Analysing State Power to Regulate Residence and Commerce under the Constitution
By Sam Amadi
A few weeks ago, the Nigerian Government faced a volatile situation that threatened to swell into a major national conflict. The crisis has many constitutional implications. The main issue is the continuing criminality and violence, of the Fulani herders. For many years, conflicts between herders and famers and, sometimes, outright attack by Fulani herdsmen on farming communities across Nigeria, have been a major cause of insecurity in the country. These violent attacks and other forms of criminality, like kidnapping and banditry, result in huge economic losses. The nation loses an estimated N300 billion from this conflict. But, the graver result of violence by Fulani herdsmen, is how much it is weakening national unity and encouraging ethnic profiling, hate speeches and deterioration of State autonomy. The Nigerian State has come under much strain, especially since the Buhari administration, for failure to respond to the terrorism and criminality of Fulani herdsmen in the logic of rule of law. Because the Federal Government has been thoroughly inefficient and manifestly biased in controlling the criminality of Fulani herdsmen, many State Governors are taking extreme actions to manage the crisis. One such action is the quit notice Ondo Government issued to Fulani herdsmen, to leave the forests of the State. This notice has generated much controversy, and even threatened to become a matter of national crisis. The Presidency that has been generally slow to respond to these criminalities, quickly jumped into the fray and countered Ondo State Government.
Clarifying Issues in Contention
There is a bit of confusion, about the facts of the crisis. The report is that Ondo State Government, reacting to the spate of brutal killings by Fulani herdsmen, issued a quit notice to herdsmen to vacate the forests within seven days, or get registered with the State. This order has been interpreted, as an order to Fulani people to leave the State. The Presidency did not allow the ink dry on the order, before it reacted to the quit order. In a statement issued by the Special Assistant to the President on Media, Garba Shehu, the Presidency described the action of the State Government as unconstitutional. The statement argues that the order is targeted at an ethnic group, and whereas, the State has a right to fight criminality in the State, it has no powers to discriminate against the Fulanis. Prominent Yoruba leaders, under the platform of Afenifere, lambasted the Presidency, for always defending the criminal Fulani herdsmen. Ondo State Government has maintained the legality of its order, and expressed its determination to enforce the order.
It is clear that the order is for the herders to leave the forests, and get registered in order to practice their trade. The problematic aspect of this order, is the fact of pastoralism. These Fulani herders have been reputed to live with their cattle, and basically move and live in the forests. The nature of their trade and the cultural lifestyle of pastoralism, means that they would not readily live in the cities like other tradesmen. So, the order to leave the forests seems to impose an existential challenge to the herders. It imposes a grave burden to them. But, does the State have the power to impose such additional and grave burden on herders? Does the action of the State Government violate the citizenship rights of Fulani herdsmen, and does the Federal Government have the right to preempt such orders?
Federalism and State Rights under the Nigerian Constitution
The controversy on the legality of Ondo State quit notice, unravels under the shadows of Federalism. Nigeria operates a Federal Constitution, that establishes the powers and immunities of various levels of Government. The choice of a Federal system of administration grounded in a written Constitution by Nigeria’s founding father, is based on the understanding that it is only a Federal system of Government guaranteed by a written Constitution that can enable unity in diversity. In adopting Federalism, Nigeria’s founding fathers also considered the views of the US founding fathers, and borrowed some of their institutional prescriptions. Arthur Lewis who was one of the intellectual architects of Nigeria’s political economy, argued that Federalism is the best model for a plural society like Nigeria to attain and maintain unity and development. He built on the views of Professor K.C. Wheare who postulated that Federalism is “the method of dividing power, so that the general and regional governments are each, within a sphere, coordinate and independent”. When Nigeria adopted Federalism, it was a Federation of Regions. Today, it is a Federation of States.
Building on KC Wheare’s thesis of division of power so that ‘the general and regional governments are each, within a sphere, coordinate and independent’, the Nigerian Constitution divides power between the Federal Government and 36 States. This division relates to executive power (Section 5), legislative power (Section 4) and judicial power (Section 6).
Federalism is both a political and constitutional law concept. In both conceptions, the US constitutional history plays a key role in shaping the structure and culture of Federalism. The relationship of the centre and federating units, be they States or Regions, is determined by the actual text of the Constitution. In the US, the articulation of Federalism has changed through the storied history of the country. In his authoritative text, Constitutional Law and Politics: Struggles in Power and Governmental Accountability, David M, O’Brien argues that “Federalism in the US conceals complex and ambiguous connections” because the concept has changed its meanings and implications throughout the history of the US.
But, generally, the conception of Federalism has oscillated between the concept of ‘state sovereignty’ and ‘sharing of power’. Before the US constitutional conference, the prevalent notion is that the States are sovereign, free, independent, coordinate, equal and co-extensive. This concept granted the States power to nullify Federal legislations. This concept divided the federalists and the anti-federalists over the character of the new Republic. The Supreme Court itself was divided on the nature of the Federal Government, introduced by the constitutional convention. At various times and in different cases, the court upheld the concept of States as sovereigns (Dred Scott v Sandford 60 U.S. 393 (185) and Re the Civil Rights Cases 109. U.S. 3 (1883). Later, the Supreme Court abandoned the concept of Federalism requiring States to be sovereigns, and emphasised federalism as ‘shared power’ under the Federal legislative preemption. See Brown v Board of Education 347 U.S. 483 (1954).
After surveying the history of Federalism in US constitutional law and politics, David M. O’Brien concludes that “…the constitution expressly grants plenary powers to the Federal Government and sharply limits States’ power… In creating a new form of Federalism, the constitution presumed the existence, not the sovereignty of the States. Indisputably, the States have a crucial role and responsibility to play in the administration of social services”.
The same conception applies to Federalism under Nigerian Constitution. Just as the 1999 Constitution recognises the existence of the State and grants powers to govern and provide social services, it denies it the power of sovereignty and subordinates the exercise of State power to the preemption of Federal legislative and executive power. Furthermore, unlike the US constitution that reserves powers not expressly conferred on the Federal Government on the States, the Nigerian Constitution grants States only express power. There are no reserved or implied powers of States under the Nigerian Constitution.
Relevant to the arguments in the paper, we refer expressly to Sections 4 and 5 of the 1999 Constitution which limit the exercise of both executive and legislative powers of the State to both the doctrines of ‘covering the field’ and ‘preemption’. Those sections also require that exercise of State executive power, should never undermine the effectiveness of Federal executive power. Also, exercise of State legislative power, where the State has concurrent powers with the Federal Government, should be subordinated to exercise of Federal power.
Therefore, the proper provinces of the power of States vis-à-vis the Federal Government under the Constitution, is that the States are not sovereign. Although they are co-equal and coordinate amongst themselves and have extensive legislative power in many subject matters, such legislative and the executive competence that derives from it are not limitless, but subject to Federal preemption and the limitations of constitutional due process. Let us now examine such power as it relates to citizenship rights, and the regulation of commerce.
Citizenship, Citizenship Rights, and the Regulation of Intrastate Trade
The first issue of the controversy, borders on whether the State Government can order a citizen or citizen group to leave the State. The antagonists of the Ondo order, interpret it as a quit notice to citizens of Nigeria to leave part of the country. If this order is interpreted in that sense, then it raises the question whether any State Government can deny any Nigerian citizen residence in any part of the country, and under what conditions.
Chapter 3 of the Constitution provides for Nigerian citizenship. Primarily, a Nigerian citizen is any person born in Nigeria before independence, either of whose parents or grandparent belongs to an ethnic group indigenous to Nigeria. Furthermore, a person is also a citizen if he is born in or outside Nigeria after 1960, provided any of his parents are citizens of Nigeria. The regulation of citizenship is not within the legislative competence of the State legislature and therefore, not a derivative responsibility of the executive government of a State. Only the National Assembly can make laws about citizenship, and only the President is authorised by the Constitution to grant or annul some sorts of citizenship (Sections 29 and 30).
Flowing from citizenship, are citizenship rights which are subsumed under Fundamental Human Rights in Chapter 4. These rights include, the right of a Nigerian to reside in any part of Nigeria. The right of residence and the freedom of movement, are strengthened by the freedom from discrimination. Therefore, as long as these ‘criminal’ herdsmen are citizens of Nigeria, they cannot be forcefully removed from any part of the country. Such forceful removal will amount to a denial of right of citizenship. These rights are protected, except under the strict provisions of Section 45 of the Constitution.
Attempts by politicians to deport their opponent on the basis that they are non-Nigerians, have been nullified by the courts. A prominent example is the Shugaba case, where the Federal High Court nullified the deportation of an opposition politician by the ruling authority.
There is no doubt that any order asking citizens of Nigeria of any ethnic or social identity to cease to live in any part of Nigeria, is a violation of the right of citizenship. This violation cannot be validated by exercise of legislative or executive power of the State under the Constitution. The powers of the States as a level of Government, do not extend to authorising abridgement of the rights of citizenship. In Director of SSS v Agbakoba (1999) 3 NWLR (Pt. 595) 340, the Supreme Court reiterated that these citizenship rights cannot be abridged by administrative procedures through the denial of incidences necessary for the enjoyment of these rights.
So, if the purport of the Ondo order is to forcefully remove Fulani herdsmen who are Nigerian citizens (not Nigeriens) from Ondo State, then it is an unconstitutional order which neither the State legislature, nor the executive can make. But, carefully considered, the order is not an order to remove citizens of Nigeria from Ondo State. It is an order prohibiting them from inhabiting the forest, and requiring them to undergo some kind of registration. It is an order regulating commerce, determining how a trade would be undertaken in a State. Does a Nigerian State have powers to impose such burdens on a trade undertaken majorly by a particular Nigerian ethnic or social group? This is the proper lens to view the Order, and not as a removal of persons from Ondo State.
From the foregoing reframing of the controversy, is the order of the Ondo State government compatible with the Constitution? To answer this question, we have to review the development of the US constitutional law on the power of the States to regulate commerce. The starting point of the US constitutional law on the power of States to regulate commerce is Article 1(5) of the US Constitution which states that: “The Congress shall have power to regulate Commerce with Foreign Nations, and amongst the several States and with the Indian tribes”. This provision is famously known as the ‘Commerce Clause’. So much constitutional law jurisprudence has flowed from it. The relevant question arising from the Commerce Clause is, what can States validly do to shape trade and commerce within their territory? In Gibbons v Ogden 9 Wheat. 1 (1982) Justice Marshall laid the defining principle of constitutional law in this regard, by asserting that Congress’s power to regulate commerce does not end at State lines because ‘commerce’ is an “intercourse that affects more States than one”. Cattle rearing is one such intercourse, that potentially affects more than one State. The constitutional law jurisprudence of the commerce clause has been one that tends to privilege the power of Congress (in the Nigerian case: the National Assembly) to exclusively and extensively regulate interstate commerce, but allows significant (and in some circumstances, controlling) power to States to deal with intrastate and local content of interstate commerce. As Justice Marshall observed in the Gibbon case, although Congress has power over interstate commerce, “The completely internal commerce of a State may be considered as reserved for the State”. Subsequently, Chief Justice Taney in Mayor of New York City v Miln 11 Pet. (36 U.S.) 102 (1837) while upholding a State refusal of immigrants based on indigence, offered a more sympathetic view of State power over commerce. In his view, “We think it is competent and necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds and possibly convicts, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported from the ship, the crew of which may be labouring from an infectious disease”. This is an extreme articulation of State power.
But, the development of the extent of State power in the matter of regulation of commerce has settled on the view that in matter of intrastate commerce, the State has almost limitless power to regulate commerce, as long as it does not outsource fiscal burdens on other States (Wyoming v Oklahoma 502 U.S. 437 (1992) and does not hinder the effective exercise of Federal power. In this evolution, several heuristics like ‘concurrent power’ ‘dormant power’, ‘mutual exclusiveness’, ‘selective exclusiveness’ have been applied to demarcate between valid and invalid exercise of State power. But, the conclusion is, as David M O’Brien puts it, “State regulation is valid if the activity is basically local, and the Court determines there is no need for a uniform national standard”. This means where the Federal Government has established a uniform standard, the State law may not undermine or detract from such standard.
In the current case in Ondo, the management of forestry is actually a State responsibility. The State has powers to make laws for the effective management of the forest, as a resource and management of cattle rearing commerce. The State Government does not have exclusive right to determine movement of cattle across State lines. It has power to regulate local components of such interstate trade, if it concerns itself only with the aspects of the trade that impact only the State. Also, in regulating intrastate or interstate commerce, Ondo cannot make laws or issue executive orders that violate the fundamental rights of citizens involved in any such trade, whether intrastate or interstate. It cannot also make laws or issue executive orders that undermine the ability of the Federal legislature or the Federal executive to exercise its powers under Sections 4 and 5 of the Constitution. Outside these restrictions, Ondo is free to make laws or issue executive orders that regulate intrastate and interstate commerce.
The present order is directed at herders to leave the forest, because of a consideration of public safety. This is a valid exercise of State power, as long as it does not determine interstate commerce that escapes fully local control or contradict Federal standards set by law. Although the order is a valid exercise of constitutional power of the State to regulate internal commerce and protect citizens of the State, the order can still be challenged in court on the usual administrative law principles of legality, reasonableness and rationality (Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 375, Onyekwuluje & Anor v Benue State Government & ors. LER  SC.189/2005 and Chevron, Inc. v Natural Resources Defence Council 467 U.S. 837 (1984). But, it will pass constitutional muster as a valid exercise of constitutional power of Ondo State under the Constitution.
The order quitting Fulani herdsmen from the forests in Ondo State and requiring them to register with the Government to continue with their trade, is not an order to remove them from the State and deny them residence right in the State. The Nigerian Constitution guarantees Nigerian citizens’ basic citizenship rights, which a State cannot abridge. Citizenship and citizenship rights are exclusive matters for the Federal legislature and executive to manage under constitutional due process. State interference on such matters, is unconstitutional. But, the order of Ondo State government does not relate to management of citizenship. It relates rather to management of commerce. Even if the order regulates interstate commerce, as long as it relates to matters that are exclusively local, as long as it does not violate citizenship rights (fundamental human rights) and does not impose fiscal or other burdens on other States, it is constitutionally valid. The only option for those affected would be to challenge the validity of the order under administrative procedure on the principles of legality, reasonableness, and rationality.
Dr. Sam Amadi, Human Rights Lawyer, immediate past Chairman of the Nigerian Electricity Regulation Commission