How can a constitution be amended?

The National Assembly has the power to review and amend the Nigerian Constitution. The constitution itself, in Section 9, sets out the way in which it can be amended. The process of constitutional amendment can only be initiated by the National Assembly. Constitutional amendment bill goes through two-fold procedure of proposal (by the National Assembly) […]

The National Assembly has the power to review and amend the Nigerian Constitution. The constitution itself, in Section 9, sets out the way in which it can be amended. The process of constitutional amendment can only be initiated by the National Assembly. Constitutional amendment bill goes through two-fold procedure of proposal (by the National Assembly) and ratification (or approval by the State Houses of Assembly) to reflect the seriousness attached to the exercise in strengthening and deepening democracy. In amending the constitution, the National Assembly must take practical steps to guide the process.
 Presidential assent
A clean copy of the bill and the attached schedule in duplicate, produced and certified by the Clerk to the National Assembly, shall, as soon as possible, be presented to the President of the Federal Republic of Nigeria for presidential assent.
This procedure applies to the general bills in compliance with Section 58 of the 1999 Constitution which requires every bill to be presented to the president for presidential assent. However, Section 9 of the constitution clearly stipulates a special procedure on how the constitution can be amended subject to this section and the assent of the president is not, in any manner, contemplated by the framers of the constitution.
Compliance with Section 58 of the constitution on the necessity or otherwise of the presidential assent in the last constitutional amendment raised some controversies during and after the passage of the first to third amendments of the constitution.
Prominent legal scholars in Nigeria expressed divergent opinions on whether the president’s assent is required in the constitutional amendment process.
There are two views on this matter. The first group, including the leadership and majority of members of the National Assembly during the last constitutional amendment, has argued that the proposal for the amendment of the 1999 Constitution as passed by the National Assembly and approved by at least two-thirds majority of the State Houses of Assembly cannot take effect as an amendment to the 1999 Constitution in the absence of the assent of the president.
They argued that any constitutional amendment without the assent of the president is not binding (Ekweremadu & Amucheazi, 2015:130). This group hinges its argument on the provision of Section 58 (1) of the 1999 Constitution and contends that the constitution being an Act of the National Assembly, its amendment must be assented to by the president to be effective (Agbakoba v National Assembly, 2010) Suit No. FHC/L/CS/941/201
 However, the second group that holds contrary views maintains that the president whose functions are well articulated in the constitution (Part II, section 5 (1) (a) and (b)) has no formal constitutional role in the amendment process as stipulated by Section 9 of the constitution.
Another argument by this group is, since the Nigerian Constitution is modeled on the American Constitution the Federal High Court ought to have adverted its mind to the case of Hollingsworth v Virginia (1778) 3 U.S (3 D all.) 378 where the Supreme Court of the United States held that “While it is permissible, a presidential signature is unnecessary (Adem, 2014:201).
By same logic, a president is powerless to veto a constitutional amendment which has been officially proposed to the states to ratify. Further by the same logic, it is unreasonable to infer that a state governor is involved in the state’s constitutional amendment process” (Ekweremadu & Amucheazi, 2015:149).
Be that as it may, the president can neither veto an amendment proposal by the National Assembly nor the approval of two-thirds majority of the Houses of Assembly. It is the view of this author that the call for the president’s assent is fallacious and lacking any legal substance or foundation.
Since there is no ambiguity in the provisions of Section 9 of the 1999 Constitution, there is therefore no need to refer to Section 58 of the constitution, which is inapplicable anyway. Section 9 is sacrosanct and cannot be departed from, varied or added to by the proponents of presidential assent.
Finally, the controversies relating to presidential assent in constitutional amendment have been seemingly resolved by the Federal High Court (Agbakoba v. National Assembly, 2010) for declaring the 2010 constitutional amendment without presidential assent as inchoate, and subsequently by the Supreme Court (Ogboru v. Uduaghan) where the apex court held that the amendments to the constitution came into force upon the assent of the president in January and March, 2010.
Veto
In a constitutional amendment, it is a settled fact the president cannot veto (refusal to sign the bill into law) an amendment that has been validly passed by the National Assembly and having the approval of two-thirds majority of the State Houses of Assembly.
Override of veto
In a normal legislative procedure, upon receipt of a bill passed by the National Assembly, the president may decide to withhold his assent (veto) to the bill by not signing it into law as envisaged by Section 58 (4) of the constitution. Where the president withholds his assent, he shall return the bill to the National Assembly with a statement stating the grounds of his objections (amendments) in line with the Court of Appeal decision in Adamawa State House Assembly V. Tijjani (2012). The Supreme Court in National Assembly vs. President (2003) states that the rationale behind the provision of Section 58 (5) of the Constitution was to give the legislature an opportunity to consider the amendment proposed by the president for withholding his assent to the bill.
 If however, the two chambers are of the opinion that the presidential objections (amendments) lack merit, they can ignore the amendments and override the presidential veto by passing the bill again into law by two-thirds majority of each of the Houses as provided by Section 58 (5) of the 1999 Constitution. Passing the bill again means following the same laid down legislative procedure by the National Assembly before sending it to the president for assent.
However, the Seventh National Assembly, in the last constitutional amendment which failed, attempted to provide a solution to this lingering problem by amending Section 9 of the constitution. A new provision was inserted to state categorically that, in amending the constitution of Nigeria, the assent of the president is not required to make the amendment effective. 
Excerpt of a paper ‘Constitutional Reform in the 8th National Assembly’, by Mohammed D Hassan, Department of Legal Drafting, NASS Abuja delivered last week at a workshop organised by Policy and Legal Advocacy Centre (PLAC) with support from DFID.