Another recurring policy challenge is the structural-process design one about how, and on what basis, to establish unit level governments; what criteria to determine the division and distribution of legislative powers between the federal and unit level governments in the federation; and how to determine the extent of shared-rule or power-sharing at the federal and unit levels. These are considerations for which there can be no final answers, only ad interim political solutions, because there is and can be no true federalism. The challenge has remained intractable since the formative years of federalism in Nigeria because of the psychology of the mutual fear of domination, reflecting lack of both trust and reciprocity in ethnic relations, among ethnic fractions of Nigeria’s political class.
The psychology of domination continues to reflect two salient features of our federal practice. The first is the failure to compact significantly unproblematic political succession, especially at the federal level, and in our electoral governance generally. The failure points to serious challenges about competitive party and electoral politics as a mechanism for the democratic management of diversity in the country. The second is that we need to go beyond a structural-material explanation of the challenge of federalism in Nigeria to turn the searchlight on the constricting impact on federalism in Nigeria of the unwholesome consequences of a dominant anti-democratic political culture among our political class.
Let me elaborate on the second point. The country must not fall victim to the fetishism or magic of legal-constitutional design. It must also begin to find ways of strengthening and deepening the spirit, the political culture of democracy and federalism, as mechanisms for managing diversity and for pursuing the public interest in a plural society; otherwise the design effort will be in vain. A fundamental challenge of democracy and federalism in Nigeria has less to do with constitutional design than with cultivating and nurturing a democratic culture, which binds and restraints all, and which is anchored as much on the letter as the spirit of the laws, on “the rule of law,” and not “rule by law.” This is a gap that we need to fill by turning the searchlight on the material, cultural, normative, and social anchors and pressures that will strengthen democratic political culture generally in state and society and serve at the same time to make the constitutional and political architecture of democracy and federalism much more durable and incorruptible. The challenge of democracy and federalism in Nigeria is that they gravely lack the firm critical and facilitative normative, psycho-cultural and material anchors to strengthen them.
In the next section, I advance three propositions about a series of intersecting ethical and cultural and material-structural factors, which continue to complicate the country’s experiment with federalism.
My first proposition is that a major weakness in the practice of democracy and federalism in Nigeria arises is that our political institutions and the processes that propel them are not anchored on a democratic political and legal culture, which defines politics as a public interest project, as envisioned under Chapter 2, Section 14(1-2) of Nigeria’s Constitution. This weakness has created “the massive problem of the structural condition of Nigeria,” with deep roots in the way state power, with its induced behavioral correlates of primitive accumulation or “booty capitalism,” has been organized to undermine human security and the sovereign rights of the citizen under Chapter 2, at all levels of the country’s federal system.
My second proposition is that how the country approaches and resolves two critical policy issues will show whether it has made the right turn at the crossroads the country now finds itself in. These are (i) the lingering and seemingly interminable problem of constitutional and electoral reform, and related to it, the politics of succession at the federal and state levels; and (ii) the structural and social problem of development, of which the Niger Delta Question, and creeping insurgences across the country, with the underlying and broader citizenship question they raise, are microcosms of the larger national question of how we untie the complex knot of our federalism as ‘unity in diversity,’ or ‘diversity in unity,’ and remove the islands of internal colonialism that straddle our urban geography, as a result of uneven distribution of social and physical infrastructures and corrupt enrichment.
My third proposition is that taking the right turn at the crossroads requires learning appropriate lessons to reinvent and strengthen federalism and democracy in the country, from some historic missed opportunities and milestones or ‘gaps’ in our constitutional and political history. Regarding federalism, the missed opportunities are:
The failure to define with finality the unit level governments in the Nigerian federation, what criteria should inform their creation, and the ambivalence about extending the notion of home-rule that defines the relationship between the federal and unit level governments to that between sub-unit levels, such as the local government, and the federal and/or unit levels of our federal system;
The abuse and the misapplication of the federal character provisions in the country’s constitution since 1979, by strategic gatekeepers; as well as the failure to define indigene in other than blood sense in Nigerian constitutions since the 1979 Constitution. The tension arising from the assertion of indigene claims as ethnic identity claims reflects a fundamental problem in liberal theory in recognizing only individual rights as common citizenship rights, while rejecting group rights, like those asserted by women’s and ethno-communal groups, and, therefore, the legitimate fractured, differentiated or preferential citizenship rights asserted by them, in view of historic discrimination against them; and
An apparently “coordinate,” legalistic, and adversarial/confrontational notion of federalism, as true federalism, which has tended to heighten the cost of federalism in the country, by emphasizing the political asymmetry between the federal and unit level government, while disregarding the political asymmetry between the unit level governments. Yet the notion of true federalism obscures the dynamics of the ebb and flow in federal/unit level power relations by an essentialist and static view of federalism. Power relations in federations are not simply or only a matter of adding up how many powers belong to one level and how many to the other, and concluding therefore that the level that, numerically, has more powers is more powerful in political and sociological terms than the other. The experience of the trajectories of power relations between levels of government in federations, such as Australia, Canada, India, even Nigeria, and the United States of America, shows that it is much more complicated than simply adding up the relative distribution of powers among them. Moreover, the notion of true federalism, in the form of more powers to the states overlooks another dimension of the dialectics of federal-unit level relationships—the issue of overlapping powers and functional interdependence among them. What this means is the need to distinguish between “constitutional form,” and “operational reality” in federal systems, and that what we require is not so much restructuring to give states more powers and fiscal resources as to strengthen the normative and cultural anchors of democratic governance— constitutionalism, the rule of law, separation of powers, ethics and accountability, transparency, inclusion, participation, political decentralization based on the principle of subsidiarity, and pro-democracy civil society.
Regarding democracy, the missed opportunities are:
The lack of demonstrable political will by the country’s political class to undertake and effect electoral reform and to democratize our electoral governance to ensure a high level of electoral integrity; and
The legendary lack of internal democracy within the country’s political parties, especially since the 1999 transition. In this final section, I offer a sketch of “navigational aids” towards a policy framework, informed by the theoretical underpinnings of my three propositions about federalism and democracy in our country. The choice of the navigational aids is premised on the assumption that to move the country forward, we need to (i) rehabilitate federalism and democracy in the country by anchoring their practice more enduringly on the core ethical vocation of politics as a public trust in pursuit of the res publica and the spirit of the law; and (ii) create many layers of devolved and semi-autonomous public authorities, affording our local communities the opportunity for self-government, removed from the centralized and overbearing control of state governments. The primary threat to our federalist ideology and to democracy lies partly in our failure to extend the home rule notion that informs federal-state relations to state-local government relations.
Let me briefly provide a policy framework for navigating the following gaps arising from my analysis: (i) the process for pursuing constitutional reform; (ii) the structure of Nigerian federalism; and (iii) the federal character clauses, and the associated indigene/settler question
What process produces the constitution?
The process for producing and enacting the country’s constitution as the “people’s constitution” continues to be a sore issue in Nigeria. Is it to be done through a constituent assembly, whose members are elected or appointed to represent various stakeholder groups in the country, with how much authority and subject to what overriding authority? Or should the legislatures constitute themselves into constituent assemblies for that purpose, and with how much authority? Does Section 9 of the 1999 Constitution admit of any other authority than the federal and state legislatures to replace or amend, or “alter” the existing one? Indeed, does the legislature under Article 9 have the authority to undertake constitutional review as opposed to constitutional amendment? In other words, is constitutional review different from constitutional amendment?
As the 2012 debate in Tanzania over the country’s constitutional review process underscored, there is some force in the argument that a constitutional review process, as opposed to a constitutional amendment process, must of necessity lie outside the purview of the legislature, since legislators elected under the constitution to be reviewed have an apparent conflict of interest in sitting over the review of the existing constitution, being its beneficiaries. It is for this reason also that the presidency must be insulated as far as possible or practicable from the process. This approach might, as it has done in a number of countries in Anglophone Africa, provide a half-way stop towards the convocation of the sovereign national conferences demanded in some political circles in Nigeria. This is because there are significant historical circumstances and factors, including approaches to constitutional and legal theory, in Anglophone Africa that are dissimilar from those which uniquely led to the convocation of sovereign national conferences in a number of countries in Francophone Africa.
To sustain the myth of the “people’s constitution,” in the sense of such constitution being subjected to, and resulting from a broad-based, national debate, culminating in a national referendum to adopt it, as a condition for enacting it into law, Nigeria can learn useful lessons from recent constitution reform processes in Kenya and Tanzania, where national parliaments partly alienated their constitutional amendment powers by enacting legislation with provisions for (i) setting up constituent assemblies to review their constitutions, and (ii) subjecting the draft constitutions prepared by the constituent assemblies to national referenda before parliaments enacted them into law.
Structure of the Nigerian Federation
The structure of the Nigerian Federation is an area where, in spite of over 60 years of federal practice in the country, there is still so much confusion and misunderstanding, as in the agitation for true federalism. It is unclear whether the notion of true federalism, as used by its protagonists, refers to a historical form of it in Nigeria, which no longer exists and to which we should now return, or to an idealist or essentialist formulation of what federalism ought to be, as in the reference to coordinate or coequal federalism.
Mistaken though the notion of true federalism is, I think it has become a shorthand expression for a much more complex and dynamic ebb and flow of the political economy of federal/state relations in Nigeria, which has progressively witnessed, since the First Republic, gravitational pull towards one extreme end of the federal spectrum, i.e. organic or centralised federalism.
If proponents of true federalism find the trend too high or prohibitively burdensome a price to pay for federalism, the redesign question, then, becomes how the trend can be reversed, and not only the states but also local governments correspondingly strengthened. It is in this respect that attention has increasingly turned towards pruning down the exclusive and concurrent legislative lists, to vest competence over a vast residual list in state governments. The argument for pruning down both lists is a version of the subsidiarity principle, which states that competence in particular legislative or policy field, especially relating to social and cultural issues in a federation, should be assigned to the level of government that can best perform it efficiently. The point, of course, is that the range and distribution of powers and functions, and of their corresponding revenue or fiscal resource base in a federation is inherently a negotiated political compact, the outcome of the federal bargain, which is itself a function not of some objective criteria but of subjective reactions to the interplay of historical, material and social forces in a federal systems.
The relative length of the legislative competence assigned to each level may not be a reliable reflection of their relative strength, for the weight or significance that can be assigned to each item may vary from one item to the other, and cannot be reduced to mathematical computation of which level has a larger array of legislative competence, and therefore more power relative to the other level. This is because, among federal systems, there is no fixed mathematical formula to be applied mechanically, on the basis of the principle of subsidiarity or any other distribution principles, to inform the quantum of powers and functions assigned to the federal and unit level governments.
It must be noted in this respect that the emergency powers vested at the federal level, a provision, which negates the fundamental federal principle of the inalienability of the self-rule or independence of both levels of government from each other was, historically, a major factor in tilting the federal balance of power in favour of the federal government in Nigeria since it was first used in 1962. The use of similar powers in the “quasi-federal” Indian Constitution, has tended to tilt the federal balance in favour of the centre. It is remarkable, therefore, that even contemporary advocates of true federalism in Nigeria have not demanded the removal of the emergency clauses, which in the country, as in India, have been used for partisan political purposes to tilt the federal balance of power towards the federal government. Here, there is also a clash between two constitutional principles: the overriding authority of the federal government to suspend a state government in order to avoid the breakdown of law and order in any part of the federation, in the event of the imminent threat of external or internal aggression, and the need to respect and not violate the self-government of states.
What about the place and role of local government in our federal structure, in view of the claim that only the federal and state governments are the “federating units” in a federation? For example, what does comparative federalism tell us about the place of local governments in federal theory and federations? This question is important because of the curious claims in some quarters in our country that only the federal and state governments are the “federating units” in federal systems. Even if true, this claim misses the point, which is that the inherent logic of federalism does not necessarily prescribe only two levels of government, federal and state. The claim that there are only two or more levels or tiers of government in a federal system is a contingent, empirical or historical proposition, which may be true of false, and not an analytically true one.
The trend in contemporary federations, however, is the progressive extension and application of the notion of home-rule or self-government that informs the constitutional separation or division of powers and functions between the federal and unit level governments, to the relations between state governments and local governments. For example, in federal systems such as those of Brazil, Germany, India and Mexico, constitutional recognition is granted to the place and role of local governments as autonomous levels or third-tiers of government, which cannot be revoked by the state governments. Indeed, in the case of Brazil each municipality has its own constitution or organic law. The argument is not that local governments are “federating units,” whatever that means, but that the logic of federalism as the deconcentration, not decentralization or devolution, of powers, should be extended to their relations with federal and unit levels of government.
Federal Character of Nigeria and the Indigene/Settler Question
Another recurring challenge is the policy one posed by the entrenchment in our constitutions since 1979 of a combination of individual rights, grounded in the liberal theory of civil and political rights, guaranteed under Chapter IV of the 1999 Constitution of Nigeria, with a collectivist notion of group rights, anchored on our constitutional theory of ethno-federalism in which ethnic groups are regarded as rights-bearing groups, under Chapter II Section 14(3)-(4).
Ordinarily, federalism, through creating two independent levels of governmental authority with direct impact on the citizens, within the same national space, necessarily creates dual or fractured citizenship, national and state citizenship. But with federalism based on ethnic, as opposed to geographical diversity as such, state citizenship is typically defined, in ethnic-based federations, such as Ethiopia and India, more in terms of indigene or blood ties than in terms residency claims. What is required is constructive attempt and political leadership to address and resolve the problem through the re-definition of indigene or state citizenship less in blood than in specified minimum physical residency terms, as has been done in a number of states in India and in the United States. It also requires strengthening governance institutions, and adopting social practices and policies that would promote development as freedom, in other words human security.
To conclude, we need to anchor this policy framework in two areas. First, there is need for what in India, has been described as “the democratization of political information and opinions, as a public investment in the democratic knowledge enterprise.” The objective will be to disseminate information about public matters, to the general public on a regular basis, to promote and encourage greater accountability and transparency in public political life and to routinize a wider process of popular participation in the political process.
Second, we must look beyond the political class to create and nurture political and social institutional networks and subsidiary associations, cutting across ethnic and other primordial identities, made up of professional and non-governmental organizations and community groups to assert peoples’ power, which will mobilize mass political action to resist anti-people policies and impunity by our administrative and political authorities, which deny them the sovereign power under Chapter II of the Nigerian Constitution. In addition to this, as a long-term investment, we need to adopt a reform of our educational system at all levels, focusing on pedagogical as much as on substantive curricular review to create the foundations of the moral reorientation or revolution to drive politics and human development as public interest projects in Nigeria.