Are Resolutions of the National Assembly Concerning the Bakassi Imbroglio Binding on the Executive?

In Breaking News, Reports

by Obono Obla

The decision of the Senate yesterday directing the Federal Government of Nigeria to take steps to immediately to initiate the process to file an application at the International Court of Justice for a review of its judgment delivered on the 10/10/2002 concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Equatorial Guinea Intervening) is indeed a very good development.

Recall that the House of Representatives passed a similar resolution directing the Federal Government of Nigeria to apply for a review of the obnoxious judgment of the International Court of Nigeria delivered on the 10th October 2002 concerning the sovereignty of the Bakassi peninsula. However the Federal Government through the Minister of Information, Labaran Maku dismissed the resolution of the House of Representatives as non binding.

This stance of the Minister of Information, Honourable Maku drew the ire of the Senate which invited the Minister to the floor of the Senate to warn him on his predilection to making reckless utterances on matters of national importance. It appears that Honourable Maku ate his words after the rebuking by the President of the Senate, David Mark as he apologised profusely. However it seems the executive branch of the Federal Government under President Jonathan is not really keen in complying with the resolutions of the House of Representatives and Senate respectively.

Just two days ago while addressing the General Assembly of the Heads of States and Governments of the United Nations categorically declared that the Federal Government of Nigeria shall continue to obey the Judgment of the International Court of Justice concerning Bakassi Peninsula.

It is pertinent that both the House of Representatives and the Senate respectively constitute the National Assembly by virtue of Section 47 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended & altered). The National Assembly is constitutionally empowered by Section 4 (2) of the Constitution to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

The declaration of President Jonathan at such an August Assembly like the General Assembly of the United Nations is particularly worrisome in view of the fact that it is the executive branch of the Federal Government that is constitutionally empowered to take decision whether or not the country should apply for a review of the judgment of the International Court of Justice. Meanwhile we have just about 14 days or so to the expiry of the ten years deadline which a State Party has to apply for a review of the Judgment of the International Court of Justice by virtue of Article 61 of the States of the International Court of Justice.

The pertinent question is: Are the resolutions of both Houses of the National Assembly binding on the Federal Government of Nigeria? Are the resolutions of both Houses of the National Assembly binding on the Federal Government of Nigeria? The answer is in the negative. Resolutions of the National Assembly are not binding on the Federal Government or the executive branch of government. They do not have the force of law. There are merely declarations of intent or moral suasions.

These resolutions do not have the force of law. The Federal Government may take advantage of this to ignore the resolutions of the National Assembly on review of the judgment concerning the Bakassi Peninsula. It is certain that the non-compliance with the resolutions of the National Assembly on challenge of the judgment of the International Court of Justice may likely cause a row between the National Assembly and the executive branch of the Federal Government.

We may need to explain what a “Resolution” is all about. A resolution is a written motion adopted by a deliberative body. The substance of the resolution can be anything that can normally be proposed as a motion. For long or important motions, though, it is often better to have them written out so that discussion is easier or so that it can be distributed outside of the body after its adoption. Resolutions are commonly used in company meetings and houses of legislature.

Under the Constitution of the Federal Republic of Nigeria, 1999 resolutions of the National Assembly are recognized or contemplated as one of the instruments through which the National Assembly can exercise its powers of law making. In company law, a written resolution is especially useful in the case of the board of directors when there is the need to give its consent to a transaction entered into by a company. When such a resolution is certified by the company secretary it gives assurance to the other side that such a transaction in question is authorized by the Board of Directors. The Board of Directors of a company is undoubtedly the decision making body in such a company. Other examples include resolutions approving the opening of bank accounts or authorizing the issuance of shares in the company.

In a house of a legislature (such as the House of Representatives and Senate), the term non binding resolution refers to measures that do not become laws. The resolutions of both the House of Representatives and the Senate respectively can be classified as Non-binding resolutions. This is used to differentiate those measures from a bill, which is also a resolution in the technical sense.

A bill is the major mode of exercising of Federal Legislative powers vested on the National Assembly by virtue of Section 58 (1) of the Constitution of the Federal Republic of Nigeria (supra).

The resolution is often used to express the body’s approval or disapproval of something which they cannot otherwise vote on, due to the matter being handled by another jurisdiction or being protected by a constitution. An example would be a resolution directing the executive to apply for a review of the judgment of the International Court of Justice, which decidedly carries no weight, but is adopted for moral support.

The work of National Assembly is initiated by the introduction of a proposal in one of four forms: the bill, the joint resolution, the concurrent resolution, and the simple resolution. Upon adoption, simple resolutions are attested to by the Clerk of the House of Representatives or the Clerk of the Senate and are published in the Hansard or Gazette of both Houses.

However if the executive branch of government under the leadership of President Jonathan fails to comply with the resolutions of the National Assembly directing it to apply for a review of the judgment of the International Court of Justice on the ground that the resolutions lack the force of law; the National Assembly may likely take advantage of the non compliance with Section 12 (1) of the Constitution of the Federal Republic of Nigeria,1999 by the Federal Government before the signing of the Green Tree Agreement between Nigeria and Cameroon that led to the handover of the Bakassi peninsula to Cameroon in August 2006 and initiate impeachment proceedings against President Jonathan for violating the Constitution.

However it is instructive that the Green Tree Agreement was signed by the predecessor of President Jonathan, Olusegun Obasanjo. Be that as it may, President Jonathan has a constitutional duty to ensure that the Green Tree Agreement is invalidated if it fails to comply with the provisions of Section 12 (1) of the Constitution which explicitly provides thus:

“No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”.

President Jonathan has a constitutional duty to ensure that no portion or part of the territory constituting the Federal Republic of Nigeria is given away to another country under the guise of pandering to the whims and caprices of the international community to the detriment of Nigeria National Interest. President Jonathan has fundamental duty of ensuring the Constitution is preserved, obeyed and respected by all institutions and persons or group of persons including the executive branch of government under his leadership. But what stops the National Assembly passing a Law invalidating the Green Tree Agreement and compelling the President to set a motion in machinery to apply for a review of the Judgment of the International Court of Justice in order to tie the hands of the President?

Okoi Obono-Obla is Barrister and a Civil Society Activist. He lives in Abuja, Nigeria.

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