….Factually the judge erred

I have decided to take this legal exploratory journey because of a judgement that have threatened to reduce the status our constitution, from a supreme and collective body of laws otherwise known as a grundnorm, thus requiring a special procedure regarding the mode of its amendment and taking effect, to a mere Act of the parliament that tolerates the normal process of changing our laws. The primal aim of these discovery exercise which is an objective and critical analysis on the judgement as delivered by Justice Okechukwu Okeke, in a case as instituted by Chief Olisa Agbakogba [SAN] seeking clarification judgement as to the powers and function of the president in the process of constitutional amendment, the issue on notice being the fact as to whether an act of constitutional amendment as undertaken and passed by the national assembly, with the full concurrance of the required quorum of consenting house of assembly members, does require the signature assent of the president before it becomes effective as a valid constitutional amendment.

The premises of the declaratory verdict as delivered in the instant case was demarcated within the confines of section 58 of the 1999 constitution, where section 58(3) stated that a Bill that has been passed from the house it originated, should be sent to the other house for concurrance, pending which it shall be presented to the president for assent. Section 58(4) states that where a Bill is presented to the president for assent within thirty days, thereof signify that he assents or that he withholds assent. However section 58(5) of the same constitution is of the opinion that where the president withholds his assent and the Bill is again passed by each house by two-thirds majority, the Bill shall become law and the assent of the president shall not be required. This position when dissected upon the grace of the Interpretation Act Laws of The Federation 1990 confirms the desirability and need for assent by the person of the president, section 2(1)of the Act thus states: "An Act is passed when the president assents to the Bill for the Act whether or not the Act comes into force. "

While I am not disputing the effect of the judgement pending review by an appealate court of superior status, however I duely differ with the verdict in Fact rather than at Law. Because of the presumption of the learned judge that the constitution of the Federal Republic of Nigeria is merely an ordinary Act of the national assembly, but by virtue of the enacting provisions of its mother document which is The Constitution of The Federal Republic of Nigeria [Promulgation] Decree No. 24 of 1999, the assumption is that since all Decrees are subsumed into becoming Acts after the coming into effect of the 1999 constitution on the 29^th of may 1999, then the constitution of The Federal Republic of Nigeria can only be an Act of the national assembly thus falling within the extant provisions of amendment and assent by the president.

However, the judge erred in Fact when he did not take judicial notice of the provisions of the enacting Act, which is The Constitution of The Federal Republic of Nigeria [Promulgation] Act No. 24 of 1999, where it states under section 1(3) that: "Whenever it may hereafter be necessary for the constitution to be printed, it shall be lawful for the federal government printer to omit all parts of this decree apart from the schedule and the constitution as so printed shall have the force of law notwithstanding the omission." Adhering to the golden rule of judicial interpretation, the duty of a jurist perfoming the function of determining the intent and intendment of any legislation, is to probe the state of mind of the legal draftsmen at the time they drafted the document, in this instance what could have been the wish of the originators and framers of the Act. The import of the subsumed provisions of section 1(3) of The Constitution of The Federal Republic of Nigeria [Promulgation] Act purely sought to divorce the schedule and the constitution from the mother Act, thus the presumption of the drafter is the separation of the constitution from the enacting Act, afterall the 1999 constitution took effect upon the proclamation of sovereignty of the nigerian people from a usurper military government on the 29^th of may 1999.

Thus the preamble of the constitution of the Federal Republic of Nigeria 1999, starts with a proclamatory testification that it is we the people of the Federal Republic of Nigeria that have agreed to be guided it, as such conferred effect to the supreme document, not through the representative activity of an ordinary parliamentary Act but rather through thespecial act of proclamation of the sovereign will of nigerian people, afterall in other legal climes the unveilng of the constitution is given effect through determination by a refrendum. Thus the special and separate provisions for amending the 1999 constitution identifies with the carnal context of the argument, as section 9 of the same such constitution confirmed that the act of altering its provisions is as different from the activity of passing an ordinary Act of the national assembly and indeed the whole composite document is very silent on the powers of assent of the president in matters of constitutional amendment.