Peterclaver Egbochue writes on the feud between President Goodluck Jonathan and National Assembly over the amendment of the 1999 constitution.
In what has been described by many as a daring move, the Senate has declared that the Supreme Court does not have the authority and competence to prevent the National Assembly from conducting its constitutional legislative functions. To this end, there are indications that the National Assembly has concluded plans to undermine the apex court ruling last Thursday and gazette the amended Constitution, a development, which would over ride the President’s veto on the Constitution amendment.
If gazetted, the two chambers of the National Assembly would pass the amended constitution by two-thirds majority for it to become law. Chairman, Senate Committee on Information, Media and Public Affairs, Senator Eyinnaya Abaribe, made the declaration in his reaction to an order of the Supreme Court, which mandated the National Assembly to maintain the status quo in its quest to amend the 1999 Constitution.
The sources noted that the issues raised by President Goodluck Jonathan on the basis of which he withheld his assent notwithstanding, the parliament cannot be stopped from performing its constitutional duties. Speaking to newsmen recently in Abuja, Abaribe insisted that it was wrong for the apex court to stop the parliament from performance its legislative duties. “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,” he submitted. The Supreme Court, had last Thursday 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 on Friday. 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, “This means the National Assembly is expected to stay action on constitution amendments until the determination of the substantive suit. The Senators and House members cannot in any manner gazette or go ahead to override the President’s veto.
“We have heard reports of plans by Senators and Representatives to defy the order of the Supreme Court. If they disobey court order, they will be setting a bad precedence. Some of their leaders also risk being jailed if they are procontemptuous of the court. “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, are to meet on options to override the President’s veto “because these amendments are just too fundamental to be halted as a result of judicial process”, he said, adding: A principal officer of the Senate, who pleaded not to be named because of what he described as the “sensitivity” of the matter, said, “We learnt the ruling of the Supreme Court has been made available to our leadership. Since it is a legal matter, we will seek advice on the next line of action.”
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. Senator Victor Ndoma-Egba, the Senate majority leader, reacting to the development, said they would wait to be served with the order before making any pronouncement on it.
His words, “I am not officially aware of the ruling yet, because court processes are not broadcast on networks. We have to be served with the processes so that we know the exact terms of the order or orders made. And to the best of my knowledge, the National Assembly has not been served with any order. “Until we are served, I cannot speculate, it will be academic to begin to speculate; supposing we are not served at all? Supposing the information is wrong, supposing it is right? And we don’t know the terms of the order. We have to wait to be served with the order so that we look at the terms before making any protonouncement on it. “As at now that I’m speaking, I have not seen the court order to know the parties, and to know the prayers before the court, and the details of the order, and on whom it was directed.
So, I will reserve all comments until we are served with the court order, and we know the content of the order, and the effect of it on legislative process. “Therefore, we will not be able to be categorical on this. It is about the action of the court, which we are bound. So, we have to know whether we are the parties, and whether it relates to the matter that is being handled by us. So, unless and until we are served, you will not be able to be precise on what to do. In his reaction, Chief Adegboyega Awomolo (SAN), argued that the apex court’s order does not have a retroactive power and therefore cannot 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 if 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?
“How many days has the dispute lingered to talk of the gazette? You cannot willfully foist a fait accompli on the court, not to talk of the highest court of our land the Supreme Court. Such action will be struck down. On whether the lawmakers should be punished, Oguneso (SAN) said there was no greater punishment that to strike down their act of illegality.” 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.
“In view of the foregoing and absence of credible evidence that the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 satisfied the strict requirements of Section 9(3) of the 1999 Constitution, it will be unconstitutional for me to assent to it,” the president said. “I therefore withhold my assent and accordingly remit Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 to the Senate /House of Representatives of the Federal Republic of Nigeria.” 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 fourfifth majority of the legislature.
The originating summons is supported by an affidavit deposed to by Theophilus Okwute, a lawyer in Mr. Ojo’s chamber It said the requirement was mandated by the relevant sections of the extant Constitution of the Federal Republic of Nigeria 1999 as amended. The government requested the Supreme Court to give an order nullifying and setting aside Sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 of the Fourth Alteration Act, 2015 purportedly passed by the legislature.
It also asked the Supreme Court to determine the following two questions: — “Whether the proposed amendment to the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the Constitution) by the Defendant through sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, ((Fourth Alteration) Act 2015 (hereinafter referred to as The Fourth Alteration Act 2015) which purportedly altered sections 8, 9, 34, 35, 39, 42, 45, 58, 84, 150, 174 and 211 of the Constitution without compliance with the requirements of section 9(3) of the Constitution is not unconstitutional, invalid, illegal, null and void?
“Whether in the absence of compliance by the Defendant with the mandatory requirement of section 9(3) of the Constitution in the passage of the Fourth Alteration Act, 2015, the Defendant can competently exercise its powers under section 58(5) of the Constitution to enable the purported Act to become Law?” The government requested the Court to hold that the proposed amendments to the Constitution through sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 of the Fourth Alteration Act, 2015 which purportedly altered sections 8, 9, 34, 35, 39, 42, 45, 58, 84, 150, 174 and 211 of the Constitution and passed by the Defendant without complying with the mandatory requirement of section 9(3) and (4) of the said Constitution stipulating passage by at least four-fifths majority of all members of each House specified in sections 48 and 49 of the Constitution is unconstitutional, invalid, illegal, null and void and of no effect whatsoever.
The government prayed the Supreme Court to declare that in the absence of compliance by the defendant with the mandatory requirements of section 9(3) of the Fourth Alteration Act, 2015 which purportedly altered sections 8, 9, 34, 35, 39, 42, 45, 58, 84, 150, 174 and 211 of the Constitution, it is unconstitutional for the National Assembly to exercise its powers under section 58(5) of the Constitution to enable the purported Act to become Law.
Mr. Okwute said Mr. Adoke told him that the purported Fourth Alteration Act 2015 was not passed with the mandatory requirement of four-fifths 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.