By Professor Ben Nwabueze
The object of re-structuring for which there is a widespread clamour among Nigerians, is not to break up the country or to enable agitators to secede from its sovereignty and territorial integrity. Far from that, the object is, by reforming the governmental structures and attuning them to the needs and wishes of the people, to ensure that the immense diversity of ethnic nationalities comprised in the state will continue to co-exist together in peace, prosperity and progress as citizens of one country united by common interests, common aspirations and a common destiny.
The clamour for Re-structuring must therefore be seen as a clamour for the setting up of appropriate platforms or fora to renegotiate suitable governmental structures for the pursuit and realization of our common needs for development, good governance and national transformation.
In short, the clamour for re-structuring is more than a clamour for the reform of our governmental structures. This is only its primary focus. In its wider, more fundamental focus, it is a call for Nigeria to “make a new beginning” under a new Constitution approved and adopted by the people at a Referendum, a new politico-legal order that will cleanse the country of the rottenness that pervades it and enable to “chart a road map for its destiny or what has been referred to as re-structuring of the mind.” This aspect of re-structuring, which is as necessary as its primary focus, will need to be led by a President, as the elected Leader of the people, imbued with an ardour for national transformation.
The governmental structure that needs particularly to be reformed by re-structuring is our federal system. Federalism is commonly agreed to be a compelling necessity for the maintenance of peace, stability and development of Nigeria as one country. The 1960/1963 Constitutions of Nigeria established a federal system with three (later four) Regions each invested with sufficient autonomy to govern itself in matters that concerned it alone – internal self-government – without undue control by, or interference from, the Centre, thus giving each Region the impetus and incentive to develop optimally in healthy competition with the others. The federal system under the two Constitutions (1960 and 1963) may fairly be described as a model of true federalism.
Regrettably, the intrusion of absolutist military rule for 28 years after 1965 has brought about the accretion of a vast amount of additional powers to the Centre, over and above what they were under the 1960/63 Constitutions, resulting in the system being turned virtually into a unitary system; the system is still tagged federal, but it is so largely in name.
There are certain matters involved in this, undue concentration of powers and financial resources at the Centre that need to be specifically mentioned, viz
(i) It is a manifest contradiction to conceive of a government, whether in a federal or unitary system, without a constitution. There is just no such thing. The very notion of a government necessarily implies a constitution. Separate governments, as required by federalism, necessarily imply a separate constitution for each of the governments.
(ii) The contradiction of a state or government without a separate coercive force of its own and under its independent control to maintain its existence and authority as a government and to enforce its laws. States exist, says D’treaves, according as they have a coercive force to exact obedience to their commands. It is certainly incompatible with the notion of a separate government for each of the constituent units in a federal system that the only coercive force for the maintenance of their existence and authority as a government and for the enforcement of their laws is placed under the control of the Federal Government. The federating units in Nigeria need to have their separate and independent police force to conform with the requirements of federalism.
(iii) The incompatibility with the autonomy of a constituent unit in a federal system that the election of its political functionaries – governor, members of its legislative assembly and local government councils – should be conducted by an organ of the Federal Government.
(iv) The extension of federal power to the control of land. Land title is now largely exclusive to the Federal Government, for not only is the Land Use Act 1978 entrenched in the Constitution (s.315(5)), but also its provisions are to “continue to have effect as federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution”.
(v) Aspects of local government are now also brought within the purview of the Federal Government. The extension of federal power to aspects of local government offends against the principle that local government is an example par excellence of a matter of local concern which places it squarely within the exclusive competence of the Regions or States.
(vi) Over-concentration in the Federal Government of power with respect to the disposition of the pool of money in the Federation Account. The 1999 Constitution in section 162(1) establishes a pool of revenue belonging to all three levels of government, federal, state and local government, called the Federation Account, “into which shall be paid ALL revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the Armed Forces of the Federation, the Nigeria Police Force, the Ministry or department of government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja”.
Section 162 of the 1999 Constitution, with its ten subsections, is a negation of true federalism because of the undue preponderance of power vested in the Central Government with respect to the control of the money in the Federation Account. True federalism is negated by the undue preponderance of power given to the Federal Government to regulate or control the disposition of the common pool of revenue in the Federation Account, particularly as regards (a) the custody of the common pool of revenue, with the power of physical control and physical disbursement implied by custody; and (b) the power given to the Federal Government to prescribe the terms and manner of sharing the common pool of money among the federal, state and local governments.
(a)Custody of the common pool of money
Custody of the common pool of revenue by the federal government, (with the power of physical control and physical disbursement implied by custody) flows from the provision of section 162(1) that “the Federation shall maintain a special account to be called the Federation Account”. The word “maintain” in section 162(1) implies custody, possession, and the making of payments or disbursements of money in the Account in amounts authorised by law.
But it does not imply that the federal government is the owner of the money in the Account, with power to make payments from it to the state and local governments as recipients of its largesse, which is the notion underlying President Olusegun Obasanjo’s Monitoring of Revenue Allocation to Local Government Act 2005 (commonly referred to as the Monitoring Act). Far from the federal government being the owner, the money in the Federation Account belongs in common to it, the states and local governments.
The statement above accords with what obtains in actual practice. Every month officials of the state governments, including quite often the state Governor himself, go, cap-in-hand, as it were, to Abuja for their share of the money in the Federation Account disbursed or paid out to them by officials of the federal government as paymaster. The hassle of getting payment keeps them in Abuja for days on end, and is a negation of true federalism; it simply caricatures true federalism.
(b)Power given to the National Assembly under section 162(3) to prescribe the terms and manner of sharing the common pool of money
The power given to the Federal Government under section 162(3) of the Constitution, to prescribe the terms and manner of sharing the money in the Federation Account among the federal, state and local governments is a somewhat over-bearing power in a federal system.
The words, “terms and manner”, enable the National Assembly to determine by law the percentages of the money to go to each level of government. The effect of the power given to the federal government by section 162(3) is to place in its hands the control of 90 per cent of the total revenue sources of the states.
By means of this power the National Assembly can reduce the state governments to the position of almost complete dependence on, or subordination to, the federal government, by making the allocation on terms that will allow to the states only a very small share of the revenue, so small as not to have any meaningful bearing on their financial needs as determined by the functions assigned to them by the Constitution.
To take an extreme example, an allocation of, say 5 per cent, to the state and local governments, though it may be against the spirit of the provision, will be in accordance with its letters, and therefore a constitutionally valid exercise of the National Assembly’s unqualified discretion to prescribe the proportion or percentage to go to the state and local governments.
It is not of course being suggested that there is any real likelihood of the National Assembly, in the exercise of this power, ever disregarding the needs and legitimate claims of state and local governments in the way supposed in the example above. Yet the possibility that it may do so remains, with its undermining effect on fiscal federalism.
Section 162, with its ten sub sections, should be expunged from any new Constitution and be replaced by new provisions that conform with the requirements of fiscal federalism.
(vii)Resource control. The provision in section 162(2) proviso that “the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources” runs counter to resource control as a principle of true and fiscal federalism.
Keeping aside for a moment the interpretative problem raised by this not-too-clearly-worded proviso, the provision is the source of much of the agitation about resource control. The effect of the provision is to leave it to the Federal Government to determine in its discretion what the allocation based on derivation should be, so long as it is not less than 13 per cent, which seems to negate or to run counter to the principle of fiscal federalism.
Fiscal federalism requires that “mines and minerals including oil fields, oil mining, geological surveys and natural gas” should be a residual matter within the exclusive competence of the Regions or States. Power with respect to these matters should therefore be expunged from the Exclusive Legislative List and be made a residual matter in accordance with the requirements of true and fiscal federalism.
Re-structuring, as it is presently being demanded, seeks to revert our federal system to the true federalism of the 1960/63 Constitutions, to further reduce the powers of the Federal Government as may be thought necessary, and to reverse the specific matters mentioned above. The intention, furthermore, is to assuage, to an optimal extent, the demand for self-determination or self-government consistent with the territorial sovereignty of the country.
Self-determination connotes essentially, not independent government, but the right of each group, within the territorial sovereignty of the country as one state, to govern itself in matters that concern it alone, without undue control by the Federal Government; the control is oppressive because it is being exercised without due regard to the requirements of justice, fairness and equity.
The ethnic nationalities, other than those in the meantime in charge of the Federal Government, are groaning under the emasculating yoke of federal control, as evidenced by the recent authoritarian proscription of the Indigenous People of Biafra (IPOB), without first resorting to dialogue as a means for amicable resolution of disagreements in a democracy, and without a hearing by a court of law. Re-structuring is being demanded as a means of release from the federal yoke.
The term “self government” expresses the essence of Re-structuring in our understanding of it. To reiterate, self government requires that the ethnic nationalities, grouped together by reference to culture/language and geographical contiguity, should be enabled to govern themselves in matters that concern them alone, within the sovereignty of a central government common to all, with powers appropriately circumscribed. Self government connotes therefore true federalism.
The ethnic nationalities should, for this purpose, be purpose, be grouped into six or eight Zones or Regions, as federating units, without (it is suggested) prejudice to the existing 36 States.
The implementation of Re-structuring imperatively requires a new Constitution adopted by the people at a Referendum.
by Professor Ben Nwabueze
Chairman, Project Nigeria Movement, and THE PATRIOTS.