Senator Dino Melaye, representing Kogi West in the Senate last week raised an alarm over the refusal of the acting President, Prof Yemi Osinbajo (SAN), to assent to a bill, passed by the National Assembly and sent to the President for assent in accordance with section 58(1) of the 1999 Constitution, as amended. Senator Melaye claimed that the President or the executive has no powers to refuse to assent to a bill duly passed by the legislature; more so, when the reason adduced for refusing the assent is spurious. He called on the Senate to rise to the challenge posed by such waywardness
The acting President had refused to assent to the said bill seeking to amend the National Lottery Commission Amendment Bill because, as he informed the Senate, in his ‘back-to-sender’ letter, there is a pending case in court. Section 58(1) provides: “The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President.” (Emphasis mine). Subsection (5) grants the National Assembly power to override the President, if: “the bill is again passed by each House by two thirds majority….”
The beef of the effusive senator is that democracy will be imperilled if the executive can withhold assent, simply because, some ‘meddlesome interloper’, decided to challenge the constitutional prerogative of the legislature: ‘the power to make laws’; instead of the right of a citizen, to challenge the validity of a law, if it is invalidly made. The argument of the senator, in my humble view, is tenable only to the extent that generally, the court cannot intervene to stop the exercise of a legislative process, but it can declare a legislative exercise, as invalid, where there is procedural or substantive irregularity, which renders the action, ultra vires.
In A. G. Bendel State vs A. G. Federation & 22 ors, (1981) All NLR 85 SC, the Supreme Court, per Fatai-Williams CJN, said: “In my view, a legislature which operates a written constitution in which the exercise of legislative power and its limits are clearly set out has no power to ignore the conditions of law making, that are imposed by that constitution which itself regulates its power to make laws.” In the United States of America, the Supreme Court, in Marbury vs Madison, (1803) 5 US 137, per Chief Justice John Marshall, held: “Certainly, all those who have written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the constitution is void.”
Of course, the dictum of the CJ of Nigeria, Fatai-Williams, and that of the CJ of the US, John Marshal, quoted above, is with respect to the validity of laws made by the respective legislatures. Obviously, the averments do not extend to the courts having inherent powers to prevent the legislature from embarking on the legislative journey, however, an April fool’s journey it may turn out to be at the end. In my view, the courts can only intervene in a legislative process, where manifestly, a legislative assembly, for instance, is abundantly improperly constituted, or engaging in a manifest illegality, like when a minority number acts as the majority.
So, when the acting President writes to the legislature to say that he withholds his assent because there is a suit pending in court seeking to stop the making of the law in question, Senator Melaye, raises an alarm that the republic is threatened. That is not true. For Section 58(5) of the constitution, did not provide or infer that the President, or his vice, acting for him, should convey to the legislature, the reason or reasons for withholding his assent. The subsection merely provides 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.”
Probably, Senator Melaye is just raising the political temperature of the National Assembly, in an effort to mobilize and propel his colleagues to muster the required two-third majority to override the acting President with respect to the bill which he sponsored. But could the court in an action, enquire, whether the reason adduced by the acting President for withholding his assent is tenable; considering that it was an exercise of a discretionary power? Perhaps. For while the acting President cannot be compelled to state his reason for withholding assent; where he does, the courts may declare such reason untenable and improper in an action.
Professors Wade and Phillips, in their book, Constitutional Law, quoted by Professor Ese Malami, in his own book, Administrative Law, stated: “The exercise of a discretion without taking into account all relevant considerations is equivalent to a failure to exercise it. The exercise of a power for an improper purpose is not an exercise of a power conferred for purposes defined in the statute which confers it. Acts, which are prima-facie lawful, may be invalidated, if they are done for a wrong purpose, or by a wrong procedure.” But if the National Assembly as a public policy, do not act on a matter that is lis pendis, (pending in a court), can it expect the acting President not to defer to the pendency of a matter in court and offer that as a good reason to withhold his assent?
Again, the acting President may just be showing respect by taking pains to write an elaborate letter to the National Assembly detailing his reasons for not assenting to the four bills over which he withheld assent, instead of just writing to say, I withhold assent; or alternatively ignoring the bill, and playing the politics. Well, unless of course, withholding his assent, while he is in charge, was a better politics in the circumstance. But having showed his hand, for a reason which some consider untenable, will the grudging senators test their complaints in court?
In Adesanya vs President of Nigeria (1981) All NLR 1 SC, an attempt by Senator Abraham Adesanya, to shoot down, an Act, which he considered unconstitutional, was itself shot down, on a constrictive interpretation of the doctrine of locus standi, of the petitioner. In the words of Obaseki JSC: “The mere fact that an act of the executive or legislature is unconstitutional, without any allegation of infraction of or its adverse effect on one’s civil rights and obligations, poses no question to be settled between the appellant and the respondents as to the civil rights and obligations of the appellant.”
But interestingly another distinguished panel of the Supreme Court, in Fawehimi vs Akilu, (1987) 1 NWLR Pt 67, at page per Uwais JSC, held: “There can be no doubt that by section 342 and 343 of the Criminal Procedure Law… every citizen of Nigeria or any person for that matter has a right to private prosecution… if the Attorney General does not wish to do so.” Going forward, will the loquacious and pugnacious Senator Melaye test his will against the cerebral and perspicacious acting President Osinbajo, (SAN)? We wait and see.
Credits: Gabriel Amalu | The Nation
