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The SAN’s Pulpit: The Death of the President and its aftermath (2)

By Awa Kalu

Last week, we noted that “there is an ongoing debate as to whether the President is ‘zonally’ qualified to contest
elections in 2011. On account of the feeling in some quarters that the presidency had been zoned to the North for eight years reckoned from 2007, the office of president they argue, would have no vacancy for a non northerner until 2015.

In that calculation, President Jonathan’s ascendancy would be held as merely fortuitous and not related to the expediency of zoning. Consequently, the debate has been galvanized by whether or not President Goodluck Jonathan should contest as of right for the office of President in 2011″.

We therefore promised that “Having regard to the fixation on zoning, this column will examine in greater detail, the constitutional dimensions, if any, of the now controversial issue of zoning. Furthermore, an attempt will be made to reconcile ‘zoning’ with the constitutionally recognized principle of ‘federal character’”.

It ought to be noted immediately that in our view, it is difficult to separate or differentiate ‘federal character’, at least as in its practice, from ‘zoning’ having regard to the fact that zoning as will be argued later, is always deployed to aid the implementation or realization of federal character. There are yet others that refuse to use the word zoning and prefer what is called ‘power rotation’.

Notwithstanding such undisguised attempts to deploy confusing terminology, it does not appear that power rotation is substantially different from zoning. After all, to rotate implies shifting something from side to side, regular change, to alternate, to take turns. When it is realized that zoning and power rotation in the Nigerian context, arise from agreement rather than by ballot, then the merits and hazards of these obvious tools of political balancing become rather obvious.

Many commentators have drawn attention to the fact that zoning is neither entrenched in the Constitution of the Peoples Democratic Party (PDP) nor in the Constitution of the Federal Republic of Nigeria.

It is also doubtful whether the Constitutions of other viable political parties specifically entrench that arrangement which undeniably, serves to assure all politically minded members of such parties that they have a stake in the fortunes of the party to which they belong. In order to understand the frontiers of these terms and for the avoidance of doubt, it would be best to proceed by looking at the constitutional roots of federal character.

It appears that it was the Constitution Drafting Committee (CDC) set up by the military a number of years ago that coined the term which later found its way into the defunct 1979 Constitution and it is from that Constitution that its usage became ingrained in our consciousness and our political lexicon.

It has since found its way into the present Constitution in which it is provided that “The composition of the government of the federation or any of its agencies and the conduct of its affairs should be carried out in such manner as to reflect the federal character of Nigeria and the need to promote national unity and to command national loyalty thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or sectional groups, in that government or any of its agencies”.

Recognizing the difference in tiers of government in the federation, it is further provided that the composition of the government of a state, a local government council or any of the agencies of such government or council and the conduct of the affairs of the government or council or such agencies shall be carried out in such manner as to recognize the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the peoples of the federation.

In order to make its intendment certain, section 318 which is its definition section, provides that “federal character of Nigeria refers to the distinctive desire of the people of Nigeria to promote national unity, foster national loyalty and give every citizen of Nigeria a sense of belonging to the nation as expressed in section 14(3) and (4) of this Constitution”.

To ensure that this principle does not end up as ‘hot air’ or ‘empty platitudes’, additional provisions are made in the Constitution to ensure their due observance. In that regard, the method of election of the President, Vice-President, Governor, Deputy Governor, is indicative of the pre-eminence of the principle.

In the case of the President, a candidate for that office must obtain a majority of the votes cast and such votes must be spread across at least two-thirds of all the states in the federation. Such a candidate in addition, must secure twenty five percent of the votes cast in those states. What this translates to is an emphasis on dominant territorial spread and thus, popular approval.

Bearing in mind the configuration of the states, it is impossible to become president of Nigeria, by popular ballot, without significant approval from virtually all the geo-political zones. It has to be recalled that this principle was sorely tested in the well known decision of the Supreme Court in Awolowo v. Shagari.

The question that required an answer appeared simple,  ‘what is 2/3 of 19 states?’ The answer provided by the apex Court has till date enjoyed academic disputation. However, those responsible for state creation have since made this debate unwarranted for the future having regard to the fact that we no longer require any splitting of hairs to determine 2/3 of the present 36 states in the federation.

A candidate seeking election to the office of Governor must win a majority of the lawful votes cast at the election and must secure not less than a quarter of the votes cast in at least two-thirds of the local government areas of the state. The federal character consideration also compels the President, in the constitution of the executive council of the federation, to appoint at least one minister from each state of the federation. Other appointments to the diplomatic corps and a host of the offices that form the core of the public service must reflect federal character.

Even the composition of the officer corps and other ranks of the armed forces must reflect the federal character. By the same token, a state Governor, in making appointments to offices in the state, such as offices of state commissioners in the government of that state must have due regard to state character so as to recognize the diversities of the peoples.

The siting of educational institutions follows the federal character stipulation and as already pointed out, the public service of the federation, the states and local government councils adhere to a large extent to the principle. Although the Constitution guarantees to each person the freedom of association, the political parties which are the vehicles for mass mobilization (in terms of canvassing for votes for any candidate at any election) are enjoined to have a Constitution and to ensure that the members of the executive committee or other governing body of the political party reflect the federal character of Nigeria.

By virtue of section 223(2)(b), the members of the executive committee or other governing body of the political party shall be deemed to reflect the federal character of Nigeria only if the members thereof belong to different states not being less in number than two-thirds of all the states of the federation and federal capital territory, Abuja.

It has long been recognized by all manner of scholars that unity among the multifarious ethnic groups in Nigeria can only be achieved by conscious measures aimed at integration. For instance, a former colonial Governor, Sir Richards, as far back as 1945, is recorded as lamenting that “the problem of Nigeria today is how to create a political system which is itself a present advance,  a system within which the diverse elements may progress at varying speeds, amicably and smoothly, towards a more closely integrated economic, social and political unity, without sacrificing the principles and ideals inherent in their divergent ways of life.

The present system of government in Nigeria has many inconsistencies and by its nature is unsuited for expansion on a Nigerian basis”. It was this observation that impelled the federal system of government adopted since 1954. As C.C. Agbodike has argued, “the raison d’être of federal character principle…is to ensure social harmony among all Nigerians and to promote the stability and national integration of the union”. ‘National Integration’, he explains, ‘is a process leading to political cohesion and sentiments of loyalty toward a central political authority and institution by individuals belonging to different social groups or political units’.

It is his argument that “the successive state-creation exercises are seen as an expression and determinant of federal character and appear to have satisfied, to a large extent, statist claims to representation and at equalising access to the means of political power. However, these states are known to protect their interests very jealously, and to restrict the enjoyment of certain services and benefits provided by them and the federal authorities to their indigenes, by promulgating discriminatory laws, rules and regulations. Such a measure makes interstate mobility difficult. Yet the Constitution of the Federal Republic of Nigeria guarantees that ‘no Nigerian shall have cause to feel aggrieved or excluded on the grounds of his place of origin, sex, religion or ethnic grouping’”.

He also posits that “The principle of federal character emphasises the need for ethnic-balancing as a necessity in the evolution of Nigerian citizenship and for ensuring less acrimonious relationship among the various peoples of Nigeria”.The institutionalization of the federal character principle has not always proved satisfactory in that the ethnic nationalities that make up the republic are varied and scattered unevenly across the country. Accordingly, while federal character may be a viable tool for appointive positions, elective positions provide a different kind of challenge.

It is the recognition of this truism that has compelled political units, parties, godfathers and all other political forces that contribute to the emergence of political office holders to device other means of making federal character by whatever name called, a reality.

Zoning or power rotation therefore is only a means to an end, namely, the fostering of a sense of belonging in Nigerians by ensuring access to power by all who subscribe to the unity of this country. Thus, whether or not such arrangements are embedded in the Constitution would seem academic once the logic of its deployment is recognized.


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