By Aare Afe Babalola, SAN

In the course of the previous editions, I have advocated the need to embrace a new socio-political structure in Nigeria rather than continuing with the set-up established by the military which birthed the system of governance we have today.

As I have previously noted, the 1999 Constitution is not a true reflection of the ideals of the Nigerian people who, despite their ethnocultural diversity, are brought together under the aegis of a central government reposed of the entire powers to control the resources of the entire nation, rather than allowing each of the regional units to develop at their own pace, control their respective resources and generally ensure their independence among the comity of states.

In spite of Nigeria’s appellation as ‘Federal’ state, the reality, however, is that Nigeria is a far cry away from what federalism truly entails. It has been noted that the concept of ‘true’ federalism relates to a political order where power is divided between a central government and other regional or constituent units.

Such devolution of powers is entrenched in the Constitution; well spelt out and unambiguous. Neither member unit nor common government can unilaterally alter this Constitution. Such powers may be shared in different ways – sometimes with a stronger centre like in Canada or weaker centres like in the United States of America and Australia. However, the Nigerian concept of federalism is rather more unitary than federalist, with a high concentration of power in the federal government.

The current structural arrangement on which Nigeria is built and administered have both political and economic deformities. Politically, Nigeria’s federal system is, as earlier noted, more unitary than federal, and is unbalanced and unsustainable.

Power is over-concentrated at the centre or the Federal Government at the expense of the other two levels of government (state and local government). Secondly, the 1999 constitution upon which the country is presently running is basically a military, unitary and imperfect constitution, which does not have much bearing to the will or wish of the people.

ALSO READ: Club for restructured Nigeria welcomes Obasanjo: Sovereign National Confab before 2023 elections

Thirdly, there is also the lack of social justice or the rule of law; while the tussle for power is not motivated by service, rather by self-accumulation of wealth and greed by the elites. In economic terms, production is what drives conventional capitalism.

In the case of Nigeria, politics, corruption, political patronage and unproductive consumption are the driving forces of our economic system.

Many Nigerians and political associations saw the danger created by the military and have since been advocating for a true federal constitution which was as enshrined in the 1960 and 1963 Constitutions.

In these political arrangements, sovereignty was non-centralized and was shared between the federal government and the regional levels which, in essence, enabled the regional units have final, concluding authority on some matters. Once again, I must make reference to my article ‘Nigeria in Search of a Nation’ wherein I succinctly captured the decentralized and people-oriented nature of the 1960 and 1963 Constitutions, thus:

‘Our forefathers spent over 10 years deliberating on a people’s constitution that would accommodate the nation’s diversity. They came up with 1960 Constitution which was later substituted with 1963 Constitution. But would this Constitutional framework accord significant respect to the derivative principle?

The areas which produce the bulk of the nation’s resources have the right to a significant proportion of the revenues extracted from the region. Under the 1963 Constitution, the federal government was entitled to pay to each region a sum equal to fifty percent of the proceeds of mining rents and royalty in respect of minerals derived from each region. The Federal Government was obliged to credit to the Distributable Pool Account 30% of the proceeds of the royalty and mining rent received by the federal government after it had given 50% to the producing state. The Federal Government was only entitled to keep for itself 20%’

The Advent of Federalism in Nigeria

Nigeria’s journey towards Federalism predates her independence. The birth of Federalism could be traced to the introduction of the Richard Constitution in 1946, which was premised on a quasi-federal political structure. While trying to write a new constitution for Nigeria, Sir John Macpherson widely consulted stakeholders via distributed questionnaires in 1951.

The purpose was for Nigerians to choose the system of constitution they wanted for the imminent emergence of the country. Out of the several contributions to this quest for a workable constitution, one major input was a memorandum submitted to the constitutional conference in 1950 by the Nigerian Youth Movement which stated that “it is a matter of general agreement that a lasting unity of the people of the vast country can only be achieved through federation not fusion.

Consequently, it is absolutely necessary to lay the foundation for Federation now by dividing the country into the regions that will form the units of the proposed Federal Constitution” This unanimous position of Nigerians led to the declaration of Nigeria as a Federation consisting of three regions; the Northern region, the Eastern region and the Western region with Lagos as the Federal Capital Territory, by both the 1951 and 1954 Constitutions.

One major highlight and strength of the 1954 constitution was the promotion of regional autonomy, which indeed took into consideration the diversities and the cosmopolitan nature of Nigeria. The Constitution, therefore, permitted the regions to prioritise government and develop at their own pace.

This federal system of regional autonomy was maintained by the Independence and Republican Constitutions of 1960 and 1963, respectively, which gave powers, particularly fiscal and economic powers to the regions. However, this structure gave way as a result of military misadventures, starting with the 1966 coup and subsequent countercoup, as well as the civil war from 1967 to 1970.

It has been noted that this was the birth of a unitary system of government which has indeed bequeathed the present lopsided, impracticable, unsustainable and divisive federalism.

ALSO READ: Club for restructured Nigeria welcomes Obasanjo: Sovereign National Confab before 2023 elections (2)

The Unification Decree No. 34, as enacted by General Aguiyi Ironsi, ultimately wiped out the gains of the dispensation of regional autonomy in Nigeria. He infamously stated thus:

‘Nigeria shall on the 24th of May, 1966 cease to be a federation and shall accordingly as from that day be a republic by the name the Republic of Nigeria, consisting the whole territory, which immediately before that day was comprised in a federation’

True to these words, federalism ceased in Nigeria, till this day.

Perhaps to confer some form of legitimacy to the 1999 Constitution, the government has set up very many conferences with different names, all of which at most ended in several amendments to the 1999 Constitution. For instance, in 2014, President Goodluck Jonathan convened a National Conference to, inter alia, ‘engage in intense introspection about the political and socio-economic challenges confronting our nation and to chart the best and most acceptable way for the resolution of such challenges in the collective interest of all the constituent parts of our fatherland’. However, in the words of Nsongurua Udombana, LL. D,

‘The 1999 Constitution has the imprint of authoritarianism written all over it, with no consideration to the genuine desires of the Nigerian people. There was not even the civility of a Constituent Assembly, let alone a referendum, thereby making the “We the people” in the preamble a lie and fraud.

It is an illegitimate document and will remain so notwithstanding the number of amendments, though it may make for a good POL 101 Course on ‘The Making of an Undemocratic Constitution’.

We should never confuse the validity of a constitution with its legitimacy. Validity addresses the question of legality. Decree 24 of 1999 took care of that, which is why the Constitution is justiciable before Nigerian courts. However, legitimacy addresses the question of acceptability, which is a function of the conscious or deliberate participation of the people in the Constitution-making process’

Next week, I will discuss the need to urgently convene a Sovereign National Conference in view of the 2023 general elections to chart the way forward in addressing the unfortunate utilization of politics as a lucrative business a situation which is largely encouraged by the current political structure premised on the 1999 Constitution.

Vanguard