The Versatility Of The Residual List Empowering A State Government: A Call For More Proactive Governance By State Governments

By Hameed Ajibola Jimoh Esq.

It is clear from the available judicial precedents and having regards to the combined reading of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- that each State Government of the Nigerian federation has enormous powers conferred by the Constitution under its Residual Legislative List which override the powers of the Federal Government which has limited constitutional powers limited to those items contained in the Exclusive Legislative List and the part-shared powers under the Concurrent Legislative List. However, many States of the federation if not but a very few of them, have remained with poor governance despite these huge powers to make laws for the betterment of the State and its people resident therein having regard to those guiding principles contained in the Chapter II of the Constitution. This paper is of the aim of calling for more proactive governance by all States of the federation.

On the division of powers between the National Assembly and the State Houses of Assembly in section 4(2),(3) and 4(6) and (7) (a) of the Constitution, respectively, the Supreme Court has  held as follows in the case of: Doherty v Balewa (1961)2 NSCC 248 @ 252 ‘The Federal Parliament can legislate for the Federation only on those matters in respect of which it is specifically empowered to legislate under the Constitution’, while in the case of Togun v Oputa (2001)16 NWLR (pt. 740) page 597at 644, the Court of Appeal of Nigeria held as follows: ‘Nigeria is a Federal Republic with a Constitution in which the legislative powers of the National Assembly and the State Houses of Assembly are clearly defined. We have the Exclusive and the Concurrent Lists in which the National Assembly could legislate. This leaves the State Houses of Assembly to legislate exclusively on Residual matters not included in either the Exclusive or Concurrent Lists’. Furthermore, on the Residual Legislative List, in the case of: A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC., the Supreme Court of Nigeria held thus: ‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list. The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws. The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists’.

Furthermore, I must emphasise that it is no doubt that Nigeria operates a Federal System of Government where these three Legislative Lists have been separated (vis-à-vis: the Exclusive, the Concurrent and the Residual Lists). On what amounts to a Federal System of government as being operated by Nigeria (named as: The Federal Republic of Nigeria), Ese Malemi has this to say at page 26 of his book (supra) thus ‘A Federal System of government is an association of free states where power is constitutionally shared by the federal, state and local councils, and with each tier of government exercising its constitutionally assigned powers and functions. A federal constitution or federal system of government is one that provides for separate structures of government at the national, state and local councils and with each tier having its own constitutionally assigned powers and duties. The powers of the different tiers of government are usually spelt out in legislative lists in the constitution of the country. The exclusive legislative lists which is for the federal government usually covers items such as aviation, banks, bills of exchange, …Whilst other matters are reserved in the concurrent legislative list in respect of which both the Federal and State governments are free to legislate, provided that where there is a clash of laws, the law of the federal government usually prevails because it is the superior law, or because it has covered the ground. Thirdly, the functions of a local government council are also clearly spelt in the constitution. Thus, there is division of powers in the constitution among the different tiers of government, each deriving its powers from the constitution. A federal country usually has a written and rigid constitution, duplication of government at all levels of government and so forth. The Unite States of America, which is an advanced federation is the best example of a country running a federal system of democracy. Switzerland, Germany, Australia, and Canada are federations. Nigeria is a growing federation’.

Therefore, the conclusion on the above premises is that a State House of Assembly has unlimited powers to make numerous laws under the Residual Legislative List, which I have observed with due respect, that many State Houses of Assembly (as a State Government) if not only but a very few, have not utilized, hence, one of the reasons why many of those States are almost not developing as expected and the State’s affairs being seen to have been run retrospectively rather than progressively. I therefore recommend a well-structured study of the various ways through which each State of the federation (including the Federal Capital Territory- Abuja as a State Government) would improve in its responsibilities to its people and with due respect, in my humble submission, lack or inadequate budgetary is not an acceptable excuse for its failure in this regard!

Finally, it is my humbly submission that the Residual Legislative List is a great empowerment to developing each State of the federation and I hereby call on all State Governments to utilize this great powers for the development of the State and its people.

Email: hameed_ajibola@yahoo.com