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By Kingsley U Macebuh
Friday, September 03, 2004
Kingsley Macebuh continues 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 Delimitation of Concepts of the Federal and the Constitutional
In the sequencing of governmental organization of separation of powers, the Judiciary is the third branch of government in federal governance. The Legislature and Executive, in that ordering, are the other branches. They are separate but coordinate to one another. They are bound, by federal praxis and correlating constitutional dictates, but not without impromptu fighting for supremacy of turf, as humans, to operate in harmony with one another, for effective and productive federal governance.
In contemporary times, at beginning of the Internet 21st Century, of suspect post-militarism, just about everywhere in the world, it is observed that Nigeria Judiciary appears to be in a state of quandary. It is confronted, even posthumously, by citizens wrapped in historically denied but prevailing democratic euphoria who, in suspect federal canvas, are hysterically demanding remedial libertarian action to skin-dip historical prejudices of the disengaging military State. In the process, the Nigeria judiciary is thrown into tailspin.
It is caught between the rock and the deep blue sea. It is confronted with the Solomonic task of attempting to crafting a balance between protecting glaringly ‘constitutional’ but tacitly ousted and thus non-justiciable rights and privileges guarantees to the citizen and demanding policy dictates of preservation of the Government and State that are suffocated of severe military stresses. Groping under this quandary, the judiciary is displaying, in the interim, commendably, we may say, appearance, in its various judicial actions, of tilting in the balancing jigsaw toward protection of the constitutional. But here, there is another quandary that may not openly be apparent to the Courts but inexorably tied and challenging to and decisive of the Courts’ construction of concept of the constitutional as controlling guide of their adjudication of case or controversy.
Although the judiciary may be poised in its prevailing mood toward protecting the constitutional, presumably in populist response to public euphoria to prevailing bastardy of constitutionalism, what is conceptualized the ‘constitutional’ may not necessarily comport with what is federal. We assume the possibility, which is probable in Nigeria Case, that in the making of federal constitution, as historically evident of Nigeria’s political behavioral typology, federal and non-federal and thus asymmetric properties and particles are haphazardly encoded in its ‘federal’ constitution making. Such ‘functional’ but decisively illogical and asymmetric properties are exemplified by codification in the Nigeria Constitution of various practically bizarre constructs.
The bizarreness arises from a theoretic foundation and by necessary implication chronic fissures, in practice, for optimal performance, of the asymmetric constructs. The constructs include presidential-bicameral provision of the constitution, e.g., three-branch federal governance of separation of powers, of bicameral federal, but unicameral state, legislature. There is evidence of parliamentary nostalgia (e.g., federal ‘executive council,’ presumptions of ‘cabinet office,’ office of secretary to the government of the federation, federal ministry of ‘information,’ titles and nobility.). You find localist provisions (e.g., local government area and state’s derivative concept of ‘autonomous communities’ with their respective ‘monarchs,’ in addition to constitutionalized shariah jurisprudence).
There is unitarist historicity. This embraces ever-present omnibus constitution for all units of the ‘federation,’ since advent of Yakubu Gowon’s ‘federating state’ structuring with national judicial council that is supervisory over judicial conduct of state judges, and unitary revenue allocation and fiscal commission controlling remuneration and perks of federal, state and local elected officials, etc.. There are Nigeria Constitution’s Sec. 6 (d) judicial ouster clauses and its Sec. 315 ‘appropriate authority’ clause, where the President can ‘modify’ ‘existing law’ and proceeds at whim to co-opt the bicameral legislature or a part thereof, to prevent it from reversing the ‘modification,’ etc. Others are statist-unitarist genuflection (e.g., centralized unitary police ‘force’ system, federalized Land Use Act, unitary control of all natural resource, etc.).
There is militarist-praetorian guard security system (e.g., conversion of military decrees as ‘legislative acts’ of the federation, deemed to be laws of the federation as having been made by the National Assembly; peace time concept of ‘police permit’ for non-violent citizen assembly, etc.). Regionalist reminiscences are not excluded (e.g., zonal structuring with regard to distribution of political benefits, such as Office of President, Vice President, President of the Senate, Speaker of the House of Representatives, etc.). In addition, there are ethnicist trajectories (e.g., ‘indigeneship’ propagation in employment and domiciliary matters, constitutional stipulation of at least one minister from every state; perhaps, some day, of every local government, etc.) and royalist-monarchist phenomenon in ‘federal-republican’ canvas (e.g., official cohabitation of electoral representation and hereditary and quasi-hereditary monarchism). Also, the ‘religionist’ pretenses and voodooist rapture are not conceptually excluded from or divested of state actions dubbed ‘constitutional.’ For example, there is profundity of admixture and non-separation of religion and State, notwithstanding the Constitution’s Sec. 10, although ambiguous, separation of the two.
This does not exclude ‘presidential’ church or mosque with select priests and imams versed in relevant Godism, on grounds of the State House, or Government House, a public property! Nigeria’s executive concept of Godism is cohered with psychedelic evangelist outposts, supported with political tithing, for cultivation, growth and harvesting of state-sponsored politically correct ‘vision’ for presidential consumption! Some day, animist president would, upon precedent of State House church and mosque, build and set up his or her own Arusi Iyi, Sango or some Nigeria film industry’s izhagaba shrine and voodoo shop! on Aso Rock ground! And with ‘his’ ‘hawkeyed’ symbol of worship on the presidential desk in the Oval Office, or prominently displayed on that imperial looking-down-on-minions presidential mount of the Aso Chambers!
And why not! Or would the animist presidential hopeful be denied qualification by an INEC for election, for his animism! That, would be ‘unconstitutional’ and specifically in violation of equal protection. After all, this President, some other GCFR(s), of yore, prospective pretenders and jingoists to the Office, and similar executive outposts in the several states are profuse in their respective Godian pontifications to and for their ‘state’ actions, past, present and future! There are more disjointed federal and non-federal trajectories and particulates projected into the constitution making and consequently encoded in the resulting constitution. With this document, as all-encompassing Grund Norm, all officers of State are expected to swear their allegiance to the Constitution and operate by it in their official capacities. Thereafter the Constitution is supreme, its encoded disjointed and inchoate interests and trajectories to the contrary. That, is THE CONSTITUTION!
The resulting document, from which Nigeria’s concept of the constitutional is derived, articulated and projected, may not doctrinally and systemically be federal. It may ‘feel good’ and ‘sound good’ that these indisputably confrontationist interests and trajectories are ‘taken care of,’ or more likely the obverse, in the constitution making with its resulting document. But the extant and inherently prospective demands and foibles of these atomistic interests and territories, deriving their competing energies from the presumably vexious constitution that failed to settle their respective demands and claims, are not, after all, federal. They are asymmetric to one another, both in theory and practice. They cannot, by their aggregate nature, be federal. For if the emerging constitution were federal, the extant protagonist atomism and anomie of the presumptive Nigeria federal canvas would not exist, or would at least be less vociferous than, for example, the consuming Niger Delta conflagratory tension. This is more so that the atomistic interests emerged from the constitution making with inequitable distribution of powers and general resources among the respective federal and federating powers.
To the extent of the above illustration, a Court may blush in ‘doing,’ and the Society may gloat in ‘achieving,’ the constitutional, but fails the federal. And since the Court is cast in presumptive federal boilerplate, upon which it is under the doctrine of judicial review the final arbiter of what the law is, as we shall illustrate in the following, its adjudication principle need decisively be federal, and based not just on the constitutional. And where Federal Court is in a case or controversy confronted with the constitutional but the real issue, pendent, in the case or controversy, is essentially federal, it is bound to the federal and not the constitutional, where the constitutional is inconsistent with federality of the issue. In a federation of cognizable federal praxis and practice, the federal is dispositively a priori, while the constitutional is a posteriori.
There has to be content-based federal environment, for the constitutional to operate and thrive. It is not sufficient to proclaim ‘achievement’ of the constitutional but discoverably vacuous of the federal. So, when the Court declares a matter constitutional, there ought to be irrebuttable presumption that the declaration purports inherent inclusiveness of the federal. Where, on the other hand, the Court declares a matter constitutional but lacking federal content, the declaration is inapposite to cognizable federal praxis and thus asymmetric to federalism, its purport of constitutionality to the contrary. Where a matter is ruled unconstitutional, but the defense, or originating claim is based both on the theoretical and behavioral federality of the issue in question, to which the decision maker is bound or ought to appreciate and recognize, the ruling is afederal and lacks federal standing. The ruling ought not to stand, as it lacks federal jurisprudential basis and merit.
Examples of recent judicial holdings of the Supreme Court of Nigeria canonizing textualist doctrine in its interpretive jurisdiction abound. In its lead judgments and to those extent as laws of the Land, the Court erects textualist defenses, to the effect that the ‘controlling cause’ of the holdings is as located in and thus guided by relevant texts of the Constitution. And, appropriately, the Court says, the holdings are ‘constitutional,’ even while it acknowledges at the same time that, although the holdings are ‘textually constitutional,’ they are not necessarily federal. See Attorney General of Ondo State v Attorney General of the Federation (“…both the Federal and State Governments share the power to legislate in order to abolish corruption and abuse of office.
If this is in breach of the principles of federalism, then I am afraid it is the Constitution that makes provisions that have facilitated breach of the principles. As far as the aberration is supported by the provisions of the Constitution, I think it cannot rightly be argued that an illegality has occurred by the failure of the Constitution to adhere to the cardinal principles which are at best ideals to follow or guidance for an ideal situation.”) (Emphasis added) (Chief Justice Muhammadu L. Uwais); Attorney Gen. of Abia State v Attorney Gen. of the Federation (“Ideally, propounded principles of constitutional law should be applied in the interpretation of the Constitution; but where such principles are expressly or impliedly excluded by the Constitution itself, I am afraid it will be difficult or untenable for the courts to follow the dictates of the principles.” Chief Justice Muhammadu L. Uwais.
Due regard and deserving deference are given to constitutionally associated judicial authority with related canonical weight of the preceding holdings of the Chief Justice. There is, however, it need be pointed out, no foundation, theoretical and or philosophical, giving federal credence to whatever the underlying presumptions controlling a judicial holding that attempts to subordinate canons or principles of federalism to statist derision of “at best ideals to follow or guidance for an ideal situation.”
The scholarship, if any, husbanding this veneer of constitutional construction judicially associated to principles of federalism, derisively regarded as “at best ‘ideals’ to follow or guidance for an ‘ideal situation’” is, although ‘constitutional,’ domained in Nigeria’s neofederalist school of thought. See Macebuh, Dysfunctional Rise and Power of Nigerian Neo-federalist School (2003). A collateral hazard of the neo-federalist scholarship is that wooden, static and or mechanistic operationalization of textualist doctrine in interpretation of constitutional provision derogates from settled principles of construction for operative schema of federalist praxis. Thus textualist rigidity, of strict constructionist veneer, which devalues reliance interest doctrine that is tailored for protection of vested public, as against innocuous governmental, interest, derogates from organic nature, intent and spirit of federal constitutionalism. Fay v Noia, 372 U.S 391 (1963); Planned Parenthood of South-Eastern Pennsylvania v Casey, 112 S.Ct. 2791, 2809 (1992)(“People have organized their intimate relationships and made choices that define their views of themselves and their place in society in reliance upon the availability of abortion in the event that contraception should fail”).
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