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By Kingsley U Macebuh
Friday, September 10, 2004
Kingsley Macebuh continues his 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.
The hazard of neofederalist scholarship is more critical particularly where, in judicial formulation of necessary new jurisprudence for fledgling post-military presidential-bicameral canvas, which is befogged of pluralist cleavages, prophylactic presumptions are brought to bear on and by it importing rascally discomfiture into settled principles and doctrines of federalism, of no lean academic authority, as the following demonstrate. Burgess and Gagnon, Comparative Federalism and Federation; Harvester Wheatsheaf, Hemel Hempstead (1993); Davis, Rufus S., The Federalist Principle: A Journey Through Time In Quest for Meaning; University of California, Berkeley and Los Angeles (1978); Duchacek, Ivo, Comparative Federalism: The Theoretical Dimension of Politics (revised edition), University of Alabama Press, Lanham (1987); Elazar, Daniel J., International and Comparative Federalism, Political Science and Politics (June 1993); Elazar, Daniel J. Federal Systems of the World: A Handbook of Federal, Confederal and Autonomy Arrangements; Longman Current Affairs, Harlow, United Kingdom (1991); Elazar, Daniel J., Exploring Federalism, University of Alabama Press, Tuscaloosa, Alabama (1987); Elazar, Daniel J.,
Federalism as Grand Design: Political Philosophers and the Federal Principle, University of Alabama Press, Lanham (1978); Freidrich, Carl J., Trends of Federalism in Theory and Practice, Prego, New York (1968); Landau, Martin, Federalism, Redundancy and System Reliability, Publius (1973); Pennock, J. R., Federal and Unitary Government - Disharmony and Reliability; Behavioral Science 159; Requejo, Ferran, Cultural Pluralism, Nationalism and Federalism: A Revision of Democratic Citizenship in Plurinational States; European Journal of Political Research 255-286 (1999); Requejo, Ferran, Federalism and National Groups, Document on Forum of Federations; Department of Political and Social Sciences, Universitat Pompeu Fabra, Barcelona (2000); Riker, William H., Federalism; Handbook of Political Science Vol. 5: Governmental Institutions and Processes, Fred I. Greenstein and Nelson W. Polsby, ed.; Addison-Welsley, Reading, Massachusetts (1975); Sawer, Godfrey, Modern Federalism, C. A. Watts, London (1969); Watts, Ronald L., Federal Systems and Accommodation of Distinct Groups:
A Comparative Survey of Institutional Arrangements for Aboriginal Peoples; Institute of Intergovernmental Relations; Queens University, Kingston, Ontario (1998); Watts, Ronald L., The Theoretical and Practical Implications of Asymmetrical Federalism: The Canadian Experience in Comparative Perspective; XVI World Congress of the International Political Science Association; (August 1994); Watts, Ronald L., The Survival or Disintegration of Federation: Must Canada Fail? R. Simon, Ed.; McGill - Queens University Press, Montreal (1977); Watts, Ronald L., Administration In Federal Systems, Hutchinson Educational (1970); Watts, Ronald L., Multicultural Societies and federalism: Studies on Royal Commission on Bilingualism and Biculturalism No. 8; Information Canada, Ottawa (1970); Watts, Ronald L., New Federations: Experiments In the Commonwealth; Clarendon Press, Oxford (1966); Wheare, K. C., Federal Government, 4th Edition; Oxford University Press, London (1963); Wiesner, Siegfried, Federalism: An Architecture of Freedom; New Europe Law Review, 1 (2) 129-142 (1993); Wildavsky, Aron, Editor., American Federalism In Perspective; Little Brown, Boston.
Nor is Ojo Maduekwe’s neofederalist thesis, of Nigeria’s Federal Government ‘creating’ and thus ‘fathering’ the federating states and by implication legitimating statist configuration and operation of the Nigerian State as a ‘federation,’ theoretically supportable for empirical verifiability in light of longstanding beehive of authorities on federalism, as shown. See Maduekwe, Ojo, Nigeria Cannot Continue Like This … THISDAY, The Sunday Newspaper, page 15, May 23, 2004, Maduekwe posits: “People must not forget that the federating units of Nigeria did not come together to form Nigeria. You had Nigeria and Nigeria was now creating the federating unit[s] … So the component units of Nigeria at all tiers derived their authority from the [central] government …”
Maduekwe appears to be saying that in a ‘classical’ federation, existing states, on their voluntary consent, decide what powers to delegate or grant to their central (federal) government, reserving everything else, not within the delegation or grant of powers, to themselves and their people, respectively. The United States may be said to represent a Maduekwe ‘classical’ federation. Elaborating on the Maduekwe thesis, it appears it contends, then, that the holistic and omnibus, superman Constitution of ‘federation of states’ and central government of Nigeria (no federating state can have its own state constitution) was or is ‘created’ by the ‘federal’ government. It appears to further contend that the states had no precursor origin but were whimsical fiats by and, therefore, naturally subordinate to the ‘federal’ center that ‘created’ them, in the ‘constitutional’ ordering of political and economic powers of the federation. But Nigeria, today, is constituted of 36 and not 37 states, meaning that the central government is not a state but merely representative of the 36 states!
The Maduekwe thesis is a precise representation of the login of Nigeria’s neofederalist school of thought. It is by this palace-tailored intellectual veil that monobranchist foible of executive branch of governments in Nigeria is driven toward tactical collapse of separation of powers, for statist gains. But the Maduekwe neofederalist representation is not sustainable to the extent that it bellies settled doctrines and principles of federalism. Furthermore, whether or not post-Independence Nigerian federalism ‘evolved’ from Regional to Provincial and in the present to ‘Federating State’ structure is not material. It is neither this arguable evolutional transition in search of the elusive Durable Order, nor the disputable historical devolution of residual powers from the Center to its ‘constituent units’ that is controlling in the behavioral analysis of separation of territorial jurisdictions of the Nigerian Federation.
Both the evolutional and devolutional tracks are incidental variables in the search for positive federalism in Nigeria. It neither is material, in the drive toward positive federalism, that a unitarist Center, such as Nigeria’s ‘Federal’ Government, ‘created’ or ‘devolved’ powers to its ‘federating’ Units. Nor is there theoretical value that sovereignties, such as the Thirteen Founding States of the United States, of presumptively no greater power, then, of their founding era, created the Federal Government of the United States, in all sense of it, by delegating or granting enumerated powers to the Center. What is controlling and thus dispositive is testable, verifiable and reproducible evidence, from settled theory, of behavioral structure, functions, and prescribed parameters of territorial jurisdiction of respective constituent units of non-asymmetric federation, among federal political system typologies.
After all, before the historical imperial incident of the founding of Nigeria and then the Federation and consequently the post-Independence Federal Government, there were, historically, emirates, empires and kingdoms of Borno, Ife, Efik, among others, of respective social and governmental authority. Attorney General of the Federation [of Nigeria] v Attorney General of Abia State & Ors, SC 28 (2001) (“Until the advent of British colonial rule in what is now known as the Federal Republic of Nigeria (Nigeria, for short), there existed at various times various sovereign states known as emirates, kingdoms and empires made up of ethnic groups in Nigeria.”) (emphasis added). Nigeria has not gained any appreciable territory, if any, since amalgamation of the primordial territories that composed Nigeria. It might even have lost territory since then, not excluding the impending historic debacle of ceding the Bakassi territory, a constitutionally ordained part of Nigeria to Cameroon, as resulting from the Camaroun v Nigeria legal battle at The Hague, which Cameroun won.
In sum, in a proper federal scheme, which Nigeria strives to represent, it is the duty of Courts of the Federation, in the necessary and proper need for devise of fitting doctrine of constitutional interpretation, to disembowel every word and phrase in the Constitution and give it, where absent, federal representation. Yes, a judicial court is historically not disposed to be party in interest to the extent of originating on its own case or controversy for adjudication. But then, Federal Court, as fundamental tool of exercise of judicial power of a federation, more so as judicial instrument of separate but coordinate branch of federal governance, may not idle and watch federalism hamstrung by opportunistic conspiracy of the political, that is, legislative and executive, branches of the government. The political branches could, on worst case scenario, be tyrannical to the people and State by asymmetric convergence of the two, or collapse of one into the other with intent of ousting the judicial branch from its role as apolitical watchdog of the State.
On Local Government and the (Federal?) Constitution
As necessarily connected to the preceding, provision for local government structuring, for example, a decisively federating state scheme, in federal constitution of presumptuous federating states, upon which the center (federal government) is created or implicitly exists in representative capacity for the federating states, is, although ‘constitutional,’ afederal. A purport of ‘constitutional’ case arising therefrom is non-justiciable and lacks federal standing. In light of this, it, certainly, makes little or no sense, at all, except, perhaps, of befuddled ‘politics,’ the raging but egotistically contrived controversy on what is expected to be an elementary understanding or interpretation of non-complicated Section 8 provisions of the Constitution on creation of more local government areas. It ought to be affirmative that the ordaining and creating of more local government areas is fundamentally a state action. Section 8 (3). Federal input or role, by the National Assembly, in this state exercise, is essentially consequential, as dictated by Sec. 8 (5), which states, “An Act of the National Assembly passed in accordance with this section shall make consequential provisions with respect to names and headquarters of local government areas….”
To enable the National Assembly perform this duty, Section 8 (6) directs that the relevant state’s House of Assembly shall make adequate returns on the newly created local government areas to each House of the National Assembly. It is, therefore, incomprehensible, logically, the apparent difficulty of appreciating elementary reading, devoid of spurious and fratricidal constructions, that an action consequential is essentially post hoc and does not derogate from substantial nature of the original action, to which the consequential action follows or is subsidiary. A newly created local government area can exist and function, in reality, as may arise from its creation, in exercise of a state’s reserved police power and as expressly vested in the state by Sec. 8 (3) of the Constitution. The National Assembly may, by political considerations, in relation to the political party that controls it, as it, for sure, currently does, and to which it is entitled, as a political institution, take 100 years or more to make the consequential provisions, by appropriate legislation! This federal legislative action is only procedural. It can take place only consequent to the substantive action of the creating of more local government areas by a state. Logically, therefore, a procedural action or exercise of power, which may be harmless if not exercised at all or exercised after over-extended period of delay, cannot claim to be controlling over original and substantive action. The elasticity and absence of time bar for the constitutionally directed bicameral action, for the consequential provisions, imposes no estoppel of operation of lawfully created local government areas.
Many a commentator with verifiable interest that is not less sentimental and pecuniary has ‘construed’ the consequential provision Clause of Section 8(5) of the Constitution to stand for the proposition that creation by a state of more local government areas must be made to reflect textually in the Constitution. What the commentator supposedly means is that the names and headquarters of newly created local government areas must appear in the Constitution, as the founding ones that came into existence together with the Constitution. And that to do so, the Constitution must be amended, before the new local government areas can be constitutionally accepted and enabled for, e.g., Federation Account funding. Even if this ‘construction’ were correct, the original local government areas that originated with the Constitution in 1999 would no longer be the same. This would be the case to the extent that some of the local government areas’ names, headquarters and boundaries would have been disturbed, chopped and consequently altered by the act of creation of new ones from among them.
New local government areas cannot be created outside existing boundaries of a state, except subject to provisions of Sec. 8(2). So, if the general commentator’s reading or construction of the Constitution were correct, it then would stand for the proposition that the Constitution had to be amended to reflect the relevant change or changes and every time a new local government area or a state was created. This would be so in order to enable the new local government area or state to pass a general commentator’s constitutional muster. But these constructions or readings of the Constitution would palpably be wrong. Such constructions would not reflect history, philosophy, theory and practice of federal constitutionalism nor, for that matter, comparative federal constitutional operation of the world’s very few presidential-bicameral federations similar in principle to Nigeria’s, which are Argentina, Brazil, Mexico and the United States.
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