Amendment of Section 315 of the 1999 Constitution

A BILL FOR AN ACT TO AMEND THE 1999 CONSTITUTION (Section 315):

Background:

Section 274(2) of the 1979 Constitution, following the wording in the earlier Constitution of 1963, empowered the President (or the Governor of a State), by order, "to make such changes in the text of any existing law as he considers necessary or expedient to bring that law into conformity with the provisions of the Constitution". The reference to textual changes indicates the nature and scope of the power, as being limited to clerical or verbal changes, like changing names, titles and designations, substituting appropriate functionaries and so on.
This is exemplified by an order by the Governor of Kaduna State in 1980 under the provision in Section 274(2), whereby the title, Chief Justice, in any existing law of the state, was changed to Chief Judge, Military Governor, Executive Council or Governor in Council to Governor, Minister to Commissioner, Native Authority to Local Government Council, North-Central State to Kaduna State, and Edict to Law.

The provisions of section 274(2) was not intended to authorise changes of substance or policy in the law. Deletion or repeal otherwise than for the purpose of effecting such clerical or verbal changes was thus outside its scope. To make changes in the text of a law - that is, in its wording - presupposes that the law continues in force with all its substantive provisions. If the law or any of its substantive provisions is abrogated, the text will not be there to be adapted to bring it into conformity with the Constitutions.

The 1999 Constitution altered the wording in its corresponding Section 315(2), which empowers the President (or the Governor of a State) to make by order "such modifications in the text of any existing law as (he) considers necessary or expedient to bring that law into conformity with the provisions of this Constitution". The change in wording from "changes" in Section 274(2) of the 1979 Constitution to "modifications" in Section 315(2) of the 1999 Constitution has serious consequences.

It imports into the provision in Section 315(2) the definition of "modifications" in Section 315(4)(c), thereby enabling the President (or Governor) to make changes of substance in all laws existing on May 29, 1999 by "addition", alteration, omission or repeal" as he considers necessary or expedient to bring them into conformity with the provisions of the Constitution. It invests him with the power of substantive legislation derived, not from delegation by the National Assembly, but directly from the Constitution.

Arguments in favour of the Bill:

This Bill seeks to amend section 315 of the Constitution to remove the power of the President and Governors to make modifications to existing laws. This bill has become necessary for the following reasons-

• Subversion of the Exclusive Powers of the Legislature: the change of just one word, from "changes" to "modifications", has, perhaps without intending it, subverted the exclusiveness of the National Assembly's power to make laws for the peace, order and good government of the Federation" an exclusiveness, which the separation of powers contemplates and affirmatively requires.

• Usurpation of Legislative powers: The Government of former President Olusegun Obasanjo had under the cover of section 315, altered the revenue allocation formula of the country. State governors equally have been hiding under the provisions of section 315 to usurp the powers of the legislature.

• Doctrine of Separation of Powers: The doctrine of the separation of powers, was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, to save the people from autocracy. By the tenets of this doctrine, lawmaking is the traditional function of the legislature and ought not to be duplicated by the executive in order to save the people from autocracy.

• Consistency with Constitutional Democracy: the hallmark of military dictatorship is the rule of men and not of laws which promotes arbitrariness, autocracy and bad government. This is in contradistinction to a constitutional democracy that emphasises, the rule of law and legislative supremacy as limited by the Constitution. Therefore the provision of section 315 of the Constitution is in conflict with section 4 of the same Constitution which grants exclusive legislative powers to the legislature and ought to be amended to be in tandem with section 4 of the Constitution.

• Elimination of Anachronisms: Adaptive legislative powers as contained in the 1960, 1963, 1979 and 1999 Nigerian Constitutions as part of inherited colonial and military practices were necessary during the colonial and military transition era in order to bring certain things in conformity with the Constitution. However, with the lessons learned on constitutional democracy for the past 10 years, it has become expedient that colonial and military conventions should be applied with restraint and, if possible, carefully guided by means of constitutional provisions; that no single individual, howsoever dignified and trusted should be allowed to legislate for the peace, order and good governance of the country.

Conclusion:

Historically, section 315 of the Constitution was necessary in order to bring orderliness and smooth transitions during the colonial and military transition periods. Similar provisions in the 1960 and 1963 Constitutions limited its application to six months and three years respectively. Regrettably the 1999 Constitution did not limit the application period of the section as by the express terms of Section 315(2), it is exercisable "at any time;" thus, it is a continuing power, unlimited as to time and covering the entire body of existing laws. Consequently, the Executive have used the power to usurp the constitutional functions of the legislature which is clearly against the spirit and intendment of the Constitution and the doctrine of separation of powers. The section therefore has become anachronistic and needs to be amended to be in tandem with section 4 of the Constitution.