From the look of things, Nigeria’s federation pitches states against the central government and central government against the states. A sad situation which ought not to be so in any true federation, where mutual respect for each other ought to exist. There seems to be a general agreement that the federal system in Nigeria today is broken because of too much accretion of power in the federal government. In spite of this apparent national consensus, there remains an intense disagreement on how to resolve this obvious imbalance in the powers distributed to the federal government and the states. Thus, this article aims to look at the various concepts and theories related to federalism and reach a conclusion on Nigeria’s federal nature.
The reasons why a country may adopt a federal system of government are many. That would not be the effort of this paper. Rather, this treatise seeks to critically analyse Nigeria’s federalism in practise, identify loopholes, if any, and proffer solutions to those shortcomings.
Nigeria’s landmass has been sadly mired in series of confrontations over the years as a result of the indefinitive nature of its federal structure. Just few fears after the return to democracy in 1999, the Supreme Court, having original jurisdiction over matters between the federal and state governments, became so inundated with suits questioning the operation of Nigeria’s federalism that led one Justice to exclaim:
“This is yet another open quarrel between the State and the Federal Government. This Court is by now thoroughly familiar and used to such quarrels, as they come before it regularly in the last few years or so. The open quarrel dovetails to a subtle one between the concepts of federalism and unitarism in constitutional law and politics.”
Almost all the constitutional law cases like A.-G. Abia v. A.-G. Federation & Ors (No. 2); A.-G. Lagos v. A.-G. Federation; and A.-G. Ogun v. A.-G. Federation, and many other cases sought to question the arrangement of Nigerian federalism. Also see, for example, the power sharing formula in the Legislative Lists contained in the Third Schedule to the Constitution, which many commentators claim confers ‘supremacy’ on the Federal above the states.
The 1999 Constitution has been traumatised with series of problems and controversies right from inception in May 29, 1999. In particular, the federal structure of the Constitution as it relates to certain sensitive national issues has been subject of numerous debates and arguments. The word federal or in some cases, federalism, has not been easy to define. No word perhaps is more prone to tendentious interpretations in the politics of a nation than federalism. Different nations practising federalism give it a meaning based on their own peculiar circumstances.
THE CONCEPT OF FEDERALISM.
K.C. Wheare, a foremost writer on the concept of federalism, stated as follows:
“By the federal principle, I mean the method of dividing power so that general and regional governments are each within a sphere co-ordinate and independent.”
In principle, the division of powers in the federal system between the national and regional governments implies that the judicial power of each government should be exercised by its own courts. In effect, federalism, at least in theory, implies the system of parallel courts and governments, separate for each level of government. Thus, Wheare’s definition has been criticised by some writers on the ground that it is too legalistic and encouraging the idea of dualism whereby the powers of the various levels of government are in watertight compartments, distinct and separable.
Sagay submits that this coming together into a federal structure might be voluntary or through the use of force. With due respect, such submission is half truth and subject to critical excision. It sounds like trying to give a justification for the greatest forced migration in human history, the Atlantic Slave Trade, by saying that since slave trade was in some ways profitable to both the Africans and Europeans, it was nevertheless a necessary means of migration notwithstanding the great untold misery and degradation it wrecked on Africans. Moreover since entering into any system of government by a particular set of people would require conscious and deliberate efforts on their part, one cannot claim that a particular set of people might be forced into a political association unsuitable for them.
The deliberate choice of federalism as a viable means of government stems from the desire to have different levels of governmental institutions and none shall interfere with the other as distinct from a unitary system of government. Obafemi Awolowo notes the difference between the federal government and the unitary government by penning that: “In the case of a unitary constitution, the supreme legislative authority in the state is vested in one government. Whereas in the case of a federal constitution, the supreme legislative authority is shared between the general or central government and the regional, provincial or state governments, all of which are coordinate with and independent of one another in regard to powers and functions expressly or by necessary implication vested in them by the Constitution.”
Nwabueze defines federalism as an arrangement whereby powers within a multi-national country are shared between a federal or central authority, and a number of regionalised governments in such a way that each unit including the central authority exists as a government separately and independently from the others, operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of affairs with an authority in some matters exclusive of all others. In a federation, each government enjoys autonomy, a separate existence and independence of the control of any other government. Each government exists, not as an appendage of another government (e.g. of the federal or central government) but as an autonomous entity in the sense of being able to exercise its own will on the conduct of its affairs free from direction by any government. Thus, the central government on the one hand and the state governments on the other hand are autonomous in their respective spheres.
Thus, according to Nwabueze, for a true federation to exist, there must be:
- Separateness and independence of each government;
- Mutual non-interference;
- Equality between the various regional governments;
- An appreciable number of regional governments between whom the powers will be shared equally;
- Techniques for the division of powers; and
- A supreme constitution.
Prof. Mowoe disagrees with Nwabueze’s postulations above. The main problem which she sees is in fulfilling all the requirements for the existence of a federation. The requirements, she submits, are not possible since there are many variations of a federal state that the insistence on the existence of all these principles may have the effect of excluding many of them from the exclusive club of a true federation.
Agreeing with Mowoe, Prof. Ojo postulates that: “Federalism is capable of different meanings and conceptions, depending on the perspective and the background of the perceiver. There are writers whose emphasis has been on the form of the Constitution and certain institutions and as far as they are concerned the absence of these makes any discussion on federalism futile. Another school holds that federalism is the product of social forces and that the ultimate political structure is dependent on those forces; still is another school that the party system is a crucial federal variable while another is that inter-governmental institutions and arrangements are critical for structuring political and social interaction. However, with the nebulous and uncertain form and content of federalism, we are in agreement that it is better to avoid argument about definition until theory and practice could be harmonised satisfactorily. This is the most important in the developing countries which are presently laboratories of political and constitutional activities.” Prof. Ojo, himself, was quoting in part the statement of Holmes Jean in “The Australian Federal System.”
What can be safely drawn from the contentions above is that there is simply no single tilt or formula of division which is necessary to federalism as a concept. The important point is that there must be a division of authority between the central and regional governments. This is appropriate in order to leave the “regional issues” and “sectional matters” to the regional governments set up exclusively to cater for the interests of the regional community.
A very simple explanation of a federal government would suffice at this point which is that a federal government means the system of governance practised by a country, whereby the governmental powers are shared between a central government and other constituent political unit. It implies also that the different components of the country, which are naturally independent of one another, equally commit themselves so as to achieve a particular objective by sharing governmental powers equally.
Angela Holder gave a basis and justification of a federal state thus: “Federations evolve in various nations for different reasons, but are mostly seen in nations with vast expanse of land and multi-ethnic peoples, or diverse religious, historical, political or other background. In the United States of America for example, it was part of the fallout of the war of independence, which led to the articles of confederation that gave powers to the confederate states and the federation.”
Federalism is a distinctive invention of the United States of America’s Constitution. As Carl Friedrich attests;
“It is literally true to say that wherever federalism is discussed, the discussion is cast in terms of American Constitutionalism… Past attempts at federal unions had usually remained at the level of a league or long-term alliance, that is to say loose confederation. Neither Plato nor Aristotle nor the many political writers following them developed a concept of federalism. It emerged slowly out of vague formulation by Johannes Althusius in the early seventeenth century, but without receiving any significant development; even Montesquieu, though influential in the thought of the American Constitution-makers, did not explore the problems of a Federal government. This happened only when the drafters of the American Constitution sat down at Philadelphia to hammer out their compromise.”
By its very nature, federalism admits of the idea whereby the different components of government control, amass and utilise their natural wealth and resources toward the development of a common wealth or fund. Federalism is an association of free states where power is constitutionally shared by the constituting units of government, and with each tier of government exercising its constitutionally assigned powers and functions. Formal institutional requirements such as delimitation of power by a supreme constitution, bicameral legislature, independent electoral systems, an independent judiciary are some of the prerequisites for the existence of a federation.
Finally, Lord Haldane, in Attorney General for Commonwealth of Australia v. Colonial Sugar Refinery Co., was of the view that: “… the natural and literal interpretation of the word federal confines its appellation to cases in which states, while agreeing on a measure of delegation of powers to a common government, yet in the main continue to preserve their original constitution. The word could only be used loosely, to describe states which agree to delegate their powers with a view to entirely new constitutions even of the states themselves.”
ESSENTIALS OF A FEDERAL STATE.
The following essentials, though not exhaustive, ought to be present before a conclusion can be reached that a country is practising a federal government:
- Co-operation among various levels of government.
- Division of powers.
- Independence and autonomy.
- Supreme Constitution.
- Independent judiciary.
- Separation of powers.
From the different theories examined, it is clear that federalism involves the idea of the federal government acting either as an agent of the states or the overlord of the states. In the absence of prior agreement on a clear and precise definition, the concept of federalism was thought to mean a division of sovereignty between two levels of government. However new research has shown that sovereignty cannot be divided as such between two political units since sovereignty is the final and absolute source of political authority. Hence, federalism can now be safely conceived as the division of powers flowing from sovereignty between two levels of government. If understood in this light, federalism would naturally involve two distinct and extreme forms. The strong central federal government or the weak central government; the federal government as an overlord of the federal arrangement, or the federal government acting as a mere agent of the federal structure. To this we now turn.
FEDERAL GOVERNMENT AS AN AGENT OF THE STATES.
In this regard, the federal government is basically there to harmonise and reflect the wishes of the federating states. This sometimes loosely referred to as a confederation. The United States is a clear example of a country practising such system of federalism even though the system being practised was not the original intendment of American founding fathers. In this regard, the centre is virtually weak and impotent. There is a tendency for the component states to pull out of the arrangement at any point they like. When several or many small, free and independent states, or multi-ethnic peoples associate to form a federal country, each of the states usually retain their freedom and autonomy to avoid being dominated by larger states or majority people of the same federation.
Prof. Mowoe, with due respect, seemed to misunderstand the point when she criticised the Nigerian federal character and recommended the position in nations like the United States of America and Switzerland where federation has thrived for centuries, as against Nigeria, primarily because such is based on a voluntary submission of powers to the central government. To Mowoe’s declaration, we submit that in any federation, the submission of powers to the central only occurs when the Constitution expressly says so. Any central government that can assure the whole federating units of a strict guarantee of their sovereignty, the observation of their human rights and a promise of ensuring social justice particularly among the citizens would naturally have such component states willingly submit their powers to it. A situation which is unlikely in Nigeria.
Political philosophers call a similar situation between the state and the individual a social contract. Such social contract admits that the individual would submit his personal power to the state but only on the basis that the state must use such power to the benefit of the individual. In United States of America and Switzerland cited by Mowoe above, there is a strict guarantee by the central government that the regional governments would be carried along in the scheme of things; perhaps an unlikely situation in Nigeria. This then would not require the Nigerian States to willfully submit their powers (autonomy) to the central government.
FEDERAL GOVERNMENT AS AN OVERLORD OF THE STATES.
For this concept of federal practice, the centre is a strong one. Such strong federal state is almost completely unitary, with fewer powers reserved for the local governments. This idea developed in the original idea of federalism proposed by the United States of America before Independence. Australia is a country which practises such system of federal arrangement, though theirs is based on a Westminster parliamentary system rather than a presidential system. Under a key document in Canadian Constitution, the Constitution Act (previously known as the British North America Act) of 1867 in Canada, specific powers of legislation are allotted to its federal arrangement. By this statute, all territories of Canada are subordinate to the federal government and are delegated powers by it. Thus in Canada, there is huge tendency to apply the classical central paramountcy or exclusivity when issues of controversies in legislation arise.
FEDERALISM IN NIGERIA: A BACKGROUND STUDY.
Federalism in Nigeria came about as a result of the multi-ethnic nature of the country; the resultant agitation of the minorities for a system of government which would ensure continuity and give them a sense of belonging and most importantly, the existence side by side, of the two major religious blocs, Christianity and Islam, in such a way as to divide the nation into two major entities.
In trying to give federalism a meaning in Nigeria, Per Niki Tobi said in Olafisoye v. Federal Republic of Nigeria (F.R.N.), that:
“A federal government will mean what the Constitution writers say it means. And this can be procured within the four walls of the Constitution. Therefore, a general definition of federalism or federal government may not be the answer to the peculiar provisions of a nation’s Constitution which is the fons et origo of its legal system. Thus, the word federalism conveys different meanings in different Constitutions as the Constitutional arrangements show, particularly in the legislative lists.”
For a strong criticism of Per Niki Tobi’s definition above, see the unflattering statements of Prof. I.E. Sagay, in “Nigeria: The Unfinished Federal Project” being a public lecture delivered at the 8th Justice Chukwunweike Idigbe Memorial Lecture held at University of Benin, Benin City, delivered on Wednesday April 30, 2008, which is collected in a booklet.
Thus, in Per Niki Tobi’s own estimation, a country’s constitution should be the final judge in saying whether a country is federal or not. If a country’s socialist or unitary government says a federal government is being practised through the constitution, then such country is indeed practising a federal government. His rationalisation of the concept of federalism simply reduces “federalism” or ”federal government” to a concept without specific meaning; it empties it of all content, for it would mean whatever a particular constitution says it means. This is far from the truth.
With due respect, we humbly submit that such statement is erroneous on two grounds. One, the idea of a federal government has a widely accorded and generally accepted connotation that a deviation, no matter how slight is regarded as contradictory to the world view of the idea of federalism. Again, Nigeria is not an island unto itself. Nigeria relates with other countries that it finds around it, hence, it cannot ascribe a different meaning altogether to an idea which other nations have collectively agreed on its meaning. Federalism like any other concept must have some core or basic principles which define its essence or it does not exist as a constitutional or political concept. But even if the Constitution is to be the final arbiter as regard the federal character of any particular country, then Nigeria’s Constitution has seriously failed in that regard. For while giving the different component regions some degree of autonomy, it still concentrated political power and domination in the centre such that a strife competition for the central government is still in place amongst the different components of government, a situation which cannot exist in a true federal structure where every component unit knows the limits and extent of its jurisdiction.
But let it be known at this point that the aim of this voyage of discovery is to ascertain when Nigerian truly began practising a ‘Nigerian federalism’ rather than foisted federalism.
What is today known as Nigeria started with the British effort at amalgamating the Northern protectorate of the country and the Southern protectorate in 1914 through three legal documents, viz: The Nigerian Protectorate Order in Council, 1913; The (Nigerian Council) Order in Council, 1913; The Letters of Patent of November 29, 1913. These documents could be collectively called Nigeria’s first constitution.
That is not to say however that the indigenous people never had their own history. Within the frontiers of Nigeria before colonial rule were the great kingdom of Kanem-Bornu, with an appreciated history of more than a thousand years; the Fulani empire which for the hundred years before its conquest by Britain had ruled most of the savannah region of Northern Nigeria; the kingdoms of Ife and Benin, whose arts had become recognised as among the most accomplished in the world; the Nok people of the Middle Belt, whose skillfully carved terracotta sculptures are world renowned for their artistic beauty and impression; the Yoruba Empire of Oyo, which had once been the most powerful state of the Guinea coast with its boundaries stretching as far as into Dahomey (present day Benin Republic); the states of the Niger Delta creeks, which had grown in response to European demand for slaves and later palm-oil; the Igbo tribe of the Eastern region, whose vast socio-political advancement was well-appreciated.
THE AMALGATION OF 1914.
The emergence of Nigeria as a political unit, though not necessarily as a federal unit, is often traced to the report of Sir Fredrick Lugard, later to be known as Lord Fredrick Lugard, who today is unlovingly remembered as the officiating priest of an unholy marriage which gave birth to the sad and sorry state known as ‘Nigeria,’ who as the High Commissioner of the Protectorate of Northern Nigeria recommended the amalgamation of the then existing Colony and Protectorate of Southern Nigeria with the Protectorate of Nigeria. Subsequently, the report was accepted by the British government and in 1914, the two administrative divisions were amalgamated and re-named “the Colony and Protectorate of Nigeria.”
The name was reportedly coined from two root words ‘Niger’ and ‘area ’, showing that Nigeria is located on the area where the River Niger empties its contents into the Atlantic Ocean, by a certain Flora Shaw, who in informal circles is unadmiringly remembered as Lugard’s girlfriend, but whom she later married.
The British thus felt obligated to its colony by bringing together all the different ethnic groups to form a single entity called Nigeria. The British invaded, conquered and colonised the different ethnic groups at different intervals until all were canalised to form the being known today as Nigeria.
However, it is not a hidden fact that colonies were the necessary appendage for European capitalism, which, by the last quarter of the nineteenth century had reached the stage of financial monopoly, which in turn, needed territorial expansion to further provide spheres for capital investment, sources of raw materials and strategic points of territorial integrity. Apparently, any effort the colonialists were willing to put into their colonies was to be solely for their personal benefit even if it meant disrupting the formerly accepted systems of the colonies. Take for instance the issue of Warrant Chiefs in Igboland of Eastern Nigeria. While it is well known that Igbos had no kings, the British while trying to force indirect rule on the people created a whole bunch of puppet Warrant Chiefs who readily exploited their own people and took the opportunity to claim kingship lineage after independence, a sad situation which persists in Igboland today. Writing to the then Secretary of State for the Colonies, Lord Lugard explained his decision for amalgamating a country comprising of wholly different independent kingdoms thus: “For some time it has been realised that the total isolation of the North from the South cannot continue indefinitely. The North has no access to the sea except through the South. Its revenue is insufficient to maintain its administration and deficits has to be met by annual grants from the South imperial treasury. It is expected that the unification of the North and the South would relieve the imperial treasury of the necessity of making such yearly contributions. Also it is desirable that transport and communication should be under some central authority to avoid competition and clash of … interests.”
Thus it cannot be contended that Nigeria emerged as a federal state at the 1914 Amalgamation. For from its very traditional and basic nature, federalism ought to involve a huge protection of regional interests in the overall political structure of government. Sadly, the ‘clash of interests’ which Lord Fredrick Lugard sought to prevent proved unpreventable because the primary purpose of bringing together different ethnic backgrounds was mainly to foster British colonial interest and not the interest of the ethnic groups. A half-baked student of Nigerian history would hurriedly point out that regions were first created by the British during colonial rule, hence, by implication protecting regional interests. But as has been pointed out above, every political structure in Nigeria prior to independence only sought to protect and foster British imperialism. The regions that were created lacked any political clout as they were seen to be areas left for dregs of political power.
The Amalgamation constitution has the peculiar feature of providing for a single Governor and Commander-in-Chief for the whole of Nigeria in the person of Sir Fredrick Lugard. Thus, in effect, rendering it a unitary system of governance rather than a federal system. The drawbacks encountered by the Lugardian administration led to the Clifford era of Nigerian history.
CLIFFORD’S CONSTITUTION OF 1922.
The use of ‘Constitution’ as a title here simply implies that the politics of that era are largely influenced by the extant constitution then. The Clifford’s Constitution came into being under the tenure of Sir Hugh Clifford, as Governor, in 1922. The Constitution came about as a result of constant demands of the West African National Congress. The Clifford’s constitution introduced a number of changes from the provision of the Amalgamation Constitution. The Clifford’s Constitution created the Nigerian Legislative Council through the Nigerian (Legislative Council) Order in Council. This Legislative Council was however dominated by British officials, and it was composed of the Governor as President, and other official and non-official members.
RICHARD’S CONSTITUTION OF 1946.
The underlying principle for the formation of the Richard Constitution of 1946 was for the promotion of Nigerian unity, which was to be done by providing adequately for all the diverse elements or groups within the country. Hence, the idea of regionalism or power-sharing was introduced in this era. But that cannot be the basis of a stance that Nigeria began practising federalism during the Richard’s era of colonial rule, for, as was observed by H.O. Davis, the Richard’s Constitution contained “one or two choices, but the whole dish leaves a bad taste… the word ‘discussion’ seems to be the crux of the principle. There is neither the intention nor the pretentions to secure greater participation by Africans in the direction, management or control of their affairs… no attempt is made to democratise… bureaucratic rule nor make it sensitive to public opinion.”
THE MACPHERSON CONSTITUTION OF 1951.
The MacPherson Constitution came about as a result of the failure of the Richard’s Constitution of 1946. The marked innovation of the MacPherson’s Constitution was that it increased Nigerian participation in the governance of the country by increasing the advisory and deliberative councils created by the Richard’s Constitution. The council acquired independent legislative powers within certain defined fields as was then reflected in the Third Schedule to the defunct 1979 Constitution. The MacPherson Constitution was further noteworthy in that it advanced the different regions then by vesting them strong political status as they then had both executive and legislative powers. The regional councils became instruments of policy thereby replacing the autocratic rule of the Governor and his selected officials. Hence, the insistence in some quarters that federalism in Nigeria was introduced at the demise of the Richard’s Constitution. The only charge against this Constitution was that it sowed the seed for ethnic rivalry in Nigeria as the regional politics then was based primarily on the personal desires of each regional leader thereby engendering regional crises. Thus, we submit that the period when MacPherson was Governor-General of Nigeria cannot form the basis of the claim that federalism in Nigeria started with the MacPherson Constitution.
THE LYTTLETON CONSTITUTION OF 1954.
The Lyttleton Constitution came into effect as a result of the demise of the MacPherson Constitution which was partly killed by regional conflicts. The need to evolve a working Constitution for the diverse nature of Nigeria’s political geography informed the decision to hold series of constitutional conferences from 1951-53 which laid the pathway for the Lyttleton constitution. The distinguishing mark of the Lyttleton Constitution was that it sought to decentralised power from the centre and made the regions more powerful.
The act of creating more powerful regions had a negative impact and could be said to be the bedrock of tribalism, and ethnic chauvinism in Nigeria today.
THE 1957 AND 1958 CONSTITUTIONAL CONFERENCES.
From May 23-June 26, 1957, Constitutional Conferences were held at the instance of the British Colonial Secretary, Allan Lennex Boyd, to fashion out the best suited form of political association and government for Nigeria. The conference provided for self-government for any region which so desired and considered the question of minority rights as an important issue for consideration in the Nigerian political equation. The last conference before Independence where the date for Independence was agreed upon was held in 1958. The 1958 conference led to the conduct of general elections in 1959 which ushered the leaders who took over at Independence.
THE INDEPENDENCE CONSTITUTION OF 1960.
Interestingly, all the structural changes done prior to Independence were aimed at decentralising the federal powers in line with the political structure of government prescribed by the previous colonial governments. The gamut of the Independence Constitution thus was that the British Parliament should concede independence to Nigeria with the corollary of full responsibility status with effect from 1st October, 1960.
Significantly, the 1960 Constitution reportedly maintained the characteristic features of a federal state with residual powers falling to the Regions. By section 33 of the 1960 Constitution, Nigeria was declared to be a federation of three Regions – the North, the West and the Eastern Regions with a federal capital at Lagos. It also gave Her Majesty (the Queen of England) the power to appoint a Governor-General who was to “hold office at Her Majesty’s pleasure as her representative in the Federation.”
What one can unequivocally conclude is that ‘independence’, at least in the simplest meaning of the word, was never granted to Nigeria in 1960. As an eminent writer rightly opined:
“Prima facie one would have thought that this (the Queen still being the overall sovereign in the country) was inconsistent with the provision in the Independence Act that as from 1, October, 1960, the British government shall have no more responsibility for the government of Nigeria.”
As has been shown earlier, whatever the British did for Nigeria, British interests were at the forefront. Thus, by purportedly leaving Nigeria as a federation in 1960, the British left a weakened state which looked up to it for aid in almost everything, and they also left not a federal system in place, but what could successfully be called a loose confederation. Further, a problem evolved, or rather, blossomed, since it has been there from the very beginning. There was the problem of contesting for central political power between the different Regions which naturally resulted in bitter contests among the Regions.
THE REPUBLICAN CONSTITUTION OF 1963.
One of the earlier identified shortcomings of the 1960 Constitution was that though it was called ‘Independence Constitution’, its codification in all intents and purposes were colonial in nature with all peripheral of government being directed and controlled from Buckingham Palace in London. Consequently, the 1963 Republican Constitution was promulgated.
The mission and vision of the Constitution as envisioned in the minds of the framers were reflected in the preamble to the Constitution as follows:
“Having firmly resolved to establish the Federal Republic of Nigeria, with a view to ensuring unity of our people and faith in our fatherland, for the purposes of promoting inter-African cooperation and solidarity, In order to ensure world peace and international understanding, and, So as to further the ends of liberty, equality and justice both in our country and in the world at large, We, the people of Nigeria, by our representatives here in Parliament assembled, do hereby declare, enact and give to ourselves the following Constitution.”
Hence, at this point, it is respectfully submitted that Nigerian federalism began in 1963. This is so because all the essentials of federalism were in place and practiced by 1963. The Constitution made the Regions autonomous governments of their own with powers to make and operate their own constitutions but subjecting the Regional laws or constitution to the supremacy of the Federal Constitution. During the 1963 era, the regions depended on agro-allied industries; they exploited their resources, generated revenue and recycled the revenue in development project within the territories, without generating undue political and economic tensions. The basic spirit of federalism was reaffirmed in sections 85 and 86 of the 1963 Constitution. The said sections provide:
(85) The executive authority of the Federation shall extend to the execution and maintenance of this Constitution and to all matters with respect to which parliament has for the time being power to make laws:
(86) The executive authority of a Region shall extend to the execution and maintenance of the Constitution of the Region and to all matters with respect to which the legislature of the Region has for the time being power to make laws but shall be exercised as not to impede or prejudice the exercise of the executive authority of the Federation or to endanger the Constitution of the Federal government of Nigeria.
Indeed, what more could be added to the 1963 Republican Constitution to show that it was that Constitution that really started Nigerian federalism? True federalism is formed on the strength and mutual respect amongst the federating units and never on perpetual dominance by the central government or another component. In a clear point on this fact, the 1963 Constitution empowers a Region to even legislate for the Federation so long as it would ensure the continued existence of the Federation. A provision reads thus:
“100 (2) A law enacted by the legislature of a Region may include provision conferring powers or imposing duties, or authorizing the conferring of powers or the imposition of duties, upon the President or any officer or authority of the Federation:
Provided that no provision made in pursuance of this subsection, shall have effect unless the President has consented to its having effect.”
The remarks made by Ogunewo are apposite at this point. He declared:
“The only time we have had anything close to a federal structure in this country was between 1960 and ’63. Before the defections of the NUNC members to the AG, one could seek elective post in any part of the country. Where you come from is immaterial. Zik contested for and won elections in the West.”
The 1963 Constitution established the office of the President of the Federal Republic of Nigeria, Citizenship, and Fundamental Rights. Section 41 of the 1963 Constitution provided for a Federal Parliament comprised of the President, a Senate and a House of Representatives. Each Region was represented by twelve (12) Senators at the Federal Parliament: a clear case of equality of the Regions which is very important feature of a federal state. The representatives were to be selected at a joint sitting of the legislative houses of that Region from among the persons nominated by the Governor. Only parliament was granted power to declare a state of emergency, unlike the Presidential system which such power to a single person.
In all its ramifications, the 1963 Republican Constitution was truly the source of ‘Nigerian federalism’ in that it was a genuine reflection of the overwhelming will of the Nigerian populace. It sought to protect and project Nigerian interest only, and it was duly embraced by Nigerians from all walks of life. Only from 1963 did Nigerians began to truly dictate their own affairs, and by extension the form of political association most suitable to them. On this issue, a writer posited thus:
“If we are all agreeing that the golden years of Nigerian federalism was the immediate pre-independence and post-independence period of 1954-1966, then let us re-visit that period and vividly remind ourselves of what we did then that we are not doing now.”
Sadly, however, this true practise of federalism was short-lived as crises struck. The political system became so polluted — especially from fallout of the 1964 Western Region election crisis – with irreconcilable differences among the principal actors and the component regions of the federation. The centre was overwhelmed by the crises and could not hold together the body politic. Dudley seemed to agree with this proposition when he declared in an incisive and thought-provoking article written as far back as 1966, when he posited that whereas federalism, as a theory of organising a pluralistic society for governance, was consciously adopted by the founding fathers of Nigeria in the early 1950s so as to secure equal and co-ordinate constitutional status for the component regions and the centre, on the one hand, and between the regions and the centre, on the other, yet, economic and political forces conjointly provided a political landscape by the mid 1960s in which the regions became subordinate to the central authority.
Therefore, it can safely be inferred that federalism as a political theory in Nigeria started presumably in the preceding decade before Independence, but the practise of true federalism in Nigeria began and ended in 1963.
ADVANTAGES OF FEDERALISM AS A SYSTEM OF GOVERNANCE FOR NIGERIA.
Federalism, no doubt, thrives on the division of political powers between national and state governments. This is known as decentralisation, which is major attraction of federalism. For Nigeria, we have identified some advantages of federalism to include:
- Federalism permits diversity: Local governments may deal directly with local problems. The entire nation is not straitjacketed with a uniform policy to which every state and local government must conform. State and local governments may be better suited to deal with specific state and local problems. Abuja political bureaucrats, respectfully, do not always know the best solution for problems in commerce in Lagos; neither do they fully appreciate the intricacies of oil management in the Niger Delta.
- Federalism helps manage conflicts: Permitting states and local governments to pursue their own policies reduces the pressures that would build up in Abuja if the federal government had to decide everything. Federalism permits citizens to decide many things at the state and local levels of government and avoid battling over single federal policies to be applied uniformly throughout the land.
- Federalism disperses power: To the extent that federalism thrives in Nigeria, state and local governments have contributed to its success. State and local governments also provide a political base for the survival of the opposition parties when they lose national elections. All over the world, the modern trend in the attainment of good governance and delivery of the dividends of democracy is to decentralise. Decentralisation and autonomy bring about sound, efficiency and effective public administration.
- Federalism increases political participation: It allows more people to run for and hold political office. Nearly a million people hold some kind of political office in the thirty-six states of the federation and local governments. These states and local leaders are often regarded as closer to the people than their National Assembly representatives at Abuja.
- Federalism improves efficiency: Governing the entire nation from Abuja might be worse. Imagine the bureaucracy, red tape, delays, and confusion if every government activity in every state Nigeria—schools, roads, fire departments, garbage collections, sewage disposal, street lighting, and so on—were controlled by a central government in Abuja. Moreover, federalism encourages experimentation and innovation in public policy in the states.
DISADVANTAGES OF FEDERALISM AS A SYSTEM OF GOVERNMENT FOR NIGERIA.
Recently, a wave of political dissatisfaction swept all over Nigeria to such an extent that every political mouthpiece called for a re-structuring of Nigeria’s political structure. This is not unconnected with a growing disappointment with the failures of the Nigerian federalism. Federalism has its downsides, just as it has some apparent advantages. The disadvantages include:
- Federalism allows special interests to protect their privileges: For many years, minority groups and disadvantaged groups have constantly used the argument of states’ rights to avoid federal laws designed to guarantee equality and prevent discrimination in Nigeria. Indeed, the states’ rights argument has been used so often in defense of any political disagreement over Nigeria’s federal structure that it has become a code word for politics in the country.
- Federalism allows local leaders to frustrate national policy: In Nigeria alone, there are recorded instances of state governors and local government chairmen of opposition parties scuttling the noble efforts of government, all in the name of politics. They can obstruct not only civil right policies but also policies in areas as diverse as energy, poverty, and pollution.
- Federalism creates disadvantages in poorer states and communities, which generally provide lower levels of education, health, and welfare services; police protection; and environmental protection than wealthier states and communities.
- Federalism obstructs action on national issues: No other country has such situation played out more than Nigeria. From the independence of Nigeria in 1960 till date, very important actions on national issues do not see the light of day because of the lopsided federal structure of the country. Although decentralisation may reduce conflict at the national level, some very serious national issues may be swept under the rug.
Concluding, we ask the question, what is the desirable level of acceptability in the Nigerian federation and what are the implications for state and local governance? Not surprisingly, only a few persons will deny having doubts about the suitability and practicality of federalism as a system of government for Nigeria. That Nigerian federalism has over the years been confronted with certain degrees of deepening crises has been the subject of several scholarly literature. The question whether federalism is best suited for Nigeria as a nation did not spring up yesterday, nor did start today. It is therefore not surprising that critics are calling for a total overhaul of Nigeria’s federalism in support of any other viable system of government. For example, A.A. Idowu’s article, The 1999 Constitution and the problems of Federalism in Nigeria contained in the journal, The Constitution, unapologetically calls for a total restructuring of the Nigerian federalism in practice.
No doubt the problem of Nigeria’s uncommon federal nature is hastened by the fact that the several multi-ethnic groups making up the federation each retained their autonomy at independence and the continuous ethnic battle for supremacy thus created a peculiar stalemate in the circumstances. The continuous controversy as to the true nature of Nigeria’s federalism is as a result of the overwhelming influence of tribal loyalty. Should the power sharing formula give a large bulk of political power to the constituting ethnic groups, hence creating a weak central or federal government thus jeopardising the essence and stability of the federation and ultimately leading to a collapse of the federation, or, should the larger chunk of the powers be left to the federal government, the dregs left for the other components, thus highlighting the differences amongst the different component units and hence enhancing tribalism, fear of domination, disunity, civil unrest, secession and other problems which only breed mutual distrust and hatred within the federation and thus undermining the federation?
One of the main benefits of federalism is that it provides a framework for the recognition of ethnic, religious, linguistic or other cultural societies, reflecting their desire to be recognised as a people with a distinct identity and particular interests. By guaranteeing autonomy to such groups, federalism can allow these communities to exercise substantial self-government through state, provincial or regional institutions while still sharing certain functions with other communities through federal or national institutions. By satisfying demands for autonomy and recognition, a federal constitution may reduce the pressure for secession.
Sadly, after the demise of the 1963 Republican Constitution which portrayed true federal intent for Nigeria by the unfortunate coup of January 15, 1966, things fell apart such that the old, buried hatred and bitter competition among the federating units resurrected. The attempt to capture Nigeria as one “people” under a federal government then became a sheer fallacy! The Preamble to the 1999 Constitution, as amended, starts with the following fallacious words: “WE THE PEOPLE of the Federal Republic of Nigeria… DO HEREBY MAKE, ENACT AND GIVE UNTO OURSELVES…” when the so-termed ‘WE THE PEOPLE…’ never for one moment sat to fully discuss the contents of the Constitution. The truth remains that the Constitution was imposed by the military government of Gen. Abdulsalami Abubakar upon the civilian government of Olusegun Obasanjo.
Ben Nwabueze captures it succinctly when he declared thus: “Nigeria is indeed a conglomeration of different nationalities artificially pieced together with the weak glue of colonialism.” Obafemi Awolowo echoes the same sentiment with Nwabueze when he declared that, “Nigeria is not a nation. It (Nigeria) is a mere geographical expression. There are no ‘Nigerians’ in the same sense as there are ‘English’, ‘Welsh’, or ‘French’…” But in an attempt to perhaps cloud the obvious truth in this statement, Prof. Sagay embarked on an otherwise fruitless journey of ‘explaining’ in positive terms what Awolowo meant by such statement. Even Michael Crowder agrees: “…Nigeria was the creation of European ambitions and rivalries in West Africa…”
In Nigeria, the scales of ethnic differences are so large. Nigeria is dominated by the Hausa (approximately 15 million), Igbo (approximately 10 million), and Yoruba (approximately 10 million) peoples, who collectively constitute well over half the country’s entire population and the struggle among them constitutes the bedrock of ethnic crises surrounding the country today. Sadly, the above quoted figures were from a 1970 survey carried out by Lloyd P.C., in an article, The Ethnic Background to the Nigerian Crisis, contained in Panter-Brick S.K. (ed.) Nigerian Politics and Military Rule: Prelude to the Civil War. This is so because modern day figures can never be trusted due to gross manipulations and doctoring. Nevertheless, the above figures are sufficient for the point being made. The figures would apparently be tripled today.
Thus, we conclude by submitting that considering Nigeria’s peculiar circumstances and history, the federal nature of the country today is apparently lacking in essentialities that would expressly categorise Nigeria as a true federal state.
Nigeria has the largest economy in Africa, generating about 20% of the continent’s total GDP, and transfers a far greater proportion of resources to sub-national government than any other country. Yet standards of governance remain extremely low, public services are among the worst in Africa and economic growth has exacerbated inequality rather than creating jobs. According to the National Bureau of Statistics, two out of three Nigerians live in poverty.
The stark failure of the Constitution to expressly state what type of federal nature it wishes to practice has been the bane of political governance in the country for long. A door, says a popular French proverb, can only be open or locked. There is no such idea as a half-closed or half-opened door. Granted that the process of politics and governance requires a whole lot of compromises and concession, that is not to say that in compromising or conceding a country’s Constitution should not be authoritative and final in the division and provision of political power for that on the long run would determine the continued existence of that country.
If Nigeria intends a federal structure whereby the different component states would give up their political autonomy, where the Federal Government is an overlord, then the Constitution should expressly say so. If the federal structure whereby the states have dominion over the federal is intended, so as to make the federal a mere agent, then the Constitution should also say so. A dispassionate look at Nigeria’s federal character would reveal the alarming chasm between the different federating units of the country. Frustration over the monopoly of the headship of the federal government by one group as though it is the exclusive birthright of the group, and over the intolerable arrogant use of the power, is yet another cause of disappointment for the federating components of the Nigerian federation, and a huge source of disenchantment with the federal government in Nigeria. As a magazine aptly captures it, “It is sad that in Nigeria, what operates in its political system is a sort of system without a social conscience, a sort of primitive, beggar-my-countryman capitalism where the average citizen is preyed upon, enjoying nothing from the commonwealth.”
Susu and Nwugo seemed to put the raging controversy to rest when they pontificated that, “The primary question here, however, which has led to some heated debates, is not with the fact of a division of powers but with the nature and extent of powers to be divided between the regional and central governments. As heated as some of these debates have been, the scholars and jurists who have been involved have tended to propose “abstract attributes and general principles which, in the division of powers, might ensure some measure of sovereignty and independence to both the central and regional governments.”
Finally, it is our submission that federalism in Nigeria requires a fundamental rethinking, and, indeed, a revision. Revision entails the freedom of all concerned to state in clear language what sort of federal structure they wish: it also entails the freedom to negotiate how much autonomy and resource endowments of the constituent nationalities should be surrendered to the federal government, if wanted, and how much of that autonomy to retain for the States and local governments. Thus, it is hoped and recommended that a total and sincere re-visiting of the present 1999 Constitution as regards the extent of the powers of the different component units would be the only solution to the somewhat skewed federalism Nigeria practices.
 A.G. Abia, Delta & Lagos states v. A.G. Federation & Ors.  12 NWLR (pt. 940) 452.
  6 NWLR (pt. 764) 542
  12 NWLR (pt. 833) 1 at 195-196
  9 NWLR (pt. 772) 222
 K.C. Wheare, Federal Government, (4th edn, Oxford University Press 1963) 65.
 K.M. Mowoe, Constitutional Law in Nigeria, ( Malthouse, 2008) 49.
 I.E. Sagay, Nigeria: The Unfinished Federal Project.
 O. Awolowo, Thoughts on the Nigerian Constitution, (Spectrum 1966) 23.
B.O. Nwabueze, Federalism in Nigeria Under the Presidential Constitution (Sweet & Maxwell 1983) 1.
 Mowoe K.M. (n 6) 50.
 O. Abiola, Constitutional Law and Military Rule in Nigeria (Evans 1987) 171-72.
 International Political Science Review, 398
 E.O. Awa, Issues in Federalism, (Warri, Ethiope Publishing, 1976) 1.
 A.R. Holder, The Meaning of the Constitution, 2-3, cited in K.M. Mowoe, (n 6).
 C.J. Friedrich, The Impact of American Constitutionalism Abroad, 1966, 43, cited in B.O. Nwabueze, Ideas and Facts in Constitution Making, (Spectrum, 1993) 229.
 K.C. Wheare (n 5).
 (1914) AC 237 at pp. 252-254.
 See ss. 4,5,6,7 and 230-267 Constitution of the Federal Republic of Nigeria, 1999, as amended.
 K.M. Mowoe (n 6).
Federalism – available at https://en.m.wikipedia.org/wiki/Federalism?_epi_=7%2CPAGE_ID10%2C9176857911 accessed on 12/04/2018
 https://en.m.wikipedia.org/wiki/Commonwealth_of_Australia accessed 11/04/2018
 http://en.m.wikipedia.org/wiki/Canadian_federalism accessed 12/04/2018.
 (1991) McGill Law Journal, (Vol. 1, No. 36) 131.
  4 N.W.L.R. (part 864) 580.
 ibid at 649.
 Sagay (n 7)
 See Odia Ofeimun, If Nigeria Must Be Reborn, The Constitution (Vol. 10, No. 3) 2010.
 M. Crowder, The Story of Nigeria, (Faber & Faber, 1966) 21.
 O.A. Odumosu, Nigerian Constitutional History and Development, (Sweet & Maxwell, 1963) 5.
 H.O. Davis, “Nigeria’s New Constitution,” West African Review, (Vol. 16, No. 212) 15.
 Igweke & Joyce, Introduction to the 1979 Constitution of Nigeria, (Macmillan, 1982) 21.
 See A.M. Odje, “The Challenges of True Federalism & Resource Control In Nigeria, (Quadro, 2006) 1.
 B.O. Nwabueze, A Constitutional History of Nigeria (Longman, 1994) pp. 75-76.
 The Preamble to the 1963 Constitution.
 The 1963 Constitution.
 Section 100 (2) of the 1963 Constitution.
 Punch Newspaper of September 26th, 2000.
 section 42 (1)(c) of the 1963 Constitution.
 Section 70 of the 1963 Constitution.
 A.M. Odje (n 35) 38.
 B.J. Dudley, Federalism and the Balance of Political Power in Nigeria, Journal of Commonwealth Political Studies, (Vol. IV, 1966) pp.16-29.
 See O.A. Olukoshi and O. Agbu, The Deepening Crisis of Nigerian Federalism and the Future of the Nigerian State, in Olukoshi A., and Laasko L. (eds.), Challenges to the Nation-State in Africa, (Nordiska Africanstitutet, 1996) 1. See also J.I. Elaigwu, Federalism, Institutionalisation and Political Stability in Nigeria in the Context of Vision 2010, (2000) African Journal of Federal Studies (Vol.1, No.1) pp. 34-64. See also Okpe O.O., (ed), The Sovereign National Conference: Issues, Perspectives and Challenges (Aboki Publishers, 2003) 1.
 2002 (Vol.3, No.1) 63.
 B.O. Nwabueze, Ideas and Facts in Constitution Making (Spectrum, 1993) 221.
 O. Awolowo, Path to Nigerian Freedom (Faber & Faber, 1947) 48.
 Sagay (n 7).
 M. Crowder, (n 31 ) 21.
 Commonwealth Papers (University of London Press, 1970) 1.
 TELL Magazine Editorial, No.44, November 7, 2011.
 B.A. Susu, and F.O.P. Nwugo, Constitutional Litigation in Nigeria, (2nd ed., Nicho Printing, 2013) 71.
Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, www.damilolaolawuyi.com. & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),www.eduardogpereira.com
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