Issues in proposed Constitutional amendments
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EXPECTEDLY, the recommendations contained in the Report of the National Assembly Joint Committee on the Review of the 1999 Constitution have attracted negative reactions from certain quarters. Incidentally, most of the reactions could be reduced to the following three questions: When, for instance, are the recommended constitutional amendments expected to take effect? Is it necessary to subject the proposed constitutional amendments, when ratified by the appropriate legislative authorities, be the subject of adjudication in the law courts? Answers to the above questions will reveal whether the reservations expressed by critics over the proposed constitutional amendments made public by the National Assembly are valid in law.
Before embarking on this venture, there is need to make clear the true meanings of the following key words on this matter, namely; "amendment," "review," "alter" and "constitution." The Oxford Advanced Learner’s Dictionary of Current English (fifth edition) defines amendment as "minor change or addition to a document" and review as the act of examining or considering "something again, with the possibility of changing it if this is thought desirable or necessary." In the case of the word alter, the same Dictionary defines it as "the act of changing something slightly or making a slight change." Of course, the word, constitution means "a system of laws and principles according to which a state or other organisation is governed."
Undisputedly, the 1999 constitution in its Section 320 maintains that "The provisions of this constitution shall come into force on 29th day of May 1999." Of course, Section 9(1) of the constitution, under the subject matter of "mode of altering provisions of the constitution" states that "The National Assembly may, subject to the provisions of this section, alter any of the provisions of this constitution." What this means is that when the National Assembly embarks on the endeavour to altering or reviewing the provisions of any section of the constitution, it merely changes the form of the particular provision of the constitution being amended. The act of changing the form of a constitutional provision does not mean that the particular provision that has been amended has been obliterated from existence and a new one created altogether. In other words, an amended provision of the 1999 Constitution is still part and parcel of the same constitution, the existence or validity of whose provisions commenced from May 29, 1999.
If we bring the above interpretation to bear on the issue of the tenure of the office of the President, for instance, the following situation would prevail. Section 135(2)(a) of the constitution states that"...The President shall vacate his office at the expiration of a period of four years commencing from the date, when– in the case of a person first elected as President under this constitution, he took the Oath of Allegiance and oath of office." What this means is that in elongating the tenure of the office provided for in section 135(2)(a) from four to five years, the life or validity of the office of the President which commenced from May 29, 1999, as far as the 1999 constitution is concerned, still subsists. In other words, changing the entirely new office, quite different from the office of the President of the federation. Therefore, the commencement date of the life or validity of an amended section 135(2)(a) of the 1999 constitution is still May 29, 1999.
Even if, for the sake of argument, we decide to see the provisions of the constitution as mere laws or Acts enacted by the National Assembly rather than as "a system of laws and principles" on the basis of which laws are made to direct the affairs of the citizenry, it is still difficult to appreciate what sense is being made by the insistence that the proposition of a singe five-year tenure for the President of Nigeria must not be retrospective. Under the subject matter of "Legislative powers," the 1999 constitution in sector 4(9) maintains that..."the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect." What this means is that as long as the issue being addressed is not criminal in nature, retroactive laws. Of course, from whatever angle one decides to appraise the matter at hand, the proposed constitutional amendments, including the single five-year tenure for the President are not criminal matters and therefore, are not affected by the provisions of section 4)9) of the constitution.
In a similar vein, section 9(2) of the constitution maintains that "Act of the National Assembly for the alteration of this constitution,.... shall not be passed in either House of the National Assembly unless the proposal is approved by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the House of Assembly of no less than two-thirds of all the states." Of course, section 98(1)(2) of the constitution makes the point that "except as otherwise provided by this constitution, any question proposed for decision in the House of Assembly shall be determined by the required majority of the members present and voting.... and the required majority for the purpose of determining any question shall be a simple majority." In effect, once the Senate and the House of Representatives have, by a two-thirds majority of their membership, amended a provision of the constitution, and the proposal amending the same provision is passed by a simple majority resolution in at least Twenty-four state Houses of Assembly, the amended provision becomes a bona fide section of the constitution. The question of subjecting the amended provision to a referendum does not arise at all. There is no place in the 1999 constitution where the need for a referendum has been suggested as a means of legitimising an amended provision of the constitution.
Of course, the point needs to be made that once a provision of the constitution has been amended in accordance with the provision of section 9(2) and 98(1)(2), the matter cannot be taken to the courts for adjudication. The courts, including the Supreme Court, are not law-making institutions. The duty of the courts is only that of interpreting the provisions of the constitution or using the provisions of the constitution to determine when laws made by the Legislative Houses of the country have gone astray. It is therefore impossible for an amended provision of the constitution to be the subject of adjudication in law courts. Even the chief Justice of Nigeria, Justice Muhammedu Lawal Uwais, at a recent swearing-in ceremony for eight Federal High Courts Judges in Abuja, drew the attention of the citizenry to the principle of separation of powers between the judiciary and legislature, and insisted that that Judges "should be mindful of the fact that issues (like the proposed constitutional amendments), which transpired at the National Assembly, are not justiceable.
In conclusion, therefore, the following points could be confidently made. An amended provision of the constitution is still a provision of that same constitution even when a new name is given the constitution embodying both the amended and un-amended provisions. And since, for, instance, the life of the 1999 Constitution started on May 29, 1999, any of its amended provisions in the Year 2002 still owes its date of birth to the same date of May 29, 1999. Therefore, the proposed constitutional amendments suggested by the National Assembly Joint Committee on the Review of the 1999 constitution, whenever they are ratified on the basis of the provisions in sections 9(2) and 98(1((2) of the constitution, would be deemed to have commenced their existence from May 29, 1999. The fact that the 1999 constitution is now to be tagged: "The Constitution of the Federal Republic of Nigeria 2002" does not in any way undermine the point that its date of birth is May 29, 1999.
Nov 2002