In the study of federalism in political science, the basic knowledge is that federal societies develop into federal states when they agree on the basis of a constitution they have negotiated to share power in a way that no component feels marginalised or excluded. In Nigeria, the 1951 Macpherson’s Constitution was adopted on the basis of an elite consensus. The regional elites were suspicious of each other, had no trust in the other and therefore decided that federalism is the best collective protection for all of them. As has been explained:
“True Federalism implies power sharing, abandoning the notion of any one group dominating all the others, not secession but building interdependence. But we need to work hard on it and not merely pay lip service to unity in diversity.”
Prof Ade Ajayi
The First Republic failed because there was a feeling that true federalism had been seriously undermined by the creation of the Mid West, the imposition of a state of emergency in the Western Region and electoral fraud in 1964 amongst other political crimes. Since then, the search for true federalism has been on-going without success. Nigerians have pinned a lot of hope that the Fourth Republic, which was inaugurated on 29th May 1999, would provide an opportunity to craft a Constitution that will guarantee true federalism. Constitutions are the symbolic as well as juridical expression of the sovereignty of modern democratic states. They should therefore have popular legitimacy to be able to have binding and supreme power within the state. In their preambles, constitutions declare their sources of legitimacy i. e. the basis on which they embody the force of law. This foundational or constituent power, “pouvoir constituant”, as the French would put it, is normally rooted in a form of representation of popular sovereignty and expressed in the preamble to the constitution. The preamble of the 1999 Constitution states that:
WE THE PEOPLE of the Federal Republic of Nigeria:
HAVING firmly and solemnly resolved:
TO LIVE in unity and harmony as one indivisible and indissoluble Sovereign Nation under God dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding:
AND TO PROVIDE for a Constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the Unity of our people.
The most serious problem with the 1999 Constitution is that it has not responded to persistent demands for the political restructuring of the country. The basic demands have been for curbs on the powers of the federal government and the enhancement of the powers of states and local governments. The Nigerian military have responsibility for destroying Nigerian federalism by sacrificing it on the altar of over-centralisation. Nigeria’s geopolitical realities have been completely modified through the subordination of state governments to the federal government. In federal constitutions, the federal and state governments all have constitutionally defined areas in which each level of government is sovereign as well as areas where both levels have concurrent authority. According to Wheare, the so-called father of federalism, in federal regimes, neither the federal nor regional governments are supreme; the constitution is the only supreme organ.
According to Section 4(5) of the 1999 Constitution however:
“If any law enacted by the House of Assembly of a State is inconsistent with a law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void.”
There is therefore a clear hierarchy between the two levels of government. In terms of the legislative powers for the different levels of government defined in the Second Schedule of the Constitution, the longest list is the exclusive legislative one which only the federal legislature can pass laws on. The exclusive legislative list has 68 items, two more than in the 1979 Constitution. The concurrent legislative list by comparison has only 30 items. It includes all sorts of powers including police, prisons, even marriage, excluding marriage under Customary and Islamic Law. State governments cannot borrow money abroad without federal approval (item 7) and they cannot regulate labour matters (item 34). Direct taxation – incomes, profits and capital gains is an exclusive federal preserve (item 59). Even the appointment of judges in the state service, are to be made by the state governor on the recommendation of a federal executive body, the National Judicial Council. State governments do not have exclusive competence in any domain. The failure of the 1999 Constitution to address demands for political restructuring and the redistribution of powers has left all the problems of Nigerian history related to fears of political domination intact.
Our Constitution defines the purpose of the state as the protection of the security of Nigerians and the pursuit of their welfare. Nigerians however know that they have to pay for their own security guards and even the bulk of the Nigerian police personnel are used to provide security, not for the people, but for individuals who can afford to pay for their services. Nigerian citizens are forced to provide their own electricity with millions of generators they purchase to power their houses and pollute the atmosphere. Nigerians go to the stream to fetch water or buy it from water vendors. The elite is able to pay for personal boreholes in their houses and the result is that they wipe out underground water sources for future generations. Of course, health and education have largely been private and the state is completely disdainful of Chapter Two of our Constitution that directs it to provide for the welfare of citizens. Nigerians feel the failure of the federal State and worry that the federating states have no power to ACT.
The persistent demands for true federalism must be addressed if Nigerians are to get the assurance that their full participation, safety, and welfare within the State is to be guaranteed. The Constitutional Conferences organised by the Obasanjo and Jonathan Administrations both got their constitutional reform agendas derailed. The present legitimacy crisis facing the Nigerian State should be seen as an opportunity to address the issue of true federalism with the seriousness it deserves. In so doing, we do not have to re-invent the wheel, the work done by the previous constitutional conferences provide sufficient raw material to set the ball rolling at minimal cost.
One of the greatest sources of anger against the Buhari Administration is the general belief that he is dismissive of any attempt at serious constitutional change. Given the current unprecedented state of insecurity in the country, people feel threatened in their homes and communities and ask why they cannot fend for themselves since clearly, the federal authority cannot. The major issues that have to be addressed at this time include the following – the democratic diffusion of power/devolution of power; guarantee of group and collective rights; power sharing and elevating our multi-party system to the status of genuine pluralism. In other words, the time to focus on the “true” and the “genuine” is now.