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The Constitutionality of Nigeria’s Recent Constitutional Amendment

A number of aggrieved parties including the Attorney General and Minister of Justice of the Federal Republic of Nigeria have filed suits in Nigerian courts seeking an interpretation of the constitutionality of the recent amendment of the 1999 Constitution of the Federal Republic of Nigeria. Nigeria’s National Assembly recently declared that the recent constitutional amendment was concluded when two thirds of Nigeria’s 36 States passed constitutional amendments as harmonized by the two houses of the National Assembly. It is contended by the parties that the President should assent to the Constitution Amendment Bill because the 1999 Constitution requires an Act of the National Assembly for amendments to the constitution. In this regard it is pointed out that the Constitution provides that proposed legislation by the National Assembly can only become law by presidential assent or the overriding veto of the National Assembly if the President withholds his assent. Nigeria’s National Assembly contends on the other hand that the process of amendment as detailed in the Constitution does not require presidential assent and is complete when two thirds of Nigerian states concur. This controversy is not surprising given the widespread condemnation of the amendment process because it is alleged that the process does not address systemic and fundamental issues of the Nigerian State.

It was widely thought that Nigeria’s constitutional amendment should have addressed issues such as the protection of socio-economic rights and the right to administrative justice; the limitation of presidential powers; redressing the imbalance in the manner in which power is shared by the three levels of government; providing better access to courts to challenge the constitutionality of executive and legislative acts including a more liberal standing rule and the strengthening of existing national institutions designed to support and promote good governance.

The recent amendments to the constitution address issues such as the eligibility of candidates for different offices; independent candidacy; political parties; the jurisdiction and powers of electoral tribunals; the manner of succession when the President or the Governor of a state is outside the country. It is therefore believed that these issues relate to electoral hegemony and are self serving for Nigerian legislators.

--Enyinna Nwuache
ANCL (African Network of Constitutional Lawyers)

1 comment:

  1. On the face of it it seems reasonable to suppose that the president's assent is necessary. The relevant provision is Section 9 of the constitution. This begins:

    "(1) The National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution."

    The remainder of the section is expressed negatively. It states than an amending Act "shall not" be valid in certain circumstances. So it reads like a set of exceptions to the power conferred by (1) rather than an exhaustive code for the making of amendments. This suggests we must look elsewhere to see if there are any other criteria for a valid Act of Parliament.

    "(2) An Act of the National Assembly for the altertion of this Constitution ...shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

    "(3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States."


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