In most federations, federalism is a product of evolution and a genuine desire to address the challenges of the peculiarities of a given environment. Federalism was adopted in the United States to address the failure of the confederal system which proved largely unsuccessful. In South Africa, it emerged in a bid to heal the apartheid wounds and to preserve the identity and peculiarities of the constituent units. In India, it was perceived as one of the ways to tackle the conflicting and diverse interest of massive layers of identities. Hence the specific nature of the each environment determines the form and manner of the federal structure they adopt.
In some cases the nature of such federal arrangement continues to evolve and change through practices and constitutional amendments. In the United States, what started off as a federal arrangement which was decentralized has become increasingly centralized. In Canada what was designed to be a very centralized government today has become rather a decentralized federation. What these show is that there is no ‘true federalism’ (in the context of best practice model) but rather the structure of each federal union must be contextualized to address the peculiarities of each country and the basic benchmark is that the central and constituents governments have some measure of autonomy. The content and nature of that autonomy is up to each country to decide. The key issue here- is an effective structure that preserves democracy, stability and economic progress of the country.
What is wrong with Nigeria’s federalism?
Federalism requires constitutional democracy hence it is important that the constitution lays out in clear and coherent manner, the devolution of powers and the rights and duties of each constituent unit. The 1999 constitution with respect to its provisions on the federal structure of Nigeria is perceived to suffer from two main problems- the substantive inadequacies of its provisions on federalism that undermines effectiveness and the incoherence in some of its provisions that breeds confusion. It can also be argued that there is a third problem. The inability of the constitution to find a balance between ensuring some level of state/central autonomy and relevant vertical oversight mechanisms that assures that both tiers of government do not have a carte blanche in their spheres of influence.
Re-imagining the federal structure
Today the realities of our environment show that our federalism has not lived up to the job of creating an ‘effective’ state. There are societal drivers for our challenges but the constitutional inadequacies have contributed in no small measures to our lack of expected success. To recalibrate the effectiveness of our constitutional democracy and federal system, it is important that this committee should take a hard look at the following:
(a) The structure and composition of local governments in the country under sections 7 and 8 of 1999 Constitution: This Committee should make a decision on whether to make the local government the third tier of government or administrative unit of the state. The current arrangement is not just working. There is conflicting role between the National Assembly and the State government in the creation and management of local government. This grey area has allowed the state executive to swallow up the relative autonomy of local governments and also precluded the National Assembly or the state Houses of Assembly from exercising any meaningful oversight. The confusion undermines the effectiveness of this very valuable institution. There is need for clarification in the powers, autonomy and federal status of local government. This presentation will argue that it is in the best interest of grassroots development to make local government autonomous with very strict structures of fiscal oversight put in place to avoid abuse. Local government should be in a position to use the judiciary to check perceived excesses of state or federal government. Such arrangement should define a relationship of vertical accountability between the local government and the state in such a way that both have statutory authority to question each other’s activities.
(b) The exclusive legislative list has 68 items for which the federal government can legislate on and by extension implement as against 30 items in the concurrent legislative list (for both state Houses of Assembly and the National Assembly to legislate on). The historical origin for this enlarged exclusive list for the central government stems from the long years of military leadership and the need to ‘keep the country together’ following the civil war. From empirical evidence which can be found in the everyday lives of Nigerians and the inability of the government to meet its objectives in performing its functions under the exclusive list, the extant legal framework has not been very efficient. Without prescribing any ‘ideal model’, it is necessary to interrogate the effectiveness of the current framework and see to what extent we can unbundle the exclusive list to ensure efficiency.
It is important to underscore the point that what counts in the distribution of powers in a federation is the efficiency and effectiveness in having such function domiciled in a particular tier of government. If it relates to road for instance, the question would be which tier of government is better positioned to perform the duty? Another question is as to where the nexus of accountability as between the tier of government and the beneficiaries of such services is better located. It would seem therefore, that some of the services of the federal government at the local level which by extension demands over-bloated workforce are not really necessary. These functions can be better performed by state governments and local governments.
Assigning extra functions to the states and local government will require therefore a review of the federal allocation formula especially a downwards review of what comes to the federal government. This will achieve two things: limit the overbearing influence of the federal government and also reduce the high stakes that has become federal political positions. This I will argue will also address the contentious and divisive question of whom and which section of the country is in the saddle of power at the federal centre.
It is one thing to give state and local governments more money, it is another thing to ensure that such funds are properly utilised. Fiscal autonomy does not necessarily mean absence of oversight that is located outside the constituent unit. Therefore, there has to be a constitutionally guaranteed independent anti-corruption agency that will have power to look into the books of federal, state and local government. If there is no effective fiscal oversight mechanism, then the whole aim of bringing services closer to the people will be unachievable. Let’s be clear, most state governments in Nigeria are run like private businesses and the system does not allow for any meaningful oversight. Therefore more money will only translate to more power which brings me to the next point. If there has to be any meaningful oversight and check on corruption in Nigeria, the immunity clause in section 308 of the constitution has to be altered. I would argue for a qualified immunity that can be stripped by the court where a prima facie case of criminal misconduct has been established. The appeal process can terminate at the Court of Appeal (that is questioning such stripping of immunity) to ensure objectivity and also expeditious determination of such court process. Unqualified immunity is simply undemocratic and has no place in an emerging democracy like ours riddled with endemic corruption.
This committee should resist in its entire ramification, the creation of more states. One primary characteristic of constituent units in a federation is viability- ability of such states to survive with little or no assistance from the federal government. Currently, most of our states are administrative centres that wait on monthly handouts from the federation account to perform the basic of functions. You cannot build a stable federation with this kind of unsustainable and unrealistic arrangement. More states have not translated into more development but rather have only created more recurrent expenditures.
This is a unique opportunity to trigger an evolution of an effective federation and your watch word should be what works and not what is politically expedient.
I thank you for your attention.
Mr. Udo (firstname.lastname@example.org) is the Advocacy Officer for the Open Society Initiative for West Africa. He presented this paper at the legislative retreat of the House of Representatives Ad Hoc Committee on the Review of the 1999 Constitution, May 26, 2012.