By Joe Gadzama, SAN
There is no doubt that the Constitution of the Federal Republic of Nigeria, 1999, CFRN, as amended, makes bold statements as to the system of governance the Nigerian State is to practice.
The system professed is Federalism. Federalism connotes a system of governance built on the strength of a nation’s federating units. However, the provisions of the CFRN make the practicability of federalism a herculean task or even an impossible feat. I firmly believe that addressing some of these provisions might just be the flame that can kindle Nigeria’s prosperity to create a country we can all love and enjoy living in.
In the quest to realising a Nigeria of our dream, the practicability of federalism is the linchpin.
I share the sentiment and honestly believe that a successful review of the CFRN to alter the governance structures and reflect true federalism coupled with the religious implementation of the altered structures will set the foundation for a Nigeria of our dreams. To this end, below are some of the key areas I sincerely believe the CFRN should be amended to reflect the structure that can birth a Nigeria of our dreams.
The Preamble of CFRN
A preamble is often the first content any reader of a statute comes across. It sets the tone and shapes the mind of the reader on his/her expectation of all the provisions contained in the statute. The Preamble of the CFRN houses the mission and vision of the Constitution. As such, it plays a pivotal role in defining to the mind of everyone reading it, the aspirations of Nigeria as a country. Unfortunately, the Preamble to the CFRN rather than narrate the dreams of Nigerians for us as a nation, breaths an air that lends affinal to the military regime.
Notwithstanding that the Preamble is merely cosmetic and that the CFRN was handed down by the military regime, I believe that having had some years of civil rule coupled with the consistent progress of altering the Constitution to suit the new reality, it is desirable to alter the Preamble to reflect the dreams of the Nigerian people.
LG Administration and Autonomy
The current structure for the administration of the local govts under the CFRN sits on the fence between the federal system – which the Constitution was intended to profess – and the unitary system of governance. At best, the local govt system has remained an idea in search of relevance.
The local govt administration system still breaths an air of the centralisation model introduced under military rule and thus, betraying the ideals of federalism which we profess to practise under the CFRN. The ultimate goal for the creation of the local govt administration system under the CFRN was to bring the government closer to the people at the grassroots.
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It was also to accelerate development and enable the local population to participate and hold those in power accountable for their governance roles. Unfortunately, the current provisions for local govt as the third tier of govt under the CFRN have failed to establish a viable structure to attain the aforementioned goals.
The constitution assumes that the law and framework regulating the local govt administration would be made by the State Houses of Assembly. Hence, the constitutional legal framework does not see or recognise the local govt as the third tier of govt, but merely as an appendage of the state govt where the states enjoy absolute discretion over the local govt’s operations.
This does not reflect the ideals of federalism. Furthermore, the introduction of the State Joint Local Govt Account (SJLGA) provided for under Section 162(6) of the CFRN has thwarted in essence the financial structure of the local govts. This provision ensures that all finances of local govts are appropriated by the State at its pleasure. This is so despite the provisions of section 162(3) which captures a disbursement of the amount of credit in the Federation Account to the Federal, State, and Local govts respectively.
The above queries show how the provision of section 2(2) of the CFRN is undermined by provisions within the same Constitution. I believe that in making progress, the Local Govt should be unambiguously established under the CFRN as an autonomous unit of government with its administrative structure and functions as in Chapter V, Parts I and II for the Federal and State Govts respectively.
The above provision should override the pretence expressed in section 7 of the CFRN. Also, the SJLGA regime should be jettisoned from the CFRN and replaced by a new regime of fiscal federalism where Local Govts will access their funds directly and be accountable for all that is allotted to them.
Federal Structure and Power Devolution
It has been said that the centralised nature of powers of government under the Nigerian federal system is the major bulwark standing against equal and progressive development of states and local govt areas. It also stands against the effective exploration of the resources in Nigeria for development purposes. I believe that the need to devolve some of the powers vested at the centre will also serve the interest of the government in providing Nigerians with the opportunity to succeed.
I believe that to have a viable federation with the effective exploration of resources for development and bring dividends of governance closer to the people, certain items must be moved from the exclusive legislative list to the concurrent list. Furthermore, a list of items to be undertaken solely by the local govt should be introduced by the Constitution to be called the Residual list. This will mean that the general legislative limitation for the Local Govt provided in Section 4(7)(a) of the CFRN should be deleted.
To be more specific, I propose that items 28 on fingerprints, identification, and criminal records and 46 on posts, telegraphs, and telephones should be moved to the concurrent legislative list as well as the residual legislative list. Furthermore, items 33 on insurance, 43 on patents, trademarks, industrial designs & merchandise marks, 45 on policing & other security services, 48 on prisons, 54 on quarantine, 55 on railways, 58 on stamp duty and 39 on mines, minerals including oil fields, oil mining, geological survey and natural gas, should be moved from the exclusive legislative list to the concurrent legislative list.
Nigerian Police and Nigerian Security Architecture
Section 214 of the CFRN provides for the establishment of the Police Force for the federation. This section displays a system whereby the police is under the management and control of the FG at the expense of the federating units – the State Govt.
However, this arrangement has so far not favoured the country. The Police have been faced with an avalanche of problems; these issues include the accountability of the Police Force and the high surge of crimes in different states of the country. The inability of the Police under exclusive Federal control to curb them poses a huge flaw to the federal arrangement.
I believe that when policing is closer to the society of its jurisdiction, it enables the police to easily detect and uproot crimes. Where there is a common language known and understood by the police, there would be a free flow of communication and understanding between the police and the people. I believe that the creation of State Police will provide appreciable solutions to the current security challenges and enhance the effectiveness of the police in ending criminality in the country.
Effective security is a pivotal component of the Nigeria of our dreams. I believe every Nigerian agrees with me on this point. To this end, I will be proposing the moving of item 28 on fingerprints, identification, and criminal records, item 45 on police and other government security services, and item 48 on prisons from the exclusive legislative list to the concurrent legislative list to allow states to fashion out their respective internal security architecture. This will enable genuine, beneficial, and effective collaborations between police forces of each state to the other and the federal police.
Fiscal Federalism and Revenue Allocation
In Nigeria today, the resources of the country belong to the FG, and the fund to be generated is kept in the federation account and is shared monthly among the three tiers of govt: the federal, state, and local govts. This is a misnomer. Federating units are supposed to tap their resources to generate revenue and pay an agreed percentage as tax to the centre or the FG. This makes the states to be inferior and subservient to the centre.
Many activists have been agitating for true federalism to enable the states to control their resources. As observed by Professor Ohwona, there is nothing like true federalism. Either it is Federalism or Unitary. Concentrating the wealth of the country at the centre is an outstanding feature of a Unitary Govt. Why is it that some sections of Nigeria are agitating for fiscal federalism in a country that claims to be a federation? The principles of federalism should affect everything.
For example, in the US, the federating units manage their resources and pay taxes to the central govt. There has never been such agitation.
Under the regional government in the First Republic, Nigeria made remarkable progress with the three and later four regions using the resources at their disposal to make life meaningful for their citizens.
Residency and indigene debate
Indigeneship has become one of the most contested subjects in the country, given its implications for political and economic opportunities. In Nigeria, a person has to be an indigene to access certain economic and political opportunities at the federal as well as state and local govt levels.
However, what makes a person indigenous is not formally defined in the CFRN. The CFRN recognises indigeneship in some sections. Section 147(1,2 &3) in providing for the appointment of Minister of the FG recognises the principle of Federal Character under section 14(3). Similarly, section 171 (5) of the CFRN makes it mandatory that the President shall comply with the federal character principle in the appointment of other key public officers of the Government of the Federation including the ambassadors, high commissioners, and permanent secretaries or heads of any extra-ministerial departments of the government of the federation.
Despite the indigeneship principle, political and economic imbalances still exist amongst the various states or ethnic groups that make up Nigeria and this is as a result of its implementation.
The inclusion of the federal character principle in Chapter II which is ordinarily non-justiciable hinders its smooth implementation and enforcement because it deprives citizens of the locus to approach the court to enforce the principle of federal character. This incites the Govt to disregard the principle of federal character in the composition of the Government of the Federation and its agencies.
To flourish as a nation, Nigeria must decide whether to stick with the federal character provisions of the CFRN or jettison the idea completely. If the practice is maintained, then failure to adhere to it must be made justiciable with monumental consequences, otherwise, the provision should be done away with.
It is not lost on me that there has been many lofty written and spoken recommendations in the past, some have even gone ahead to develop a national dream for Nigeria, however, we as a nation seemed to have stepped on chameleon feces, hence stagnant.
No doubt, a dream is important so is the path to its realisation. I believe that the growing awareness of this discussion in Nigeria is gradually bringing us to a point of unison, where we all can together re-design a Nigeria of our dreams.