A Federal High court, yesterday, in Lagos, nullified the amendment of the 1999 Constitution by the National Assembly without the assent of President Goodluck Jonathan. In a swift reaction, the Senate described the judgement delivered by Justice Okechukwu Okeke unconstitutional. While vowing to appeal the ruling, the Senate leadership said it would, however, abide by the outcome of the litigation.
Delivering judgment in a suit filed by former President of Nigerian Bar Association (NBA), Olisa Agbakoba (SAN), the trial judge, Justice Okeke described the action of the National Assembly as illegal, null and void.
Okeke held that the passage f the first amendment Act by the lawmakers could not become law and operational without the President’s assent.The judge pronounced that the purported amendment to the Constitution would remain inchoate until it was presented to President Goodluck Jonathan for his assent and approval.
Ruling on the preliminary objections filed by the Attorney General of the Federation, Bello Adoke, challenging Agbakoba’s locus standi, Justice Okeke held that the plaintiff (Agbakoba) had sufficient locus standi to institute the action since the suit was not a challenge to the power of the lawmakers to make law or the debate on the floor of the National Assembly, but the refusal by lawmakers to send the amended Constitution to the President for his assent.
Okeke, while citing Section 150 of the Constitution to back up his stand, also held that Adoke was needed during the proceedings, being the Chief Law officer of the country either as a nominal party or at least to witness the proceedings.
The court thereafter dismissed the preliminary objections filed by Adoke and the National Assembly.
On the main suit, the court, referred to Section 2 of the Interpretation Act, noting that the Constitution, having come into law through an Act, can only be amended through an Act, and that an Act of the National Assembly could not become law without the assent of the President.
The judge added that the National Assembly could only go ahead to enforce the Constitution where the President refused to sign it after 30 days of receipt.
While referring to the argument of the National Assembly’s counsel that the United States of America president do not need to sign into law, the amendment made to the country’s Constitution, the judge held that the American Constitution was different from that of Nigeria because the USA Constitution did not come into effect by an Act of parliament but through a proclamation.
“Having failed to comply with the provisions of Section 58 of the Constitution, the purported 2010 amended constitution remains inchoate until it is presented to the President for his assent,” Justice Okeke held.
The plaintiff had named the National Assembly and the Attorney General of the Federation as defendants in the suit.
He was challenging the argument of the lawmakers that the assent of the president was not required before they could amend the constitution.
The National Assembly had countered the submission made by the plaintiff that the lawmakers were in the process of further amending the constitution.
Agbakoba had prayed the court to declare that “the constitution (first Amendment Act 2010) passed by the National Assembly cannot take effect without the assent of the president.
Senate spokesman, Ayogu Eze who reacted to the judgment in a press statement said while it was within the jurisdiction of the court to reach the decision it did on the matter, the National Assembly, however, disagreed with that judgment. Eze said, being a law-abiding institution and one charged with the function of making laws for good governance, the Senate would appeal against the judgment.
According to Eze: “We believe that the 1999 Constitution did not envisage that any single individual should sign the alteration after the people have spoken through the exercise of their sovereignty.
“We believe we were right in reaching the decision we did. One should have asked why the Governors did not sign the amendment at the time it went to the states for approval. “We were also guided by practice and conventions of other older democracies. The USA passed through the same argument after the Congress passed the Bill of Rights but the Supreme Court in that country ruled that the assent of the President was not required to alter the constitution.”
Senator Eze further explained that members of the National Assembly symbolized the mandate and sovereignty of the people, adding that the people spoke through their legislators.
In the words of Eze: “Sovereignty in a democracy belongs to the people and not to any office.We shall, however, abide by the final outcome of the litigation. We shall definitely appeal this decision which we think did not reflect the spirit and intent of the Constitution.”