A WORKSHOP ON CSO REVIEW OF PROPOSED AMENDMENTS
TO THE CONSTITUTION
ORGANIZED BY
POLICY AND LEGAL ADVOCACY CENTRE (PLAC)
AT THE A WORKSHOP AT PROTEA HOTEL APO APARTMENTS, NO. 2
AHMADU BELLO WAY, APO, ABUJA
[Date: MONDAY, 8 JULY 2013]
A STEP BY STEP GUIDE TO THE PROCESS OF
AMENDMENT TO THE CONSTITUTION
Presentation by M D Hassan
Legislative Counsel, National Assembly
Abuja
Mobile Phone: +2348037875524
Email: [email protected]
1
Introduction
A constitutional amendment is a formal change to the text of the
written constitution of a nation or state. In some jurisdictions, the text
of the constitution itself is altered; in others the text is not changed,
but the amendments change its effect.
Most constitutions require that amendments cannot be enacted unless
they have passed a special procedure that is more stringent than that
required of ordinary legislation. Examples of such special procedures
include super-majorities in the legislature, or direct approval by the
electorate in a referendum, or even a combination of two or more
different special procedures. A referendum to amend the constitution
may also be triggered in some jurisdictions by popular initiative.
The authority to amend the Constitution is derived from section 9 of
the 1999 Nigerian Constitution. The Constitution provides that an
amendment may be proposed with a two-thirds majority vote in both
the Senate and the House of Representatives.
It is on that basis that the National Assembly has commenced the
amendment process of the 1999 constitution. The Deputy President of
Senate and Chairman of the Senate Committee on constitution
amendment, Senator Ike Ikeremadu had outlined the issues for
amendment. These include:
•
•
•
•
•
•
•
•
revenue sharing,
states creation,
rotation of power,
local government,
state police,
political structure,
Judicial reform,
citizenship question, settler and indigene ship dichotomy,
2
• security deficit, and
• politicization of religion and pro-ethnicity.
Justification for constitutional amendment
To address the issues outlined above with the aim of changing them for
the better or removing the faults or errors in them.
Stakeholders in constitutional amendment:
Legislature: To set out the Procedure/Steps
• setting up of Adhoc Committee and its membership
• Terms of reference/Agenda
• Appointment of consultants/experts to conceptualize and
develop strategies for implementation of the adhoc
committee’s agenda
Executive: In Nigeria, the Executive may propose a Bill seeking to
amend the constitution and, thereafter, send it to the Legislature for
consideration. Unlike the process by which a law is passed, the
executive branch, (the president), in many jurisdictions, plays no official
role in the amendment process.
Judiciary: The second major way the meaning of the Constitution
changes is through the judiciary. As the ultimate arbiter of how the
Constitution is interpreted, the judiciary wields more actual power than
the Constitution alludes to. The complex role of the Supreme Court in
constitutional amendment derives from its authority to invalidate
legislation or executive actions which, in the Court's considered
judgment, conflict with the Constitution. This power of "judicial
review", though not explicitly provided in the Constitution, has given
the Court a crucial responsibility in assuring individual rights, as well as
3
in maintaining a "living Constitution" whose broad provisions are
continually applied to complicated new situations.
CSOs/NGOs: Nigeria is home to a wide variety of civil society and nongovernmental organizations, some of which came into existence even
before the country was formed in 1914, some in the period before
Independence in October 1960, and many more since then. Apart from
being a pressure group, CSOs also research and analyze legislation or
regulatory proposals, attend legislative hearings, and educate
government officials and corporate officers on important issues.
Media On media, Ekweremadu restated the commitment of the Upper
Chamber to sustain partnership with the media to ensure the overall
success of the process.“We have started the process of constitutional
amendment and it is going to require dissemination of a lot of
information to the people. The only way we can achieve that is to
partner with journalists. “So I’ll use this opportunity again to appeal to
you that as we go forward you’ll continue to support us to sustain this
friendship.”
• Professional Bodies
Executive or Private Member Bill:
If it is a Private Member Bill, there will be need for Public Session.
The House of Representatives has, for the first time, pursued the
amendment process through the stake holders meetings in the 360
federal constituencies. The parley presumably held in each federal
constituency; and the views collated at each center should contribute
to shaping the amendment process.
Required Legislative Processes
• 1st Reading
4
• 2nd Reading and Referral
• Public Hearing
• 3rd Reading and passage
• Transmission to State Houses of Assembly
Section 9 of the constitution stipulates that the “National Assembly can
only pass an act to amend the constitution when its proposal to amend
the constitution has been supported by two-thirds majority of all the
members of each chamber and the proposal is approved by the
resolution of at least 24 Houses of Assembly of the States.”
This section of the constitution states the procedure to be adopted in
amending the constitution.
Assent: A decision of the Federal High Court in Olisa Agbakoba Vs
National Assembly.
Prominent legal scholars in Nigeria have written divergent opinions on
whether the president’s assent is required in the constitutional
amendment process; particular mention must be made of the opinions
of Chief Richard Akinjide, SAN, Prof Taiwo Oshipitan, SAN, Mr. Olisa
Agbakoba, SAN and, most recently, the official position of the Nigerian
Bar Association who have argued that the proposal for the alteration of
the 1999 Constitution as passed by the National Assembly and
approved by more than two-thirds majority of the State Houses of
Assembly cannot take effect as an amendment to the 1999 Constitution
in the absence of the assent of the President.
However, those who hold contrary views maintain that the president
whose functions are well articulated in Part II, Section 5(1)(a) and (b) of
the 1999 Constitution has no formal constitutional role in the
amendment process as stipulated by Section 9 of the Constitution. Be
that as it may, the president can neither veto an amendment proposal
by the National Assembly nor the approval of two-thirds majority of the
5
Houses of Assembly. The call for the president’s assent is fallacious and
lacking any legal substance or foundation.
Since there is no ambiguity in the provisions of section 9 of the 1999
Constitution; there is therefore, no need to refer to Section 58 of the
Constitution, which is inapplicable anyway. Section 9 is sacrosanct and
cannot be departed from, varied or added to by the proponents of
presidential assent.
Recommendations:
• Need to concentrate on critical areas of the polity such as:
*
security
*
education
*
agriculture
*
human empowerment, and
*
infrastructure
• Public enlightment before commencement of the exercise
• Sufficient publicity for public hearings
Conclusion
The method of constitutional amendment is for a bill to pass both
houses of the legislature, by a two-thirds majority in each. Once the bill
has passed both houses, it goes on to the states. Because of some long
outstanding amendments the legislature will normally put a time limit
for the bill to be approved as an amendment.
•
•
The amendment must be approved, by a two-thirds majority in
each House.
Proposal by the National Assembly, ratification by state
legislatures.
6
•
•
As the ultimate arbiter of how the Constitution is interpreted, the
judiciary may interpret how the process should be
Involvement of stakeholders and interest groups to improve the
quality of the draft amendment.
Thank you for listening
7