CONSTITUTION AMENDMENT: N/Assembly moves to restructure Nigeria

BY CHARLES KUMOLU

IN the face of the calls for the independence of local governments in Nigeria’s federal arrangement, the opposition by the governors, who made their position known through the Chairman, Nigerian Governors’ Forum, NGF, and Rivers State Governor Rotimi Amaechi, appears to have darkened the prospects of the matter being resolved through the on-going amendment of the 1999 Constitution.

Aside making a similar call last year, Amaechi, at a session with journalists, about  a fortnight ago, restated that the governors will continue to push against granting autonomy for the 774 local governments in the country.

‘’There is no country in the world that there are three federating units; there are only two all over the world. Why should you say that there must be a  third federating unit in Nigeria?”, Amaechi stated.

He explained that autonomy for local governments should not be a constitutional issue.
Season of muscle-flexing

This development has, in many ways, heralded  another season of intrigues and muscle-flexing between the proponents of local government autonomy and those opposed to it.

And for a nation in a hurry to see the matter of dependence of the local governments on the federal and state governments resolved, SundayVanguard findings  revealed that the NGF’s position could mean that an end to the debate  might not be in sight.

Hence, there are growing concerns across the country, particularly on the part of those who argue that an autonomous local government system (LGS) will address fundamental issues like diversion of funds, hijacking of statutory functions, imposition of undemocratic structures (caretaker committee), abuse and non-compliance with relevance constitutional provisions that guide the operation of the Joint Local Government Account (JAAC), as well as illegal and sundry deductions from local government funds  through the same account  that have characterised grassroots administration in the country.

The law and LG autonomy
Instructively, the 1999  Constitution, as amended, in Sections 7 and 8, states thus: “The system of local government by democratically elected councils is by this Constitution guaranteed, and accordingly, the government of every state 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.”

While this, to some extent, guarantees limited autonomy for the LGS, the contrary has been the case in Nigeria, where local government administration has witnessed the abuse of democratic process by state governors.

It is on the strength of this that those championing the cause for LGs autonomy  strongly agitate for the amendment of Sections 7 and 162 of the Constitution  to provide for the autonomy.

Also the LGS autonomy  proponents stressed the need for a provision in the constitution that would make the tenure of elected chairmen and councillors uniform across the country.
This is in addition to the expectation that state electoral bodies should be abolished, to allow the Independent Electoral Commission of Nigeria,INEC, conduct  elections into local governments.

Even though these represent the yearnings of many, the actualisation remain gloomy following the position of the NGF. And observers, especially those who fault the NGF argument that there is no place in the world where local government is an autonomous tier of government as incorrect, have continued to question what the state governors stand to achieve with the retention of the status quo.

Senate yet to take a stand
Though the Senate is yet to take a stand on the issue and others identified for amendment, the Senate President, Sen. David Mark, at an event, last year, regretted that local governments were not functioning because no fund goes to them.

Hence, he stated that for LGS to perform effectively, Section 7 of the Constitution must be amended.

Strengthening Mark’s argument, Deputy Senate President, Mr. Ike Ekweremadu, at a retreat on constitution review, last year, lamented that the fiscal woes of the LGS could be attributed to the loophole created by Section 162 (6) of the Constitution.

To this end, he said, “We must learn to uphold our Constitution. If we choose which court rulings to obey or not to obey, that is not the fault of the Constitution,’’ adding, ‘’ If local governments are run by brazenly undemocratic caretaker committees, that is not the fault of Section 7 of the Constitution.’’

Ekweremadu, who spoke at a presidential retreat for civil society organisations and professional associations, observed that, ‘’while the fiscal woes of most of the LGAs across the country could be attributed to the loophole created by Section 162 (6) of the Constitution, it cannot rightly be inferred that it is the spirit or intendment of the Constitution to incapacitate the local councils in the discharge of the responsibilities which the same Constitution has prescribed for them.”

Backing the rationale for a people’s constitution with contemporary example, Ekweremadu said the Constitution of the United States of America, written by a few statesmen, remained the shortest in the world, noting that it has survived trials and triumphs, to steer the USA to number one global force

‘’American Constitution was written by just a few of their leaders at the time. And it was adopted on 17th September, 1787. Yet it has only been amended 27 times in its almost 225-year history. The United States Constitution Centre describes it as the shortest and oldest written constitution of any major sovereign state. The original handwritten document is just four pages,’’ he stated.
The deputy Senate President added: “The US Constitution has survived all the trials and triumphs of that nation’s history, including civil war to steer the USA to number one global force, and a politically, economically, socially virile and viable nation and, above all a reference point in democratic governance.’’

Issues around restructuring
Besides the question of LGS, another aspect of constitution amendment that has so  captured the attention of the people is the issue of restructuring.

Primarily, the calls for restructuring, are believed to be hinged on the need for devolution of powers, fiscal federalism, residency and indigeneship, state police, among others.
However, the proper handling of the restructuring question, checks revealed, would make or mar the constitution review exercise.

This is why Ekweremadu warned against any attempt to reduce any matter proposed for amendment to regional or ethnic rhetoric.

Apparently, expressing his disappointment over the insinuation  in some quarters that fiscal federalism, as proposed, was to further impoverish some parts of the country, Ekweremadu noted that such claim was not only false but wrong.

Consequently, he argued that every state in the country had no reason to be poor, adding that solid minerals deposits across the country are waiting to be harnessed.

Ekweremadu, who is the Chairman of the Senate Committee on Constitution Review, further noted that while lawmakers would do everything within their powers to ensure that the on-going efforts produced a Constitution that would reflect the aspirations of all Nigerians, saying the leaders and followers must be ready to abide by the spirit and letters of the Constitution.

He said, “Like heavens, constitution and democracy help those who help themselves. Even the best Constitution in the world cannot yield the best of democracy dividend or drive the lofty dreams of a nation unless there is a general commitment by the leaders and citizens to live by the principles and letters of that Constitution. So, we must learn to uphold our Constitution. If we choose which court rulings to obey or not to obey, that is not the fault of the Constitution.’’

Fiscal federalism and devolution of powers
Also at the forum, where Ekweremadu made these observations, a session was devoted to the issue of devolution of powers and fiscal federalism.

At the session, which had Justice Mohammed Lawal Uwais, former Chief Justice of Nigeria, CJN, Professors Maxwell Gidado, Enefiok Essien, Governor Ameachi and Tayo Oyetibo, SAN, as panellists, the matter of the continuous dependence of states on FG for economic survival was pondered.

In his argument, Uwais maintained:’’ Federalism is an arrangement in which powers can be shared among the federating units. And the constitution is made in such a way that it ensures sharing of powers between governments. By 1960, 44 items were on the exclusive list, while 28 were on the concurrent list. In the Republican constitution, 45 items were on the exclusive list, while 29 were on the concurrent list. In the 1979 constitution, 67 items were on the exclusive list, while 12 were on the concurrent list. In the 1999 constitution, 68 items were on the exclusive list, while 12 items were on the concurrent legislative list. Since 1979, the powers of the central government have increased to the detriment of the states.’’

Gidado said, ‘’The Federal Government has no business building schools and hospitals. All it needs to do is to set minimum standards and allow the states to build them. State police can be set up, to take adequate care of our internal security challenge. We could also consider setting up a regional court appeal, to allow quick dispensation of justice. A situation where a matter takes 15 years to go through appeal and sometimes five years or more to go through the supreme court is not healthy four our system. We have enough states, no need to create additional ones. If states are allowed to develop on their own, people will not clamour for more states. Decentralization or devolution powers will not lead to disintegration; rather it will lead to development.’’

Amaechi said: ‘’You have resources somewhere, you kept it, but you say you want to legislate on oil, it will not happen. How can I employ workers, yet it is the FG that will fix salaries for the workers. I have never seen a federal system where this is obtainable, except here. All matters relating to states should be left for states. These suggestions are not for me, but for those coming behind, and it may be you. Ameachi will leave by 2015. The palm oil in the South East has disappeared, same with the groundnut pyramid in the north. Let us live like a nation, not as individuals. If there is justice, nobody will ask for more states. I used Rivers resources to train 300 policemen; these policemen were trained by the Israelis. We had an understanding with the police authorities in Abuja that they will remain in Rivers for sometime after their training. But the moment a certain IGP came, just because he did not like a certain Ameachi, he posted the policemen out. But if we have state police, such a thing will never happen.’’

Still making a case for restructuring, Oyetibo observed thus: “A principle that should guide us, that is, FG and federating units should be common interest. But most of the matters reserved for the National Assembly to legislate upon are not of national interest. For instance, evidence act, labour and registration of common business name among other matters. What we have is not in tandem with federalism. It is not right to create more states. States matters should end at state level. States should have appeal court and Supreme Court.

“Devolution and application of powers as we have today tend more to Unitarianism than federalism, even though the 1999 constitution links it to federalism.’’

Differing from others, Essien kicked against state police, using the 2012 gubernatorial election in Edo State as a case study.

“On state creation-there will be no end to it. As we create states, we create more problems. What we need to do is to separate control of the means of revenue and revenue itself by the federating units. It calls for courage. But we should be bold enough to allow states producing the sources of revenue to control them. The FG can tax them heavily.”