Fourth Constitution Alteration: Adoke Stirs Hornet’s Nest

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Mohammed Adoke

Former Minister of Justice and Attorney-General of the Federation (AGF), Mohammed Adoke, has stirred the hornet’s nest in his recent book, “burden of service”, where he confessed his role in the presidential assent controversy that truncated the constitution (fourth alteration) act (2015) in the twilight of Goodluck Jonathan administration. Tolulope Ibukunoluwa  dissects Adoke’s claims, the intrigues, and constitutionality of reversing assent to already signed bills

The Constitution (Fourth Alteration) Act (2015) was thought by most Nigerians to be the most ambitious and far-reaching efforts at giving Nigerians a befitting constitution post-military era. 72 clauses were passed by the National Assembly (NASS) in October 2014 and transmitted to the 36 State Houses of Assembly for ratification in line with Section 9 of the 1999 Constitution. However, only 62 clauses were approved by at least 24 States Assemblies.

Milestones 

Approved amendments include legislative immunity for members of both National and State Assemblies against civil and criminal proceedings for “words   spoken or written before the House or Committee thereof”; inclusion of the physical challenge as ground for discriminations as ethnicity, sex, etc.; inclusion of basic education and primary healthcare in fundamental and justifiable human rights; independent candidature; inclusion of electoral offences as grounds for disqualification of candidates for election; and mandatory presentation State of the Nation address to a joint session of NASS once yearly.  

 Others were straightening of processes for state creation; removal of presidential assent of constitution amendment Bills; financial autonomy for Office of the Auditor-General of the Federation and Attorney-General of the Federation; 30-day time limit for the transmission of assent or veto of a Bill by President or Governor failing which it automatically becomes law; and amendment to Section 59 providing for override of presidential veto (where necessary) by two-thirds majority of Members of both Houses within seven days.

 Also passed were compulsory presentation of budget estimates by President/Governor latest September and passing of same latest December 31; reduction of the period the President/Governor could approve based on previous year’s budget (in the absence of a new budget) from six to three months; life pension for presiding officers of NASS not impeached; financial autonomy for State Assemblies; establishment of State Assembly Service Commission; sanction for disobeying legislative summons; inclusion of all former Presidents of the Senate and Speakers of the House of Representatives in the membership of the National Council of State.

The amendments further comprised creation of Office of the Accountant-General of Federal Government different from Accountant-General of the Federation for accountability; separation of the Office of the Attorney-General of the Federation from the Office of the Minister of Justice with provisions for recommendation of AGF to the President by the National Judicial Council (NJC), confirmation by the Senate, financial independence, and removal only by the approval of two-thirds majority of the Senate; disposal of some appeals in Chamber by the Supreme Court without oral hearing of the appeal; prohibition of courts/tribunals from granting a stay of proceedings on account of interlocutory appeals in electoral matters; conferment of criminal jurisdiction for electoral offences on the Federal High Court; and timeframe for the disposal of pre-election matters.

 In addition, the Legislative Lists were streamlined to devolve more powers to the states. While National Security was included in the Exclusive List, railways, stamp duties, aviation, etc. were moved to the Concurrent List in addition to agriculture, arbitration, environment, health, road safety, pensions, etc.

 

The Controversy

 However, a veto letter by former President Goodluck Jonathan to former Senate President, David Mark, dated 13th April 2015 addressed dashed the amendments. This was amidst strong rumours that Jonathan had earlier signed the amendments, before his Minister of Justice and Attorney-General of the Federation (AGF), Mohammed Adoke, persuaded him otherwise. The NASS contended that Jonathan had no powers to rescind assent of a Bill he already signed. Although the allegation was strongly denied, his failure to return the original Bill along with the veto letter, as is the practice, and even at NASS written request, fueled the rumour and soured executive-legislative relationship.

 The former President’s grounds of veto included amendment to Section 9 removing presidential assent of constitution amendment Bill. He also doubted that the amendment met the constitutional requirement of four-fifths majority of both Chambers and approval by at least 24 states.

 He added that even if the thresholds were met, “there are a number of provisions in the Act that altogether constitute flagrant violation of the doctrine of separation of powers of the federation vested in the President by virtue of Section 5 (1) of the 1999 Constitution”.

He also reasoned: “Section 45A of the Fourth Alteration Act 2015, which guarantees the right to free basic education is too open ended and should have been restricted to government school. The same argument applies to Section 45B, which guarantees unqualified right to free primary and maternal care services. The implication of this is that private institutions will be obliged under the Constitution to offer free medical services since it is a right”.

Jonathan complained that “the 30 days allowed for assent of the President may not be adequate in some cases for the President to make a decision as to whether to or not to assent”, while reducing period expenditures could be authorized in the absence of a new budget had “the potential of occasioning financial hardships and unintended shutdown of government business”.

He contested the separation of the Office of the Attorney-General from that of the Minister of Justice, especially the mode of appointment and removal of an AGF, in addition to the elaborate autonomy granted the Office.

 

The Adoke Factor

 Contrary to strong denials that Jonathan assented in 2015 before he was made to change his mind, Adoke made a volt face in his recent book, “Burden of Service”, where he owned up to scuttling the Bill, described it as “self-serving” and promoting “legislative tyranny”.

 “After the elections had been concluded, the NASS curiously passed into law the Constitution Fourth Alteration Bill 2015 and sent it to the President for assent. On getting wind that the President was about to transmit his assent to the NASS, I quickly placed a call to the Senior Special Assistant to the President on Administration, Matt Aikhionbare…. I requested Aikhionbare not to transmit the instrument to the NASS.

 “Some of the provisions, in my humble view, were purely self-serving. For one, the bill sought to take away the power of the President to assent to constitutional amendments. That meant that the legislature would, on its on, amend the Constitution and it would become operational without the consent of the President. Two, the bill sought to make Presiding Officers of the National Assembly life members of the National Council of State. Only former Presidents/Heads of State and Chief Justices of Nigeria were permanent members. Three, the bill sought to put Presiding Officers of the National Assembly on life pensions irrespective of the duration of their service. Four, the bill also granted immunity to lawmakers in the same vein as the President, Vice President, Governors and Deputy Governors”, he clarified.

 He said after getting Jonathan to write a letter rejecting the amendments, “NASS started grandstanding that they were going to override the President”.

 “They demanded the original copy of the bill, which (already) had the President’s signature. But we ignored them. When I realized that they were about to engage in legislative rascality, I went to the Supreme Court to slow them down. The Supreme Court however asked all parties to go and reach a settlement. We did arrive at a settlement after they agreed to expunge most of the offending provisions”, he boasted.

 The former AGF said that even though some of the presidency’s concerns were addressed, he knew ab initio he was not ready to advice the President to sign the amendments due to some political considerations.

“I reasoned that the amendments would be taken in bad taste as the President had just lost the election and would be vacating office in less than three weeks. If he had won, he would probably not have assented to a Bill that sought to, among other things, make ‘legislative tyrants’ of the National Assembly and weaken the powers of the President”, he wrote.

Meanwhile, many senior believe that what Adoke made Jonathan do was tantamount to repealing a law without recourse to the parliament.

“An important constitutional question arises– can a president having assented to a law, unilaterally withdraw his assent?” a senior lawyer and activist, Chidi Odinkalu, queried.

 

Facts check

 However, fact checks appear to contradict Adoke’s claims and grouses. For instance, Senate Votes and Proceedings showed that approved amendments by the State Assemblies were actually passed on 17th February 2015. It was also transmitted to the President by the Clerk to the National Assembly, Salisu Maikasuwa, on 15th March 2015, about two weeks before the 29th March 2015 presidential.

Also, Jonathan’s widely reported six-page letter to Senator David Mark at the time and recently sighted by our reporter, did not complain about life pension for former Presiding Officers of NASS, legislative immunity for State and Federal lawmakers or inclusion of former Senate Presidents and Speakers in the National Council of State.

Again, contrary to Adoke’s assertion, the ill-fated Fourth Alteration restricted legislative immunity “In the course of exercising the legislative powers…and in respect of words spoken or written before the House or a Committee thereof”, while the life pensions for former Presiding Officers in the Fourth Alteration was limited to persons “not removed from office by the process of impeachment or for breach of any provisions of this Constitution”.

 Meanwhile, in a letter to former President Jonathan dated April 2015, Chairman of the Committee on Constitution Review at the time, Senator Ike Ekweremadu, provided insights into the amendments. Relying on Votes and Proceedings of NASS, he maintained that Four-Fifths Majority of both Houses was met in the alteration of Section 9. 

He defended the separation of the Office of the AGF from that of Minister of Justice, listing Kenya, South Africa, Singapore, Poland, etc. as examples. Besides ensuring independence of the Office, he maintained that discretionary powers conferred on the AGF by the Constitution was unhealthy for democracy.

“The whittling down of the previously unfettered discretionary powers of the Attorney-General is necessary step for enshrining constitutional democracy and ensuring adequate protection of the rights and liberties of citizens and all persons and authorities in the country”, he concluded.

Ekweremadu maintained that the removal of presidential assent to constitution amendments was in tandem with other democracies such as USA, Germany, France, Spain, etc. because unlike usual Bills, they are ratified by the States.

This position was also supported by Human Rights lawyer, Femi Falana, who observed: “Since the Nigerian Constitution is modeled on the American Constitution, the Federal High Court ought to have averted its mind to the case of Hollingsworth v Virginia (1778) where the Supreme Court of the United States held that ‘while it is permissible, a presidential signature is unnecessary’. By the same logic, a President is powerless to veto a constitutional amendment, which has been officially proposed to the States to ratify”.

Ekweremadu further explained that reduction of the period of expenditure without budget from six to three months would promote early passage of budget and accountability as He said as exemplified by the US, the executive and NASS could always work assiduously to prevent government shutdown.

“Nigeria is possibly the only country you can operate the Appropriation Act (of the previous year) six months into the next year. The World Bank and all international institutions have frowned at this”, he added.

He clarified that the amendment seeking to make a bill a law after 30 days in absence of presidential veto was to fast-track governance and in tandem with practices in developed democracies, citing Article 1, Section 7 of the US Constitution provides for only 10 days, excluding Sundays and days Congress is not in session.

Ekweremadu went further to state that there was no need to redraft the Fourth Alteration to apply the rights to basic education and primary healthcare to the government only as it is adequately covered by the provisions of Section 17 (3) (d) and 18 (3) of the Constitution, which unambiguously confers the duty to provide free basic education and healthcare on the government.

Meanwhile on inclusion of former Presiding Officers in the membership of the National Council of State and pensions, which appear to be Adoke’s main grouses even when they were not mentioned in Jonathan’s veto letter, a public analyst, Dr. Law Mefor, said the only reason they were excluded was because the legislature was inexistent at the time of drafting the 1999 Constitution.

“If former heads of the judiciary and former heads of executive, including former coup plotters, are life members of National Council of State and entitled to life pension, is it not an irony and anomaly that former heads of the legislative arm were excluded?” he wondered. 

 

In Whose Interest?

A former ranking Senator and active player in the Seventh National Assembly, however, believes that there could be more to Adoke’s scuttling of the amendments than meets the eyes.

“It could be that someone was lobbied by the incoming government. It could be that someone was hoping to be accommodated. But whatever it is, I need not remind you that many things we are witnessing in the country today, in the administration of justice, the abuse of power, and deterioration of human rights could have been prevented if the amendments had stood. Today, even Adoke is a victim of his own machinations.

 “Also, when he writes he was dubbed a Buhari Boy for scuttling the amendment, I see someone working hard to talk himself out his troubles, somebody trying to remind Buhari that after all he spoiled far-reaching constitutional amendments to ensure that the all-powerful presidency was retained for him”, he said.