Nigeria’s Constitutional Review: Breakdown of the Amendments to the 1999 Constitution and Issues Arising

 The Nigerian Senate has made some of the most far-reaching legislative proposals towards the amendment of the 1999 Constitution of the Federal Republic of Nigeria since the Constitution itself came into being. The Senate passed 33 legislative proposals in total. The House of Representatives, on 27th July 2017 rejected 12 of these proposals. As required by the Constitution, the legislative proposals passed of the National Assembly must be supported by two-thirds of all the State Houses of Assembly in Nigeria, before it is sent for the President’s consent.

The Nigerian Senate on the 25th and 26th July 2017 made some of the most far-reaching legislative proposals towards the amendment of the 1999 Constitution of the Federal Republic of Nigeria (“the Constitution”) since the Constitution itself came into being. The Senate passed 33 legislative proposals in total. Not all legislative proposals scaled the Senate’s voting requirement of a two-thirds majority. Likewise, the House of Representatives (“House of Reps”), on 27^th July 2017 rejected 12 of these proposals, which will be pointed out below. As required by the Constitution, the legislative proposals passed by both chambers of the National Assembly (“NASS”) must be supported by two-thirds of all the State Houses of Assembly in Nigeria, before it is sent for the President’s consent.

Below, we have outlined some of the most impactful proposals considered by the NASS. We will make comments where necessary.

Bill No. 2 – Authorization of Budgetary Expenditure

This Bill alters sections 82 and 122 of the Constitution to reduce the period within which the President or Governor of a state may authorize the withdrawal of monies from the consolidated revenue fund in the absence of an appropriation act (national budget) from 6 to 3 months. This has huge implications for the budgeting process in Nigeria. Whereas the Executive previously authorize spending without the budget for as much as half of the next year, with this new proposal authorization can only be given for spending during the first quarter of the year, without a budget. Government Ministries Departments and Agencies (“MDAs”) will have to present their budget proposals earlier and will now have to plan better for the future.

In a similar vein, Bill No. 28 stipulates the timeframe within which the President or Governor is required to lay the Appropriation Bill before the NASS or Houses of Assembly to encourage the early presentation and passage of Appropriation Bills.

Bill No. 3 – Devolution of Legislative Powers to the States

This Bill alters the Second Schedule, Part I & II of the Constitution to move certain items from the Exclusive Legislative List to the Concurrent Legislative List. The purpose of this Bill is to give more legislative powers to States. The Bill also delineates the extent to which the federal legislature and state assemblies can legislate on the items that have been moved to the Concurrent Legislative List. This amendment is targeted at balancing Nigeria’s currently skewed federal system. But this Bill retains the 13% derivation formula for revenue sharing.

Some of the items moved from the Exclusive to the Concurrent List are Agriculture, Arbitration, Environment, Railway, Road Safety, Health, Parks, Pensions, Stamp Duties, and Youth. With respect to Electric Power, the States will now have powers to make laws for the generation, transmission, and distribution of electricity within that State or in collaboration with any other State.

We note that some items were introduced into the Exclusive List. These are “National security and civil defence” and “Post and telecommunications”.

This Bill unfortunately failed in the House of Reps.

Bill No. 4 – Financial Autonomy of State Legislature

By this Bill, the Houses of Assembly of States will be funded directly from the Consolidated Revenue Fund of the State. The House of Assembly’s allocation will be a first-line charge.

Bill No. 5 – Distributable Pool Account for Local Governments

This Bill alters section 162 of the Constitution to abrogate the State Joint Local Government Accounts and empower each Local Government Council to maintain its own special account. It is this special account all allocations due to the Local Government Council shall be directly paid from the Federation Account and from the Government of the State. The special account will also make provisions for savings in the Federation Account before distribution to other levels of Government. The push for Local Government autonomy has been a long-fought battle in Nigeria. This amendment seeks to address the vexed issue of the financial states of the local governments in the country.

Bill No. 6 – Democratic Existence, Funding & Tenure of Local Government

This alteration addresses the issue of the democratic existence of local governments. It is aimed at strengthening local government administration in Nigeria by guaranteeing the democratic existence, funding, and tenure of local government councils.

Bill No. 8 – Immunity for Legislators for Acts in Course of Duty

This Bill will alters sections 4, 51, 67, 68, 93, and 109 of the Constitution to provide immunity for members of the legislature in respect of words spoken or written at plenary sessions or at Committee proceedings. The Bill further creates the National Assembly Service Commission and the State Houses of Assembly Service Commission to administer legislative staff and bureaucracy. And the Bill also obligates the President to attend a joint meeting of the NASS once a year to deliver a State of the Nation address. Under the current regime, this is purely at the discretion of the President. With this proposal, the President will have to address a joint session annually. This is typically the style of American Presidential democracy.

Bill No. 10 – Presidential assent of bills

This Bill alters sections 58, 59, and 100 to resolve the impasse where the President or Governor neglects to signify assent to a bill or decision to withhold such assent. Where the President (Governor) neither consents nor signifies that he withhold consents, the proposed Bill will become law after 30 days. But where the Bill in question is an Appropriation Bill (Budget), the Appropriation Bill will be “passed” again by two-thirds majority of the NASS.

Bill No. 11 – Timeframe for Submitting of Names Ministerial/Commissioners Nominees, Submission of their Portfolios, and 35% affirmative action for women as Ministers/Commissioners

This Bill alters sections 147 and 192 of the Constitution to set a timeframe within which the President or a Governor should forward ministerial/commissioners nominees to the Senate or State House of Assembly. The names of the nominees must have the portfolio assigned to them.  Though the Bill also included a proposal for 35% of the nominees to be women, this couldn’t garner the required two-thirds majority vote. Thus, the gender-representation clause is not part of the amendments the Senate sent to the House of Representatives. The latter voted in favour of 35% affirmative action for women as appointees.

Bill No. 14 – Independent Candidature

This Bill alters sections 65, 106, 131, and 177 of the Constitution. The alteration is aimed at expanding the political space and broadening the options for the electorate by allowing for independent candidacy in all elections. A contestant in an election need not be a member of a political party.

Bill No. 16 – Restriction of the Tenure of a President or a Governor

This Bill alters section 137 of the Constitution. By this Bill, the Constitution will be altered such that a person who was sworn in as President or Governor to complete the term of an elected President or Governor is prevented from further contesting for the same office for more than one term. Think of the classical case of former President Goodluck Jonathan. He completed Umar Yar’Adua’s tenure as Acting President after the death of the latter. He was elected for one term of four years after which he sought re-election but lost. Under this Bill, he would not be able to contest for a second term as substantive President.

Bill No. 19 – Separation of Office of the Attorney-General from the Minister/Commissioner of Justice

This Bill seeks to alter sections 150, 174, 195, 211, 318, and the Third Schedule to the Constitution will be altered to separate the Office of the Minister or Commissioner for Justice from that of the Attorney-General of the Federation/State.

To be qualified for the Offices of Minister of Justice and Attorney-General of the Federation (AGF), a person must have been qualified as a legal practitioner in Nigeria for at least 15 years, while that of a State must be at least 10 years. An appointee into the office of the AG must be knowledgeable on the workings of the criminal justice system and must be apolitical. The office of the AGF will be limited to one term of six years. The appointee would mandatorily retire at the age of 65 or upon attaining 35 years in public service. The AGF can only be removed from office by the President, if such removal is supported by two-majority of the members of the Senate. The same process applies for the removal from office of the AG of a State. The AGF is required to submit annual reports of activities of the office every year.

This Bill seeking to separate the office of the Attorney General of the Federation/State from the Office of Minister/Commissioner of Justice failed in the House of Reps.

Bills Nos. 20, 21, 26 – Judicial Reforms  

These bills contain a vast array of alterations with regard to the Judiciary. First, section 233 of the Constitution is being altered such that the decisions of the Court of Appeal will no longer be appealed as of right, but with the leave of Court.

Second, 3 justices of the Supreme Court can sit in chambers (not the open court) to consider and grant an application for leave to appeal. The Court of Appeal can also do so.[1] We note that having removed the right to appeal as of right to the Supreme Court, the Senate ought to have altered subsections 5 and 6 of section 233 of the Constitution to bring them in line with the alterations being made. These subsections still presume the existence of an appeal as of right.

Third, section 237 of the Constitution is to be altered such that the constitutional limit for the minimum number of Court of Appeal Justices is moved from 49 to 100!

Fourth, section 241 of the Constitution is to be altered to totally outlaw stay of proceedings where there is an appeal over an interlocutory decision. By virtue of the alteration to section 246, this will also apply to interlocutory decisions of the electoral petition tribunals.

Fifth, section 243(3) is being altered to clarify that the decisions of the National Industrial Court can be appealed against. This is in apparent response to the recent decision of the Supreme Court in Skye Bank Plc. v Victor Anaemem Iwu. But the Court of Appeal will be the final appellate court in respect of decisions from the National Industrial Court.

Sixth, under the alteration to section 250, the Chief Judge of the Federal High Court is to be appointed based on the “recommendation” of the National Judicial Council. Likewise, the President of the Customary Court of Appeal (CCA) will be appointed by the Governor on the “recommendation” of the NJC. This is to forestall the recurrence of the situation in Rivers State between 2014 and 2015 where the entire judicial machinery in the State grinded to a halt as a result of the impasse between the Governor and the NJC over the discretionary powers to appoint any Judge to be the President of the CCA in the State.

Seventh, any judicial officer who has held office for not less than ten years is entitled to pension for life.[2]

Eighth, section 12 of the Third Schedule to the Constitution is being altered such that the President of the Court of Appeal will be the Deputy Chairman of the Federal Judicial Service Commission. Also, the AGF will no longer be a member of the Commission.

Ninth, the alteration seeks to alter membership make-up of the NJC. The President of the NIC will now become a member of the NJC. The number of legal practitioners who are members of the NJC has now being reduced from “five members” of the NBA to “four senior members” of the NBA.

Tenth, proposals under Bill No. 21 deal entirely with pre-election and election cases. Some of the changes being proposed under this Bill are (1) where a preliminary objection is raised during the pendency of a case before the election tribunal or Court (in a pre-election matter), the Court is now required to decide the preliminary objection along with its final judgment; (2) introduces a limitation period for the filing of pre-election matters to 14 days after the occurrence of the event complained of; (3) the Court is required to give its decision within 180 days after commencement of the pre-election matter and (5) an appeal over such decisions must be brought within 14 days of the decision; (6) the Court of Appeal is required to determine such appeal within 60; (7) the alteration also delineates what qualifies as a “pre-election matter”.

By Bill No. 26, the IST is being established under the Constitution. Appeals from the IST to the Court of Appeal will now be final. By the way, the wording of certain aspects of this Bill is not clear.

Despite the ten major judicial reforms above, some issues were left out. (1) The vexed issue of a Special Court for corruption-related offences was not addressed. This may be a golden opportunity missed.

The NASS should have considered creating a special “constitutional court” to handle pre-election matters to ensure that speedy determination of such disputes is not detrimental to other cases.

So much ado about judicial reforms, back to other constitutional review proposals.

Bill No. 23 – Indigeneship for Married Women

The Bill introduces a new section 25A to the Constitution. Under this Bill, married women are recognized as indigenes of their husband’s community and by extension state. The only exception is if the woman in question chooses to retain the indigeneship of her parents (by birth). This means a married can choose her state of indigeneship. But this throws up some other issues—for instance where a married woman’s parents are indigenes of different states, what applies? Under what circumstances can she pick and choose for the purposes of determining her federal-character status? An example is the case of the former Minister of Environment Amina Mohammed. For this alteration to be smooth, the Federal Character Commission Act needs to be amended. I know that there is a case in the Court of Appeal challenging the Federal Character Act in this light.

However, the House of Reps voted against this Bill. But voted in favour of 35% affirmative action for women as appointees. These proposals will not scale through as they need to concurrence of both houses of the NASS.

Bill No. 24 – Procedure for Overriding Presidential Veto in Constitutional Alteration

By this Bill among, if a President withholds his or her consent to a constitutional alteration and the NASS by a two-thirds majority again passes the alteration Bill, the Bill becomes law. Interestingly, this Bill does not address the President’s decision to veto.

Bill No. 25 – Removal of the Law-making Powers of the Executive

Under this Bill, the President or Governor can no longer modify, alter, or repeal an existing law. This Bill unfortunately failed in the House of Reps.

Bill No. 27 – Reduction of Age for Election (or the “Not Too Young to Run Bill”)

The news over the eventual passage of this Bill was all over social media. This Bill seeks to alter the Sections 65, 106, 131, and 177 of the Constitution. It reduces the minimum-age qualification for the offices of the President and Governor, and membership of the Senate, House of Representatives, and the State Houses of Assembly.

Age qualification: President – from 40 to 35 years; Governor – remains 35; Senate – remains 35; House of Representatives – from 30 to 25; House of Assembly – 30 to 25. These changes, though welcomed, are not far-reaching enough. If we consider that it is not always the case that a first-time office seeker wins his party primaries or gets elected, it would become clearer that by stipulating 35 years as the minimum age for the eligibility to contest for the office of the President for example, the Senate has retained a high-age threshold. For example, if a 35-year-old contests for the office of the President, Governor or Senator and is unsuccessful at first attempt, the next opportunity to contest would be 4 years later by which time, (s)he would almost be 40. 25 years across board would be a better threshold, in my opinion.

Bill No. 29, 30, 31, and 32 – Deletion of Certain Acts from the Constitution

This alters the Constitution to delete the Land Use Act, National Securities Act, NYSC Act, and Public Complaints Commission Act from the Constitution to make them subject to the regular process of amendment as it applies to other Acts.

This Bill unfortunately failed in the House of Reps.

Further Take on the Constitutional Review

The decision of the NASS to make these alterations to the Constitution is welcomed. Though some of these alterations are not far-reaching enough, it’s a good start.

It is anticipated that the State Houses of Assembly will have divergent views on certain issues. For example, it is predicted that: (1) they may want more devolution of powers and an increment to the 13% derivation/revenue sharing formula—especially resource-producing states in the South—as legislative capital for the autonomy granted local governments by the NASS; (2) they may also want to press on the issue of state policing, which they may argue can exist in a structure similar to those of INEC or the state polices in the US. The State Houses of Assembly should take up the Senate on the 35% affirmative action for women as ministerial appointees.

Another take home point is that, subtly, these alterations have the potential of weakening the presidential (executive) powers under the Constitution. Consider, for instance, that the proposals include that the leader and past leaders of both houses of the NASS will be members of the Council of State; the President (Governor) can only authorize spending in the absence of a budget for just 3 months; the President (Governor) must appoint ministers within 30 days of taking the oath of office, no longer as (s)he pleases (no thanks to President Buhari’s 7-month-long record in this regard); and the President’s power to modify an existing law.

Are the days of a “too powerful” executive arm winding down? The Constitutional review seems to suggest so.