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In Nigerian English, when someone has no competence to carry out an act, we say that the person is too small to do it. My position is that President Goodluck Jonathan is too small to sign the constitutional amendments passed by the National and State Assemblies of our federation.

Over the past two weeks, there has been an intense debate over whether the said constitutional amendments have come into effect or whether they require presidential assent. Unfortunately, the debate has been too focused on legalistic arguments and most of the voices animating the debate have been those of lawyers. We non-lawyers should be part of the debate.

Indeed, my view is that the issues underpinning the debate are too important and too complex for lawyers, who with all due respect, are trained to argue about texts rather than their underlying foundational principles.

While the lawyers are arguing about whether the famous judgement in the United States {Hollingsworth vs. Virginia (1789)} – that presidential assent is not required for constitutional amendments to come into force – applies to Nigeria, we should take time to focus on the foundational principles.

In federal political systems, the federal (national) and federating (state) governments all have constitutionally defined areas in which each level is sovereign as well as areas where both levels have
concurrent authority.

According to the “father” of federal theory, K. C. Wheare (1963), in federal regimes, neither the federal nor regional governments are supreme; the constitution is the only supreme organ. He adds however that citizens in federal systems live under two separate authorities, each of which is supreme in its area of competence. On matters of the constitution, the two levels of authority – federal and state must act in concert. In addition, the act must be carried out by the most important organ,the legislature.

In democratic theory, legislatures are the most powerful institutions in democratic regimes for a very simple reason: Legislatures are the only institutions with the power to create other powers. They have the monopoly of the powers to make laws through which they create new commissions and agencies, enact public policy and determine public expenditure through the process of appropriation laws.

In democratic theory therefore, the powers of legislatures are considered more important than the powers of executives. Indeed, the theory of representative democracy is constructed on the pivotal role played by legislators, who have been elected by the people to represent them at the level of law-making for the society.

It is this legitimacy derived from the electoral process that gives them the power to translate the views and concerns of citizens they are representing into public policy. It is on the basis of this principle that when a president refuses to assent to a bill, a two-thirds vote by Parliament overrides the presidential veto.

Constitutions are fundamental to the culture of democracy. This is why the process of constitutional amendment starts with a two-thirds majority in the National Assembly thus giving it, ab initio, a status that is higher than the powers of the president.

As we are in a federation, the process is completed by two-thirds of votes cast by legislatures of two-thirds of the states – expressing the powers of the people which reinforces peoples’ power and gives the assent of the state legislatures a status that is higher than and beyond the authority of state governors. State governors are “too small” to sign the votes of over two-thirds of state legislatures and the president is too small to sign the two-thirds majority vote of the National Assembly.

As democratic theory accords great importance to constitutions, its amendment is given a status that is far beyond that of an ordinary act or statute, which is why a constitutional amendment is more than the question of signing a bill into law.

The debate on whether or not a presidential assent is required is coming at a difficult time in which Professor Attahiru Jega and his team at INEC are making Herculean efforts to produce free and fair elections after a long period in which Nigerians have lost their franchise.

All my arguments on the relative supremacy of the powers of the legislature over the executive assume they have been genuinely elected by the people whom they represent. We know however that a good number of them emerged through massive electoral fraud and therefore represent their godfathers not the people.

Our ambition as a nation is to organise credible elections so that genuine representatives of the people can exercise power on our behalf. We must not be distracted from this objective. Having asserted the theory, I conclude by proposing the only way forward in federal democracies: The lawyers should argue out the case in the Supreme Court and the decision that emerges becomes the final truth.