There was uproar in the Senate last week over the State of the Nation Address Bill, which President Goodluck Jonathan refused to sign. He returned the bill to the Senate for further modification because it does not allow him to delegate the responsibility to present the address to another official, such as the Vice-President. Is such presidential address compulsory? How is it done in other countries? And can the president delegate the responsibility? JOSEPH JIBUEZE sought lawyers’ views.
IT has been long that such a scene was witnessed in the Senate chambers. Last week, there was near bedlam there as senators engaged in a shouting match over the State of the Nation Address Bill. But the Senate said the bill, hich was presented by Senate Leader Victor Ndoma-Egba for reconsideration, was not the cause of the uproar. It blamed the problem on a request by another Senator, Bashir Lado (Kano Central), to be allowed to introduce a motion.
What the bill is all about
The bill, passed by the National Assembly on May 16, seeks to mandate the President to address the National Assembly (and by extension Nigerians) on the state of the nation annually, specifically every July.
However, President Goodluck Jonathan proposed some amendments and returned it to the Senate.
The President described certain provisions of the bill as inconsistent with the doctrine of separation of powers and the spirit of the Constitution.
He rejected the section that makes it mandatory for him to present the address before a joint session of the National Assembly yearly.
He chose to rely on Section 67 of the Constitution, which makes it optional. He also sought an amendment to allow him delegate the responsibility to the Vice-President, which the lawmakers rejected.
This development has raised pertinent questions. Can the President return a bill to the House of Assembly for further amendment before assent? Must the President always appear before the lawmakers to address them? Can he not delegate the responsibility? Of what use is a presidential address to Nigerians? Should the Senate go on to and pass it if the President withholds his assent?
The arguments
Senators were divided on whether to override the President’s veto on the bill or consider his proposed amendments. Some argued that the President had no power under the 1999 Constitution to propose amendments to a bill passed by the National Assembly.
Others, however, argued that he could. They relied on Section 88 of the Senate Standing Orders, which allows the President to send observations to the National Assembly where he has misgivings on any bill already passed.
During the debate on the bill, Chairman of the Senate Committee on Rules and Business, Ita Enang, cited Sections 58(4&5) and 100(4) to state that the 1999 Constitution did not contemplate the President making amendments to any bill passed by the National Assembly.
According to him, what the law says is that the President shall within 30 days indicate whether he will assent to a bill or not; and that is all and not to propose amendments to it.
The Minority Whip, Senator Ganiyu Solomon, argued that the President could bring an amendment after a bill is already signed. But he stated that the President could not propose an amendment to a bill awaiting his assent.
Many senators wanted the Senate to override the presidential objections, but others said the upper chamber had no such power since the letter the President sent to the National Assembly did not say that he withheld assent to the bill.
Senator Abdul Ningi (Bauchi Central) traced the origin of the bill and posited that contrary to the President’s position, the National Assembly has never passed a bill that is inconsistent with the Constitution.
He said the State of the Nation Address Bill 2013 did not in any way contradict the Constitution, and that it was an attempt to deepen democracy and make the President responsible and accountable.
He said: “The letter from Mr President has no basis; it has no merit. It should be returned to him for assent or to reject it and when he rejects it we will override the President, for the first time.”
Deputy Senate President Ike Ekweremadu said the Senate had never had a situation where the President returned a bill passed by the National Assembly with a comment.
The American model
In the United States, the State of the Union is the address presented by the President to a joint session of the United States Congress, typically delivered yearly.
The address not only reports on the condition of the nation but also allows presidents to outline their legislative agenda (for which they need the cooperation of Congress) and their national priorities.
The practice arises from a command given to the president in Article II, Section 3 of the U.S. Constitution which states: “He shall from time to time give to Congress information of the State of the Union and recommend for their consideration such measures as he shall judge necessary and expedient.”
Although the language of this constitution is not specific, by tradition, the President makes this report annually in late January or early February.
While not required to deliver a speech, every president since Woodrow Wilson has made at least one State of the Union report as a speech delivered before a joint session of Congress. Before that time, most presidents delivered the State of the Union as a written report.
Since Franklin Roosevelt, the State of the Union is given typically in each January before a joint session of the United States Congress and is held in the House of Representatives chamber of the United States Capitol. When a presidential inauguration occurs in January, the date may be delayed until February.
What began as a communication between president and Congress has become a communication between the president and the people of the United States.
Since the advent of radio, and then television, the speech has been broadcast live on most networks, preempting scheduled programming. To reach the largest television audience, the speech, once given during the day, is now typically given in the evening.
Also, in recent decades, newly inaugurated presidents have chosen to deliver speeches to joint sessions of Congress in the early months of their presidencies, but have not officially considered them State of the Union addresses.
Can the US President delegate the address?
Experts said historically, the United States President cannot delegate the State of Union Address to anyone.
Rather, the Vice-President and other cabinet members accompany the President to the Congress for the delivery.
Customarily, one cabinet member (the designated survivor or successor) does not attend, in order to provide continuity in the line of succession in the event that a catastrophe disables the President, the Vice-President and other succeeding officers gathered in the House chamber.
A designated survivor is a member of the United States Cabinet who is appointed to be at a physically distant, secure, and undisclosed location when the President and the country’s other top leaders are gathered at a single location, such as during State of the Union addresses and presidential inaugurations. This is intended to maintain continuity of government in the event of a catastrophic occurrence which kills many officials in the presidential line of succession.
What the 1999 Constitution says:
Jonathan was said to have relied on Section 67 (1) of the 1999 Constitution which does not make it mandatory for him to address the National Assembly yearly.
The section says: “The President may attend any joint meeting of the National Assembly or any meeting of either House of the National Assembly, either to deliver an address on national affairs including fiscal measures, or to make such statement on the policy of government as he considers to be of national importance.” The key word is “may”, but what do lawyers think?
Lawyers react
Lawyers were unanimous in their view that the President should not delegate the responsibility, as he is not bigger than Nigerians he is elected to serve. What more could be more important than speaking to your people once a year through their representatives? they ask.
Professor of International Law, Akin Oyebode said it would amount to abandonment of responsibility for the President to shy away from such duty.
“There is only one word for it: Abdication of responsibility and sheer disrespect, if not, in fact, contempt for the National Assembly,” he said.
Nigeria Country Representative of the American Bar Association (ABA), Mr Nelson Ogbuanya, said a state of the nation address should ordinarily not be delegated, as done in the United States.
According to him, it is an opportunity for a country to receive feelers from their leader. The citizens, he said, logically do not expect to see any other person other than the president on such a solemn occasion.
Such an address, he said, is aimed at raising the moral of the nation and building their faith and confidence in their country’s leadership.
Ogbuanya, however, added that should such power be delegated due to unusual circumstances, it must be properly explained in the law as to the reason behind it, because the people need to hear from their President directly.
The lawyer, who teaches law at the Nigerian Law School, said the state of the nation address is not supposed to be a trap for the president or a political ambush for him, but an opportunity to discuss issues of governance and assure the people that the government is on course and in the right direction.
Ogbuanya said: “The Bill seeking to make a Law mandating the President of the Federal Republic of Nigeria to have a responsibility to address the people on the state of the nation is well conceived.
“It’ll provide the president an ample legal opportunity to keep the people informed on the state of the nation, on various governance issues relating to the economy, transformation agenda, foreign policy and the general direction of the ship of nationhood.
“In fact, it serves as a periodic interface for update of the people in areas of common interest by the leader of the people; their president.
“Whether or not the responsibility to make the address by the president could be delegated is a matter of law based on the objective of the proposed law.
“This is important to be clarified, as it’s the law that unless a law restricts the right to delegate assigned responsibility, such can be lawfully delegated. It’s only the delegatee that cannot delegate based on the age-long principle of ‘delegatus non potest delegare’.
“Accordingly, if the purpose of the proposed state of the nation address law is to enable the people hear directly from their president speak on key areas of nationhood and state of affairs, such responsibility need not be delegated.
“This law seems to replicate the American model of ‘State of the Union Address’ by the US President. No officer, no matter how highly ranked in government undertakes such union address on behalf of the president, who is expected to show mastery of the state of affairs of the various contemporary issues affecting the people and the entire nation.
“It’s not supposed to be a political trap. If well done, the psychological impact cannot be underestimated. Hopes are rekindled as people are assured in concrete terms that something is being done about the nagging challenges of the time.
“This is what the state of the nation address would seek to achieve and it would be best done by the president himself as a matter of law. Doing otherwise is like letting one child in the presence of the parents to play the parent to his other siblings on issue that requires parental assurance!”
A constitutional lawyer Ikechukwu Ikeji said unusual situations require unusual remedies, adding that the bill, when passed to law, would help promote accountability.
“When the road is bent, you must also bend likewise to get to your destination. The Nigerian political landscape remains an unusual arena where unusual rhythms are played for unusual dance steps.
“The Nigerian President remains the most powerful President in the democratic world being a direct fallout from the all-too powerful military President created by the Babangida regime, which saw the emergence of the department of the Presidency from where emanates an octopus-like power domain.
“The Presidency overrides every decision taken today in every facet of the Nigerian polity very much in contradistinction from the original intendment of the principle of federalism.
“This is why it becomes imperative to device unusual steps to curtail the excesses of the Presidency to ensure a proper tilt towards true federalism.
“It is therefore imperative to make, and support, laws that will strengthen the principle of checks and balances both horizontally and vertically. This will help install a responsible and responsive government at both the federal and State levels.
“The State of the Nation Address Bill, in my view, is in line with the above thought pattern, with the need to improve on governance accountability.
“It is done in most other jurisdictions of the civilised world, the United States inclusive. I even suggest that the Bill should go a step further to make the address a quarterly affair and mandatory to be broadcast live on national television.”
Ikeji said by refusing to assent the bill, the President’s in-action is tantamount to withholding his assent to the bill.
“He indirectly rejected the Bill as passed by the National Assembly. The National Assembly has two options, namely, first to override the President’s assent and pass the Bill into law or secondly, to rework the Bill in line with the President’s amendment and re-present it for fresh law making process.
“The Bill may not be all that Nigerians need at this time but it is part of the entire package of what we need. We need to have the government come before us regularly to give us account of their stewardship and of where the nation is heading to. The same situation should be replicated in the States too. In addition, we also need jobs, electricity, food, shelter, good roads, good hospitals, good qualitative education and other dividends of good governance,” he said.
On the importance of such an address by the President, Ikeji said it provides an opportunity for everyone to have an idea of what is going on in the country, as well as helps accountability and improves the principle of checks and balances.
“It will help the members of the various House and Senate, as representatives of the people to ask questions and make useful suggestions on how to move the nation forward. It will also help the members of the Houses to know the kinds of laws they should make to achieve the overall goal of good governance,” he said.
He urged the National Assembly to go ahead and pass it, adding that they must insist that such responsibility cannot be delegated.
The lawyer said the lawmakers may make a few additions such as making it a quarterly address and making it mandatory for the President to personally appear except where he is permanently incapacitated to so do.
“There is no justifiable reason delegating the duty to the Vice-President or any other person for that matter.
“Wherever the President is, he should take the address as a priority superseding every other function,” he added.
Constitutional Lawyer and activist, Bamidele Aturu said, “The physical combat in the senate over the bill indicates clearly what many of us have identitied the senate with, namely legislative indolence. The Senate, if it didn’t agree with amendment proposed by the President could simply have ignored it as there is strictly speaking no room for amending a bill already passed by both chambers of the national assembly. The president is only required to assent or withhold assent. He cannot suggest amendment by force. He can only persuade some members to reintroduce the bill, which would really mean that he has withheld assent and that the national assembly has agreed with him. The bill continues in the dubious tradition of mimicking American democracy for the mere sake of doing so without understanding the basis of such tradition. I personally do not see the valuebthe bill would add to our wobbly attempt at building democracy. We have more serious issues confronting us than having a president read to us the opinion of some speech writers which in many cases are divorced from reality. Our democracy is troubled by legislative idleness and executive inertia. The end result is the obvious idlenertia sclerosis that is evidenced a state of nothing works.”
Managing Partner at Lagos law firm, T.C. Akanwa and Co, Mr Theophilus Akanwa, said good governance requires accountability to the people, and the state of the nation address by the President is an opportunity to give an account by himself.
“The Senate of the Federal Republic of Nigeria represents the good people of Nigeria and I consider this form of bill to be in the interest of Nigerians.
“It should be accented to by Mr President in order to corroborate the persistent preaching by his administration of good governance.
“The national assembly should veto the president’s powers where he fails to sign the bill,” Akanwa said.
Lawyer and rights activist Jonathan Iyieke said the lawmakers should not hesitate to veto the President should he withhold his assent.
“It is so irritating and embarrassing that our lawmakers, instead of applying the correct constitutional measure on an important issue, almost resort to physical assault.
“Mr President has no right to make laws, and where an Act has been passed by both chambers and assent is withheld, the Houses by Section 58 (5) of the 1999 Constitution are empowered to veto Mr President.
“The State of the Nation address bill is crucial and Mr President lacks the capacity to refuse assent. To return the bill to the House amounted to an attempt at executive lawmaking.
“It is high time the President appeared before a joint session of the National Assembly a stipulated time to give account,” Iyieke said.
Constitutional lawyer Ike Ofuokwu, said the furore generated by d Bill is unnecessary and cannot be justified.
His words: “After all of what use is d Bill to Nigerians and how does it improve d standard of living of d citizenry? It does not in anyway contribute to good governance. All these noise is just to boost parliamentary ego and arrogance.
“Those who represent us will only ask questions on party lines (if at all they have d courage to do so) and the ordinary Nigerians that bear the brunt and burden of bad governance cannot even contribute in any way.”
Lagos lawyer Emeka Nwadioke believes the argument in favour of the State of the Nation Address is unassailable.
He said: “Since January 8, 1790 American presidents have traditionally been addressing Congress on the state of the union. It has been said in modern times, the State of the Nation Address (called the State of the Union Address in the United States where it was borrowed) serves as both a conversation between the president and legislators, and as an opportunity for the president to promote his party’s political agenda for the future, oftentimes containing historically important information.
“It has also tended to heal political wounds, promote bipartisan unity among legislators, and win support for a president’s legislative agenda from both legislators and the people. Fortunately, Mr. President says he is “inclined” to accede to the bill, subject however to the amendments.
“A strict reading of Section 58 (4) and (5) of the 1999 Constitution (as amended) does not seem to anticipate such a pre-assent ‘amendment’. Clearly, the President can either sign a bill within 30 days of its presentation or withhold assent to the bill.
“Where the president withholds assent, the bill may then be again passed by the two houses, thus overriding the president’s dissent. In view of the importance of this bill to the overall health of the nation and its peoples, I urge the National Assembly to proceed accordingly and override Mr. President’s apparent withholding of assent.”
President, Coalition of Lawyers for Good Governance (CLGG), Mr Joe Nwokedi, said while said nothing should be allowed to distabilise the Senate.
“On the President’s side, what is he finding difficult in the bill? Is it a herculean task to address the Senate on the state of the nation once a year?”
