By Jaye Gaskia
There are quite a few issues that seem to remain permanently contentious, and continue to trend, using the popular social media lingo, in contemporary Nigeria polity.
They seem to me to have remained contentious either because the elites promoting them have deliberately or inadvertently been foggy and unclear about them; or as a result of a somewhat complacency of the wider citizenry which has allowed the fallacies of the ruling elites to go unchallenged; or due to a combination of both factors.
Whichever is the case, the competing factions and fractions of the ruling elite continue to exploit the fallout from these deliberately contrived contentious issues to divide us and make it extremely difficult for their dominance to be challenged effectively.
It is important that we engage frontally with these issues because of the impact they have on our march to progress, our ability to build a socially just society, and our capacity to deepen the democratisation process.
I am very consciously using the concept of deepening the democratisation process as opposed to consolidating democracy because they mean different things.
To consolidate our democracy is to seek to stabilise and legitimise formal democracy – regular elections, party politics etc.
To deepen the democratisation process is to seek to expand democracy beyond its formal sphere, to build a socially just society with equitable distribution of wealth, where every sphere of life is democratised, and where popular participation underlies the system. It is a process that ultimately culminates in the democratic self-government and self-management of political and economic processes.
Anyway, let us return to the “contentious issues’’.
THE SCOPE AND COVERAGE OF FEDERAL LEGISLATION:
One of the anomalies of our current democratic experience, particularly since the inauguration of the current 4th Republic in 1999 is the contrived and received political elite pseudo-wisdom that laws validly made by the Federal Legislature, the National Assembly [NASS] require to be domesticated by state legislatures before they can be enforced within those states.
So let us try to disentangle ourselves from this self-serving cobweb of the political elite. First Nigeria is a Federation, and a federation is a political and governance arrangement between two blocs of entities – Federal centre and the constituent federating units, who have come together to establish the federation.
In fact the constitution of Nigeria 1999 [as amended] in Chapter 1, Part 1, Section 2, subsection 2 states that “Nigeria shall be a Federation consisting of states and the Federal Capital Territory, Abuja”.
In a federation therefore, power is shared between the federation and its constituent units. That is why we have the Exclusive legislative list on which only the Federation can legislate on; and the Concurrent Legislative list, on which both the Federation and the federating units, in this case, the states can legislate on.
Secondly, the NASS is made up of two chambers; the Senate, in which every federating unit is represented equally, in this case 3 senators per state; and the House Of Representatives [HOR] in which states, the federating units are represented on the basis of their respective population.
In Chapter 1, Part II, Section 4, subsection 1, the 1999 constitution proceeds to vest legislative powers of the federation in the NASS, and in subsections 2, 3, & 4 proceeds to define these legislative powers with respect to items on the Exclusive list [subsection 2]. And items on the concurrent list [subsections 3 & 4].
Subsection 5 further proceeds to underlie the supremacy of the federal legislation over a state legislation where a state legislation is inconsistent with a validly made federal legislation.
The operative phrase here is ‘’validly made legislation’’. And there are established provisions of the constitution and legislative procedures for making a legislation in our constitution and in the procedures of the NASS. Only the courts, and ultimately the Supreme court can rule with finality on the validity of a law where there is any contention.
Furthermore, it is important to note that no law can be enacted without the concurrence of both the Senate and the HOR, legislative chambers within which the federating units are adequately and democratically represented.
The implication of that concurrence and passage of the law by the NASS is that the federating units, through their elected representatives have been duly consulted.
Thirdly, the territory of the Federal Republic of Nigeria is not the FCT, it is all of the space that constitutes the country, that is all of the territories of its constituent units.
Fourthly, the concept of domestication of a law is alien to national law, it is instead an aspect of international law that requires that when nations enter into international agreements, treaties and conventions, the provisions of those agreements require to be incorporated into the national laws by the national legislatures in order for it to have the force of law within those countries. This is the process that is referred to as domestication.
If the legislative powers of the federation are vested in the NASS; if the territory of the Federal republic of Nigeria is the combined territories of its constituent units, including the littoral space; and if a federal law shall prevail over any laws made by the state assemblies that is inconsistent with the federal law; then it follows that any law validly made by the NASS assembly is a law valid and enforceable across the entire territory of the Federal Republic of Nigeria.
The implication of this, and the only logical conclusion that can be drawn from this is that any Federal Law, or any Law validly made for the Federation of Nigeria, by its NASS is a law valid across all the territory of the federation, and one that requires no domestication.
And this is without prejudice to the power of the State Assemblies to make laws on items on the concurrent legislative list for their respective states. It only means that states can legislate on any item on the concurrent legislative list irrespective of whether the NASS has already legislated on it; but only subject to the fact that it must not be inconsistent with the Federal legislation.
JUSTICIABILITY OF CHAPTER TWO OF THE CONSTITUTION;
Another of such contrived contentious issues is that with respect to the justiciability or enforceability of the provisions of Chapter Two of the 1999 constitution.
The popular, received and conventional wisdom is that the provisions of this chapter, titled Fundamental objectives and directive principles of state policy, unlike those of Chapter Four, titled Fundamental Rights, are not justiciable and enforceable.
However, a careful reading of all the twelve  sections of this chapter, from sections 13 through 24, shows that each of these sections is qualified with the verb ‘’shall’’. Each of the sections of this chapter includes the qualifying phrase “The state …….., All organs of government etc ….. Shall …….”.
Shall is an obligatory verb, not a conditional verb. If the drafters of the constitution intended these provisions not to be mandatory, and to be be voluntary subject to cherry picking, the operative verb would have been “May”; and the operative phrases would have been “The State …. All organs of government etc ….. May” ….
The implication of this, and the logical conclusion that can be drawn is that the provisions of Chapter Two of the 1999 constitution are obligatory on the state and citizens; and to that extent are enforceable and justiciable.
DEMOCRATICALLY ELECTED LOCAL GOVERNMENT AND LOCAL GOVERNMENT AUTONOMY;
One of the more popular phrases thrown around like that of restructuring Nigeria is that of Local Government Autonomy.
And because state governments have been encroaching unconstitutionally on the autonomy of Local Governments there have been agitation for Local Government reforms.
It is important to state clearly that there is an urgent necessity for the reform of local government in Nigeria. However, the way to do this is to enforce the provisions of the constitution, and include punishments for violating the provisions of the constitution with respect to local governments, by state governments, through necessary amendments to enforce the provisions of the constitution.
The 1999 constitution in Chapter 1, Part I, Section 7 already guarantees a system of democratically elected local government councils.
The implication of the combined reading of all the provisions of section 7 is that only democratically elected local government councils are recognised by the constitution. Therefore, caretaker committees, sole administrator-ships are alien to the constitution, and to this extent are therefore unconstitutional.
No reading of the provisions of the constitution however liberal can legitimise the practice of appointing care taker committees and or sole administrators for local government councils. The functions conferred by law on the Local governments are also clearly set out in the fourth schedule to the constitution; and the combined reading of subsections 5 & 6 of section 7 of the constitution is to the effect that statutory allocations to Local governments are guaranteed, and that these shall be ensured by both the NASS and State Assembly.
In fact, subsection 3 of section 7 mandates local government councils to participate in the economic planning and development of the local government area, and further requires that to this end an Economic planning board shall be established by law enacted by the state assembly for the local council area.
It follows that two key things are necessary to be undertaken in the course of local council reform to further guarantee their autonomy.
First the violations of the combined provisions of section 7, Chapter One of the 1999 constitution of Nigeria must be explicitly punished. Provisions for these needs to be included in any amendment. These provisions may include setting up an ombudsman body to oversight compliance with the constitutional provision.
Second, once the constitutional guarantee of democratically elected local council governments has been strengthened, it will be necessary to then de-list the names of the LGAs from the constitution, so that states as federating units, and in accordance with the provisions of the constitution can then decide and establish any number of such local government areas as may be deemed necessary for the development of the state.
ESTABLISHMENT OF REGIONAL DEVELOPMENT COMMISSIONS;
One craze fashionable among the political elites is the competitive race to federally establish regional development commissions.
Whereas the establishment of special commissions to address historical disadvantages are necessary and ought to be encouraged; it is the mode of their establishment that weighs significantly on the Federation and combine to heighten group tensions.
In their current forms, they are merely conduit pipes for cornering shares of the proverbial national cake by regional elites.
Every regional commission established through Federal legislation disempowers rather than empowers the disadvantaged regions. It takes some of the powers of the region over its own autonomous development away from the region and vests it in the federal government.
Thus, the Federal government establishes the commission, and constitutes its governing board and management.
The implication of this is that the Federal government thus takes over the power to determine the strategic policies and directions of these reginal commissions, from appointments to design, planning and implementation of intervention programs.
Of course, the Federal Government also funds the commissions. The implication being that resources which ought to accrue to the Federation Account and then allocated to the tiers of government are diminished. Ultimately the shares of the federating units of the federation account is the one most affected and most undermined.
If Nigeria’s political elites are not simply and only interested in access to, control and looting of collective treasury; if they are genuinely interested in human development and empowerment of citizens, and not just in their own greed and selfishness; if they were Nation Builders, and not Nation Wreckers; then there ought to be a different, more human and national development oriented path towards addressing disadvantages.
What we should be encouraging as not just a way of deepening democratisation, strengthening Federalism, and enabling equitable nation building is a system whereby the state governments of each region desiring a regional development commission, jointly establish such regional commissions through the simultaneous enactment of the Regional Development Commission Establishment Act by their respective state assemblies.
This way they retain control over the strategic direction and thrust of the regional development commission.
As a way of guaranteeing the funding base of such regional commissions jointly established by states within the region; we can then have a Federally established Special Development Commission and Fund, that also contributes to the funding of the regional commissions in addition to the statutory funds contributed by the establishing state governments.
In this respect, it seems to me a further weakening of the Federal arrangement, that tilts the balance of power predominantly to the Federal centre to continue to seek to enact Federal laws to establish Federally funded and controlled regional development commissions.
Section 83 of the 1999 constitution which already vests in the NASS the power to make law for the establishment of contingency funds already lays the foundation for the establishment of such a Federal Development Intervention Contingency Fund, from which Regional Commissions jointly established by collaborating states can draw part of their funding.
APPROPRIATION POWERS OF THE FEDERATION;
A further contentious area in the contemporary practice of Nigeria’s polity is the contention between the Executive and Legislature over passage of annual budgets or appropriation laws.
Sections 80, 81, & 82 of the 1999 constitution makes copious a seemingly unambiguous provisions with respect to the power to appropriate.
This is vested in the legislative assembly. However, with respect to the appropriations act and the annual budget, the constitutions vest the power to prepare the estimates and to lay it before the legislative assembly in the President or Governor of a state, that is in the Executive arm of government; while vesting the power to consider and approve the estimates in the legislature.
The implication is that the constitution in keeping with the principle of separation of powers vests the power to prepare and lay the estimates in the Executive; while vesting the power to consider and approve in the Legislature.
It stands to reason that the power to approve includes the power to reject, while the power to consider also includes the power to vary the estimates.
However, the power to reject and vary the estimates made and presented by the Executive cannot be deemed to be so broad as to imply the power to significantly alter the estimates.
Once the prepared estimates are significantly altered, it becomes the usurpation of the power to prepare.
It is this delicate balance between varying and significant alteration that needs to be maintained and jealously guarded.
It requires a significant level of political maturing of the operators of the constitution, combined with a significant level of understanding of national interest for this delicate balance to work effectively.
Alas, unfortunately we are saddled with a political elite and ruling class consumed by greed and selfishness, and incapable of appreciating and promoting collective interests.
STOP PRESS: THE ACTUAL STATUS AND COST OF SCHOOL FEEDING PROGRAM;
I am not sure if I am the only one that noticed this anomaly. Nearly a month ago, the Federal Government through a principal aide of the Acting President released with fanfare the figures for the Home-Grown School Feeding [HGSF] Program.
In the first announcement, the total cost expended so far was supposed to have been N7.1bn released to 7 states, covering 1.2 million pupils for one meal a day each over a 24-day period. About 11,000 caterers were also said to have been engaged.
However, two weeks after the first announcement, the same aide came out with grossly different figures without any explanation.
Now according to the new figures, the actual total amount expended is N3.7bn, and the total number of states covered is 11, and not 7!
What is responsible for the discrepancy? Where is the balance of the figures?
JAYE GASKIA is Co-convener of Say No Campaign [SNC] & National Coordinator of Protest to Power Movement [P2PM]
Get more stuff like this
Subscribe to our mailing list and get interesting stuff and updates to your email inbox.