INTRODUCTION
In 1954, the Nigerian founding fathers opted for a federal system of government despite its inherent challenges in a pluralistic society. This research work x-rayed kòfederalism in Nigeria as the only basis upon which Nigeria can remain united despite its diversity and peculiar conditions in which the different tribal groups live in and proffers solutions to the challenges of the practice of federalism in Nigeria. The greatest problem of federalism in Nigeria today is the general problems of the true nature of the federal relationship as manifested in the intense rivalry and confrontation between the Federal and State Governments.
This work recommends that the calls for the restructuring of federalism in Nigeria under the 1999 Constitution (as amended) should be implemented and federalism demands of them co-operation with one another in order to promote the welfare of the people through their combined powers.
BACKGROUND
Federalism is a system of governmental organization whereby two or more independent states agreed to form a common government while retaining their distinctive autonomy. It is a concept that attempts to give meaning to a form of government in which, rather than being concentrated in one body, is decentralized between the central authority and the component units that come together out of one or more significant reasons, and to which there exist a constitutional stipulation of the nature and period of exercising the specific power to avoid clashes and a provision for a means of compromise when clashes are inevitable.
A federalism or federal principles, denote the division of law making authorities in a federal set up between the central authority of the federation and the authority of the components or units of government and the vesting of autonomy to each of these different governmental authority in such a way that none can interfere with the legislative authority of the other. The term federalism originated from a Latin expression pronounced “faedus” which refers to a covenant1. Federalism as a concept is traceable to the ancient twelve tribes of Israel and the league of Greek City States2.
There are usually two main levels: (a) a national, central or federal level; and (b) a state, provincial or regional level. In some cases, however, a federal system may prescribe a three-fold distribution of power by recognizing the constitutional powers of local government (e.g. South Africa) or by creating complex forms of overlapping territorial and linguistic federalism (e.g. Belgium). Federalism thereby allows distinct communities, defined by their territorial boundaries, to exercise guaranteed autonomy over certain matters of particular importance to them while being part of a larger federal union through which shared powers and responsibilities are exercised over matters of common concern.
To achieve this, the components of a federal system include, in addition to legislative and executive (and sometimes judicial) institutions at each level of government, a relatively rigid constitution that sets out the distribution of powers among the various levels of government and a supreme judicial body that is responsible for adjudicating disputes between them.
Efficiency federalism occurs when a culturally homogeneous but geographically large nation wishes to improve democratic representation and accountability by decentralizing power and giving greater control over resources and policies to International IDEA 5 Local people while maintaining national unity and the ability to act coherently in matters of national policy (e.g. Germany, Argentina).
Federalism attempts to reconcile a desire for unity and communality on certain issues with a desire for diversity and autonomy on others (see Figure 2.1). The question of whether federalism is suitable for a given country (and, if so, what form federal institutions should take and to what extent the federal principle should be applied) therefore depends chiefly on the balance between common interests or identities, on the one hand, and divergent interests or identities, on the other.
FEATURES OF FEDERALISM IN NIGERIA
- Governmental powers are shared between the Federal and State governments.
- Its operation is backed up by a federal constitution, which is usually written and rigid in nature.
- It is popularly known as a three (3) tier government.
- There is the supremacy of the constitution.
- It ensures equal representation of all groups.
- Federal government practices bicameral legislature.
- It observes the principle of separation of powers.
- It grants autonomy to the constituent units.
- It encourages grass root participation.
THE IDEALIST’S FEDERALISM
The aim of federalism in any country is to make sure that every level of government is adequately represented The major reason for the adoption of federal system of government in Nigeria is borne out of the historical experience that brought all the ethical groups together under one Nigeria. It has severally been emphasized by both the Northern and Western politicians that God did not create Nigeria but the British.
History: The British in their quest for economic wealth and geo-political edges over other Europeans in Africa made Nigeria the largest British colony in Africa. The Emergence of Nigeria as a political entity under colonial rule was not an easy affair. It came about following the necessity for administrative convenience and managerial expenses.
Unity of the country: In many countries of the world, federalism has emerged as a means of accommodating the growing desire of people to preserve or revive the intimacy of small societies and the growing necessity for larger combinations to mobilize the utilization of common resources.
Political culture of Nigeria: Evidently, Nigeria’s political culture was federalism friendly and that gave rise to easy adoption of federalism. As I have already explained, Nigeria is an amalgamation of three different regions with beliefs and customs. Federalism was the only solution to ensure peace and unity amongst the leaders and the citizens and that was why federalism was adopted into the Nigerian political system.
Ethnic, Religious and Geographical Factor: Common national, racial, religious, cultural linguistic or social ties have often contributed to the unification of political unit. In some areas where major communal or other social antagonism cuts across territorial boundaries, ranging through all the federating units, communities or classes have been driven to seek to protect or strengthen their position by inter-territorial union.
The fear of ethnic groups overlapping regional boundaries and the loyalties of castes cutting of some extent across provincial political boundaries also encourage some groups to support wider federal unions. There is no doubt that geographical factored are one of the influential reasons for federalism in Nigeria. The effectiveness of linking communications has been a vital factor in geographical unit.
Resource control: The availability of resources in a particular region and the need for that area to control the resources has also been seen as a reason for a federal system in Nigeria. This has nexus with the particular sharing formula adopted. In a unitary constitution which opposes federal principles, everything belongs to the central government; the federating unit does not exist, let alone agitating for resource control. However, that is not so in a federal government system.
Take for example, in the Nigerian case of Attorney General of Federation v Attorney General of Abia and others, the issue of resource control in a true federalism was the bone of contention in that matter. Here, the Attorney General of the Federation Instituted the case to test the true position so that the federal government would be guided on the varying issues of derivation formula.
The Attorney General sought to know whether the 13% sharing formula of the oil producing states should include revenue from oil producing states should include revenue from oil production activities off shore. It should be noted that the Federal Military Government had earlier by fiat taken proceeds from offshore prospecting and drilling activities directly under federal eminent domain
.
In his judgment, Ogundare JSC agreed that the provisions to Sections 162(2) of the constitution re-stabilized the principle of derivation. This particular corroborated federalism in Nigeria. It established that the resources of a particular state is not totally owned by the federal government.
FEDERALISM IN NIGERIA
The ideal practice of federalism that is preached by the academics is not exactly the status quo currently in place in Nigeria and we would see this unfold in the following.
MATTER OF THE CONCURRENT LIST
The Nigerian federal system has been characterized by tensions and conflicts between the federal and state governments over the allocation of powers. This has led to several court cases where the courts have had to interpret the constitution and decide on the extent of the powers of each level of government. As it stands currently both the federal government and the state government have the power to legislate on items contained in the concurrent list. So the issue then arises as to whose legislation will take precedence in the event of conflict.
This was addressed in the case of AG LAGOS STATE V. EKO HOTEL LIMITED AND Anors. the supreme court did not just re-affirm the decision of the Appeal court that the sales tax law of Lagos state was inconsistent with the VAT Act – (section 4(5) CFRN 1999 {As Amended}), the apex court further confirmed that allowing two laws exist in pari pasu would result in consumer of goods and services being liable to double taxation.
The doctrine of covering the field is a constitutional law principle which is manifested specifically in the federal system of Government. This doctrine manifests where a state house of assembly has already made provisions covering the subject matter of law, the federal law supersedes again per section 4. However when there is only a partial provision of an item on the concurrent list by the federal government then a state can also make a legislation to enhance its own purposes. In the case of ADETONA V. AG OGUN STATE the court held that where the federal law limits its application to the federal level, leaving the states free to exercise their legislative powers on the same subject on the concurrent list. The state can effectively make laws on the same subject matter already legislated upon by the federal law. It remains quite clear that the federal government is the overseer of the federation as such they should unequivocal authority when it comes to the concurrent list.
Other such cases where there was conflict around the federal Government and the state government are:
One such case is Attorney-General of Lagos State v. Attorney-General of the Federation, where the Supreme Court had to decide whether the National Assembly had the power to legislate on matters concerning the administration of criminal justice in states. The court held that the National Assembly had no such power, and that the issue of criminal justice administration was the exclusive preserve of the state governments.
Another important case is A.G Abia State v. A.G Federation, where the Supreme Court had to decide on the extent of the powers of the National Assembly to amend the constitution. The court held that the National Assembly could not alter the basic structure of the constitution without the approval of the states, and that any such alteration would be null and void.
Similarly, in A.G Ogun State v. Aberuagba, the court had to decide on the power of state governors to suspend or remove local government chairmen. The court held that such power was not absolute, and that state governors could only exercise such power where there was a breakdown of law and order.
Another significant case is A.G Ondo State v. A.G Federation, where the Supreme Court had to decide on the allocation of powers between the federal and state governments in matters relating to mineral resources. The court held that while the federal government had exclusive ownership of all minerals and natural resources in Nigeria, the states had control over the exploitation of such resources within their boundaries.
In Attorney-General of Lagos State v. Attorney-General of the Federation – This case dealt with the issue of revenue allocation between the federal and state governments. The Supreme Court held that the principle of derivation, which gives states the right to a share of revenue from resources in their territories, must be upheld.
Finally, in A.G Anambra State v. A.G Federation, the Supreme Court had to decide on the power of the federal government to promulgate regulations for the conduct of local government elections. The court held that such power was unconstitutional, as the regulation of local government elections was the exclusive preserve of the state governments.
FINANCIAL AUTONOMY (LOCAL GOVERNMENT LEVEL)
Section 162 of the constitution provides for the distribution of the amount standing to the credit of the federation account between the Federal, State and Local Government. The following are subsections of 162 that are relevant for the issue to be discussed:
(6) Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the Local Government Councils of the State from the Federation Account and from the Government of the State.
(7) Each State shall pay to Local Government Councils in its area of jurisdiction such proportion of its total
revenue on such terms and in such manner as may be prescribed by the National Assembly.
(8) The amount standing to the credit of Local Government Councils of a State shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.
The sad truth here is that an erroneous act was made by joining the state account with that of the local government, this defeats the idea of autonomy as the local government are now financially dependent on the state house of assembly as provided in section 162 (8). And if looked at it would seem that the state government sometimes use that power to mishandle funds meant for the local government.
An ideal situation would be for constitution to be amended to provide for:
- The National Assembly to be vested with the power to distribute the amount standing to credit the Local Government Council, with recommendations from the Revenue Mobilisation Allocation and Fiscal Commission entailed in section 162(2) of CFRN.
- An account should be made for the Local Government Council in order to give way for true financial independence.
POLITICAL AUTONOMY (LOCAL GOVERNMENT LEVEL)
Another way we see the lack of true autonomy in the Nigerian federalism is in the electoral process at the local government level. Most times a political party could win the presidential election but different parties would be ruling on a government level. This is due to the fact that we practice democracy and as such the leader is being decided by the people. But as we have seen in practice that is not always the case for the Local Government level, more often than not the candidate that wins the Governorship election will make provisions for one of their own to assume position a Local Government Council Chairman and when selected these local government chairmen are sometimes influenced and forced to conform with the decisions of the state government even when it does not favour their constituents. The powers of the state government over that of the local Government is provided for in section 7 (1) CFRN (as amended) this section amongst other things gives the state the power to conduct Local Government Chairman. This was further established in the case of Alhaji Abubakar Atiku v. Independent National Electoral Commission – This case dealt with the issue of the powers of the state governments to conduct local government elections. The Supreme Court held that the state governments had the power to conduct local government elections and that the Independent National Electoral Commission had no role to play in such elections. The state government sometimes use their influence to take control over most of the rights of the local government. Although some of these show of power have been checked by the court in the following cases:
The case of Akan v AG Cross Rivers State dealt with the provision of section 7(1) where the Governor of the State had dissolved all the local government councils in the State and replaced them with caretaker committees. This was challenged at Court. The Court held that such an act was in conflict with section 7(1) of the 1979 constitution and thus void. In Akinpelu v AG Oyo State, the learned trial Judge explicitly stated thus: ” a fortiori, the setting up of a Caretaker committee to replace a democratically elected Council is clearly unconstitutional, illegal and ultra vires…”. Also see Balogun v AG Lagos State where the Court construed the provision of section 7(1). The case of Etim Akpan & Ors v Hon. Peter Umah & Ors also stood to show that the creation of a caretaker committee in place of a democratically elected council is void ab initio based on the provision of section 7(1).
In conclusion, Nigerian federalism is characterized by the allocation of powers between the federal, state and local governments. However, conflicts have arisen over the years between the three levels of government over the extent of their powers. The Nigerian judiciary has been instrumental in resolving these conflicts through its interpretation of the constitution and its application of the law. The cases mentioned above provide a good illustration of the workings of Nigerian federalism and the role of the judiciary in resolving disputes between the federal and state governments. But for there to be a true practice of federalism in Nigeria then the stems of our federalism would need be uprooted and a new foundation that goes in line with the ideal form of federalism would then be put in place. One clearly states the powers of each levels of Government and makes provisions from them to be practiced independent of one another, but yet still work together to promote the welfare of the people through their combined powers.
REFERENCES
THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS AMENDED
A.G. Abia State v. A.G. Federation (2006) 16 NWLR (pt. 1005) 265
Alhaji Abubakar Atiku v. Independent National Electoral Commission (2007) 10 NWLR (pt. 1041) 1
Attorney-General of Lagos State v. Attorney-General of the Federation (2004) 18 NWLR (pt. 905) 1
A.G. Ondo State v. A.G. Federation (2002) 9 NWLR (pt. 772) 222
A.G. Abia State v. A.G. Federation (2006) 16 NWLR (pt. 1005) 265
ADETONA V. AG OGUN STATE [1984] 5 NCLR 299, 308-309
ONLINE REFERENCES: https://www.learnnigerianlaw.com/learn/constitutional-law/local-government https://www.scirp.org/journal/paperinformation.aspx?paperid=78734
https://www.britannica.com/topic/federalism
https://core.ac.uk/download/pdf/234650754.pdf
http://www.forumfed.org/libdocs/Federations/V5N1SEen-int-Auclair.pdf
https://nigerianscholars.com/tutorials/nigerian-federalism/features-of-nigerian-federalism/
Rukkayya Idris is a sophomore year law student of Bayero University Kano and she’s interested in constitutional law, activism and women’s rights.
