth majority of the legislature. The originating summons is supported by an affidavit deposed to by Theophilus Okwute, a lawyer in Mr. Ojo’s chamber.

Mr. Okwute said Mr. Adoke told him that the purported Fourth Alteration Act 2015 was not passed with the mandatory requirement of fourfifths majority of members of the Defendant and the mandatory due processes provided for under the relevant sections of the extant Constitution of the Federal Republic of Nigeria 1999 as amended. According to him, the defendant is making moves, with the tacit consent of all the State Houses of Assembly, to employ certain provisions of the Constitution to now pass the purported Fourth Alteration Act, 2015 into Law.

Mr. Okwute also said Fourth Alteration Act 2015 contains many proposed amendments inconsistent with the spirit of federalism, separation of powers and checks and balances, all of which constitute the hallmark of the Constitution and democracy. He said most of the provisions of the purported Fourth Alteration Act 2015 are contrary to public policy and good governance. He said it would be in the interest of justice to grant all prayers sought in the case. The Supreme Court is yet to react. Until it does, both arms of government may be heading for a showdown.

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