WHETHER THE DISCRETION TO VETO A BILL WALKS UNFETTERED
IN THE NIGERIAN LEGISLATIVE PROCESS
The procedure for the exercise of the law making powers conferred on the National Assembly by Section 4 of the Constitution is further spelt out under Section 58 in relation to all kinds of bills. Bills cover most general government policies meant to be translated into laws.
The Constitution of the Federal Republic of Nigeria, in providing the route to the exercise of these powers is tailored around the principles of separation of power and envisages a situation where each arm of the government, in good faith, acts as a check on the other, to ensure effective and healthy governance.
This research is necessitated by the recent refusal of the President of Federal Republic of Nigeria to grant assent to the Electoral Act (Amendment) Bill, 2018. Notably, this refusal would make it the 4th (fourth) time this particular Bill was rejected by His Excellency.
Though we could not place our hands on the exact number of Bills to which the President has refused assent within the three years he has been in office, our research finds that as at October 2018, the National Assembly had to raise a panel to consider 16 Bills rejected and returned to it.
Report also shows that in November, the Chief Justice of Nigeria was invited by the National Assembly to help consider 17 other Bills rejected by the President.
The 2018 Electoral Act (Amendment) Bill which is our major concern here, like other Bills, had successfully passed through the legislative processes required of the National Assembly and was successfully transmitted to the President for assent.
The President’s veto was communicated to the National Assembly via a letter addressed to the respective Chambers, dated 6th of December, 2018. This has however raised some issues of public concern and varied views have been expressed by lawyers and other academic scholars regarding the propriety or otherwise of this development.
This write up is, therefore, going to shed some light on the roles expected of the legislative and executive arms of government in a legislative process with a particular interest in determining whether there is any check on the grant or refusal of presidential assent to any Bill of National Assembly in Nigeria.
2. THE LEGISLATIVE PROCESS FOR THE MAKING OF LAWS IN NIGERIA
The Constitution contains specific provisions in respect of procedure for the transformation of ordinary bills, money bills, etc, into law.
These procedures are apparently similar save in the cases of bills for the alteration or modification of the constitution itself, domestication of treaties,  alteration of entrenched constitutional provisions such as the provisions in relation to creation of state, adjustment of boundary of an existing state, creation of local government, boundary adjustment of an existing local government, and finally, the provisions in relation to the fundamental human rights which are all specific provisions alterable only by virtue of the provisions of section 9(3) of the Constitution.
Of importance here is the fact that laws must always originate as Bills to be considered by the House before which it is laid, whether it is a general or money bill. A bill in any case is considered passed by the House after it must have proceeded through and survived all the stages provided for by the Constitution, till the stage of assent by the president or veto override in any case that the president vetoes the bill or fails to signify his assent after 30 days that a Bill is presented to him for assent.
Besides the specific provision under Section 59 (2) of the Constitution which deals with Money Bills, Section 58 deals with the legislative procedure for passing bills generally. The first known difference between a general bill and a money bill comes to play when the two legislative Houses have differences with respect to a money bill.
The second is the fact that money bills shall as a matter of law, always originate from the President. Thus, it is notable that the provisions of Section 58 may actually apply to money bills without any reference to Section 59.
By virtue of Section 58 (3), the assent of the President SHALL be required in the making of every law at the federal level in Nigeria. This is to be done after both Houses of the National Assembly have reached an agreement on a Bill in a full House plenary.
Anything short of this requirement is unconstitutional and has the effect of rendering such attempt a nullity. Thus, for a law to be truly valid and operational in Nigeria, the above stated procedure must be strictly adhered to.
In the case of A.G. Bendel State v. A.G. Federation & 22 Ors., the court stated that the Constitution is the grand law by which every other law and conducts are tested for constitutionality and upheld on the one hand or declared unconstitutional and null and void and of no effect, on the other hand.
In that case, the President of the Federal Republic of Nigeria forwarded to the National Assembly a bill titled Allocation of Revenue (Federal Account, etc) Bill, 1980 setting a new formula for the distribution of the amount standing to the credit of the federation account between the federal and state governments and the local government councils in the country for consideration and enactment by the National assembly into law pursuant to Section 149 of the 1979 Constitution.
The National Assembly in the process of passing the Bill, passed it with differences existing between the two Houses. The Bill was referred to a Joint Finance Committee in accordance with the Constitution.
However, when the committee resolved the differences, it failed to report back to the general house for a final adoption and ratification but rather sent it to the President who signified his assent and it subsequently became known as the Allocation of Revenue (Federal Accounts, etc) Act 1981.
Dissatisfied with the manner in which the National Assembly exercised its legislative power in respect of the bill, the Government of Bendel state brought this action, challenging the constitutionality of the Act.
The Supreme Court held in favour of the plaintiff that the said Act was null and void for failure of the National Assembly to follow the prescribed legislative procedure for passing it into law.
Whenever the President within 30 days after the presentation of the Bill to him, fails to signify his assent or where he withholds his assent, the only available remedy is a veto override. This is done if both chambers of the National Assembly are able to secure a two-third majority vote in favour of the said Bill.
It could therefore be gleaned from the foregoing that the law making process in Nigeria requires an active participation of both legislative and executive arms of the government, with the express intention of bringing the exercise of such powers by either arms under some measurable checks.
3. EXTENT OF VETO POWERS AVAILABLE FOR THE PRESIDENT
It has been explained above that the Constitution of the Federal Republic of Nigeria, 1999 contains elaborate provisions on the procedure for law making, including the amendment of any existing law in Nigeria.
At this juncture, we simply have to further point out that the powers available to the President are discretionary in the sense that they could be exercised in either way. The perceived insufficiency under the Constitution is therefore in relation to determining what ought to guide the exercise of such discretion by the President.
This brings to fore the question of whether the President is legally bound to give reasons when he vetoes a bill? If yes, can those reasons be tailored around personal or national interest?
A literal interpretation of Section 58 (4) of the Constitution seems to suggest that a presidential veto could be given at the pleasure of the President. There is nothing in the section expressly stating what should be the parameter for measuring whether the power to veto was rightly or wrongly exercised in any given case.
The only hope available for the federation in any case of wrong use of veto power would therefore lie in the ability of the National Assembly to invoke their powers of veto override under Section 58 (5) of the Constitution.
This, therefore, calls for the adoption of a purposive approach in interpreting Section 58(4) so as to unveil that the true essence of creating veto powers in the first place is merely to prevent the legislature from becoming too powerful.
This simply illustrates the principle of checks and balances. If this be the case, any interpretation which tends to clothe the President with the power to refuse assent to a bill which apparently represents the yearnings of the citizens (simply because he wants to “keep a check on the legislature”) must be avoided. The essence of checks and balances has always been to avoid arbitrary use of power by any arm of government.
Conventionally, presidential powers do not emerge from the vacuum. It is the peoples’ powers bundled together and handed to one man to exercise in trust for the entire state. In this regard, the President is in a fiduciary relationship with the state and ought never to exercise those powers in bad faith.
It becomes important, therefore, for us to consider the reasons given by Mr. President in his letter to the National Assembly signifying his veto of the 2018 Electoral Act (Amendment) Bill. Excerpts from the letter to the Senate House read:
“…I am declining assent to the Bill principally because I am concerned that passing a new electoral bill this far into the electoral process for the 2019 general elections, which commenced under the 2015 Electoral Act, could create some uncertainty about the applicable legislation to govern the process (sic)”
“This leads me to believe that it is in the best interest of the country and our democracy for the National Assembly to specifically state in the Bill that the Electoral Act will come into effect and be applicable to elections commencing after the 2019 general elections…”
On the face of it, the letter apparently suggests National Interest as one of the reasons that informed Mr. President’s decision to veto the 2018 Electoral Act (Amendment) Bill. However, what has left most citizens confused is the actual parameter with which “National Interest” was measured by His Excellency.
Is National Interest an objective or subjective term? If it is a subjective term, it then goes to say that the presidential veto power is unfettered and he could choose to exercise it anyway he pleases.
Thus, the President could withhold his assent if he feels that he has not eaten in the past two days and it is in the interest of the nation that a president should be well fed at all times. Also, if he does not like the face of the Senator or House member or head of a CSO who sponsored the bill, or even on another (very noticeable) note, where the agitations of his political party may not be fully represented, the President would be at liberty to exercise his veto powers.
On the other hand, if National Interest has an objective definition, it follows therefore that when a Bill is vetoed in the national interest, it would be manifestly seen to have been the best available option for the President. In other words, every reasonable man in the position of the President, given a similar time and circumstance would not have done anything to the contrary.
A second reason which seems to have influenced the President’s decision is that of proximity to the scheduled election date. Mr. Ita Enang, commenting on this says that granting assent to the Bill would have been in contravention of the provisions of Article 2 of the Economic Community of West African States Protocol on Democracy and Good Governance. The said protocol provides as follows:
No substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority of Political actors.
When further asked if the President had directly consulted the other political parties as recommended by the ECOWAS Protocol, Enang replies as follows;
“I think that what the President is to do is to take the best of discretion and from his vantage point as President of the country, to look at international best practices.”
We would not consider it hasty to submit that the provision of the Protocol above is straight forward and does not require eagle eye to unveil its meaning. One is therefore pushed to enquire into the sincerity of Mr. President’s reference to this Protocol as a ground for veto in this instance. Was he willing to obey the first limb of that Protocol and disregard the second limb because the second limb might probably not suit his personal interest?
Notably, the second limb of that section places an explicit demand on the President to carry other political actors along. Political actors here does not just refer to registered political parties, but also includes the Electoral Commission of the member Country.
It is important to note here that although INEC later published that there was still a possibility of conducting good elections under the extant 2015 Act, it however hinted that the amendments which the 2018 Bill sought to introduce would have cured the controversies which trailed the 2015 elections. A holistic application of the provision of the Protocol would also have gone a long way in building national confidence in the preservation of our long sought democracy.
According to the Secretary-General of the Conference of Nigerian Political Parties (CNPP):
“…this singular rejection of the Electoral Act (Amendment) Bill (2018) by Mr. President is another repressive attempt to stem multi-party democracy and has completely removed the last hope of level playing ground for all political parties in the forthcoming elections. It is ironical that President Muhammadu Buhari has been promising free and fair elections and at the same time refusing to give effect to the only instrument that would have proven his commitment to credible electoral process in 2019 …”
Looking at the intendment of that Protocol from a third perspective, one would agree that it was made with the aim of curbing the ugly situation where African Leaders in the past usually unilaterally amend electoral laws in order to suit their desire to retain political power till death.
That Protocol did not in any way, desire to inflict hardship on member states. Hence, any interpretation which tends to rob a member state of its desire to amend its electoral laws for the purpose of reflecting rules that will present the electoral process as manifestly free, fair and credible should be avoided.
It could be gleaned from the above that the veto powers available to the president are discretionary powers. Such discretion, however, is bound by some strings of limitation which makes it mandatory that a bill shall only be vetoed if it is in the best interest of the federation to do so. An otherwise use of that discretion is clearly unconstitutional and should be frowned at.
Again, it is not in contention what the true position of the law is on issues arising from acts of authorities, institutions or persons which deviate from the constitutionally prescribed procedures for the exercise of powers available under the constitution. Such deviation, simply put, amounts to abuse of power. Abuse of power itself is a dangerous slap to the face of Rule of Law which could be pinned down to gross misconduct – a constitutional ground for removal from office.
To curb this malady, we humbly appeal to the National Assembly to always shun partisan politics and invoke its powers of Veto Override whenever such contentions arise again in the future.
The National Assembly is clearly the only institution with the power to restore national hope whenever the Executive arm is seen or perceived to act in a manner that may likely jeopardise the democracy and over all interest of the federation.
An amendment of the Constitution to expressly reflect national interest as the ground for exercising veto powers by both the President and National Assembly would also be deeply appreciated by all well meaning Nigerians.
IKENNA CHRIS UKPAI
LL.B (Nig.) BL
1. Constitution of the Federal Republic of Nigeria, 1999, hereinafter referred to as “the Constitution”.
2. Musa Abdullahi, “Senate Raises Panel Over 16 Bills Rejected by Buhari”, Daily Trust Newspapers (10 October, 2018) Available at https://dailytrust.com.ng/senate-raises-panel-over-16-bills-rejected-by-buhari/ (Last accessed, 26 December 2018).
3. Henry Umoru, “CJN at NASS to Revive 17 Bills Rejected by Buhari”, Vanguard Newspapers (24 November, 2018) Available at https://vanguardngr.com/2018/11/cjn-at-nass-to-revive-17-bills-rejected-by-buhari/ (Last accessed, 26 December 2018).
4. J.F. Olorunfemi, “Whether the Assent of the President is Required for Constitutional Amendment in Nigeria”, Law and Policy Review,vol. 1, (2011), p. 1-34, p.6.
5. Section 9 (2) of the Constitution of the Federal Republic of Nigeria.
6. Section 12 of the Constitution of the Federal Republic of Nigeria.
7. See generally s.8 (1)-(4) of the Constitution.
8. Chapter 4 thereof.
9. I.C. Ukpai, Budget Padding in Legislative Process: Whether Constitutional under Our Laws; Eduresearch Journals (January, 2019), Available at: https://www.eduresearch.ng/projects/budget-padding-in-legislative-process-whether-constitutional-under-our-laws/
10. Section 58 of the Constitution.
11. Ibid, S. 58 (5).
12. S.81 of the Constitution.
13. A.G Bendel v. A.G Federation
14.  3 NCLR 1 S.C. Also; Doherty v Balewa (1961) All NLR 631 and Balarabe Musa v Peoples Redemption Party (1981) 2 NCLR 736.
15. Emphasis mine.
16. Ernest Chinwo, “Buhari: Why I Refused to Sign Electoral Bill” This Day Newspapers (12 December, 2018) Available at https://thisdaylive.com/buhari-why-i-refused-to-sign-electoral-bill/ (Last accessed, 24 December, 2018).
17. Senior Special Assistant to the President on National Assembly Matters
18. “Real Reason President Buhari Refused to Sign Electoral Bill Without Consulting 91 other Political Parties”, Daily Advent Newspapers (13 December, 2018) Available at https://www.dailyadvent.com/real-reason-president-buhari-refused-to-sign-electoral-bill-without-consulting-91-other-political-parties/ (Last accessed, 17 December 2018).
19. J.O. Nwachukwu, “2019 election: INEC Reacts to Buhari’s Refusal to Sign Electoral Act Amendment Bill, Tasks National Assembly”, Daily Post Newspapers (10 December, 2018) Available at https://dailypost.ng/2018/12/10/2019-election-inec-reacts-to-buhari’s-refusal-to-sign-electoral-act-amendment-bill/ (Last accessed, 24 December, 2018).
20. The umbrella organization of all registered political parties and political associations in Nigeria.
21. Emphasis mine.
22. O. Nwacukwu, “2019 Election: Political Parties React to Buhari’s Refusal to Sign Electoral Act Bill, Task National Assembly”, Daily Post Newspapers (10 December, 2018) Available at https://dailypost.ng/2018/12/10-political-parties-react-to-buhari’s-refusal-to-sign-electoral-act-bill-task-national-assembly/ (Last accessed, 24 December, 2018).
23. S.143 (2) (b) of the 1999 Constitution as Amended.
Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Attorney at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation.