Nigeria; What Manner of Federation is This? by Babatunde Ajibade SAN

An address at the 2020 Law Week of the Badagry Branch of the Nigerian Bar Association by Dr. Babatunde Ajibade, SAN, FCIArb.

PROTOCOLS


INTRODUCTION

Although the subject of this address is not whether or not Nigeria is a federation, I will, at the risk of sounding academic, begin by defining the term federation. Pardon me.

Black’s Law Dictionary[1] defines federation as

“A league of union of states, groups or peoples united under a strong central authority but retaining limited regional sovereignty, especially over local affairs”

If we accept this definition to be true then it will mean Nigeria is, indeed, a federation. And I have no reason to believe that this definition is not true.

The Nigerian nation is made up of a central federal government and thirty-six (36) regional governments known as States with limited sovereignty. The extent of the sovereignty of the States in relation to the Federal Government is delineated under the second schedule to the constitution.[2] The schedule contains items which the Federal Government has exclusive powers to make laws over and those which both States and the Federal Government have concurrent powers to legislate over. Items not in any of these lists are within the preserve of the State Governments.

Now to the gist of this address.

In view of many recent events, including the agitations in the Niger Delta, the security situation in the north and a general absence of trust in the central government, as well as ethnic distrust, there have been various calls for the restructuring of the Nigerian nation, among other issues.

While I would like to say a bit more on that issue, I assume that, based on the theme for this law week, which is “The State of The Nation And The Nigerian Lawyer,” my task for this address is to consider the current condition of the federal state called Nigeria as it relates to the Nigerian lawyer.

But just before that, I pause to answer the question – what manner of federation is Nigeria?

WHAT MANNER OF FEDERATION?

The Nigerian federation is one that allows the central government to own and control all mineral resources in the Nation. One which allows the Federal Government to exclusively deal with security of citizens. The federation is one that establishes a central National Judicial Council (NJC) in charge of Judges of the various states,[3] whether federal or state court judges. We have a federation that allows for both federal and state governments to make laws in respect of numerous matters.

The Nigerian federation allows two sets of courts to run concurrently in respects of matters over which their respective governments have power to make laws.

Citizens of the federation are legally entitled to freedom to move around the federation and to reside there without need to obtain any regional permits. Although, of course, a lot of informal constraints have been put on individuals in different states. The recent case of Justice Akon Ikpeme and the Cross Rivers State House of Assembly is a clear example of such constraints.

The federation also requires federal character in appointments. Thus, in theory, ensuring that all parts of the nation are fairly represented in national decision making.

I realise that the above is not exhaustive but due to time constraint, I will move on to consider what this means to a lawyer.

THE NIGERIAN FEDERAL SYSTEM AND THE LAWYER

A principal benefit of the federal system operated by Nigeria to lawyers is the fact that a lawyer from any part of the federation can practice in any other part without any legal restrictions. This benefit extends also to judicial officers as there are no laws barring a person from a particular part of the Country from joining the Bench in another area, although despite the statutory provisions against discrimination, there are still some unofficial bottlenecks placed by elements in certain regions. This and more are benefits of the Nigerian system to lawyers.

There are a few disadvantages, some of which I address below.

I start with the delineation of Courts, because for lawyers, especially but not limited to those in litigation, this is our constituency. Under the Nigerian System, on the basis of the fact that the Federal and the State governments have exclusive and concurrent powers, we have two sets of courts to which matters affecting citizens are brought. One, at the federal level and the other, at the state level. While this may seem like a non-issue, as a result of what I like to think is bad drafting, we now have matters go up to the Supreme Court from the High Court on the basis that the High Court does not have jurisdiction. And given the (lack of) speed in our adjudication process in the Country, we can have a matter run for 12 years from the Court of first instance to the apex Court and back without even considering the substance of the cases before the Court.

The nature of the federation also allows for multiple taxation/regulation. In a single transaction or business, we can have a federal, state and local government law governing it. The telecommunication industry, for example, has got more than its fair share in respect of multiple regulations and taxes being thrown on the helpless corporate Nigerian citizenry. Ministries, Departments and Agencies (MDA) collect taxes from the industry with the aim of generating revenues internally. Charges are imposed not only by these MDAs but by community development areas, resident areas and ‘Areas Boys’. These are repeated for every base station in all the 36 states and the Capital Territory. Even though some of these charges/regulations are illegal, as lawyers we sometimes advice our clients to comply because the repercussions to the business can be quite damaging and the process of seeking redress is very tedious. This is also apart from the cost of running the several central and regional governments which eats deep into the budget of both levels of government.

There is also the issue of resource control and management. Because of the nature of the federal system, certain resources are held and controlled by the central government, which has shown, in the past years, to be incapable of managing adequately, the resources which it receives. This of course disincentivises competition among regions and proper management of funds by the regional governments. This further means that the regions have limited capacity to meet the demands of governance.

The current system also encourages waste. Waste in the sense that the various hierarchies have to be funded and given the flamboyant nature of Nigerian politicians and appointees, we have a situation where outrageous amounts are spent on funding various (often cloned) arms and organs of government.

The issue of security is one over which much dust have been raised and as of now, States are beginning to delve into issues of security which, ideally, by virtue of the clear constitutional provision, should ideally be the job of the Federal Government..

THE ROLE OF LAWYERS

I will be remiss to end this address without first considering the role of lawyers in the Nigerian federation.

Since Nigeria is s product of laws, it is not difficult to see that lawyers play a vital role in the growth of the federation.

Our job as lawyers is to aid the delivery of justice and this role extends to assisting in the drafting and passage of laws, making a case for individuals to the courts, interpreting the law to members of the public, our clients and the executive, in order to ensure compliance with various laws.

For this reason, most large companies, Ministries and departments have lawyers in their employment. Ours is to guide.

The Bar, being the umbrella body of all lawyers, has a duty to ensure that lawyers carry on their duty in a proper and dignifying manner. If this is effectively done, the members of society (including the various levels of government) will enact laws that comply with equity, justice and public policy and abide by them.

The lawyers and the Bar also have a duty to ensure that the justice system works. This is because the final authority for the maintenance of a sane federation is Judiciary. If that fails, society fails.

I also urge lawyers to ignore those things that seem to divide us, be it ethnicity, age, area of practice, place of employment, personal gain, etc., and unite to build an effective federation.

Thank you very much for your time. Dr. Babatunde


[1] 10th Ed. 2014

[2] 1999 Constitution of the Federal Republic of Nigeria

[3] The NJC then decides the number of judges to e appointed in each state

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