- Our constitution is both unitary and federal – Idigbe
- What we have is essentially more unitary than federal – Akpa
Against the background of calls for true federalism in Nigeria and constitutional amendment, two Nigerian law experts have expressed differing views on the peculiarities and practices of federalism in the country. In an exclusive chat with The Catholic Herald, Sir Anthony Idigbe SAN, Senior Partner at Punuka Attorneys and Solicitors has said that Nigeria’s federalism is in a fluid state, swinging between unitarianism at one end and federalism at the other hand, while his learned colleague, Mr. Chinedu Akpa of MCP Attorneys, Investment Solicitors, Arbitrators and Notaries Public posited that the nation’s federalism is defective and reforms are inescapable. Idigbe opined that determining the authenticity of Nigeria’s federalism depends on the perspective from which one looks at it.
He said, “There are so many aspects of the constitution that is unitary and then, there are some aspects that give the impression that it’s federal. And in fact, I will tell you that there are some aspects that are truly federal. “The challenge when you do constitution grafting is how to have a balance between unitarianism and federalism. So, in many portions of the constitution, there is pretense that there is federation, but really, it is not. While in many other portions, I don’t see the effective check and balance which is now also dangerous, if you don’t have effective check and balance where there is over delegation of powers.
“So, in a sense, it is very difficult to disagree, to say that the constitution is really federal.” The Punuka Senior partner, however cautioned against several proposed amendments being put forward that are capable of stripping the country of its federal elements. “I can tell you that many of the amendments that they are making today, pretending to try and make it more federal may actualy end up putting more unitary government. I look at it from a comprehensive point of view, coupled with my experience in Canada and here, and I worry seriously about the way power is allocated and the lack of sufficient control. So, I can give you more specifics, for instance.
I see the effort to devolve energy to the states. In other countries, energy is usually a provincial issue, so its state. “However, if you look at our distribution system where you still have the federal government doing bulk buying, you will find that on the one hand, they are trying to evolve power, but the actual purchase arrangement is very unitary. So, one justcancels out the other. And it is difficult for the government, because even if you completely devolve power, if there is any issue with prices of utilities and the rest, usually the federal government takes the heat. “So, federal government then tends to intervene and create sources of subsidies which then becomes a problem again.
“I don’t want to say we are in a vicious circle, but we need to sort of declare our political agenda and economic agenda.” According to Akpa, Nigeria in practice works as a unitary state, a fallout of centralising tendencies that have come to characterise the governmental system. He said, “Federalism has some unique features, or what it really means to be federal. And what we have is essentially much more unitary in nature than federalist, because in our own case, there is over concentration of powers at the centre at the expense of all the other federating units. “Why? Because the federating units either by omission or otherwise have not been able to assert their own positions based on the ways our laws are structured. So, to that extent, you can say we don’t have a truly federal constitution because we have a situation whereby the federating units still have to make reference to the federal unit when it comes to certain areas and certain elements.”
The attorney gave an instance in the area of law enforcement. “The way the law enforcement architecture of the country is structured is such that it is almost impossible for any of the federating units as at this time to have structures that are peculiar to them that they can deal with issues peculiar to their own environment. “So, you find out to that extent that what we are operating is truly not federal in nature because if it is federal, all of these units at the sub-national level will be truly independent with no strings attached to the federal unit. “The Commissioner of Police for example in Lagos State, will be a Commissioner of Police appointed by the Lagos authorities and not appointed by the federal authorities. So, to that extent, we can say that what we are operating in this country is truly not federal.”
To address the issues, Idigbe advocated for more transparent leadership in the country, and visioning among the leaders as he noted that poor visioning is largely due to ethnicism and economic greed. “Unfortunately, I think certain factors such as ethnicism or regionalism, greed and other factors seem to rain down heavily on the ability of our leadership to develop core vision that cuts across those divisions; that can then drive a strategy for the country. So, that is really the problem. If we can overcome that, I think Nigeria has a lot of potentials. We have resources. We have people, but the problem I see is that leadership is now turn by turn and not driven by any ideology.
And most of that ‘turn by turn’ is slightly regional, geographical and ethnic. So, until we overcome that challenge, probably we keep stumbling.” Reacting on the need to amend the constitution, Akpa regretted that several constitution amendment exercises have gulped so much funds with no commensurate result in contrast to what obtains in America. Akpa paints the American scenario of constitutional amendment. In his words, “Most times, our problem is that we are looking for a wholesale amendment of our constitution, but there are other ways which you can amend the organic laws governing any particular state. The American constitution is a very short document. It’s just a few articles, but they are very critical and crucial articles. But what has happened is that over the years, the constitution has continued to evolve based on their unique experiences as a people, by the number of amendments they have had with that constitution.
For example, when it comes to certain issues or areas that has to do with human rights and all of that, they have what they call the fourth amendment. That was the one that modified all that has to do regarding that particular area of their laws. “Then, you also find out that in their own case, the symbiotic relationship they have with other units and organs of government, for example, the judiciary, also contribute in their own ways in establishing the laws that govern any state by the kind of judicial precedence they set. So, if you think that you can have a document that captures it all, it may really not be possible, but at the end of the day, you may have a document that is basic, then with time, the judiciary can also come to help with the way they interpret that document when certain situations confront them.
“I will give you an example again, in America abortion rights don’t exist on their own. It is anchored on some aspects of their constitution that they have decided to interpret in a certain way. So, you find out at the end of the day, when they finish, these things form the body of law that regulate that particular system. We never hear advance democracy talking about constitution making anymore. What they call their constitution is a document that dated back to several decades or centuries ago, and they just continue to evolve with time, aided by other instruments of state which have also been established.”
Describing lawmaking as business in Nigeria, the legal expert noted that people profit from lawmaking in Nigeria, hence most times they demand for formal constitution amendment sessions because there is going be expenditure assigned laws which we have.” Many have argued that the Nigerian federation epitomises an incomplete federal system. According to Dele Babalola, a Lecturer at Baze University in Abuja, the feelings of marginalisation, which had been suppressed during the military era are fully expressed by ethno-regional groups in the post-military era and these feelings find expression in the potent agitation for a more functional federal system.
