President Goodluck Jonathan, who allegedly refused to assent the constitution amendment bill forwarded to him by the National Assembly even as some eminent lawyers backed his decision [read story here] has written a letter yesterday, explaining reasons for his action.
Raising about 13 grounds, President Jonathan in a letter entitled: “Re: Constitution of the Federal Republic of Nigeria, Fourth Alteration Act, 2015,” questioned the capability of the National Assembly to arrogate to itself the power to pass any constitution amended without the assent of the President.
He also picked holes in whittling down the power of the President, allowing the National Judicial Council, NJC, to appoint the Attorney-General of the Federation, separating the office of the Accountant-General of the Federation from that of the Federal Government, and limiting the period when expenditure can be authorized in default of appropriation from six months to three months, among others. The President, in the letter also mentioned what he termed as usurpation of powers of the executive by the legislature in the fourth alteration of the constitution.
President Jonathan said that the two chambers of the National Assembly failed to meet requirements for altering Section 9 (3) of the 1999 Constitution.
Section 4 of the Fourth Alteration Act, 2015 seeks to alter Section 9 of the 1999 Constitution by the insertion of a new subsection 3A, which dispenses with the assent of the President in the process of constitution amendment.
However, this alteration can only be valid if the proposal was supported by votes of not less than four-fifths majority of all the members of each House of the National Assembly and approved by a resolution of the Houses of Assembly of not less than two-thirds of all the states as provided by Section 9 (3) of the 1999 Constitution.
“This is a fundamental requirement of the constitution and in the absence of credible evidence that this requirement of the constitution was met in the votes and proceedings of the National Assembly, it will be unconstitutional for me to assent to this Bill,” he explained.
Besides, the President said there were a number of provisions in the Act that altogether constitute flagrant violations of the doctrine of separation of powers enshrined in the 1999 Constitution and unjustifiably whittle down the executive powers of the federation vested in the president by virtue of Section 5 (1) of the 1999 Constitution.
President Jonathan described the amendment on the separation of the Office of Attorney-General of the Federation from the Minister of Justice as ambiguous.
“These alterations encapsulate a wide-ranging provision that seek to separate the Office of Attorney-General of the Federation from the Minister of Justice and the Attorney-General from the Commissioner for Justice in the respective states of the federation. They also provide for the independence of the Office of Attorney-General by guaranteeing tenure and funding.
“However, as desirable as the separation is, there are some provisions that validate the doctrine of separation of powers and also negate the age-long independence and absolute discretion that the office has enjoyed for centuries since its creation in the middles ages.
“The potential challenging provisions are discussed below: The first noticeable setback is that the Fourth Alteration Act 2015 is silent on who is the Chief Law Officer of the Federation/State. This is a serious lacuna, which may create implementation challenges.
“It will be recalled that the Attorney-General of the Federation (AGF) and Minister of Justice and the Attorney-General and Commissioners for Justice in the respective states of the federation are under Sections 150 and 195 of the 1999 Constitution, the Chief Law Officers respectively.
“Apparently, it is the fact that the AGF is the Chief Law Officer and has the power to guide the MDAs on legal issues by way of legal advice and represent the government on other legal matters including civil litigations, contract, treaty obligations, legal drafting, etc., is derived.
“With this amendment, which limits the power of the AGF to criminal prosecution and is silent on who is the Chief Law Officer, it appears to erode the constitutional and legal basis for the current structure and functions of the Ministry of Justice and the Law Officers employed therein, in the absence of a statute that provides for the exercise of these powers and functions.
“Consequently, if it is the intendment of the National Assembly to make the Minister of Justice the Chief Law Officer, it should be expressly stated. This will enable these functions to continue to be traditionally performed by the Ministry under the supervision of the Minister of Justice while the Office of the AGF, which is to be independent and separated from the Ministry, concentrate on prosecutions.”
In clear terms, the president remarked:
“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.
“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.”