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By

Bolaji Akinyemi

Former Minister of External Affairs

 November 29, 2004

This topic is fit for a doctoral dissertation. It has so many dimensions that I am stuck between being a fox and being a hedgehog. A fox wanders far and wide and knows a little about a lot of things. A hedgehog on the other hand does not wonder too far from home. He therefore knows a lot about a few things. So, I can spread this lecture thin and wide or concentrate on just a few critical but illuminating areas. I probably will straddle both approaches.

Federalism implies the existence of differences, that are perceived to be so fundamental as to have the capability of blossoming into conflicts, but which if properly handled, can be prevented from developing into irreconcilable conflicts. Let me seek to deconstruct this statement. Firstly, for federalism as a structural system to be considered, those in charge of the management of the system must perceive that there are differences among the groups enclosed by the system. Secondly, they must perceive that these differences are not minuscule in nature but that they are of such a fundamental nature as to pose very serious problems that could put in jeopardy the whole existence of the system. Thirdly, they must perceive that if properly managed these differences can be accommodated through the granting of sufficient autonomy. Fourthly, if preserved, the system will be beneficial to all parts of the system, not just a section of it. It is this mutuality of benefits that justifies the expense, the energy and the frustrations incurred in operating the system.

In the paragraph above, one recurrent word has been 'perceive". This word has been used deliberately to connote the non-objectivity of human affairs. As much as we try to introduce rationality into human affairs, through a process of thinking things through, we simply cannot achieve the objectivity of the physical sciences. In human affairs, it is the perception not the reality of the state of affairs that matter. Of course, a high degree of false or mistaken perception can end up becoming a delusion with the consequent failure to achieve desired or targeted objectives. Many a general had gone to war in the belief that success was round the corner although to find the success an illusion.

As stated earlier, federalism presupposes differences. What is the nature of these differences? If we go back into history' we will discover that the reality of today is not the reality of yesterday. For example, the map of Europe in 1815 after the Congress of Vienna is not the map of Europe today. The boundary of Yorubaland before the advent of colonialism when the Oyo Empire spread to Togo and part of the western flank of Ghana represented a different reality from Yorubaland today. The structural configuration of Africa in the days of the ancient empires of Ghana, Songhai, Mali was different from the structural configuration of Africa today.

So, what is reality? Even though aware of the past, human consciousness makes reality of the present although the past colours the present. Therefore it is an inescapable part of human nature that the focus will be on the present. But a recognition that the present does not represent the totality of reality should put us on guard against making a fetish of the present. This recognition has practical consequences. After three ruinous colossal wars namely: the Crimea war, the WWI and WWII, Europe seems to have come to the realization that the differences which they have so harped upon were perhaps not as fundamental as they thought and that the solution was in integration and not on dissipating tendencies.

The application of this lesson to federalism will highlight the following: (a) what is perceived as fundamental differences may in fact be ephemeral differences; (b) what is perceived as a solution may be so time-bound that the solution needs to be constantly fine-tuned in order to prevent both differences and solution from being fossilised into either irrelevance or catastrophe.

Applying this lesson to Nigeria, there are several ifs we are confronted with. If the British colonial authorities had ruled Nigeria as a unitary structure from 1860, would Nigeria have been ungovernable? Secondly, even in adopting a federal structure, if the British had used a ten or fifteen provincial structure rather than a tripod of three regions, would the perception of what constitutes fundamental differences have been different? And would the solution also have been different?

At any point in time, the solution is a result of the dynamics of contending forces within the system. There is no ideal solution fixed in granite. What we have are parameters of solution outside which there will be no consensus. In the case of Nigeria, the parameters have been drawn to exclude unitarism and confederalism. It is true that in the political contestation, we have often referred to the present system as proto-unitary, and the pre-1966 system as proto-confederal, these should be regarded as political language excesses to which political conflicts are subjected. There is no doubt that in pure political analysis, both the pre-1966 and the present systems fall squarely within the parameters of federalism, although the present system is sailing close to the wind of unitarism.

Therefore, there is no one fixed model of federalism. There are several varieties embodied in the constitutions of the United States, India, Switzerland, Canada, Brazil, Russia and yes, Nigeria. It is an interesting point to wonder whether the United Kingdom qualifies to be regarded as a federation, now that she has regional Assemblies in Wales and Scotland. The point to emphasize is the elasticity of the concept of federalism.

Where you have more than one party to an issue, there are bound to be differences of views, mushrooming into conflicts. The 1999 Constitution recognises several potential areas of conflicts and put structures in place to address these conflicts. The first area in the constitution to turn to is Part 11,

"Concurrent Legislative List". Before delving into this, I must point out what is already obvious from above, which is that there is a general dispute as to the appropriateness of the present constitution. In fact, I will be on safe grounds in asserting that there is a consensus already formed that this is an inappropriate constitution. However, as the Supreme Court has concluded in the ICPC case, whether corruption should have been made a federal matter or not is not a legal issue. Whether it is in the constitution or not as a federal matter is a legal issue that is justiciable. I will return to the role of the Supreme Court later in dealing with institutions set up to resolve conflicts.

In a federation, the Concurrent Legislative List is a minefield for potential conflicts as each of the three layers of government is given powers over the same subjects. In a normal federation, the overriding proviso is of course that where there is a clash, the federal law vis a vis the state law will be superior. There is such an overriding proviso in the Nigerian constitution. In addition, we have an insertion of this proviso on a case by case basis in some areas. As an illustration, Article 12 states "nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to election to a local government in addition to but not inconsistent with any law made by the National Assembly". In other articles relating to other areas of possible conflicts, there is no such proviso. For example, article 16 dealing with censorship states: "The National Assembly may make laws for the establishment of an authority with power to carry out censorship of cinematograph films and to prohibit or restrict the exhibition of such films; and nothing herein shall (a) preclude a House of Assembly from making provision for a similar authority for that State or (b) authorise the exhibition of a cinematograph film in a state without the sanction of the authority established by the Law of that State for the censorship of such films". Why is there no similar provision for the superiority of the federal law as per the example of article 12.'? l am in fact left to wonder as to the usefulness of the federal power in article 16. This is just an example of a potential area of conflict.

The point that I am seeking to make is that the inconsistency in the provisions of the constitution itself is a source of conflict which partisan politics might exploit. In other words, if in spite of the general superiority proviso in the constitution, the drafters still feel the need to repeat it in Article 12, then what interpretation should be given to its omission in Article 16 or any other article for that matter?

There is a fundamental development that should be tackled here. Under normal circumstances, when a matter is not on either the exclusive list or concurrent list, then that matter is usually reserved for the state. And it is so stated in the 1999 Constitution. Under our tradition, criminal law is defined by state law and adjudicated upon in state courts. But in the ICPC case, the Supreme Court has read into general constitutional provisions, the right of the Federal Government to make corruption a concurrent issue. Recently, in a case before a Lagos High Court, the constitutionality of the Economic and Financial Crimes Commission (the Ribadu Commission) was raised. In addition, the Supreme Court has also ruled that cases of failed banks can be tried before either the Federal High Court or State High Court.

These series of cases adequately illustrate the point I was making earlier on about there being no ideal model of federalism. In the United States, there are state laws tried before state courts, and federal laws tried before federal courts. Even the same action can lead to two different offences. For example, the killing of a human being can lead to a charge of murder which is a state offence and a charge of violation of human rights which is a federal offence triable only in a federal court. Under our own system, all federal crimes start in state High Courts, while all state crimes start in state courts and end up in the federal courts through the appeal system.

The first item on the concurrent list can be classified under the general rubric of FINANCES . Various conflicts have already arisen (a) between the Federal Government and the states and (b) among the states themselves. Among these conflicts have been two cases on Resource Control, one case on Revenue Allocation, one case involving grants to local government councils. These cases have been initiated by either the Federal Government or the states, They have gone directly to the Supreme Court as allowed by the Constitution. There is also under consideration a case by the Revenue Mobilisation Allocation and Fiscal Commission against state governments which have deducted from local government allocations.

There may be a temptation to read partisan politics into what we should regard as intergovernmental financial conflicts. But a closer look will show that it is more a case of federal versus state interests. Firstly, all the states which were first line defendants in the first resource control case were PDP and AD (as at that time) states while the Federal Government was controlled by the PDP. The first line defendants called the littoral states were Akwa Ibom, Bayelsea, Cross River, Delta, Lagos, Ogun, Ondo, and Rivers. Secondly, some of the brief filed by some of the PDP states, opposed the briefs filed by other PDP states. Two of the then AD controlled states told me point blank that there was no way they would support resource control, which three of the other AD controlled states were supporting because their states will suffer tremendously if the agitation for resource control were to succeed.

On the local government case, the plaintiff states cut across party lines. Here I am referring to the case instituted by Lagos and other states against the Federal Government for withholding of allocations meant for the local government councils. Again, the fact that this conflict cuts across party lines does not indicate that no partisan mischief could arise, especially if the Supreme Court should rule that the Federal Government has the right to withhold funds to new local governments which are not recognised by the National Assembly. I shall return to this point later. The point right now is that no partisan politics can be read into this particular conflict at this stage.

While still on funding, it should be remembered that the Supreme Court has also ruled in the Resource case that the Federal Government cannot give money directly to the local government for the purpose of primary education. It is still debatable whether the Supreme Court will apply this ruling to other sub-heads as it based its original ruling on constitutional language that is specific to education.

I might as well treat this issue here. The constitution itself seems to have created three legal layers of status for local government councils. Even though article 7(1) of the Constitution states "The system of local government by democratically elected local councils is under this constitution guaranteed...", the position of all the governors, irrespective of party affiliation, has been that the local governments are nothing more than the appendages of the state governments. This position, in as far as funding of education is concerned, was confirmed by the Supreme Court in the Resource case. In furtherance of this stand, Article l(a) of the Fourth Schedule, states: "The main functions of a local government council are as follows: consideration and the making of recommendations to a State Commission ..." In other words, by this article, the constitution allocated an advisory status to the local governments. Article I subsections (b-k) on the other hand empowers local government councils to "collect rates, radio and television licences, establish and maintain cemeteries, burial grounds etc; license bicycles, trucks, canoes etc, etc" There is no doubt in my mind that Article I subsections (b-k) creates a government with powers even if the subjects on which those powers could be exercised appear on the surface to be ephemeral. But I submit that the totality of the subjects covered by these powers, namely: rates, cemeteries, bicycles, hand pushed trucks, canoes, wheel barrows and carts; slaughter houses, slabs, markets, motor parks; public conveniences, construction and maintenance of roads, streets, street lightings, parks, gardens, open spaces; naming of roads and streets; registration of all births, deaths and marriages; out-door advertising and hoarding; movement and keeping of pets; shops and kiosks, restaurants, bakeries, licensing, regulation and control of liquor, cover probably 70 per cent of the daily life of over 90 per cent of the population. The third status which is the one relied upon by the Supreme Court in the already mentioned Resource case is to be found in Article 2 of First Schedule which states that "the functions of a local government shall include participation of such council in the government of a state as respects the following..." Some may argue that there is not much difference between the first and the third status. But I am sure that sometime in the future, we are going to witness a lot of legal fireworks in distinguishing between advisory status and participatory status of local governments.

It says a lot for our political system that for over a year, appointed local government councils replaced elected local governments in clear violation of article 7 (1) of the Constitution and no legal challenges were mounted. This probably was because each of our states runs a one-party system where any councillor or local government chairman who wants to remain politically relevant will not dare cross his governor. Whenever Nigeria gets to the stage of multi-partism on the local and state levels, this particular area is another minefield for conflicts which would be fuelled by partisan interests.

Articles 13 and 14 of the Concurrent Legislative List deal with electricity and the establishment of electric power stations. Anyone familiar with the Enron case in Lagos State will recall the problems encountered in getting NEPA to allow for integration of Lagos generated electricity with the national grid. How much of it was fuelled by legal obstacles and how much was fuelled by partisan considerations given the fact that the

Lagos State and the Federal Governments were under two different parties?

Quite recently, a similar conflict blew up between Ogun, Oyo, Oshun, Ondo and Ekiti states on the one hand and the Nigerian Railways Corporation on the other hand, over a proposed plan by the former to arrange an intra-Odua railway system among themselves. Yet both the former and the latter are under the control of the same party. Or is this case of the victory of group interests over partisan interests?

Still on this issue, only a few days ago, we again witnessed the victory of group interests over partisan politics when all the elected South-West members of the House of Representatives, even though they represented different parties, walked out in protest over the virement of N200million from the Lagos State Bar Beach vote to projects in some northern states

What exactly do I mean when I talk about group interests? I use the term "group interest" in the same way one talks about "national interest"; that is irrespective of which party forms the government of an area, there are certain interests which have been identified as vital to the survival of that area that the whole area will practically rise up in defence of those interests without much ado. A very apt illustration is the division in the country over the issue of the Sovereign National Conference. There was a conference in Abuja in 2002 where this issue came up. Delegates to the conference were drawn on zonal basis. The delegates from the four zones of the South-East, South-West, South-South and the Middle Belt voted for the Sovereign National Conference, while the delegates from the North-East and North-West voted against. This represents the basic national fault lines on this issue irrespective of political party affiliation.

On education, Article 27gives the Federal Government the power to make laws in respect of university education, technological education, or any professional education. Article 29 also empowers the state to make laws for the state with respect to the  establishment of an institution for purposes of university,  technological or professional education. Yet, it must not be forgotten that it is two federal bodies, namely NUC and JAMB who control the establishment of universities and the admission into same. This is another potential minefield for conflicts if people with ulterior motives are allowed near the educational system, as they once were. It is a theoretical possibility for NIJC under a Federal Government controlled by one party to refuse to approve the application for the establishment of a university by a state controlled by another party. And it is a theoretical possibility for NUC to refuse to accredit some of the courses / just to make life difficult for the state authorities. After all, it is in this same country, in the First Republic, where roads were dug up, or electricity cut off, in areas that voted for the opposition party.

The above do not by any means represent the totality of areas of potential conflict. I have just drawn on examples that will focus our minds. Of course, you may wonder whether there is anything that cannot be manipulated into crisis. And you will be right. If you cast your mind back, not too far back, to the bloody brouhaha between LASTMA or FERMA, then my case would be clearer. When Chief (Anthony) Anenih of the PDP was the Hon. Minister for Works, there was no problem between the Federal Government and Lagos State. But when Chief Ogunlewe, a Lagosian, became the Minister of Works, all hell broke loose.

The next issue that I will consider will be the institutions for conflict resolution. You may be surprised by my first choice. In a political system whether federal or not, there is a role for political parties in resolving major differences. The usual political differences can be accommodated within the permissible gimmicks of political rivalry. But when issues are critical and fundamental, an informal forum of political parties can come in very useful. Of course, this would only happen if there are only two or three strong political parties. In Nigeria, the Supreme Court judgment on the registration of political  parties has turned what should normally be a serious affair into a rascally and hilarious affair. I thought it is one of the cardinal principles of law that a court does not give judgment which will bring the judiciary into ridicule. The interpretation given the constitution on this issue has brought the judiciary and the constitution into ridicule. Whenever sanity returns into the Nigerian party system, we should consider an informal party forum as a veritable instrument of conflict resolution.

It should not be forgotten by the political class, irrespective of party affiliation, that they have a common interest in survival. The political class has a common rival and that is the military establishment. The military is the sole beneficiary when the civilian political system breaks down. Artificial majorities and  minorities in the National and State Assemblies cannot duplicate  the role of an informal forum of political parties where consensus can be built around contentious political issues.

The National and State Assemblies have the potential to resolve conflicts, and to introduce an element of tolerance and civility into political rivalry. So far, it is the National Assembly that has shown any inclination along this line by appointing members of the opposition parties to chairmanship of its committees. This is not a constitutional requirement, but a posture that the Assembly has adopted.

1 am not implying that the National Assembly has shown tolerance, wisdom and civility on all matters. The way and manner it has handled the demand for debate on the desirability or otherwise of a sovereign national conference has left a lot to be desired. The majority has handled the matter with an arrogance that is unworthy of a democracy. Nothing would have been lost if it had allowed a full debate on the merits of the issue, if even it was going to use its majority to vote down the issue. But on the issue of opposition members being chairmen of committees, it has shown a welcome innovation that should be emulated by the State Assemblies.

We should also bear in mind the positive role of the National Assembly in dousing tension over the Resource control controversy. It should not be forgotten that the Supreme Court ruled against the littoral states on that controversy, following which a political solution was sought, in the form of national legislation. The National Assembly passed the Act, an action that did not endear the Assembly to some states, which have now filed another action before the Supreme Court to have the law annulled.

I must also point out the role played by the House of Representative, one of the National Assembly chambers, in rebuffing the moves by the Federal Government on the issue of allowing Joshua Dariye to return to Plateau State as governor.

In all these cases, party members in the National Assembly were not carrying out any party instructions as the PDP party itself was divided on the issues. PDP members in the National Assembly seemed to have developed a national focus while PDP members at the state level seem to have developed a state focus.

The National Assembly has a critical and defining role when it comes to creation of new local governments and new states. The main reason why civilian governments have never been able to create new states is because the political class have never quite figured out what political trade-offs should be activated. The only exception was the 1963 creation of the Mid-West Region which was done by the then Balewa Federal Government to punish the Action Group-dominated Western Region. It is rather instructive that having done that it did not proceed to create more regions even though there were agitations for more states in the North and the East. It is also enlightening to read in a recent biography of General Yakubu Gowon, that it was only after he had explained to the Northern political elite that revenue and federal amenities would now be divided on the number of states in a particular area, hence the greater the number of states in a region the higher the returns to that region, that the Northern political elite agreed to state creation in the North.

With the National Assembly playing the deciding role in the creation of new local governments and states, party control of the National Assembly becomes critical. If the National Assembly treats requests for more states and local governments with the maturity and positive nationalism as it treated the issue of resource control, then it would not add to the political venom in the system. But, if it treats them with the same partisan mentality and disdain with which it treated the demand for a debate on the convening of a Sovereign National Conference, then political crisis of great magnitude would be the result.

Professor Akinyeml’s lecture at the first intergovenmental quarterly roundtable on development held under the auspices of the Lagos State House of Assembly

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