Kingsley Macebuh embarks on an analytical voyage of the Nigerian state and its practice of the federal system as a means of achieving co-existence and development among the various nations states which gave birth to the Nigerian nation. He takes the structures of Nigeria’s federal system and explains that what obtains is far from epitomising the letters and spirit of true federalism. This piece continues from last Friday.
On Police Power of a Federating State
The Police have no authority of installing or reinstalling any person to constitutional office. It cannot do so even when, for example, ordered to so do by the President or Vice President, as the president’s constitutional title of commander-in-chief of the armed forces of the federation does not extend or apply to the police instrumentality of the federation. The police instrumentality, although constitutionally titled ‘Nigeria Police Force’ and federalized, is not a part of the armed forces of the federation. Accord, Nwabueze.
The President, as head of the executive branch of the federal government, may, by administrative chain of command, give directive or order to the Inspector- General of Police, on police security matters as affecting the federal ‘state,’ such as Federal Capital Territory of Abuja and all other federal enclaves. Attorney General of the Federation v Attorney Gen. of Abia State & Ors, 28 SC (of Nigeria) (2002); Cohens v Virginia, 6 Wheat. 265 (1821); Federalist No. 43. But the President has no constitutional power to give directive or order to the Inspector- General on security matters as affecting the several states of the federation, except declaration and operation of state of emergency or militarization of the federation on declaration of war against attack by a foreign power.
The Constitution of Nigeria is construed as three-layered. Firstly, it provides for federal structure for Nigeria. Secondly, it makes provisions for governance of the federation through a government ‘for the federation.’ Thirdly, it makes provisions for governance of a ‘state of the federation,’ provisions that on holistic platform are applicable to the several states of the federation, meaning that all the states of the federation operate single constitution.
By this construction of Nigeria Constitution, as arising under federal theory of separation but coordinacy of territorial powers of a federation, the several states of the federation operate uniform state constitution. All other provisions of the Constitution are deemed the Constitution of Nigeria with its federal provisions applicable to all persons, authorities and subsidiary powers in the federation, and defining rights and obligations of all.
Although the Constitution of Nigeria is construed as having made provisions for two constitutions, state and federal, embodied in single document, it is wrong to provide unitary constitution for all the states of and for the federation. Just as the federation ought to have separate constitution, every state ought to have and operate separate constitution tailored to its state and local characteristics. But the Constitution and laws of a state must be subject to supremacy of the separate Constitution and laws of the federation.
I will, for purposes of theoretic with operationalized appraisal, expatiate on the point, above, as regards the doctrine of supremacy of federal over state law, which arises affirmatively, only, in the case of conflict of territorial laws, in a federation.
Nigeria is, by its constitution, a federation, made up of federating states and a central (federal) government. It is so organized with essential physical attributes but disputably operational as a federation. For theoretical purposes of expatiation, here, of the doctrine of supremacy, we assume Nigeria is a federation, as constitutionally adverted. If so, then a thematic logic of federal operation arises from organizational structuring of the federation, the primary behavioral axiom stipulated for consideration of the point in focus. In republican federation, composed of federating states, a state is sovereign, in exercise of police power of the state to make laws for regulation of persons and property within the state’s political jurisdiction.
Attorney General of the Federation v Attorney General of Abia State & Ors, Supreme Court of Nigeria (2002); Macebuh, Collision of Sharia State Law and Federal Commerce Power 60 (2002). A state law operates parallel to federal law. A state can legislate on the same matter, if not expressly prohibited by the Constitution, as the federal legislature. A state law does not come in conflict or collision with a federal law just because a state legislated on the same or similar matter as a federal legislation.
A state law must be absolutely repugnant to the Constitution for there to be a collision between the state law and federal law, making the federal law in such situation supreme to the colliding state law. The provision that the law of the national legislature shall be made supreme in such a case is a ground of conclusive inference, not only that there are concurrent powers, but also that those powers may be exercised by both federal and state governments at the same time. One law cannot be taken to be superior to another, and to control it, unless it acts in a manner inconsistent with and repugnant to that other law. The question of supremacy, therefore, can never arise, unless in cases of actual conflict or interference.
If mere exercise of a power by national legislature takes away all right from a state to act under that power, then any state law, under such a power, would necessarily be void. This would be so not because it is in conflict with the supreme law of the national legislature, but as being repugnant to the provisions of the Federal Constitution itself, and as being passed by the state, in the first instance, without authority. If this doctrine were true, the provision that the law of the national legislature should be supreme would be entirely idle. It would have been sufficient to just say that the Constitution should be supreme! Gibbons v Ogden, 9 Wheat 1 (1824).
The controlling point of this analytical logic is that the supremacy clause of the Constitution, giving federal law right of passage over state law, does not arise simply on account of a state having legislated on the same issue or matter as federal legislation. Otherwise every state law would be void on mere premise that a state legislated similarly as the federal legislature. Therefore, the inference drawn from this is that it is not a mere possibility of inconvenience in the exercise of powers, but clear and immediate repugnancy that can, by implication, alienate and extinguish a pre-existing right of sovereignty.
And in consequence of this expatiation on conflict of laws, pronouncement as ‘unacceptable’ by education department officials of the federal government on intended concurrent state action by the Government of Lagos State, for establishment of state education examination board, separate but coordinate to federal examination boards, is federally untenable. A state law concurrent to federal regulation is federal and not barred by the Constitution, where there is no cognizable and thus justiciable conflict of laws between the state and federal laws. The possibility of inconvenience of state action to federal law is not a sufficient condition precedent of constitutional repugnancy, for implied alienation and extinguishing of the state law.
The inconvenience is not within intendment of the supremacy clause of the Constitution, to justify trigger of right of way of federal law over similar but parallel state action. An argument of federal officials that a state education certificate procured under independent and adequate authority of state examination board will have validity only in the state of procurement is not federal but cognizably unitary. Under federal praxis and its operative structure, a state action, competently made in exercise of its police power, ought to have full faith and credit in the several states of the federation. Therefore, education certificate, lawfully issued under authority of a state of the federation, is given due recognition in the several states of the federation.
Otherwise, why would State of Lagos, for example, an otherwise independent and adequate Power, be in a federation, if a lawfully obtained legal instrument issued under its Authority suffers non-recognition and not accepted in the federation, simply because federal officials say so? That is federally wrong and therefore untenable. But where there is evidence of local prejudice among the several states against recognition and acceptance of similarly situated instruments issued by their respective authorities, with the local prejudice not sustainable under independent and adequate state ground, there shall be appropriate federal legislation for standardized regulation of the variegated local prejudice. Federal regulation of the local (state) prejudice arises under application of the supremacy doctrine of federal over state law.
I have projected, above, the concept of independent and adequate state ground, upon which a state action is immunised against failure from federal or any other challenge. I, now, hereunder, explain the doctrinal postulation. In state and federal exercise of their exclusive, or concurrent powers, notwithstanding theoretic and constitutional rule of supremacy of federal over state law, a rule that is triggered only in the case of actual and not presumptive conflict of laws, the supremacy rule is bypassed and the presumptively conflicting state law sustained, where there is independent and adequate state ground to make the law.
A state ground independent and adequate, in exercise of its police power, presupposes a federal challenge to a state law where the challenge must fall, to the extent that the underlying presumption of the challenge is not on settled unconstitutionality and thus legal incompetence of the state to make the law. That the state exercised a national power, of which the several states are ousted; that power to make the law is not residual to state sovereignty and that the state exercised a power not reserved to the states by the constitution. That the state exercised a power that is unique and or peculiar to devise of the union or federation and thus an exclusive federal power.
That the state exercised a power, which the several states never exercised and could not in any way have exercised, prior to joining the union or federation. That the state exercised a power derivative to the federation upon federal right to exercise of power of eminent domain, or other exercise of power not within purview of federating state power.
Where a federal challenge to state law fails any of these constitutional and natural tests, for exercise of power between the several states and the federation (as represented by the federal government), the challenge is incompetent and must fall, sustaining the state law. These empirical tests, in the obverse, are applicable, where necessary and proper, to state challenge of federal law. See, generally, the states and public challenge to Nigeria’s Electoral Law 2001. Because the Law failed to survive any of these requisite theoretic tests, the Law’s empirical foundation was non-existent and thus liable to fall both in law and fact, as it did.
Under Nigeria’s constitutional format for the federation, wherever the constitution makes provision and says “for the federation,” the provision’s similarity in a state is “for a state” and subject to police power of a state, not of the federal government. For illustration, the president is “for the federation,” while governor is “for a state.” Chief Justice is for the federation, while Chief Judge is for a state.
Independent National Electoral Commission is for the federation, while its counterpart in a state is “for a state,” etc. The purpose of this illustration is to show that any constitutional provision “for a state,” substantive or procedural, is not subject to authority of the federal government, even while the federal government is and acts “for the federation.” Where the Constitution makes provision “for the federation” and is silent in making similar provision “for a state,” a federating state is not, by the silence, divested of the like provision, as a state may by its police power constitute the provision “for a state” and thus for the state.
The power of a state to constitute a similar provision over which the constitution is silent but does not textually and expressly oust a state from exercising similar power is founded on federalist principle that a federating state, an otherwise independent sovereign power prior to its admittance into a federation, possessed power to ordain the like provision in issue. And, moreover, it is perfectly settled that affirmative grant or conveyance of power does not, of itself, divest the grantor or conveyor of like power.
Sturges v Crowninshield, 4 Wheat. 193 (1819) (Chief Justice John Marshall); Houston v Moor, 15 Wheat. 15, 17; Id., 45 (Justice Story); Livingston v Van Ingen, 9 Johns 565, 571 (N.Y) (1821). Therefore, to the extent that the Constitution of Nigeria ordains single police system for the federation, the police command in a state is construed as police instrumentality of the state, under legislative authority and executive command of the state. The police instrumentality in a state is answerable to and takes lawful order or directive from the governor as chief executive of the state.
Therefore, as arising under federal theory of separation powers, and in consequence of Nigeria’s constitutional format, for the federation, it is constitutionally effective for a governor, as chief security officer of a state, to give lawful directive or order to highest police official in the state, without the police official having to seek prior authority from the inspector general of police to or not comply with the governor’s directive or order. Under Nigeria’s constitutional format, for the federation, just as much as exercise of authority and power of the president is dormant and ineffective in a state of the federation, authority and power that are vested in the governor of the state, so also is authority and power of inspector general of police dormant and ineffective in a state of the federation.
It is upon lawful declaration and operation of state of emergency in a state that authority and power of the president with the inspector general of police is triggered and operationally effective in coordination with authority and power of the governor and legislature of the state in issue.
On constitutional question of declaration and operation of state of emergency in the federation or a part thereof, there is no theoretical and or philosophical and thus no republican legal foundation of constitutional presumption of ouster or ‘suspension’ of constitutional political authority of a state, at any time or occasion.
Therefore, ‘constitutional’ purport or presumption of power superintending suspension of operation of Organic Law and political authority of a state constitutes illegal seizure of private property inherent in the exercise of privileges and immunities of electoral franchise of the voter in a federating state under emergency rule.
See Ben Nwabueze, The Rape of Constitutionality and Legality in Plateau State: The Way Out (2004)(“Emergency d[oes] not create power; it merely mark[s] an occasion when power [expressly] granted by law should be exercised,” quoting Youngstown Sheet and Tube Co. v Sawyer, 343 US 579 (1951)).
There is neither foundation for nor granted power of seizure of private property inherent in exercised right of vote.
When a voter in exercise of his electoral franchise power voted a person of his choice who was elected to tenured office of governor or member of the legislature of his state, he had vested property interest in the election and office so occupied. The President cannot and the State may not arbitrarily oust or suspend the office holder from office. Such conduct by the President or the State constitutes seizure of protected property interest of the voter in the election and thus the elected office without prior notice and adequate compensation therefor.
Youngstown Sheet and Tube Co. v Sawyer, 343 US 579, supra (“We cannot with faithfulness to [the Constitution] hold that the Commander-in-Chief of the armed forces has the ultimate power as such to take possession of private property in order to [put a stop to historically intracommunal disputes. …The Constitution [does] not contemplate that the title, Commander-in-Chief of the [Armed forces] will constitute [the President] also Commander-in-Chief of the country, its industries and inhabitants”) (Justice Jackson concurring).
Nor does a federal constitution condone, of which the Supreme Court will expunge, any purport of unlimited presidential power, even with benign congressional approval or acquiescence, of indefinite constraint on and out of purview of the law liberty of a citizen of the United States or alien within their jurisdiction, including outer ‘security zone,’ such as of Guantanamo Bay, Cuba.
It does not even matter if the purport of unlimited power is under guise of exclusionary presumptions of war powers of the president. So holds the Supreme Court of the States in a 6-3 June 28, 2004 majority decision (as per Justice Sadra Day O’Conor) upholding legal challenge of American citizen against extralegal indefinite detention at Guantanamo Bay extraterritorial security detention center of the United States. The President purported to act as such in exercise of war powers of his office, ‘to defend and protect’ the United States ‘under war’ in Afghanistan, Iraq, and against terrorism, as security matters consequent to September 11, 2001 terror attack on and in the United States.
This latest holding of the Supreme Court of the United States is, of course, consistent with historical and contemporary purview of limit of federal presidential power, Marbury v Madison (US), 3 Dall (1803); Youngstown Sheet and Tube Co. v Sawyer, 343 US 579, supra; O’Melveny & Myers v FDIC, 512 US (1994); the right of judicial court to decide and declare, where there is case or controversy, what the law is, Cohens v Virginia, 6 Wheat 265 (1821); Clinton v Jones, 520 US (1997). Applicability in Nigeria of federal principle controlling these decisions is apposite to republican rule of law.
The following point may appear ‘bizarre’ or ‘abnormal,’ to the ‘constitutionalist’ or general public commentator on constitutionalism. It is merely speculative, as there is no theoretical and or philosophical foundation to it, that the taking of oath and ‘occupancy’ of office of president, governor, or other title similarly situated presupposes automatic provision of security services by the State (the Federation) to the office holder.
This is so, because it is affirmatively settled that the American president is not the United States. So, by federal theoretical and behavioral extension, therefore, neither the president nor governor is, respectively, Nigeria or a state of the federation. O’Melveny & Myers v FDIC, 512 US ___ (1994); Clinton v Jones, 520 US ___ (1997). Once the Office is secured and due deference given, the constitution is satisfied. Police security provision to the office holder is discretionary and administratively tailored and not constitutionally textual or derivative. Congress or National Assembly may make provision for the quantum of security provision for protection of the president and other appropriate officials of federal government.
On the necessary issue of whether or not a ‘federating state’ of Nigeria is for all intent and purposes a state, federally, it is affirmative that under positive theory of federal praxis, there is no ‘federating state’ but provincial unit of the state called Nigeria. This is notwithstanding constitutionally descriptive attributions therefore, but which are, decisively, federal misnomers.
The Ngige case or controversy has, finally, exposed Nigeria’s constitutional fallacy and pretences. It is customary Nigerian political melancholy and sentimental realms that one thing is wished and expected while another is, conversely, on ground and prevailing. Under theory and dialectics of State power, provincial unit of a unitary State has no, and ought not to have, exclusive police power of enforcement of ‘legislation’ of its ‘jurisdiction.’ It has no jurisdiction exclusive of general political jurisdiction of the unitary State.
Where a unitary State’s constitution makes and operates contrary provision, of federal pretences, its will suffer social, political and economic cleavages and anomie, as it, sure, does of Nigeria. This is the reason Anambra ‘State’ or any other, in Nigeria, has no exclusive police or security authority to secure and protect its ‘state’ legislation and authority personnel without recourse to coercive instrumentalities under command and control of Nigeria’s State House, Abuja. By its verifiable operational mode and behavior, Nigeria is for all intents and purposes a unitary State. It is devoid of clear-cut federal arrangement with separate fiscal resources to enable exercise and operation of exclusive police power for its political parastatal or enclave titled ‘State of the Federation.’ Nigeria operates singular and unitary Constitution.
In positive federal structure, of federating states, a state, such as Abia State, will by its police power, be able to float bond market financing in the stock market, with bond guarantee under full faith and credit of the federation, not of the federal government, and without obstruction by or recourse to ‘approval’ or ‘rejection’ by the executive branch of the federal government.
Although an otherwise sovereign power, such as a federating state, had in the joining of a federal union surrendered to the federation its former sovereign monetary power, among other substantive powers of sovereignty, a federating state, armed of full police power of its reserved political jurisdiction, shall be able to structure and raise financing of its economic structuring, including the raising of necessary and proper financing in stock or bond market of the federation, which is not stock or bond market of the federal government.
Some of unique and peculiar powers of the federation, as vested in the federal government, which are derived from devise of the union, are the power to borrow under full faith and credit, the judicial power, the power of uniform laws of immigration and naturalization, among others, of Nigeria. A federating state, as prior full sovereign power, never possessed any of these unique and peculiar powers of Nigeria. So, a federal government may in relevant exercise of any of these powers disturb a state action considered, legislatively, as inimical to the welfare of Nigeria.
Such state activity could revolve on habit of excessive borrowing or other fiscal commitment that the borrowing state is not capable of redeeming and in consequence therefore unduly disturbs general fiscal measures of the federation. But in absence of appropriate legislation, executive branch of federal government shall not lawfully disturb a state action undertaken in exercise of its reserved or residual police power. Federal executive officials may seek restraint of burdensome state fiscal activity through bilateral and mutual cooperation with state officials.
This may be achieved through federal offer of incentives to the relevant state, to mitigate the state’s identified burden needing exceptional federal assistance, which in return may help to persuade the state to curb its identified financial recklessness. But federal officials have no competent power to command a state or its officials to this or that. New York v United States, 505 U.S 144 (1992). Conversely, however, the presumption of authority of national police power, as vested in the federal government, supports the construction of operation of Nigeria as a unitary State and not a federation.
It holds that the so-called several states of the federation are, after all, not federating states, in the theoretical and behavioral sense of federal praxis, but provincial subdivisions of a unitary State. The putative states have no police power of their claimed but unverifiable political jurisdictions that are exclusive of the federal government. This is why executive officials of the federal government could proffer and counsel rejection or discretionary approval by the ‘federal’ government of bond market interests of a supposed federating state, such as Abia State.
To the extent of all the above, therefore, a high court of Nigeria’s political parastatal, such as Enugu ‘State’ may in exercise of its judicial power reach a person, anywhere in the unitary State, Nigeria. It could do so by appropriate process, as arising under judicial construction of the unitary State’s constitution, its ‘federal’ pretences notwithstanding. Exercise of judicial power of a unitary State is not exclusively jurisdictional, that is, limited within speculative confines of the political parastatal, but universal of general jurisdiction of the unitary State.
What I have attempted to point out so far is to channel attention to asking the necessary and proper question as to what, exactly, it is that Nigeria confronts its citizens with. Does Nigeria actually have a federal structure of jurisdictional balance of federating states and federal center? Or is it a unitary State with provinces or such, regardless of title of ‘state’ given to the provinces? If it is a federal structure with theoretical and empirical foundation of positive federalism, why is it that a Nigerian ‘state’ does not possess independent internal security powers for it, and natural resources under soils of its ‘political jurisdiction’ nationalized? And revenue sharing based in part on empty ‘landmass’! All this, of part one, now leads us to part two of this material.
