Speeches

Federalism And Public Sector Innovation In Nigeria: Prospects And Constraints

Aug 27, 2008 - I. Introduction

Constitutional Federalism in Nigeria today is faced with some significant challenges, particularly as it relates to the desire of the nations constituent States to improve the social and economic environment for its citizens. While some of these challenges may be traced to provisions of the constitution of the Federal Republic Nigeria 1999 (“the constitution”) which derogate from fundamental tenets of federalism, Some difficulties are traceable to the lack of appreciation of the mechanics of federating states operating within one corporate entity and some to unwillingness on the part of some our compatriots to accept the duality of competence and not the hierarchy of dominance in the operation of federalism. To say that States and sub nationalities are desirous of a better practice of federalism in Nigeria is indeed an understatement.

Analysis of the practice of federalism in Nigeria is not a new subject and some consideration of our federation dates back to the closing days of the colonial era, but has reverberated more clearly in recent times. States have had to contend with some of the issues and explore sometimes novel constitutional means to achieve more respect for constitutional federalism. This presentation focuses on federalism and the related issues constituting impediments to developmental initiatives of State governments. It is important to preface the examination of federalism related issues by examining the present status of federalism which to a large extent has been shaped by political and historical developments.

Present State of Federalism in Nigeria

Federalism in Nigeria today is perhaps best understood within the undercurrent of events that have shaped its growth through the course of Nigerian history. The federal structure enshrined under the Constitution is a product of national political and historical developments. A proper appraisal of the legislative scheme for the division of powers under the 1999 Constitution requires an appreciation of two significant phases in the historical account of federalism in Nigeria, which arguably shaped the provisions of the 1999 Constitution. The first phase was the period when strong sentiments for powerful component regions led to agitations for greater autonomy for the regions. The period between 1951 and 1965 can roughly be described as the first phase. This was a period in Nigerian history when centrifugal tendencies within the system led to greater autonomy for the regions. This was the period of great prosperity, when competition and autonomy resulted in accelerated national progress. The second phase involved a gradual expansion of federal power and a consequent weakening of the power of states vis a vis the federal government. The second phase can be said to have commenced with the Military take over of political power in January of 1966. The period between 1966 and 1976 has been described as a time when the federal government grew steadily in its constitutional and administrative powers at the expense of the states. Therefore the 1999 Constitution reflects the philosophy of centralization of political and financial power.

The 1999 Constitution adopts the power sharing scheme of expressly providing for two express legislative lists, namely the exclusive and concurrent legislative lists and an implied residual list. The Federal Government has exclusive legislative powers over the 68 items on the Exclusive Legislative list. Both the Federal and State governments have powers over matters listed on the Concurrent Legislative List to the extent specified on that list. Matters not listed in any of the two aforementioned lists are deemed to fall within the residual competence of States. The philosophy that ought to guide the sharing of powers in a federation such as ours is to ensure that “national” issues fall within the legislative competence of the national government while “local” issues are reserved for the component units. The Federal Government should have power over those matters that are of general interest to the nation as a whole. The State governments should have powers over those matters that are peculiar to their locality. The basis for conceding local matters to the States is to accommodate the diversities of ethnicity, language, common historical identity and to allow each component unit the liberty and freedom to develop at their own pace – paying attention to municipal needs such as infrastructure, security, transport, and waste as determined by its local population.

A cursory look at the matters included on the Exclusive Legislative List reveals that there are several matters on the List which in other federal jurisdictions are justifiably reserved either exclusively for the States or are concurrent matters over which the national government and the component states have legislative competence. It is widely acknowledged that there is no justifiable argument that supports the power to legislate on prisons, police, railways, fingerprints, identification, and criminal records being reserved exclusively for the Federal Government. The present scheme of allocation of legislative powers under the Constitution is contrary to some of the basic tenets of federalism which envision that local matters should be reserved for the States and truly matters of national interest or matters that affect the nation as whole such as coinage and foreign affairs should be reserved for the Federal Government. It is also against observable practices in other comparative jurisdictions. For instance why should a State Government vested with constitutional powers over land under the Land Use Act have any other statutory or constitutional fetters on use of land by reason of exclusive listing in areas such as railway? It is unlikely that a federal government would be in the best position to appreciate local peculiarities for and concerning this crucial element of mass transportation.
Furthermore the division of powers between the Federal and State Governments under the Constitution fails to achieve a proper balance between the tiers of Government. The picture that emerges from the division of powers under the Constitution is that of power imbalance in favour of the central Government. In this respect the Constitution is markedly different from the American and Australian Constitutions. Of the American Constitution, Woodrow Wilson (United States President) stated in Constitutional Government in the United States (1908) which was quoted with approval by Justice Douglas (of the U.S Supreme Court) in New York v. United States 326 U.S.572 (1946) at p. 592 and by Chief Justice Latham in Melbourne Corporation v. Commonwealth of Australia (1947) 74 C.L.R. 31 at p. 47: “ the State governments are the ordinary government of the country; the Federal Government is its instruments only for particular purposes”.

Given the local peculiarities of government in a federation, only State governments can properly act as the “ordinary government” of the people. Indeed, one cannot but agree with the comments made by the renowned constitutional law jurist Professor BO Nwabueze, SAN where he underlined the incongruity of constituting a National government into the “ordinary government” when he stated that:

“A Federal Government which has exclusive control over trade and commerce within each State, over labour and social security and over much the greater part of university, technological and professional education, which controls the organized coercive forces of law and order in the country, which has concurrent but overriding authority with respect to public safety, public order and essential supplies and services, and which is invested with considerable powers in matters of purely local concern like land and local government is as much, if not more, the ordinary government of the country as the State governments.” B.O. Nwabueze, Federalism in Nigeria under the Presidential Constitution, (1983) at p. vi.

The inconsistencies and contradictions in the current allocation of constitutional powers under the 1999 Constitution should of necessity be addressed through constitutional amendment. I shall now proceed to examine how the present state of affairs constrains development and inhibits public sector response to state wide developmental needs.

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