A Discussion Paper By Dele Adesina SAN at the Nigerian Bar Association Ikeja Branch 2021 Annual Law Week on Monday, July 12th 2021.
For a good understanding, let me define the word “Structure/Re-structuring” which are the key words in this discuss.
- The word structure is defined by Oxford Advanced Learners Dictionary, at page 1186, to mean “the way in which something is organised, built or put together.” “The state of being well planned or organised.” It can also mean “A particular system, pattern, procedure or institution.”
- The Black’s law dictionary, 10th Edition, at page 1650, defined the word Structure to mean “The organization of element or parts.”
- Something is common to both definitions and that is to organize, to put together a system or institution.
- The word restructure therefore, can simply mean to re-structure, to re-organize to rearrange.
- This definition does not include to separate or to tear apart, if politics won’t allow us to understand the simple grammatical word of restructuring, surely economics will.
- It is usual for business people to take term loans from their banks. The loan agreement will structure the mode of re-payment, whether monthly, quarterly as the case may be, the interest rates payable on the loan, as well as the duration of the loan. If during the pendency of the facility the debtor is unable to pay, he goes back to the bank to re-negotiate and if he is able to reach an agreement with the bank, the bank will restructure the loan for him. That is to say the bank will re-arrange the terms of the loan.
- For me, the word restructuring is not a magic word with guns in hand to tear down an existing structure. It presupposes a discussion, an agreement, a renegotiation with a view to change the existing face of an institution, including a nation.
- This leads us to discussing the existing structure of Nigeria for proper understanding of the re-structuring required. I cannot touch every area. I will just touch about two or three items.
- Nigeria – Unitary or Federal?
- The structure of Nigeria today ordinarily is as provided by the constitution and the relevant constitution is the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It says “Nigeria shall be a federation consisting of states and a federal capital territory of 36 states” see section 2(2) and section 3.
- It created 3 powers called the legislative, executive and judicial powers. See sections 4, 5 and 6 respectively.
- These 3 powers were again divided into
- the powers of the federation. See 4(1), 5(1) and 6(1) and
- the powers of the state, see 4(2), 5 (2) and 6(2) respectively.
- Is Nigeria really a federal state?
- To answer this question, let me state briefly, the features of true federalism. We can then be able to situate the position of Nigeria with those established features of true federalism.
- Existence of 2 Constitutions, one for the state and one for the federation.
- In the case of Attorney General for Commonwealth of Australia v. Colonial Sugar refinery CO (1914) AC 237 @ 253, the court held “The natural and literal interpretation of the word federal confines its application to cases in which states, while agreeing in a measure of delegation of powers to a common government yet, in the main, continues to preserve their regional constitutions.” The court went further to state that the unwritten constitution of the federating states, predates that of the Federation and continued to exist and operate with their original authority.
- Coming back home, how may of us can recall that under the 1963 constitution we had both the Federal constitution as well as the regional constitutions. The erudite professor of constitutional law, Prof. Ben Nwabueze SAN, stated at page 402 of his book titled “How President Obasanjo subverted Nigeria’s Federal System” that: “One single constitution for all the governments involved in Nigeria, both federal and state, is a manifest contradiction.”
- Supreme Constitution
The terms of the Federal Arrangement must be embodied in a constitution that is supreme over both States and Federal. It should define and delineate the powers and competence of the regions and the centre. The supremacy of the constitution must be such that it overrides any act done by either the Federal or the State in violation of its terms and invalidates any transgressions.
- Autonomy of Governments
Autonomy of each government is very essential to federalism as a political system. This pre-supposes the separateness and independence of each Government from the control of the other. Furthermore, each government central or regional must exist not as an appendage of the other but as an autonomous entity in the sense of being able to execute its own will in the conduct of its affairs free from direction from another Government.
Let me say here that to some extent, we are the enemies of ourselves. What is the constitutional implication of bodies like the Governor’s Forum, the Association of Local Governments of Nigeria in the face of the principle of autonomy of a State in the Federal system?
- Meaningful Independence
Each Government, central and State must have powers and resources sufficient to support its structure. The power sharing arrangement should not place such a preponderance of power in the hands of either as to make it so powerful that it is able to bend the will of the order to its own. Today in Nigeria, the governments of States must assemble in Abuja at the end of every month to collect allocations. He who pays the piper dictates the tune – can these governments really exist on their own? Can they look at the federal in the face to say that we are a government just like you are and we have a right to govern our State the way we deem right as long as such right do not impede the governance of the federation.
- The Principle of Mutual Non-Interference
Each Government must not impede, obstruct or interfere with the order as long as that order is acting within its own powers. This is what the Americans call the Doctrine of Implied Prohibition against interference.
- See generally on this point the case of Federal Minister of Internal Affairs V. Alhaji Shugaba 1982(3) NCLR pg. 915 in the second republic on Shugaba’s deportation from Nigeria.
- One of the contemporary issues in Nigeria today is that of open grazing of cattle. Some 17 States represented by their Governors say no. The almighty federal seems to be saying that States “you are joking” is that a mark of true federalism?
VI. Equality of Status as between the Federating Units. (I don’t need to dwell on this)
Question – Apart from the principle of equality of status of the federating States, which of the other fundamental principles of true Federalism enumerated above can we say our present structure guarantees? My answer is None.
Some Notable Pronouncements a
- The 1999 Constitution is an illogicality – a Unitary Constitution in a Federal system. By Prof. Ben Nwabueze SAN.
- 1999 Constitution is a document that lies against itself – By FRA Williams SAN. June 18, 1999.
- The 1999 Constitution is a fraud – By Prof. Itse Sagay SAN. June 18, 1999.
- OVER CONCENTRATION AND CENTRALIZATION OF POWERS AT THE CENTER.
A close examination of the Constitution will reveal that our constitution is essentially a unitary constitution operating in a supposed Federal system of Government.
Exclusive Legislative list – 68 Items with the omnibus clause that says “Any matter incidental or supplementary to any matter mentioned else where in this list
Concurrent Legislative List – 30 Items
Item 8 Census – Tell me why a State Government cannot organize a population census of the people of its State to enable it plan its fiscal policy? I need not remind you of the politics that have consistently and continually engulfed our Federal Census processes over the years.
Item 21- Drugs and Poison.
Item 34 – Labour, Trade Unions and Industrial relations. Let me say here and I don’t care what any other person may think about this. The issue of a National minimum wage is a contradiction of the principle of true Federalism. Every State must enjoy the autonomy to negotiate separately with Labour unions in their state. Each State of course has its level of poverty or riches and degree of development. They should therefore be able to negotiate a separate and independent minimum wage and terms of employment with their workers.
Item 39 – Mines, Minerals Oil fields, Oil mining, geological surveys and Natural gas.
There are several other items on the Exclusive Legislative list such as Evidence (23) patent and trademarks (49) weight and measures (65).
It is my submission that the above specific items and very many others I have not mentioned is the reason for the strong case for devolution of powers in Nigeria otherwise called restructuring. Our growth and development is essentially retarded because of this over centralisation.
What is Federal Government doing with Item such as Housing, Federal roads, every citizen of Nigeria is located in the geographical area of a State. Recall the deplorable situation of federal roads. Lagos – Ota – Abeokuta, Port Harcourt, Aba, etc.
The greatest challenge confronting Nigeria as a nation today is insecurity. There is total lack of safety of lives and properties as a result of all manner of criminalities. Terrorism by Boko Haram, Banditry, Kidnapping for ransom, killings, etc. Nigeria has virtually returned to a state of nature where life is short and brutish.
- Item 45 of the Exclusive Legislative list of the constitution talks about the police and other government security services.
- Section 214, 215, and 216 put the establishment, operation and management of the police in the exclusive control of the federal government. Section 214(1) says “there shall be a police force for Nigeria to be known as the Nigerian police force,… no other police force shall be established for the federation or any part thereof” This puts the ownership and control of the Nigerian police force exclusively on the federal government.
- Section 215 – the Police is under the command of the Inspector General of Police who is appointed by the President. The Commissioner of each State is responsible to the Inspector General of Police.
The Governor of the State or its Commissioner may give the Commissioner of Police of its State directions with maintenance to public safety and public order. The Commissioner shall comply with those directions provided that before carrying out any such direction of the Governor/Commissioner, the Commissioner of Police may request the Governor to refer the directive to the President/Minister for direction.
More strikingly section 215 (5) says that “the question whether any and if so what directions have been given under this section shall not be inquired into in any court. A case of giving something with one hand and taking it with the other hand. Yet the Governors are supposed to be the Chief Security Officers of their respective States – another structural illogicality.
The Governors are CEOs/Chief Security Officers without command of the security apparatus to secure the lives and properties of the people under them. Yet, this is the primary responsibility of Government. See Section 14 (2)b.
- Nigeria is probably the only federal state that operates a centralized, monolithic system of police force. In the US, Australia, Canada, India the police exists at the local level, even at the city level, the state level as well as the federal level. One compliments the other –
(Narrate Chicago experience). Car Hire/speed limit. Police from two counties.
I could see one organisation complimenting the other in co-operation. Rather than thinking of the advantages we can get from establishing State Police and then creatively think about how to curtail the excesses, it appears to me that we are not prepared to think at all or we deliberately forget to consider the advantages while focussing only on the possible drawbacks such as harassment, intimidation of political opponents and what have you as the antagonists of State Police will always argue.
- It thus appear to me as if our life in Nigeria as a nation begins and ends with politics, every idea is politicized. It was never like this before, at least from history.
- As far back as May 15th, 2013 – 8 years ago, I delivered a paper titled “Insecurity in Nigeria: the need for or otherwise for State Police” to the NBA, Owerri Branch. I made reference to what operates in the US, Ethiopia, India, Pakistan, Canada, Argentina and Brazil, all of whom have a dual police structure. They are all Federal States. Also, a paper titled “State Police – The Inconvenient Truth” was delivered to the Rotary club of Festac in 2012.
- Let me make it categorically clear, that the establishment of State Police may not remove or even reduce crimes but the significant point we must make is that it will considerably reduce the chances of committing a crime and getting away with it – a situation that has become the order of the day within our nation.
- Is anybody still in doubt that the Nigerian police force cannot cope with the unprecedented challenges to security and safety of lives and properties in Nigeria today?
- How many of us are aware of the existence of joint military and police patrol platforms deviced by the State to manage the security situation. A device that eloquently highlights the inadequacies of the present Police structure.
- OPERATION MESA – a joint police and military operation nationwide to ensure security of lives and property,
- OPERATION LAFIADOLE set up to counter terrorism and insurgency in the North East,
- OPERATION PYTHON DANCE in the South East to carry out activities against kidnapping and other criminalities,
- OPERATION CROCODILE SMILE in the South-South to deal with criminals and vandalization of oil pipes,
- OPERATION SAFE HAVEN in the North central to quell ethno-religious conflicts and other criminal activities and
- OPERATION DELTA SAVE to combat security challenges in the Niger Delta and protect critical national assets.
- May I conclude with regards to the monolithic structure of the Nigerian Police Force that restructuring of the Nigerian police force is inevitable.
- In the words of Doctor Kayode Fayemi, the governor of Ekiti State, in a paper on state police, delivered in November 20, 2012; “For our police to become efficient we need to function efficiently as it is done everywhere in the world where you have a federal system. It is a norm all over the world and anywhere you have a federal system, that you always have a police system at every level of the federation.”
- THE STRUCTURE OF THE JUDICIARY
- Coming to our own constituency, today, lawyers and litigants only know when a case is filed, when it will end, nobody knows. It is an open knowledge that some matters last for 15 years in court and parties are still counting. All of us are familiar with the statement that “justice delayed is justice denied”.
Many litigants die in the course of protracted litigation. In the course of the Covid-19 pandemic, we lost 2 clients, both of whom are the CEOs of their Companies with unfinished cases at the Federal High Court and the Supreme Court, respectively.
- I have come to a conclusion that the structure of our court system in Nigeria is fundamentally responsible for the delays that we experience. The simple question is “why can we not federalize our judicial system in Nigeria?” by federalization, I mean having full compliments of state courts and full compliments of federal courts, unlike the half-hearted system currently in place.
- Appeals lie from the State High Court to the Court of Appeal and ultimately to the Supreme Court, regardless of the subject matter, whether it is a marriage dispute between estranged husband and wife, a land matter in the remotest parts of Ekiti or Abia State, chieftaincy title of a town in Edo State. Now you want to ask the question; what concerns the Supreme Court, situated in Abuja, with these very private and individual matters.
- Can we have a structure that will permit State High Court, to State Court of Appeal and to State Supreme Court. As well as Federal High Court to Federal Court of Appeal and to Federal Supreme Court?
- Please remember that in the first republic, there was the Western Nigeria Court of Appeal. If we had it then, when the volume of work was far less than what we have today, why can’t we have it now?
- For more on Federalisation of Nigerian Judiciary, please see my paper titled “Towards a Better Administration of Justice in Nigeria – case for Systemic Structural and Attitudinal Transformation” delivered to the NBA Ijebu Ode on July 11th 2019.
- What we operate today in Nigeria is more of a unitary structure than a Federal structure. I think that the fundamental challenge that we have is how our political leaders can disengage themselves from the fabric of militaristic federalism that presently characterise our constitution. There is no doubt that the constitution of 1999 no matter how many amendments we may carry out is a stratagem to maintain grip on power by the political elites. Maintaining the status quo of Nigeria today is not a viable option to a re-negotiated political structure to usher in true federalism and provide very viable opportunities for growth of our democratic institutions.
- In my own opinion, Nigeria can only avoid the call for restructuring at its existential peril. I do not know of any of the institutions of the State that is functioning at its maximum. The greatest appraisal in the world is that of self-appraisal. The leaders of Nigeria must appraise the situation in the country, the clear retrogression and the multi-various challenges facing it, and say to themselves “enough is enough. There must be a way out here.” And that way out is restructuring. Many of us I am sure have had this often repeated statement which says that those who make peaceful change impossible makes violent change inevitable. We don’t want violence.
- It was Nelson Mandela that said “sometimes, life has a way of forcing decisions on those who vacillates.” The motive for re-structuring of Nigeria I believe is to make Nigeria better and enhance its ability to transit from potentiality to reality as a great nation. Nigeria is looking for somebody who will do something about Nigeria and not somebody who will explain why he did not do anything.
- Thank you for listening.