The validity of the recently amended Constitution has been questioned by the Attorney-General of the Federation and Minister of Justice, Mohammed Bello Adoke, who said the document is not law until President Goodluck Jonathan signs it.

The National Assembly however insisted that the president’s signature is not required, since 24 of the nation’s 36 state houses of assembly have already ratified it, making a presidential assent unnecessary.

Genesis of controversy

Last week, Olisa Agbakoba, a human rights activist and lawyer, had gone to court over the legality of the document. In an originating summons filed at a Federal High Court in Lagos by his lawyer, Chijioke Ogham-Emeka, Mr. Agbakoba argued that the Constitution (First Amendment Act 2010) recently passed by the National Assembly cannot take effect as a law without the assent of Mr. Jonathan.

He said the amendment remained illegal and unconstitutional if it is not signed by the President and urged the court to nullify it on the grounds that it contravened Section 58 of the 1999 Constitution.

In the new constitution, the Independent Electoral Commission (INEC) is to conduct next year’s elections in January. The electoral body has begun to gear up for the election and has mounted series of activities and campaigns towards that.

However, Mr. Adoke, who is a co-defendant in the suit said the federal government has not yet decided to defend its position in court in spite of being joined as a defendant.

Despite this reluctance to join issues with Mr Agbakoba in court, the minister said the position of the government remains very clear - which is that a presidential signature is necessary before the amendments can become operative.

Mr Adoke said: “Our position on the necessity of an assent is very clear. It has been highlighted before now. I will advise you to search for some of the position documents and read it again.

However, on the issue of the suit, we have been listed as a defendant. But we are yet to take a position whether we will defend the case or not.”

Sources at the ministry said the minister’s response was more or less an attempt to douse the raging controversy over the proprietary of a presidential assent, which is threatening not only to delay the take-off of the newly amended Constitution but the 2011 general elections which is to be held in accordance with the amended Electoral Act.

The debate continues

The suit, which listed the Attorney-General of the Federation, the House of Representatives and the Senate as defendants, has heightened the disagreement and legal contentions over the necessity of a presidential assent before the new constitution could become law.

Already, two eminent lawyers and statesmen, Ben Nwabueze, a Professor of Law and Richard Akinjide, a former Minister of Justice, said for the constitution to become valid, it has to be signed by the president.

According to Kayode Oladele, a Nigerian lawyer based in the United States of America, the Constitution does not require the assent of the president. “Be that as it may, what makes the amendment effective is not the resolution or approval of the National Assembly per se but final ratification or approval of the same by two-thirds majority of the state legislatures presumably in the name of “The People”. What the National Assembly therefore does is actually to approve the proposal for the amendments and send the approved proposals to the state legislatures for approval.” He added, “Once the National Assembly receives the required approval of the State legislatures, it then sets a timetable for the effective date and commencement of the new constitution.

This process of ratification is what is contained in section 9 of the 1999 Constitution and no other meanings should be read into it. The reason is simple, what would happen if the president refuses his assent after being approved by the National Assembly and ratified or approved by the State legislatures as provided for under Section 9 of the Constitution? Can the president veto it because he has the power of veto? The answer is No.

Presentation of the amendment constitution to the President for assent is unsupported by law and may constitute an infraction of the constitution itself.

It should not be contemplated at all.”

This view is shared by another lawyer Kayode Ajulo, who in laying emphasis on what he called “gratuitous controversy over whether the just amended Constitution by the National Assembly requires President Goodluck Jonathan‘s assent or not,” said he disagrees with the stand of Mr. Nwabueze and Mr. Akinjide that the president has to sign before it becomes law.

He added that, “the need for the president’s assent becomes more repelling and laughable upon the consideration that if the president’s assent to the amendments as passed by the National Assembly is so required, it therefore behooves that nothing stops at least all the governors of the consenting state houses of assembly to assent to the resolution of their individual state.”

Another lawyer and constitutional rights campaigner, Ayo Obe agreed that a presidential assent is not necessary. According to her, “What happens if the President refuses to assent? Is it not with a two-thirds majority that his refusal is overcome by the National Assembly? And is it not with that two-thirds majority that the National Assembly passed the amendments to the Constitution in the first place? Why is it suggested that the President should have some kind of formalised veto over the constitution amendment process? I would also add that the constitution amendment process seems designed to specifically exclude the executive, and to involve only the legislatures. That is why state governors have no role in the process.”

http://234next.com/csp/cms/sites/Next/Home/5604587-146/amended_constitution_needs_jonathans_assent_says.csp