By Edoba B. Omoregie
Continued from Friday pg. 18
INDEED, a country or supranational community may actually not fit into the description of a federation in terms of its essential structure; but could function with manifest tendencies of federalism or the federal principle. It is in the latter context that the European Union is often described as functioning on the basis of federalism or the federal principle despite being a supra-nationality.
Therefore, “a country may have a federal constitution, but in practice, it may work that constitution in such a way that its government is not federal” or lacks the federal principle (Wheare, 1963: 20). A similar view is expressed elegantly by Erk (2004: 3), that “the presence of a federation should not blind us to the absence of federalism.” Thus, it is possible to have “a federation without federalism” (Babalola, 2017: 2). It is in this context that serious questions have been raised about the situation of Nigeria, which is indubitably a federation. However, both in its constitutional document and in the practice of the constitution, there are verifiable bases to conclude that federalism or the federal principle is lacking in Nigeria. The net implication of a misalignment between federation and federalism or the federal principle have far reaching implications which could manifest in a state of political inertia and ultimate disintegration. Before we draw this link fully with the current situation of Nigeria, a bit of history is unavoidable.
Nigeria as “A federation without Federalism”
Nigeria’s constitutional background, the current structure of its constitution and their practical manifestations are sufficient grounds to evaluate the suggestion that the country is a federation without federalism or the federal principle. It is well known that Nigeria became a federation in 1954 when the first federal constitution was promulgated by the British colonial government. That constitution was an effort to reflect the thoughts of the colonial government, as well as the aspirations and agreements of indigenous political leaders drawn from a broad spectrum of its ethnic nationalities. Most of what were contained in regard to structure of the federation, and the distribution of powers between the national and subnational tiers were subsequently reproduced in the Independent Constitution of 1960, and the Republican Constitution of 1963. Thus, power over 40 items listed as “Exclusive” was assigned to the national (federal) government. The Federal Government shared power over 20 items listed as “Concurrent” with the then three, later four subnational (regional) governments. This is in sharp contrast to the current Constitution of 1999 (as was substantially the case in the version of 1979) in which the Federal Government is assigned 68 items of exclusive power, while sharing 12 concurrently with the states.
All of Nigeria’s constitutions since 1954 have conferred primacy power on the Federal Government over the concurrent list. Thus, the Federal Government is empowered to preempt state legislative activities in the concurrent list, and a state legislation in conflict with that of the Federal Government on the list is void to the extent of the inconsistency. With special reference to the 1999 Constitution, one can therefore note that in essence, federal legislative power actually covers 80 items, together with incidental and implied powers. Although the states are left with residuary power over unnamed items, the net effect is that in its current form, Nigeria’s constitution has created the Federal Government as a behemoth of sort. What is more, it is in the actual quality of the items now placed as exclusive to the Federal Government and the manner of design of the concurrent list in both the 1979 Constitution and the current Constitution of 1999 contrasted with the 1960 and 1963 Constitutions that the abrogation of federalism and the federal principle is made manifest. This sea change traverses a significant portion of the current constitution, especially matters of policing/security within the states, fiscal allocation and inter-governmental revenue transfers, organisation of the judiciary, organisation of local government and the operative constitution in the administration of the states, among many others. Later, I shall come to these issues because they are the fulcrum of my conclusion that Nigeria is a troubled federation at the cusp of disintegration. However, to give a snippet of the crisis, let me illustrate with two of them, namely fiscal allocation and intergovernmental revenue transfer, and policing/internal security because they can correctly be identified as the most potent source of political inertia in Nigeria which may sound the death knell of the country.
Fiscal Allocation and Inter-governmental Revenue Transfer
Nowhere is this more manifest in the 1999 Constitution than the grant of exclusive powers to the Federal Government over virtually all tax sources including taxation of incomes, profits and capital gains (item 59, Exclusive Legislative List); most of which were concurrent tax sources in the 1960/63 Constitutions. Allocation of nationally mobilised fiscal resources has remained a matter for national legislation through the National Assembly even as it was under the 1960/63 Constitutions. Nonetheless, under those constitutions whatever allocation was enacted, 50% of fiscal resources derived from mineral (including oil mineral) in a region was to be allocated to that region, leaving 30% in a distributable pool to be shared unequally between all the regions and the Federal Government while 20% went to the Federal Government alone. This fiscal arrangement which was the result of collective, unforced agreement of the founding political leaders, was terminated by military junta long before the 1979 Constitution and has never been restored. Perhaps, as a token gesture because of the tension it had begun to seriously generate in the restive oil-bearing states, the last military regime included a clause in the 1999 Constitution providing for the derivation principle only to the tune of at least 13%, an arbitrary figure with no historical or autochthonous foundation; but nonetheless an improvement on the 1979 Constitution which was stripped entirely of the principle of derivation.
Policing and Internal Security
A popular misconception especially among opponents of the call for state police system in Nigeria is that the country previously instituted it in the First Republic but was used as political tool by regional politicians against their political opponents. The reality is that the 1963 Constitution never created a regional police system. Rather, the constitution prohibited establishment of any other police force in any part of the country except the “Nigeria Police Force” (sec. 105 (4)). However, the constitution went on to provide in section 105 (7) thus: “Nothing in this section shall prevent the legislature of a Region from making provisions for the maintenance by any native authority or local government authority established for a province or any part of a province of a police for employment within that province.” Only the Northern and Western Regions maintained Native Authority police. The Eastern and Midwestern Regions never did.
The military regime of General Yakubu Gowon eventually abolished Native Authority police in 1966 following the recommendation of a committee set up to consider the desirability of a dual local and national police or a centralized (unified) police system (Alemika, 2010: 19). Currently, the country operates a national police system over which the federal government has overriding control, although with insignificant/subordinate role for the Governor to direct a state police commissioner on internal security of the state, as well as a latitude granted state assemblies to concurrently legislate (together with the National Assembly) and without restriction, for provisioning of essential supplies and services to maintain law and order within their respective states.
BETWEEN REFEDERALIZATION AND DISINTEGRATION
From the foregoing, it is pretty clear what I consider the dominant challenges of a lack of federalism or the federal principle in the Nigerian federation which pose great danger to its longevity and survival. To clarify, I consider the problem of fiscal allocation and policing/internal security as the two main causes of political inertia in the country with reverberating impact on the progress and development of the country as a whole which if not addressed conscientiously may lead to its disintegration. Tension over revenue allocation and intergovernmental revenue allocation has sparked and continues to create serious security conflicts in the oil rich Niger Delta; weakened the revenue profile of all the states and their ability to provide for the welfare of citizens, provide basic infrastructure, among other failures. Challenges of policing and insecurity across the country on the other hand have tasked the patience of citizens and weakened their faith in the ability of government to secure their lives and property. What then could be responsible for these situations and how does deficit of federalism/federal principle in Nigeria’s constitution precipitate them? It is in this context we now turn our attention to what we mean by re-federalization.Re-federalizing Nigeria
Imbedded in the idea of re-federalizing Nigeria is the presumption that the country was once federal or that it previously operated as a federation with features of federalism or the federal principle. This presumption is substantially true especially in light of the fiscal federalism provisions of the 1960/1963 Constitutions as well as the somewhat asymmetrical provision in the 1963 Constitution which permitted Native Authority Police to be established in any region which desired it. There are other tangential matters which are also related to these irrefutable presumptions. They include the situation of only one national constitution under the current constitutional dispensation (as was the case in 1979-1983), in contrast to the constitutional dispensation of the first republic where, in addition to the federal constitution, each region possessed its own constitution setting out the horizontal structure of its government, including the organization of, and mode of appointment into its judiciary. These provisions demonstrated the autonomy of the regions in their internal governance independent of the federal government. I will therefore build my notion of re-federalization on these presumptions.
But what are the irreducible federalism principles upon which the re-federalization agenda should be erected? From the literature, six ingredients have been identified as indispensable for the proper functioning of a federation founded on federalism or the federal principle. They are i) the separateness and independence (autonomy) of each government (national and subnational); ii) mutual non-interference or inter-governmental immunity; iii) equality of the sub-national government governments; iv) appropriate number of sub-national governments; v) distribution of powers; and vi) an authority, preferably an apex court, to arbitrate vertical and horizontal intergovernmental disputes (Nwabueze, 2003; Dicey, 1885; Mills, 1977). Armed with this understanding, one can see that only with respect to items iii, iv and vi would it be said that the federation of Nigeria functions on the basis of the federal principle. Therefore, to re-federalize the country and strip it of its disagreeable federalism credentials, I propose the following measures with some justifications:
Autonomy of states/intergovernmental immunity
The 1999 Constitution institutes a system which denies states their autonomy relative to the federal government. This is manifest in many ways. It is manifest in fiscal allocation and intergovernmental revenue relationship by which states are not only denied direct autonomous access to significant tax and revenue sources within each of them but are compelled to submit to the trusteeship of the federal government for financial survival through periodic receipt of revenue allocation from the federation account. This arrangement defies the logic of fiscal federalism which postulates that to survive as an autonomous part of the federal bargain, subnational government must be left to mobilize its fiscal needs, only to be supported in case of shortfalls by the national government through intergovernmental revenue transfers usually to maintain equalization with other well-endowed subnational part of the country in specific targeted programme determined by the national government (Anderson, 2007). Since it is one of the enduring terms of the federal bargain that each government (national and subnational) shall have the authority to act upon the people, the idea of national mobilization of revenue for subsequent redistribution as instituted in the Nigerian context defeats the term of federal bargain and ought to be abandoned. In its place, both the federal and state governments should have direct independent access to agreed tax domain, with the federal government retaining the general power of taxation as is the practice in the United States of America, universally celebrated as a model federation with intrinsic principles of federalism despite the fact that the US Constitution nowhere proclaims the country a federation.
States have also be denied autonomy in horizontal organization and management of their internal government. The first point where this is manifest is the existence of a single national constitution and the implied abolition of sub-national constitutions. The 1999 Constitution (just as the 1979 Constitution) covers the entire field of the governing provisions of federal, state and to some extent, local administrations. A uniform system of state and local governance (sec. 7) is thus created thereby denying states the autonomy and independence to organize their internal governance in a way that suits their respective subnational environment given the obvious ethnic and cultural diversity of most of them. This arrangement also distorts the ability of the states to be innovative in organizing their government, if that is a course they prefer, without the compulsion of uniformity currently in place. The states have in consequence been denied their attribute as “laboratories of democracy” and the turf for policy experimentation (Galle and Leahy, 2009).To reposition the states as effective agents of development and policy innovation, they should have the benefit of sub-national constitutionalism starting with owning their separate constitutions in which the specific terms of horizontal governance shall be provided independent of federal interference. This is the cross-country experience in the United States of America and even in a relatively nascent federal system like that of Ethiopia where each subnational government has its separate constitution distinct from the single national constitution.
With separate sub-national constitutions, each state in Nigeria will have the autonomy to determine a number of matters which are currently uniformly managed from the centre by the federal government in complete defiance of federalism or the federal principle, with negative implications for the flourishing of the states. A good example is the current structure and organization of state judiciary which is placed within the control of the National Judicial Council (NJC). The body is responsible for appointment, financing and disciplining of the judiciary of the federal government, the states and the federation! The Federal High Court and National Industrial Court which are courts of the federal government; State High Court, Customary Court of Appeal and Sharia Court of Appeal which are all state courts; the Court of Appeal and the Supreme Court which are courts of the federation are all managed and administered by the NJC. Yet, the NJC is an executive body of the federal government (sec. 153, 1999 Constitution). Because of the situation of nationalized organization and management of these courts, it is correct to say that justice administration has virtually collapsed under the weight of inertia created by lack of innovation across the entire spectrum of the justice system at both national and subnational levels. This situation of collapse is what manifests in corruption in the judiciary, delays in justice delivery and the generally unsatisfactory state of the entire judicial system across the country.
Needless to say that it is in policing and internal security of states that the lack of state autonomy appears to be most troubling with direct consequences for continuance of the federation. Although it is the case that subnational governments in all federations are ultimately subject to national authority in internal security, especially in specific challenging matters of law and order which have overwhelmed the capacity of states, the latter should not, in principle, be mere onlookers in matters of their internal security organization and administration as is the case in Nigeria under the constitutions promulgated in 1979 and the current Constitution of 1999. As a principle, one way by which a government can demonstrate its ability to enforce its law is the ownership and deployment of instrument of coercion and law enforcement. Lacking this ability, no government can assert its autonomy nor its independence. That is the dilemma states have found themselves in Nigeria manifesting in increasing levels of insecurity of lives and properties across virtually all the states, with agencies of policing and maintenance of internal security in the states under the ultimate control and management of the federal government despite its lack of innovativeness and responsiveness to the tide of internal insecurity across the country.
Distribution of powers (subsidiarity and proportionality principles)
A major component of federalism dissonance in Nigeria is the appropriate volume, quality and mechanism for distribution of powers between the federal and state governments. This challenge has direct implication for federal balance across the length of the vertical structure of every federation. Indeed, it is the ability of federations to institute a sustainable balance in distribution of powers with minimal disputes that may determine their longevity, or their ultimate disintegration in the unmanageable conflicts which are bound to result from unprincipled distribution of powers. Distribution of powers also has implications for the relative access of both governments to tax/revenue sources. Thus, whichever tier has the bulk of power determines the scale of fiscal resources it has to accomplish assigned powers, with practical impact on the wellbeing of citizens. Distribution of powers is, therefore, unsurprisingly a dominant federalism feature without which a federation is not federal. Both governments must possess powers conferred by a supreme constitutional document which must be the only source of such powers, because federation exists on the basis of an agreement between the vertical tiers, with the constitution as the formal documental proof of the compact.
It is beyond contention that balance of distributed powers in the Nigerian federation has been distorted away from the relatively satisfactory and agreed scale it was under the pre-1966 Constitutional documents of 1954, 1960 and 1963. One immediate proof of this, apart from the increase in exclusive items of power and decrease in concurrent domain, is the fact that most criticisms of the first republic never include the charge of imbalance in distributed powers. Rather, it is well known that the regions were assigned responsibilities that the states currently do not have, and performed better in delivering public goods far more than the current 36 states are accomplishing, despite appearance of some insignificant bright lights here and there like Lagos State. However, the troubling and possibly uninformed dimension of current criticisms of the relative performance of state governments is the notion that fragmentation of states into 36 states has limited their ability to perform. This criticism seems to ignore not only the quality and content of powers assigned to the states as they bear on citizens’ daily expectations of government, but also the relative fiscal profile of states compared with regions of the first republic.
What is clear is that the diminishing of states’ assigned powers with concomitant increase in federal powers was not based on known federalism principles. On the contrary, one can say with historical justification, that the changes began under military rule, and were instituted first in the 1979 Constitution and retained in the 1999 Constitution on the premise of the “holding together” agenda of military regimes resulting from the bitter Civil War (1967-70), a war which nearly saw the abrupt disintegration of the country for reasons largely attributable to political differences between the leadership of the military regimes; and unrelated to state-federal relations similar to our instant concerns. This historical justification is underscored by several measures introduced by the military including, for instance, the National Youth Service Scheme, which were deliberately instituted with the hope of fostering national integration. Despite the good intentions which may have persuaded this centralizing policy shift, events of the past number of years demonstrate that the shift has undermined federal balance and manifestly trumps two known principles of power sharing in the federal system, namely: the principles of subsidiarity and proportionality. We can therefore say with certainty that only by their adoption in the quest for re-federalization would the current imbalance in distribution of power be redressed.
While the subsidiarity principle focuses on the question of which tier should be assigned what power, using competence as the standard determinant, the proportionality principle focuses on ensuring a fair balance between exercising legitimately assigned powers and the object to be achieved in deciding to do so. Going forward, before a power is distributed to either the federal government or the states in a re-federalized Nigeria, it is imperative that the process of distribution scales the huddles of subsidiarity and proportionality. In practical terms, with regard to the subsidiarity test, the relevant question to ask should be: which tier possesses the appropriate capacity or competence to achieve result in a particular task? If the question is answered in favour of the states, the latter should be assigned such task while the federal government should, at best, be a supporting agent of the federation to ensure that states achieve result and not to seek to usurp or displace them from the task. At the moment, the situation in Nigeria is that many matters properly within state competence which they could perform better than the federal government are constitutionally assigned to the latter with the result that nothing positive is achieved with the assigned power. With respect to the principle of proportionality, the relevant question should be whether by exercising an assigned task to the extent permitted, the objective for assignment of the task can be achieved. Where this cannot be positively answered, the tier assigned the task ought to forebear from undertaking the task, or act proportionally to achieve result leaving states with options to get involved where it is possible for them to achieve results. These principle forms the basis of the successes recorded by many successful federations including that of the United States of America, and even the continuing relative stability of the European Union.Risk of Disintegration
According to Rotberg (2010: 2): “Nation-states fail when they are consumed by internal violence and cease delivering positive political goods to their inhabitants. Their governments lose credibility and the continuing nature of the particular nation-state itself becomes questionable and illegitimate in the hearts and minds of citizens”. This poignant statement appears to speak directly to the stark reality of the Nigerian federation at the moment. There is no doubt that the country is at the cusp of its existence with centrifugal forces having a field day by inflicting serious situation of insecurity of lives and property across the country, and the inability of both tiers of government to meet the aspirations of Nigerian for good governance. Most of the incentives for the condition of stress upsetting its stability are directly traceable to the political inertial foisted by the unworkable nature of its constitution regarding, in particular, fiscal allocation/intergovernmental revenue transfer, policing/internal security and many other dimensions of violation of federalism/federal principle already discussed. Our prognosis is that if the country continues to witness the kind resistance to federalism reforms shown particularly in the last few years, the risk of disintegration may escalate.
This is not an exaggerated prediction. There are cross-country proofs of it. Strained by similar resistance to change and reforms, a number of federations have collapsed and a couple of others are witnessing similar possibility. A good example of a federation which eventually succumbed under the weight of its internal incoherence is Yugoslavia (Acceto, 2007). Another federation which is at the brink of extinction is Yemen (Saferworld, 2015). What is clear is that in the particular case of Nigeria, the conflicts over federalism reforms appear to have been ameliorated over the years by some consociational mechanisms which kept the elite class of citizens from feasting on the obvious ethno-cultural multiplicity and fragmentation of the country. However, in the past three years, with the inauguration of a new government, these differences have been magnified by the apparent policy distortion of those consociational features of Nigeria’s political and constitutional system especially those which have been deliberated projected to manage the ethnic, sectional and religious fragmentations of the country (sec. 14 (3) of the 1999 Constitution).
But those constitutional provisions instituted to manage diversity are not sufficient to avert the consequences of federal dysfunction because even as they may be useful in managing elite contestations and other concerns of consociational dimension unrelated to federalism, they are inadequate to cure the problem of political inertia which federal dysfunctionality spurns especially in regard to those conditions described by Rotberg. The current developmental challenges faced by Nigeria in every sector cannot be helped by consociational solutions which focus on ameliorating elite contestations alone; but can, more significantly be by re-federalization, to avoid disintegration. The resistance to change must however be understood and dispelled. The direction of resistance appears to come from those who fear that federalism reforms targeted at fiscal allocation may undermine their revenue profile. Most of those in this category are to be found among states which contribute minimally to the revenue mobilized into the federation account. The others are those resisting change because it does not suit their narrow personalized interests; and these may be found among the federal bureaucracy who have become well-entrenched in the federal imbalance and are benefiting from the distortion at the expense of the public good. They are part of those standing in the way of genuine efforts of federalism reform in the country with their access to those possessed of authority to initiate and accelerate the reform process. There is a third category, although relatively less influential in determining the direction of reform agitations. These are those who are less knowledgeable or without technical awareness of the issues involved but are vocal enough about their dissension to confuse the debate on the need for federalism reforms. The extent to which these forces are able to triumph or fail over and above the voices of reform may determine the survival of the country as a nation-state.
In this presentation we have reviewed some of the contending issues currently stressing the Nigerian federation. We proceeded on the note that there is clear distinction between a federation and federalism or the federal principle, and that Nigeria is obviously a federation to the extent that its governing political system is structured like most other federations in material details. Yet, its constitutional document lacks federalism credentials leaving the country in a state of political inertial with manifest inability to protect citizens and generally meet their developmental aspirations. After evaluating the specific contour of its federalism deficiencies, we came to the grim view that they, more than any other issues, are what create virtually all the schisms that pervade the country and which may precipitate its disintegration.
We conclude on the note that going forward, if those fortified in their resistance are able to be persuaded, a re-federalized Nigeria must focus on at three of the six irreducible principles of federalism which we isolated as problematic in Nigeria; as the remaining three are not currently of serious concerns enough to undermine the sustenance of the country as a nation-state. In this regard, we identified the absence of autonomy of the states, interference by the federal government in otherwise horizontal state activities and independent domain, and the challenges of unprincipled distribution of powers, as issues that federalism reforms/restructuring/re-federalization efforts should focus on to pull the country back from the brink of disintegration.
Finally, we must note that perhaps the most appropriate way to persuade opponents of restructuring to have a rethink (especially among the category equating it with having the potential to upset their state’s fiscal profile) is to propose the adoption of the principle of federal solidarity adopted in Canada (Cyr, 2014) which guarantees a minimum standard of living for citizens across the country irrespective of the state they reside. In order words, instead of the current system of intergovernmental revenue transfers which are not tied to specific programmes of benefit to citizens as a national goal, such transfer if they must be made should rather focus on targeting citizens’ wellbeing or standard of living. In addition, they should come from federal purse (given the enormous general power of taxation it will have following the reform), not from a so-called “federation account”, a strange contraption unknown to federalism or the federal principle; which is overdue for NIGERIA: BETWEEN RE-FEDERALISATION AND DISINTEGRATIONBeing excerpts of a paper delivered by Prof. Omoregie at a symposium titled Critical Perspectives on Political Restructuring in Nigeria held recently in the Department of Political Science, University of Pretoria, Hatfield Campus, Pretoria, South Africa. Related