Senior Advocate of Nigeria, Dele Adeshina, does an in-depth analysis of Federalism in Nigeria, examining and comparing aspects of past Nigerian Constitutions from 1951 up to 1999, pointing out the short comings of the 1999 Constitution with regard to Federalism, and concluding with the elements required for true Federalism in Nigeria
Quite often, I meditate on the affairs and the future of this Nation. I have faith in the future and greatness of this country and so do many people. I also recognise that faith without works, is dead. The feeling though arguably, is that in Nigeria, we technically avoid our problems rather than confronting them, and we fail to realise that nothing works by itself, that things are made to work.
Most recently, opinion leaders and organisations in Nigeria have added their voices on whether or not Nigeria needs re-structuring, in order to guarantee in practical terms, true Federalism by deliberate devolution of powers from the centre to the component units making up the Federation, as a foundational approach to addressing the Nation’s problems and challenges. That the 1999 Constitution upon which the present eighth Republic is running, is essentially unitary and imperfect, is no longer an issue. The erudite Constitutional Lawyer and a very outstanding Professor of Law, Professor Ben Nwabueze has described the 1999 Constitution as an illogicality. According to the learned Professor, few contradictions could be more self-evident than that of a unitary constitution for a Federal system of Government. That Unitarism and Federalism are mutually exclusive, and logically opposing concepts.
At a workshop organised by the Nigerian Bar Association, Ikeja Branch on the 18th of June, 1999 on the new Constitution, Chief F.R.A Williams SAN, former Chairman of the Constitution Drafting Committee that mid-wived the 1979 Constitution, described the 1999 Constitution as a “document which tells lies against itself” Prof. Itse Sagay SAN, another erudite Professor of Law described it as a “fraud”. It was the view of the workshop that the 1999 Constitution lacks legitimacy and popular acceptability, partly because of the procedure through which it was made, and partly because of several provisions in it, which are alien to all known principles of Federalism.
Journey to Federalism
The journey towards a Federal System of Government in Nigeria started about 1946 when the Richard Constitution introduced a quasi-federal structure.
Sir John Macpherson before the making of the 1951 Constitution, with the objective of having a wide consultation, had captured his proposals for a new constitution in form of questionnaires which were widely distributed at village meetings, provincial, regional and national conferences.The questionnaires gave options to delegates which evolved from the meetings and conferences, to choose the system of Constitution they desired for the emerging Country. Before this, sometime in January 1950, there was a conference on the Constitutional arrangement for Nigeria. The Nigerian Youth Movement in a memorandum submitted to the conference stated that
“it is a matter of general agreement that a lasting unity of the peoples of the vast Country can only be achieved through federation not fusion. Consequently, it is absolutely necessary to lay the foundation for Federation now by dividing the Country into the regions that will form the units of the proposed Federal Constitution.”
It is understood from the books that all the three regions, Northern region, Eastern region and Western region, recommended to the January 1950 Conference that there should be a Federal system of Government in Nigeria, and that in addition to central legislature, there should be regional legislatures with powers to legislate on a number of specified subjects.
It is on record that the Constitutions of 1951 and 1954 declared Nigeria a Federation consisting of three regions, the Northern region, the Eastern region and the Western region with Lagos as the Federal Capital Territory. The Constitution donated forty three (43) items on the Exclusive Legislative list to the Federal Government and twenty eight (28) items on the Concurrent Legislative list, on which both the Federal and the Regions were competent to legislate, subject of course to the principle that, where the two governments legislate on a subject-matter, the Federal Legislation will prevail in the event of any inconsistency.
Strength of 1954 Constitution: Regional Autonomy
One of the strongest points of the 1954 Constitution was the promotion of regional autonomy, which permits the region to prioritise government and develop at their own pace. Specifically, items like arms, ammunition and explosives, commercial and industrial monopolies, finger prints, drugs and poisons, registration of business names, Police and other security services, prisons, census etc. were all under the concurrent legislative lists. All these power items have now been migrated to the Exclusive Legislative list in the 1999 Constitution, where only the Federal Government has the constitutional capacity to legislate.
Rise in Sectional Interests
It is the belief of many that, at the very base of the Nation’s economic, social and political problems, is the over-concentration of powers at the centre, at the pain of reducing the component states to mere appendages. This, in my opinion, is what has given rise to the defence of sectional interests at the expense of National interest, through the emergence of different sectional groups and organisations, some civil, others not so civil. Such organisations include “Afenifere in the West, Arewa in the North and Ohaneze in the East”. Each of these powerful organisations, has declared objectives to advance what they consider to be the interest of their people. Others are “Odua Peoples Congress (OPC), Arewa Youth Organisation (AYO), Movement for the Actualisation of the State of Biafra (MASSOB), Movement for the Emancipation of Niger Delta (MEND), Indigenous Peoples of Biafra (IPOB), and several other organisations in the Niger-Delta”. All these exist in our Country today at the expense of National integration, peaceful co-existence and steady progress.
Federalism in Name Only
The Federal System presently exists in Nigeria largely in name. There is a dire and compelling necessity to retrieve and preserve the federal system of government in Nigeria, because of the huge territorial size of the country, the immense diversity of peoples of different culture, language and religion inhabiting it.
Writing about the underlying objectives of Federal arrangement for Nigeria, the erudite Constitutional expert whose work I will refer to severally in this paper, Prof. Ben Nwabueze, SAN, stated:
“Federalism is predicated upon the existence of a society composed of various geographically segregated groups divided by wide fundamental differences of race, religion, language, culture, or economics. Its purpose is to enable each group free from interference or control by the others to govern itself in matters of local concern leaving matters of common interest to be managed centrally, and those which are of both local and national concern to be administered concurrently.”
By this, the differing interests and circumstances of the component groups are accommodated, while at the same time, securing the peace and stability of the country, and its survival against the forces of division and conflict inherent in a diverse and heterogeneous society, such as ours. Regrettably, because of the Constitutional framework, forces of division and conflicts are daily threatening our Nationhood.
The business of establishing Nigeria’s Constitutional Architecture for National cohesion through the Rule of Law, is therefore the business of re- designing Nigeria on the part of an ideal, or if you like, a true Federation which, according to some stakeholders, was the original covenant of our founding fathers.
I have referred briefly to the Constitution of 1954 earlier on. Both the period before and after 1954, witnessed the demonstration of great acts of Nationalism and patriotism on the part of our founding fathers and political leaders. There was genuine demonstration of uncommon love and affection for the entity called Nigeria. Despite different backgrounds, culture, tribe and religion, our forefathers were one in spirit in the pursuit of independence in 1960, and the attainment of a Republic in 1963. That the same diversity in culture, religion and tribe are now threatening to tear the Nation apart, is a clear manifestation that the superstructure called Nigeria as at today is run on a fundamentally flawed Constitution.
The concept of Federalism relates to the division of power between a Central government and other regional or State governments and sometimes Local governments. Such powers may be shared in different ways, sometimes with a stronger centre like Canada, or with weaker centres like the United States of America and Australia.
The Supreme Court in OLAFISOYE v FEDERAL REPUBLIC OF NIGERIA contended that
“Constitutions are named as federal, unitary and non federal to mention the major ones. A Federal government will mean what the Constitution writers say. It means and this can be procured within the four walls of the Constitution and the four walls only. Therefore, a general definition of federalism or federal government may not be the answer to the peculiar provisions of a nation’s constitution which is the font et origo of its legal system”.
In the opinion of his Lordships, an ideal federalism or true federalism is different from the specific or individual federal constitution of nations. A Constitution by its provisions, may not be able to achieve an ideal federalism or true federalism, but in their own spheres nevertheless, are called Federal Constitutions. Nigeria, in my opinion, falls into this category, having regard to some of the key provisions in the 1999 Constitution notwithstanding section 2 (2) thereof, which states that Nigeria shall be a Federation. This foundational challenge is responsible for the renewed agitation for re- structuring.
Notwithstanding the point that true Federalism lacks precise definition for all purposes, it is still useful to attempt a definition of Federalism in its applications and restrictions. Prof. Ben Nwabueze SAN in his book Federation in Nigeria under the Presidential Constitution had this to say;
“Federalism is an arrangement whereby powers of government within the country are shared between a national country wide government and member of a region territorially localised government in such way that each exist as a government separately and independently from the others operating directly and independently on persons and properties within its territorial area with a will of its own and its own apparatus for the conduct of an authority in some matters exclusive of all the others. Federalism is thus essentially an arrangement between governments, a constitutional device by which powers within a country are shared between two tiers of government rather than among geographical entities composing different people”.
The renowned Professor of Constitutional Law, Prof. K.C. Wheare says that this constitutional frame work is brought about by circumstances where people are prepared to give up only certain limited powers, and wish to retain other powers, both set of powers to be exercised by coordinate authorities.
The Supreme Court itself has made very profound pronouncements regarding the meaning and content of what an ideal Federalism is. In A.G. ABIA STATE v A.G. FEDERATION the Supreme Court had this to say.
“Federalism as a legal and political concept generally connotes an association of states, formed for certain common purposes, but the state retains a large measure of their original independence or autonomy. It is the coordinate relationship of power between the individual states and the National Government which is at the centre. Federalism as a viable concept of organising a pluralistic society such as Nigeria for governance does not encourage so much concentration of power in the centre which is the federal government. In federalism, the component states do not play the role of errand boys.
Also, in A.G. LAGOS STATE v A.G. FEDERATION, the Supreme Court stated-
“By the doctrine of federalism which has been adopted by section 2(2) of the 1999 Constitution, the autonomy of each government which presupposes its separate existence and its independence from the Federal government is essential to federal arrangement. Therefore, each government exists not as an appendage of another government but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs free from direction by another government.”
The titanic battle between the Lagos State Government under former Governor Asiwaju Bola Ahmed Tinubu, and the Federal Government, over the creation of Local Governments and the seizure of Lagos State Revenue Allocation to punish Lagos State for what the Federal Government considered to be the audacity of Lagos State, is called into remembrance here. Again this is what the Supreme Court said regarding the creation of the said Local Governments.
“Sections 1, 2 & 3 of the new Local Government Area Law No. 5 of 2002 Lagos State in fact constitutes the law which was enacted by the Plaintiff in accordance with the provisions of Sections 7(1) and (3) of the Constitution, the law is therefore valid, though it is not yet operative. The 57 Local Government Areas established by Local Government Area Law No. 5 of 2002 Lagos State Law are INCHOATE until the National Assembly passes the Act necessary under Section 8(3) of the Constitution. Therefore, the new 57 Local Government Councils are not entitled to receive funds from the Federation account.”
Quare! If the law as passed by Lagos State is valid, why can it not be operative? Ordinarily, a valid law commences operation immediately it is enacted. Secondly, if the law creating the 57 Local Government Councils was valid, why is it that the Councils were held not to be entitled to receive funds from the federation account? This is one of the several inconsistencies and contradictions of the 1999 Constitution. Many legal writers have criticised the decision of the Supreme Court in this case.
Evidence of Concentration of Powers
One of the critical elements of true Federalism which we have violently compromised, is fair sharing of powers between the centre and the component units that make up the Federation. It has been argued over and over again that there is over-concentration of powers at the centre. The centre has been grabbing power steadily since 1960, resulting in an overwhelming dominance of the Federal Government over the federating units.
The Legislative list in the 1999 Constitution clearly indicates this. The items in the exclusive legislative list of the 1999 Constitution are 68 in number compared to 43 items in 1954, 45 items in the 1960 and 1963 Constitutions respectively. This of course is not the whole story. The nature of the actual items on the list also reveals the dominant status of the federal powers.
The list includes not only matters which should be within the exclusive competence of the States, but also many more matters which should have rightly been on the Concurrent Legislative List, i.e. within the legislative competence of both the Federal and State Governments.
Devolution of Power from Federal to States
It is my humble opinion that, we need as a compelling matter of urgency, to embark on a process of devolution of powers from the federal to the federating states. If achieved, it is one pill I believe, that can solve several ailments, including but not limited to, corruption and fraudulent elections.
I adopt with gratitude the opinion of Prof. Itse Sagay, SAN at the N.B.A lkeja workshop on the 1999 Constitution, that the following Legislative powers and authorities ought to reside with the federating units in Nigeria, rather than the Federal Government.
Some Items that Should be Legislated on by Federating Units
Census (Item 8): There is no reason why a State government cannot organise a population census of its State, to enable it plan its fiscal policy, development program etc. Virtually all our census result have been seriously challenged by one State or the other. It is my humble opinion that a Government, such as that of Lagos State, into which there is an endless flow of job and fortune seekers, needs to know its true population for planning purposes. The same argument goes for other States of the Federation.
Drugs and Poison (Item 21): Evidence (used in Courts) (Item 23)
Labour, Trade Unions, Industrial Relations (Item 34): States and Local Governments employ workers, and the question of wages, conditions of service, welfare, industrial disputes etc, in relation to State and Local Government workers and workers in State based enterprises, ought to be entirely a matter for the State concerned. In this connection, the issue of a national minimum wage is arguably a contradiction of the principle of true federalism, each State must enjoy the autonomy to negotiate separately with labour unions in their respective States. The idea of a uniform wage system in a Federation is a paradox.
Mines, Minerals, including Oil Fields, Oil Mining, Geological Surveys and Natural Gas (Item 39): The concentration of this in the Federal Government, has engineered different agitations from different sections of the nation, and has arguably slowed down the process of national development.
Furthermore, it is suggested that the following items ought to be moved away from the exclusive to the con-current legislative list. Borrowing of Moneys within or outside Nigeria for the purposes of any State (Item 7). Control of Capital issues (Item 12). Evidence (Item 23). Fingerprints, Identification and Criminal Records (Item 28). Incorporation, Regulation and Winding up of Companies (Item 32). Insurance (Item 33). Patent, Trademarks, Business Names, Industrial designs and Merchandise marks (Item 43). Professional Occupations (Item 49). Public Holidays (Item 51). Traffic on Federal Roads (Item 63). Weight and Measures (Item 65). Police and other government security services (Items 45).
Section 214 (1) of the Constitution establishes the Police Force in Nigeria with the proviso that “no other Police Force shall be established for the Federation or any part thereof”. The necessary implication of Section 215 is that the Nigeria Police Force is owned and controlled exclusively by the Federal Government, notwithstanding that the authority and powers of the Force extend to the whole country. Section 215(4) made this abundantly clear when it says that the Governor of a State or such Commissioner of a State as he may authorise in that behalf, may give to the Commissioner of Police of that State, such lawful directions with respect to the maintenance and securing of public safety and public order within the State as he may consider necessary, and the Commissioner of Police shall comply with those directions or cause them to be complied with, provided that before carrying out any such directions under the foregoing provisions of the subsection, the Commissioner of Police may request that the matter be referred to the President or such Minister of the Government of the Federation as may be authorised in that behalf by the President of his direction.
Closely related to the above is the command structure established by the Constitution for the Police. By virtue of Section 215(2), the Nigeria Police Force is under the command of the Inspector General of Police. The State contingent is subject to the authority of the Inspector-General of Police, under the command of the Commissioner of Police of that State, who himself is under the direct command or order of the Inspector-General of Police. It is my considered opinion that the command structure is one of the critical factors militating against the efficiency of the Nigeria Police Force.
It is my humble submission that these provisions clearly undermine the Federal status of the country. The 1954 Constitution empowered the regions to establish Local Government Police Authorities, and the Northern and Western Regions took advantage of the provision.
Requirements for True Federalism
As stated above, a Federal Constitution may be what the makers of the Constitution say it is, its limitations notwithstanding, even if the essential elements of Federal Constitution are missing. If Judges must interprete the provisions of the Constitution and not necessarily the ideals, then, I consider it imperative that those essential ideals and goals of true federalism must be deliberately incorporated into the Constitution in clear terms. While I cannot claim to know all the elements that must be present to guarantee a true federation in law and in practice, however, the following requirements are essential to the practice of true federalism and they must be the benchmark for our Federation.
1. Existence of Two Constitutions; Federal/State Constitutions
It was Lord Haldene in the case of ATTORNEY-GENERAL FOR COMMONWEALTH OF AUSTRALIA v COLONIAL SUGAR REFINERY COMPANY that said;
“The natural and literal interpretation of the word “Federal” confines its application to cases in which States while agreeing in a measure of delegation of powers to a common government yet, in the main continues to preserve their regional Constitution”.
Also Prof. Ben Nwabueze, SAN has stated that:
“One single Constitution for all the Governments involved, both Federal and State is a manifest contradiction”.
In 1960 – Independence Constitution, there were separate Constitutions for both the Federal and the Regions, as separate schedules annexed to the Independence Order-in-Council. The 1963 Republican Constitution made provisions for the establishment of Regional Constitutions. Section 5(1) thereof provides as follows;
“Subject to the provision of this Constitution (Federal Constitution) the Constitution of each region shall have the force of law throughout the region and if any other law is inconsistent with the Constitution, the provisions of that Constitution shall prevail and the other law shall to the extent of its inconsistencies be void.”
The executive authority of the region extended to the execution and maintenance of the Constitution of the region, and to all matters with respect to which the legislature of the region has for the time being powers to make laws, subject only to the limitation that the power of the region shall be so exercised as not;
“to impede or prejudice the exercise of the executive authority of the federation or to endanger the continuance of the Federal Republic of Nigeria”
Section 86 of the 1963 Republican Constitution has a similar provision. Consequently, a suggestion for State Constitutions of the Federating units making up the Nigerian Federation is not an aberration, overstatement or an exaggerated request in the light of the Nation’s Political and Constitutional history.
2. A Supreme Constitution
Closely related to the above is the existence of a written Constitution which is supreme.
By its very nature, and having regard to the above premise, the power to amend the Constitution should not reside with either the central or regional government alone to the exclusion of the other. The power must be given either to both together, or to some authority external to both of them, like the people at a referendum.
3. Autonomy of Governments
Autonomy of each government is essential to federalism as a political system. This presupposes the separateness and independence of each government from the control of the other.
The essence of autonomy is that each government, central or regional, must exist, not as an appendage of the other, but as an autonomous entity, in the sense of being able to execute its own will in the conduct of its affairs, free from direction from another government. There must be certain matters over which each can operate exclusively from the other, and these exclusive areas must be substantial enough to give meaning and reality to the autonomous existence of each government.
4. Meaningful Independence
The Central and Regional governments should stand to each other in a relationship of meaningful independence resting upon a balanced division of powers and resources. Each must have powers and resources, sufficient to support its structure. The power sharing arrangement should not place such a preponderance of power in the hands of either, as to make it so powerful that it is able to bend the will of the other to its own.
5. Mutual Non – Interference
In the exercise of the power vested in it by the constitution, each government must not impede, obstruct or otherwise interfere with the other acting within its own powers. This brings into focus the principle of the doctrine of implied prohibition against interference under the American constitution. The Court of Appeal has also held that this principle is part of the Nigerian Constitution in FEDERAL MINISTER OF INTERNAL AFFAIRS v ALHAJI DARMAN SHUGABA
6. Equality of Status as Between the Federating Units 12
It is implicit in the federal system, that the powers of the individual regional governments and their relationship with the national government should be the same, and that no regional government should be allowed a special position, with regard to the central Government. Otherwise such regional Government would develop an attitude of superiority and arrogance towards the others, a fact which could be of dire consequence for the entire union.
7. Meaningful Number of States/Regional Governments
Today, the Nigerian Federation consists of 36 States. America has 51 States. It thus, appears to me that, this is the only requirement of true Federalism that we are able to satisfy. What makes Federalism thrive, is the multiplicity of interest groups reacting upon one another to produce equilibrium. A multiplicity of units creates a feeling of inter- dependence, which in turn encourages co-operation and mutual tolerance.
Let me conclude by quoting the words of Hon. Justice T. A. Aguda in his book “The Future of Federalism in Nigeria”, that essentially, a Federation is a process of bringing about a dynamic equilibrium between the centrifugal and centripetal forces in a society and it entails continuous adjustments between the Federal Government and the Government of the component parts.
Dele Adesina, SAN, Lagos based Legal Practitioner and Past General Secretary of Nigerian Bar Association.