By Sebastine Hon, SAN
The quest for the restructuring of the faltering Nigerian Federation, keeps resonating and rearing its head at any given opportunity. For the first time, however, voices which were hitherto opposed to, or which naturally oppose, such agitations, have oozed out of their closets in support of the latest clamour for restructuring, signposting hope that meaningful engagement on the subject might yield results.
Since any meaningful restructuring must entail a deep amendment of our Constitution, I will, in this article, attempt a comparative analysis between provisions of our Constitution on the one hand, and the provisions of several other Constitutions of sovereign countries on the other hand, to see if we can objectively find solutions to the major issues of concern.
Before then, however, let me remind my dear compatriots of what the Supreme Court of Nigeria feels about the evolvement of an ideal Constitution for any given country, including Nigeria. In DANGANA vUSMAN (2013) 6 NWLR (Pt. 1349) 50 at 93, the Apex Court held that the Constitution of any country is “the embodiment of what the people of that country’s desire to be their light in governance”. Also, in A-G KADUNA STATE v HASSAN (1985) 2 NWLR (Pt. 8) 483, the Supreme Court held that the Nigerian Constitution is “meant to cater for the uniqueness of Nigeria as a nation”.
The comparative analysis below, therefore, should be understood in the light of my attempt to make our Constitution the way it will best suit us as a people. Due to limited space, I will only look at major areas of concern.
This is one area clamoured or agitated for the most, by protagonists of structural changes in Nigeria. The dominant view is that ‘let each State of the Federation control its resources and only remit taxes to the central or Federal Government.’ We shall now examine how tenable this can be, starting with a historical expedition.
Part I paragraph 25 of the Schedule to the 1960 Independence Constitution vested exclusive legislative powers in the Federal Government over and concerning “Mines and minerals, including oil fields, oil mining, geological surveys and natural gas.” The framers of the 1963 Constitution retained this provision verbatim, also in paragraph 25 of Part I of the Schedule to the 1963 Constitution. These provisions completely knocked off regional control of resources and placed them under the exclusive powers of the central Government.
The Presidential Constitution of 1979, the aborted 1989 Presidential Constitution and the 1999 Constitution as amended all retained these provisions, clearly, therefore vesting exclusive powers over mineral resources in the Federal Government. This has consequently put control of these resources firmly in the hands of the central Government. But et seq.
We shall examine other Federal Constitutions around the world. Article 73 of the German Constitution, 1990, which contains the Federal Exclusive List, is rather very short and says nothing about control of mineral resources. Rather, Article 74(11), which contains the Concurrent List, vests jointly in the Federal and the Regional Governments power to make laws “relating to economic matters (mining, industry, supply of power, crafts, trades, commerce, banking and stock exchanges, private insurance).”
In India, which is another Federation, Articles 53 and 54 of the Exclusive List of the Indian Constitution of 1950 as amended in 2003 have listed “oil fields and mineral resources, petroleum and petroleum products; other liquids and substances,” etc and “mines and mineral development” as items to be legislated upon exclusively by the central Government.
Also, Article 22(XII) of the Constitution of Brazil, 1988, vests exclusive legislative powers in the Federal Government on “mineral deposits, other mineral resources, and metallurgy.” Similarly, Article 24(0)(I) provides that “It is incumbent upon the Union, the States, and the Federal District to legislate concurrently on: tax, financial, penitentiary, economic and city planning law.” Even then, section 24(1) provides that “Within the scope of concurrent legislation, the jurisdiction of the Republic [i.e. the Federal Government] is limited to establishing general rules.” Article 25(2) provides that the states “shall have the power to operate, directly or by any means of concession, the local services of piped gas, as provided for by law, it being forbidden to issue any provisional measure for its regulation.” Of grave importance, too are the provisions of TITLE VI (Articles 145-162), which have made elaborate provisions relating to taxation by the Federal, State and Municipal Governments, thereby putting a constitutional seal against issues like illegal or multiple taxation. Of equal importance is the elevation to constitutional status, of agriculture and agrarian reforms, in TITLE VII, Chapter III, thereby putting agricultural policies beyond the whims and caprice of successive regimes! This is most commendable! I quickly recommend this for Nigeria.
The Federal Constitutions of Australia (1990) and South Africa (1997) and Russia (1993) are rather silent on “resource control.” In constitutional jurisprudence, generally, the States/Regions of these countries and their central Governments are having coterminous powers over the natural resources of the said countries.
On the other hand, the US Constitution, vide Article 8(1) thereof, has provided that “The Congress shall have power to lay and collect taxes, duties, imports and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imports and excises shall be uniform throughout the United States.” Also, the 16th Amendment which came into force in 1913 provides thus:
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
On the other hand, Article 10(2) of the same Constitution limits the fiscal powers of the States as follows:
(2) No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net Produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.
From the above, none of the countries operating a federal Constitution has permitted total fiscal autonomy to the federating units as has been consistently canvassed in Nigeria.
Knowing the truth is one sure way of achieving peace. In this case, I submit that the Nigerian Federal Government – made up of the Legislature, the Executive and the Judiciary – have for a long time been taking bold steps to assuage ethnic and regional agitations for resource control or fiscal federalism. One of those steps was the enactment of section 162 of the 1999 Constitution as amended, which for lack of space, will not be reproduced here, but which has been tested in court severally – with the Judiciary handing down decisions that sound proactively in support of regional control of resources. We shall briefly examine some of those decisions here.
In A-G FEDERATION v A-G ABIA & ORS. (2002) 4 SCNJ 1, it was argued by the 8 littoral States of the Nigerian southern coastline that the Federal Government (FG) had ceded the ownership of Nigeria’s offshore to them, by virtue of the Allocation of Revenue (Federation Account, etc) (Amendment) Decree No. 106 of 1992. The littoral States had argued that this Decree abolished the onshore/offshore dichotomy on the sharing of oil and non-oil revenues. The issue of 13% derivation and its applicability to “natural” and “mineral” resources was also raised. The Supreme Court, in a landmark judgment, held inter alia as follows:
• There was no time the FG had ceded the area beyond the low-water mark to the littoral States as contended; hence the seaward boundary of each littoral State, for the purpose of calculating the amount of revenue accruing to the Federation Account, is the low-water mark of the surface thereof, or as in the case of Cross-River State which has no archipelago of islands, the seaward limits of the inland waters of that State.
• The phrase “mineral resources” in section 162(2) of the Constitution excludes or does not contemplate “natural resources” – as argued by the Northern or Middle-Belt States that had filed counter-claims.
• The FCT Abuja is neither a State nor a Local Government, hence cannot enjoy derivation under section 162(3) of the Constitution.
• Section 1(d)(iv) of the Allocation of Revenue Act, Cap. 16, LFN, 1990, in so far as it stipulated derivation of 1% instead of “not less than 13%”, was null and void.
Following the above judgment, the Olusegun Obasanjo-led Government qua the National Assembly bowed to pressure from Niger Delta agitators and enacted the Revenue Allocation (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004. Section 1(1) of this Act provides thus:
1.-(1) As from the commencement of this Act, two hundred metre water depth isobaths contiguous to a State of the Federation shall be deemed to be part of that State for the purposes of computing the revenue accruing to the Federation from the State pursuant to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 or any other enactment.
In A-G CROSS RIVER v A-G FEDERATION (2012) All FWLR (Pt. 646) 408 S.C., the question was whether Cross River had ceased to become a littoral State by virtue of the judgment of the International Court of Justice (ICJ), which had yanked off the Bakassi Peninsula from Nigeria and had ceded same to Cameroon. Central for consideration was section 1(1) of the new Revenue Allocation Act, 2004, quoted above. The apex Court agreed that by virtue of the ICJ judgment, Cross River State was no more a littoral State, hence the revenue from the oil wells which hitherto was accruing to it now accrued to Akwa Ibom State.
It must be noted that the word “deemed” was used in section 1(1) of the 2004 Act, quoted above. If the legal interpretation of that word is to be applied [for which see SAVANNAH BANK LTD. v AJILO (1989) 1 NWLR (Pt. 97) 305 at 325 SC], then the several decisions reached by the Supreme Court on revenue accruing from littoral States would not have been so reached. One of such decisions was the case of A-G ADAMAWA v A-G FEDERATION (2006) All FWLR (Pt. 299) 1450 S.C. In this case, the plaintiffs, invoking the original jurisdiction of the apex Court, argued that section 1(1) of the 2004 Act had unconstitutionally extended the seaward boundaries of the littoral States, in contravention of section 8 of the 1999 Constitution. Uwais, CJN, who delivered the lead judgment of the Court, held rather proactively, with due respect, as follows:
This, with respect, is not a correct interpretation of the provisions of the Act, because the Act specifically states that the extension is only to be deemed, in other words, it is not real but notional, and it is specifically intended for the purpose of computing the revenue which accrues to the Federation Account from the littoral States.
What a public policy judicial opinion! If it was only “notional,” why then enforce it? The Supreme Court was later to admit in A-G RIVERS STATE v A-G AKWA IBOM STATE (2011) All FWLR (Pt. 579) 1023 at 1081 that the agitations in the Niger Delta following the 2002 ‘resource control’ decision of the Supreme Court in A-G Federation vs. A-G Abia, supra, constituted the sole factor that made the National Assembly to promulgate the 2004 Act!
As it stands now, therefore, all the three arms of the Federal Government of Nigeria have over time consistently exhibited resolve to quench violent agitations from the Niger Delta Region especially over ‘resource control’ or fiscal federalism, as indicated in this piece, using constitutional means. I will briefly further adumbrate on this, as follows:
• Chapter XII of the 1963 Republican Constitution had established the “Niger Delta Development Board,” which under section 159(4) of that Constitution was to be “responsible for advising the Government of the Federation and the Governments of Eastern Nigeria and Mid-Western Nigeria with respect to physical development of the Niger Delta.” This Board was to last until 1st July, 1969.
• In the course of time, several critical States were created for the Niger Delta Region – Akwa Ibom, Bayelsa State and Delta. Abia and Imo States have also joined in the enjoyment of 13% derivation and have also been deriving benefits from developmental bodies like the Niger Delta Development Commission (NDDC).
• The Ibrahim Babangida-led administration established the Oil Minerals Producing Development Commission (OMPADEC) to cater for the special needs of the Niger Delta. Today, the NDDC is statutorily established and is undertaking similar, if not graver assignments.
• The 1999 Constitution, as shown above, established the revenue formula whereby Niger Delta and some Eastern Nigeria States take 13% of all oil revenues. As shown above, attempt by some Northern and Middle-Belt States to equate “mineral resources” with “natural resources” so as to benefit from this constitutional largesse was rebuffed by the Supreme Court.
• The Federal Government, as admitted by the Supreme Court, bowed to pressure from the Niger Delta to enact section 1(1) of the 2004 Revenue Act, which for all intents and purposes is in conflict with Treaties entered into by Nigeria – like the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958; the Geneva Convention on the High Seas, 1958 and the UN Convention on the Law of the Sea, 1982. This is a grave national sacrifice!
For now, all reasonable agitations from the Niger Delta have been reasonably addressed, in my humble opinion – which is expressed here just to let the truth be known – because my Bible tells me that we should know the truth, which shall then set us free.
My conclusion, for lack of space, therefore, is that the Nigerian Government has over time been fair to the constituent States, especially the Niger Delta Region, on issues of fiscal federalism. Roundtable engagement to further improve on this is, however, not ruled out. “Jaw-jaw” instead of “war-war” is my humble plea.
Regional and Municipal Autonomy
Many countries have granted regional and municipal semi-autonomy to the components thereof. The examples here are not limited to Federal Constitutions; but they are relevant to show that Nigeria needs to toe this line urgently – for the instantaneous development of rural areas. We shall demonstrate this here.
Section 25(0) of the Federal Constitution of Brazil, 1988, permits the States to be “organized and governed by the Constitutions and laws which they may adopt, with due regard for the principles of this Constitution,” while section 30 of the Constitution grants “Municipal Self Government.” See, also, section 116 of the Australian Constitution of 1900. Several other Constitutions have also provided for regional or municipal partial autonomy without strings. See Part IXA (sections 243P-243ZG of the Indian Constitution); sections 104-105 of the Armenian Constitution of 1995; section 142 of the Constitution of Azerbaijan, 1995; Chapter III of the Constitution of Bangladesh, 2004; section 28A of the Constitution of Ireland, 1937; section 141(3) of the Constitution of Afghanistan, 2004 and Article 108(3) and (4) of the Constitution of Albania, 1998. Indeed, Article 111(2) of the Albanian Constitution provides inter alia that “The units of local government have an independent budget.”
In a similar fashion, section 153 of the Constitution of South Africa, 1997, which is also a Federal Constitution, has mandated each local government council to “structure and manage its administration, and budgeting and planning process to give priority to the basic needs of the community, and to promote the social and economic development of the community.” Also, section 154(1) compulsorily requires both the national and regional governments “by legislative and other measures,” to “support and strengthen the capacity of municipalities to manage their own affairs, to execute their powers and to perform their functions.” That Constitution has no similar provision as 162(6) of the 1999 Constitution of Nigeria, which has established a Joint State/Local Government Account.
In 2005, the National Assembly of Nigeria, apparently seeking to sidetrack section 162(6) of the Constitution (for good intentions, I must say), enacted the Monitoring of Revenue Allocation to Local Governments Act, 2005. The Supreme Court wasted no time, in A-G ABIA STATE v A-G FEDERATION (2006) All FWLR (Pt. 338) 604 S.C., to strike it down as being unconstitutional. I hereby strongly suggest that section 162(6) of the Constitution be deleted, to pave way for a complete autonomy of Local Government Councils, as is obtainable in South Africa – another Federation. Similarly, the apex Court, in the consolidated suits of A-G OGUN STATE v A-G FEDERATION (2003) FWLR (Pt. 143) 206 S.C., had held that by virtue of section 162(5), (6) and (8) of the Constitution, the Federal Government had no power to pay directly any amount standing to the credit of the Local Government Councils to such Councils. This decision, too, would have been otherwise, but for the named provisions of the Constitution. An amendment to remove or modify the said provisions is hereby suggested.
Other Constitutions that have either granted semi-self government to the municipalities or have provided that the administration of this level of government shall be strictly as stipulated by law are: the Irish Constitution of 1937 – section 28A thereof; the Constitution of Cameroon – section 55(2) thereof; the Constitution of Croatia, 1990, as amended in 2000 and 2001 – section 132 thereof; the Constitution of Belgium, 1970 – section 39 thereof, etc.
The Constitution of Namibia, 1990, in section 111, has vested control of local councils in the National Legislature of that country. If this provision were in place in Nigeria, the Supreme Court would not have reached the decision it reached in A-G ABIA STATE v A-G FEDERATION, supra and A- G Ogun State vs. A-G Federation, supra.
My suggestion, therefore, is an amendment of relevant provisions of the 1999 Constitution to either straightaway remove the Local Governments under the grip of the State Governments, or to place them under the National Assembly. The grassroots of Nigeria will fare much better if either of these is effected.
I will further suggest that we revert to the 1963 Constitution whereby the Regions were given powers to enact their Constitutions, which Constitutions were, by virtue of sections 1 and 5, subject to the Federal Constitution. I would like to see a situation whereby the States or the geo-political zones of Nigeria will have their Constitutions, Supreme Courts, etc, as is the case with the US and other Federal Constitutions.
This is another contentious area – though agitations and tensions are limited to discriminating against Nigerians resident in other States apart from their States of origin. This should not be, in view of section 42(1) of the 1999 Constitution as amended, which has prohibited discrimination against any citizen on account of his having come from a particular community or a place of origin.
Most Constitutions of countries of the world have less elaborate provisions on citizenship, if compared to the Nigerian Constitution, yet their political leaderships are always honest to keep discrimination amongst the citizenry at bay. This is not so in Nigeria, where a ‘non-indigene’ is merely tolerated in his State of residence. This should not be. In order to be proactive, therefore, I will suggest a few constitutional amendments – to put the naysayers where they belong on this issue.
Article 6(2) of the Constitution of Russia, 1993, provides that “Every citizen of the Russian Federation shall have all the rights and liberties on its territory and bear equal duties stipulated by the Constitution.” Also, Article IV, section 2(1) of the US Constitution provides that “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”
I hereby suggest a constitutional amendment in Nigeria to reflect these – to avoid the present ugly situation whereby the youth of one ‘Region’ will be handing down quit notice to an entire race or tribe whose members are full citizens of Nigeria. To fully realise and practicalise these amendments, further amendments be put in place to ensure that if any particular State or ‘Region’ is reluctant or unwilling to implement the suggested amendments, if enacted, the Federal Government can step in to enforce them in any given case. I have the backing of the US Constitution on this. The XIV Amendment to the US Constitution, which was effected in 1868 and which made provisions on citizenship by naturalisation, etc, was capped up with the following provision in section 5 of the Article thus:
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Also, the XV Amendment which was made in 1870 and which guaranteed voting rights to all Americans in spite of “race, color, or previous condition of servitude,” was capped with the following provision in section 2:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Nigeria needs similar provisions even more than the USA, given our infamous practical experience of State officials looking the other way when citizens of other tribal or cultural origins are being abused!
Pruning down Powers of State Officials
It is generally acceptable that the powers exercisable by the President of Nigeria and State Governors are too enormous and tend to gravitate to absolutism and tyranny. A few suggestions on how to prune down those excesses will hereby be made.
Article II, section 3 of the US Constitution mandatorily requires the US President to “from time to time give to the Congress information on the State of the Union.” This sounds symbolic; but it helps to keep the President in check.
Section 27(2) of the Constitution of Namibia stipulates that “The executive powers of the Republic of Namibia shall vest in the President and the Cabinet.” The word “and” deters an elected President from taking several months to constitute his cabinet. In this regard, too, we should revert back to the provisions of section 145(1) and (2) of the botched 1989 Constitution of Nigeria, where the President was placed under constitutional duty to assign executive duties to the Vice-President and the Ministers.
Part 2, Chapter 1, section 70 of the Algerian Constitution states that “The President of the Republic, Head of the State, embodies the unity of the nation,” who “is the guarantor of the Constitution.” Similar provisions can be found in Article 49 of the Constitution of Armenia, 1995. Breach of these ordinarily should attract impeachment, hence our Constitution be amended to accommodate them.
The nagging issue of immunity can also be addressed as is done in section 123(2) of the Constitution of Azerbaijan, 1995, where the Prime Minister loses his immunity if “he has been caught in the act of crime.” Alternatively, the immunity clause can be removed altogether, as is the case with countless number of other Constitutions.
Abuse of power is, however, not limited to the Executive – as experience in Nigeria has shown that members of the Legislature are also guilty of this. Article 54 of the Constitution of Brazil has forbidden members of the Legislature from doing certain things that are contrary to their office; while Article 55 thereof stipulates automatic loss of their office if they are in breach. That Constitution, unlike that of Nigeria, has not given any room for process of recall of a Legislator, to give such erring member the chance of instituting a court action to stop his removal from office!
Restructuring of Office of Attorney-General and Minister of Justice
As things stand out today, it is probably only Nigeria that is still combining the office of Attorney- General and Minister/Commissioner of Justice, thereby making the holder of that office both a general Ombudsman and a politician. This is not good for the smooth working of the system and should be stopped via constitutional amendment.
See section 76 of the Constitution of India, 1950; section 64 of the Constitution of Bangladesh, 2004; section 30 of the Constitution of Ireland, 1937; section 134 of the Constitution of Afghanistan, 2004; and the Constitution of Argentina, 1853, etc, have all established/recognised ‘A-G’ without the addition ‘Minister of Justice’. And of course, we know that the US also has ‘A-G’ simpliciter. These are all random examples – meant to show that Nigeria is lagging far behind in this regard, hence the imperative of a constitutional amendment.
But if we insist on retaining the status quo, I will suggest creation of the office of The Ombudsman – as in section 86 of the Argentine Constitution, section 77 of the Constitution of Bangladesh and section 89 of the Constitution of Namibia; or the office of The Public Protector – as in section 182 of the Constitution of South Africa, 1997; or the office of The Public Defender – as in Article 134 of the Constitution of Brazil, etc.
In the US, the Texas Rangers, founded in 1823 by Stephen F. Austin to protect the settlers from attacks by the indigenous Indians, remains the earliest form of State policing in the USA. To cut a long story short, however, modern day State policing in that country is traceable to May 2, 1905, when the State of Pennsylvania established by law the first organised State Police in the USA. For lack of space, I will have to say that Nigeria is also VERY RIPE for State police; and all relevant portions of the Constitution and Federal laws should be amended to accommodate this.
Referendums and Plebiscites
Making provisions for the convocation of referendums or plebiscites is one other sure way of restructuring our Constitution with a view to guaranteeing public peace and accountability in public affairs. Examples from other countries will suffice here.
Article 49(XV) of the Constitution of Brazil allows federal legislation which would “authorize a referendum and to call a plebiscite” in deserving circumstances. Articles 150-152 of the Constitution of Albania also allow referendum in deserving circumstances. Section 47 of the Constitution of Ireland provides that even that Constitution can be amended through a referendum. Ditto Armenia – by virtue of Chapter 8 of the Constitution of Armenia, 1995.
Reforms in the Judiciary
I have already briefly touched on this above; but I will add that serious reforms in the Judiciary are of critical importance. I totally support creation of special courts for trial of corruption cases, to save time and enhance better administration of justice in that subsector. Section 127 of the Constitution of India, 1950, has permitted the appointment of ad hoc Judges, who may have retired from the Bench. I recommend this for corruption and election cases – for obvious reasons.
I also suggest that Regional Courts of Appeal and Supreme Courts be created, as in the USA, to ease the workload on the Court of Appeal and the Supreme Court.
Salaries and emoluments of Judicial Officers should be reviewed upwards – to stem corruption in the Judiciary. In 2013, I rolled out figures from the USA, Canada, Australia and even Ghana – to show that our Judicial Officers are receiving pittance. For instance, a Chief Magistrate in the US receives far more than what the Chief Justice of Nigeria receives as his emoluments! This is humiliating, to say the least.
There should be in our Constitution the following provisions, as can be found in some of the Constitutions indicated:
• Provisions for social security – as in Chapter II of the Constitution of Brazil.
• Children’s rights – as in section 15 of the Namibian Constitution, including a constitutional prohibition against children being employed as factory workers – as in section 24 of the Indian Constitution.
• Protection of minority tribes in Nigeria – as in sections 29 and 30 of the Indian Constitution.
• Making some of the critical provisions of Chapter II of the Constitution justiciable. In Ireland, Chapter XIII of its Constitution, dealing with “Directive Principles of Social Policy,” the equivalent of Chapter II of the Nigerian Constitution, is even made justiciable.
Finally, relevant security and anti-corruption agencies – the EFCC, ICPC, Code of Conduct Bureau, Customs and Excise, NAPTIP, etc, should be strengthened and better funded. A few years ago, I rolled out data showing that the US population is about twice more than that of Nigeria; that the US Federal Bureau of Investigation (FBI) has a total budget that is 50 times more than that of Nigeria’s EFCC and ICPC combined; and that it also has staff strength which is at least 10 times more than that of the EFCC and the ICPC combined. Yet, Nigeria occupies a higher position on the corruption index than the USA! Prosecution of crime, let alone of corrupt enrichment, is very costly, hence the imperative of these reforms.
Chief Sebastine Hon, SAN, FCIArb, Constitutional Lawyer and Authordies