Thursday, January 14, 2010

Restructuring the (Nigerian) Federation (1)

Written by Edwin Madunagu

FRONTLINE nationalist and elder statesman, Chief Anthony Enahoro, was recently reported to have said that those of them who fought for Nigeria’s independence devoted more energy and time to the struggle to expel British colonial power than the time and energy they expended in laying the foundations for a democratic and just independent Nigerian nation. He was speaking to some reporters in July 2009 on the 86th anniversary of his birth. I salute this living legend for his humility and modesty. Were I present at the press briefing I would have made some exceptions – which would have included him. But Enahoro did not make any exceptions and this made his statement more profound.

Chief Enahoro was referring, in particular, to the enduring ethnic nationality question and the present geopolitical structure of the Federal Republic of Nigeria. For more than two decades he has been campaigning, on several platforms and in combination with various people and groups, for a fundamental geopolitical restructuring of the country. Briefly stated, according to my own understanding, Enahoro has been campaigning for the restructuring of the federation along ethnic nationality lines where the federating entities will enjoy more powers and exercise more responsibilities and control of their affairs than the existing states-relative, of course, to the Federal Government.

It is also my understanding that the restructured Federal Republic of Nigeria will operate within the framework of liberal democracy, expanded human rights, and what some Nigerian feminists would call “empowered womanhood”.

The present piece is inspired by the formulation given above. The following simple questions may be posed: What type of federation is currently being run in Nigeria? What type of federation does the 1999 Constitution of the Federal Republic of Nigeria prescribe? What type of federation is desirable for Nigeria? What socio-political forces currently exist in Nigeria, or can be created, to fight for the desirable federal structure? The last question is of critical importance because for a political programme to be taken seriously it has to prescribe, identify or propose the social forces that can fight for it. Even if we are drafting a programme for future generations, and not as an immediate political task, intellectual responsibility demands that we envisage some historical agencies. We all know that these agencies cannot be constructed arbitrarily, but must be linked to the nature of the programme and the (political) history of the country.

The first question, namely, what type of federation we are currently operating in Nigeria, is the easiest to answer. The simple answer is that no one knows. In particular, no one knows the entities that are “federating”. Is it the states that are federating or the states and local government areas? Do you still call Nigeria a federation – even with this uncertainty? The classical federal principle recognises two levels of government: The Federal Government and federating Regional Governments. K.C. Wheare, in his classic, Federal Government, put the relationship between the two levels of government like this: “What is necessary for the federal principle is not merely that the Federal Government, like the Regional Government, should operate directly upon the people, but, further, that each government should be limited to its own sphere and, within that sphere, should be independent of the other”.

The federal principle has, of course, developed in time and in space beyond what K.C. Wheare and other classical writers formulated and prescribed. But, the two levels of government should “operate directly upon the people”. If not, what we have is a confederation and not a federation. This has to be borne in mind by many of our compatriots who formulate the question of restructuring in a way that suggests that the Federal Government should “hands off” almost everything. Secondly, for each level of government, there should be clearly defined powers and responsibilities, and clearly defined “spheres” where these powers and responsibilities may be exercised without interference from the other level. If not, what we have is not federation, but unitarism, or anarchy, or “Somalia”, or something worse.

Now, what type of federation does the 1999 Constitution of the Federal Republic of Nigeria prescribe? The most charitable answer is that it is unclear. We may illustrate my response with what the Constitution says about the local government system. Section 7(1) stipulates: “The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the government of every states shall, subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils”.

We shall return to this statement, but let us briefly look at what Section 8 says. The relevant subsections empower a State Government to create new local government areas, and adjust boundaries between existing ones, within the area it governs. But the subsections also prescribe the conditions to be met and steps to be taken before this can be done. This is clear enough. But since the local government areas currently existing in the country together with their headquarters, are listed in the Constitution, the process of creating new local government areas cannot be completed until some parts of the Constitution are amended. This is again clear enough and the Supreme Court had said so. However, since the power to amend the Constitution is vested in the National Assembly, the final picture is that new local government areas cannot come into existence until the National Assembly performs its own part of the task, namely, amending the relevant parts of the Constitution.

Now, what happens if the National Assembly, for some reasons or for no reasons at all, refuses to amend, or “unduly” delays the amendments of, the Constitution as required? The logical answer is that the State government concerned either drops the matter, that is, forgets the creation of new local government areas, or goes to the Supreme Court to request it to force the National Assembly to do its work. On the other hand, what happens if a State Government, having completed its own part of the process of creating new local government areas, goes ahead, without waiting for the national Assembly, to conduct council elections, inaugurate the new councils and put them to work?

The logical answer is that the State Government can be dragged before the Supreme Court. But by whom? The National Assembly? The President? Any Nigerian citizen? Should the matter be “forced” by the Federal Government? Definitely No. Does there not emanate the need for a particular “watchdog” of the Constitution empowered to receive complaints of violation of the Constitution from governments, institutions and citizens and bring same to the Supreme Court – if convinced that a case has been made? I think this system exists in Turkey. It is not a dormant law, but a constitutional provision that is vigorously enforced.

We may go back to Section 7(1) of the Constitution. I know that in Natural Sciences and in Mathematics, in particular, authors try to ensure that there are no ambiguities in the formulation of rules. It is not sufficient to argue that “common sense” will assist us to attach correct contextual meanings and implications to phrases and words. We should be explicit where doing so costs little or nothing in space consumption. When, for instance, subsection 7(1) says that: the Government of every state shall ensure the existence of local government councils under a Law which provides for… “common sense” may indicate that it is the state that is empowered to make the Law. But there is nothing in the formulation of that subsection that compels that interpretation.

A local government council within a state is empowered by Section 7(1) to participate in economic planning and development in its area of authority and, for this purpose, the subsection prescribes the establishment of an economic planning board by a Law enacted by the State House of Assembly. But it is not states explicitly that local government councils will be represented in the “economic planning board”. But should they not?

Finally Section 7(1) states that: “Subject to the provisions of this Constitution, the National Assembly shall make provisions for statutory allocation of public revenue to local government councils in the Federation; and the House of Assembly of a state shall make provisions for statutory allocation of public revenue to local government councils within the state”. A simple but critical question is whether the money flowing from the centre to local government councils should pass through the State Governments or go straight, undiminished, to the local government councils. The answer is again left to “common sense”.

The Fourth Schedule to the Constitution lists the “main functions” of a local government council. In others, the 1999 Constitution of the Federal Republic of Nigeria stipulates the minimum functions to be performed by local government councils. The list is really long, and includes “participation in the Government of a State” in some critical areas of people’s needs. The question is whether the councils have the material and human resources capacity to perform even the “minimum” functions. My answer is No.

The conclusion here is that the type of federation we are currently operating in not clear, and the Constitution does not make the situation any clearer.

(culled from