Nigeria: Concept of Federalism
STATE SOVEREIGNTY AN INIMITABLE QUALITY OF FEDERALISM: A critical analysis of Nigerian approach to the concept of state sovereignty
One thing is clear in a federal system of government, the tiers of government ought to share political power as expressly spelt out in the constitution. Unfortunately, the current foundation and principles on which Nigerian constitution is operated over the years particularly since the advent of democracy has not in any way reflected a true federalism in its practical sense.
. Presently, Nigeria has a strong center and weak states. The states have become administrative units of the federal government. The relationship between the centre and the states still reflects the military command structure, an unwelcome legacy of the military administration. The states are so weak that none of them enjoys fiscal independence from the centre. The federal government pays the piper and is happily dictating the tune to the states. The states are so weak and so generally impoverished that they have no capacity even to negotiate meaningfully with the centre. None of the states as it is now can generate enough internal revenue to prosecute any appreciable social and economic development. Instead of pillars, the states have become a burden on the federation.
It is a fundamental reality that, Nigeria cannot have a strong and united federation unless and until the constituent parts are sufficiently empowered by enabling practices that conform to the principles of federalism Thus, this paper aims at discussing the issue of distribution of powers between the Nigerian federal government and its constituent units, and making pragmatic solutions for its sustenance.
NIGERIAN FEDERAL GOVERNMENT ENCROACHMENTS ON THE STATES
Nigeria returned to democratic rule in 1999, after about three decades of military rule. The state of the federation, in the new democratic rule since 1999, showed severe signs of stresses and strains. As the states try to express their newly acquired autonomy in a democratic context, the federal government tries to re-enact the old military scenario of the states as an administrative organs of the federal government. This leads to a number of severe strains in the relations between the federal and States governments.
The Federal government does not maintain its boundaries of authority. It encroaches upon the jurisdictions and sovereignty of the states. This has brought about severe resentments and conflicts between the states and the federal governments. It is therefore the mechanisms to resolving these encroachments that I now turn to discuss.
1.1 SOLUTIONS TO FEDERAL ENCROACHMENTS
The structural safeguards of federalism restrain the national government to prevent encroachment. Solution to Nigerian federal government encroachments on the sovereignty of the states could best be prevented by implementing some structural safeguards such as enumerated powers, fragmentation, and state incorporation.
The Founders of American constitution recognized that federalism presupposes limits to the federal government’s power and authority … Without constitutional boundaries, the national government would readily give in to demands to wipe out state competition. In that event, the states would become mere instruments or administrative subunits of a central, unitary government. The constitutional reflection of this recognition is the doctrine of enumerated powers.
In Nigeria, except for the rather vague statement in Section 2 of the 1999 Constitution, there are no definite enumerated powers of the federal government the Nigerian Constitution. In the United States, the powers of the federal government are enumerated and limited. Such enumerated and limited powers allows for checks and judiciary review of both the state and federal encroachments. It is important to note that when each state agreed to become part of the federal republic of Nigeria, they did with the intention to surrender some of its powers without any recourse to their sovereign identity and direct governance of its citizens. The major cause of ethnic crisis in Nigeria is mostly because the sovereignty of these states has been trampled upon by the central government.
One of the challenging failures of Nigerian federalism is lack of interinstitutional oversight. In Nigerian federal structure, vertical separation of powers is necessary for preservation of liberty and the prevention of tyranny. Hence, both the federal and states governments should possess the means of preventing or correcting unconstitutional encroachments of the other. As it stands, the Nigerian federal government is self-regulating without institutional support. A true federalism will be attained if the two levels of governments are partially dependent on one another through checks and balances. When this balance is achieved, the national government is less likely to behave opportunically, whether by encroaching on the state governments or by tyrannizing its citizens.
According to James Madison, the primary control of the government is its dependence on the people The declaration of American Independence contain the facts,
“… That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, having its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness …”
Popular safeguard is effective in a democratic society where there is respect for electoral principles. Joseph Schumpeter famously argued that democracy was best understood not as a practice of collective self-government by the “people”, but rather, the selection by the people of representatives to govern on their behalf. Elections, on this account, are a process whereby “individuals acquire the power to decide by means of a competitive struggle for the people’s vote … To be democratic, the elections must consist of “free competition for a free vote” among parties. But the corollary of electoral competition is not just the right “to produce a government” but “also the function of evicting it” through the electoral process (272). Thus, competition between political parties entails the possibility of alternation through regular, free and fair elections. A hallmark of democracy, in Theodore Pempel’s memorable turn of phrase, is the ability to “throw the rascals out.”
In the light of the above democratic principles, popular safeguards would be unthinkable mechanism in the present Nigerian federal setting of militant democracy. It is very difficult for the people to exercise their fair judgments on the choice of government or candidates. The European Union Election Observer Mission was not constrained by diplomatic niceties in condemning the 2007 elections in Nigeria. The caption of the EU preliminary report was, “Elections Fail to Meet the Hopes and Expectations of the Nigerian People and Fall Far Short of Basic International Standards”. The nature of electoral system causes most Nigerians to lose faith and confidence in the country’s democratic process.
Since independence from Britain in 1960, Nigeria has adopted five Constitutions. The present Constitution which borrowed most of its contents from the United States Constitution is a product of a military led initiative. Unfortunately, Nigerians fail to understand that it is not what is copied on paper that produces federalistic character; rather, it is the means or mechanism to enforce the contents of such instrument that matters. Laws are a dead letter without courts to expound and define their true meaning and operation. Constitutionalism is meaningless without resources of power, in some form, both to achieve and sustain it. For example, in the United States, the constitution imposes limits on government powers and these limits are meaningless unless subject to judicial enforcement. When trying to ascertain the limits of legislative power, courts … examines and defines the nature of a federal power itself to see if it contains within it some inherent limitations. Thus, in a true federal system, it is not out of place for the judiciary, to decide cases of constitutional controversies between the federal, states and the citizens. It must be poised to intervene in cases where there exist such problems between the central and its federating units. Unfortunately, Nigerian courts still perceive issues between Federal and States as having political undertones whereas the true test in a federal system is continuously defined and strengthened when the judiciary espouses and decides on issues bordering on the terms and conditions.
The role of judiciary as a safeguard against federal encroachments is best achieved under an independent judiciary. In Nigeria, there is a compulsory retirement age for justices of the supreme court at 70 years. A Supreme Court with compulsory retirement age of 70 is breeding ground for insecurity and judicial incapacity. A judge who is burdened with financial considerations of retirement years is not an independent judge. A judge who is burdened with the politics of advancement or succession is not a free judge. A recent petition against the Chief Justice of Nigeria Supreme Court alleged that the he had been honest before now, but due to his impending retirement, he has started amassing wealth through the abuse of his office.
In order for the Judiciary to act as a safeguard against any form of government encroachment, Nigerian Supreme Court Justices should be appointed for life subject to impeachment and removal for physical or mental impairment. Justices should serve an independent role free from political pressure. A judge who has run his course and is divested of all ambitions, financial and professional insecurity is the judge, who will give a bold and honest decision any day.
DISTRIBUTION OF AUTHORITIES AND BOUNDARIES DRAWING
At the center of every true federal structure lies a common feature: the sharing of sovereignty between national and state governments. These boundaries between national and state governmental authority must be maintained. The problem with Nigerian federalism is the failure or incapability of the federal government to maintain its boundaries and curb the temptation of states’ sovereignty exploitation. Sometimes it is confusing to distinguish what power belongs to which level of government. This paper will now turn to examine how the spheres of power sharing could be allocated to each level of government – federal and state. Those within the federal power are earmarked as “centralization” while those responsibilities within the state jurisdiction are labeled as “decentralization.”
(Centralized responsibility of the central government)
It is the responsibility of the central government to provide security and protection for the rest of the units and the citizenry. In Nigeria, it is a common practice for the President to use his emergency powers to deploy the military at his whims. Military deployment could only be applicable in times of war or appropriate state of emergency with the approval of the House.
ECONOMIC BENEFITS & EFFICIENCY
(Cooperative function of the central and its subunits)
In Nigeria, the central government believes and operates on the basis that the federal government owned the country, its resources and all that dwell in the land. The central took the fund that rightly belongs to the state and local governments into the coffers of the Federal Government. The subunits are thereby denied the wherewithal to carry out their functions for the progress and welfare of their citizens. Nigerian states have almost completely lost their autonomy. The centralization and concentration of the country’s revenues in the hands of the central government has resulted in the country’s poor political, social and economic development.
Decentralization can take advantage of informational asymmetries; that is, lower levels of government may have local knowledge that allows them to tax and spend most efficiently. The classic example of this informational asymmetry is the property tax, local governments have a keener sense of market value and can more appropriately devise a formula to calculate tax rates than a central government. Decentralization can also allow for revenue specialization based on different characteristics of the regions. A region especially endowed in natural resources with extensive mining operations might best rely on severance taxes, while in another; tourism offers opportunities for licenses and user fees. Developmental projects are most efficiently handled by the local governments who know local needs and conditions, while higher levels of government are necessary to coordinate redistribution effectively
(Decentralized sphere of the subunits)
Federalism enables a people to try experiments which could not safely be tried in a large centralized country. Justice Brandeis considered it “one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. When states share goals but try different policies, the potential for policy decentralization to stimulate beneficial innovation is maximized.
Under the current federal government in Nigeria, all power is centralized, and the states do not have any control over their resources, hence there is no incentive for innovation and states competition. Nigeria’s economic development, political stability, security and peace depend on extending the freedom, benefits and choice of autonomy to each ethnic nationality within the country.
(Decentralized subunits authority)
Governments compete with one another to the benefit of their citizens, eliminating waste and encouraging growth. Intergovernmental competition directly strengthens the allocative functions of government. Decentralization permits governments to match services with variations in demand. Greater overall citizen satisfaction can be achieved with multiple governments offering different packages of public services at different prices. Competition forces governments to become more efficient in their allocative activities, providing better services at lower costs. Competition forces government to be more responsive to citizens’ preferences than monopoly government.
Allocation is the functional that local governments can perform more effectively than central governments, because decentralization allows for a closer match between the supply of public services and their variable demand. Citizens migrate to those communities where the allocation best matches their demand curve. Intergovernmental competition inspires state and local governments to be concerned with the impact of their taxing and spending policies on economic growth and to become directly involved in economic development activities. Competing governments are in a better position to observe the economic consequences of their policy decisions. Since state and local governments are well equipped to pursue developmental objectives, most public efforts of this type should be left to them.
(Centralized federal government exclusivity)
The spillover effects of policies are known as externalities because they are consequences of a government’s policy that the government does not consider. In Nigeria, each year, industrial facilities discharge into the environment large amounts of chemicals leading to respiratory, neurological, developmental and reproductive disorders, and cancers. The spillover effects of these factories are without any form of government management or control. The distribution authority can be adjusted to manage these externalities. The central government can be given full control of a policy domain, it can regulate it, or it can encourage beneficial behavior. The central government can maintain a common market between states by prohibiting state-led industry protection that generates negative externalities. In environmental policy, the government can incentivize control; first, through sanctions should the polluter fail to reduce output, and the second, by pricing pollution, to motivate polluters to reduce their output without the threat of penalties.
(Cooperative sphere between the central government and its subunits)
A market requires firmly established and credibly defended property rights. Uniform governmental regulation can establish rules governing property ownership and transfer, as well as provide a forum to adjudicate disputes. However, in order to prevent government encroachments on property rights, decentralization and fragmented authority enable a state to credibly commit not to expropriate all rents, when couple with other conditions, such as a decentralization of fiscal control and hard budget constraints.
In Nigeria the commitment to establishing property rights and effective markets has not been accompanied with significant devolution of power to subnational governments. There is no triumphal market economy due to lack of freedom of local governments to set their economic policies and induce competition among jurisdictions. Market reforms have proceeded alongside central resistance to subnational claims for devolution of fiscal jurisdiction and policing services. A commitment to market reforms would require fiscal devolution that eliminates financial dependence of the subnational governments and induces horizontal competition for efficient service delivery.
Thus, probable conditions for a sustainable market preservation in Nigeria should be structured to include:
a) A hard budget constraint on subnational governments;
b) The authority of subnational governments to regulate their domestic economies but without the power to restrict the movement of goods and services cross jurisdictions. And, the assignment of monetary policy and common market regulation to the central government; and
c) An explicit agreement on federal arrangement to make for juridical federal restrictions and a clean separation of national power including independent courts.
(Decentralized jurisdiction of the subunits)
Effective democracy depends on citizen participation. As more people become enfranchised or enter the political arena, a wider variety of perspectives contribute to public deliberation. As diversity increases, all else equal, collective decision making improves.
The population of Nigeria is about 150 million, out of which about 60 million people are registered as eligible voters. The long history of electoral rigging and fraud has challenged possibilities for bringing citizens into the political process. Pervasive electoral rigging and fraud have increasingly become common practices in Nigeria’s democratic process. This history has produced conditions where political tensions have mounted and violence has persisted. The outcomes of many elections in Nigeria have been so contested that the conditions for the survival of the democratic order have been compromised. The compromised system has permitted the formation of political party politics that feed on these lapses, rather than ethically engaging citizens in ways that conforms to constitutional provisions. The politicians employed anti-party practices such as using money, thugs and sometimes the police, to eliminate competition.
The general assumption that underpins the democratic practices embraces the assertion that power must only legitimately reside with the people. In Nigeria, contrary to this idea, is the notion of Godfatherism. While the concept of Godfatherism remains fairly recent, the phenomenon and its pervasiveness is as old as electoral politics in the country. The development of this phenomenon recognized that Godfatherism thrives in any polity in which state power is perceived as a commodity to be possessed and used to acquire other possessions Since these individuals in Nigeria become too powerful to dictate for the rest, the integrity of the process of choosing leaders is compromised. Indeed, the idea of godfatherism is an entrenched ideology that often accentuates exclusionism and diminished entitlement to civic and political rights of citizens.
The godfatherism phenomenon, emerges as an illegal enterprise, but because this practice is deeply rooted in the political process itself, it possesses tremendous challenges to efforts at reclaiming democracy for the people. State power, here, is heavily commodified, and the struggle for the exercise of this power restrict access to power from the majority poor. The highly privileged minority class constitutes the dominant class in the Nigeria political setup, who control the affairs of government.
Increasingly the dynamic relation between wealth and power has definitely acquired new and perverted meaning in the Nigeria political process. The monetization and commodification of the democratic process is endemic to the character of, and popular response to, the political process. The restriction of political and civic rights from the citizen is now legitimately justified through the heavily monetized electoral practices. Increasingly, the amount required to secure party nomination, in itself, poses a threat to inclusion as majority of citizens are not able to pay these amounts. What is troubling here is that, because of these heavy monetary demands, some competent aspirants, who have the knowledge and leadership capability and are entirely driven by democratic impulses, are forced to withdraw their candidacy. In many case aspirants for representative’s positions who do not have the means to participate in the processes opt for sponsorship from the wealthy (Godfathers). This then becomes the ground for neo-patrimonialism, as these indebted aspirants are forced under obligations to serve the needs and interests of their patrons. Thus, Godfathers have in the most brazen manner hijacked the political machinery at all levels. It means then that what is called election in Nigeria is nothing but the expression of the narrowly defined will of a few dishonest individuals who feel that they have the power to manipulate the entire electoral process in favor of their anointed godsons
The aspirants because they are indebted to a particular godfather, once in office serve the interest of these godfathers rather than the public who voted them in office. Democratic efforts in this context, fractures the idea of accountability, as normal political processes (in terms of formal popular demands and civic avenues of coercion of representative to do public biddings) can no longer be recuperate except through unorthodox means, which sometimes result to violence.
The power of money has dwarfed the power of choice… Men and women of ideas without access to big money do not have a fair chance to run and win. In fact, the godfather phenomenon is a major threat to democratic consolidation in Nigeria. The diminished public in politics asserts a new path to defining citizenship away from political rights. The Nigerian political system has increasingly become a game in which godfathers install their puppets in political office to do their biddings.
It is an understatement to suggest, then, that godfatherism clogs the system of political representation. While the highjack of power in Nigeria seems alarming, it is the sense of diminished ownership of the political process that threatens to negate commitment to democratic values among citizens.
MANAGING AND SATISFYING DIVERSITY
(Decentralized sphere of the subunits)
Diverse opinions; they are inherent to humanity, whether from the logical … or different histories, or different ways of viewing the world. We cannot eliminate diversity – whether born of social differences or just different opinions … Diversity is beneficial when states serve as policy laboratories. Diverse prospective and desires may lead to new ideas, solutions that can be transported to other domains and territories. Federalism may help us to manage diversity’s detrimental effects so we can harness its benefits.
Nigeria is a country of extraordinary diversity. Ethnicity is generally regarded as the most basic and politically salient identity in Nigeria. Due to marginalization of these diverse groups and their non-inclusive in the affairs of the country has led to Nigerians, more likely to define themselves in terms of their ethnic affinities than national identity. In other words, Nigerians tend to cluster more readily around the cultural solidarities of kin than the class solidarities of common nationality. Thus ethno-religious tensions have become common features in the Nigerian federation and have constituted what is commonly referred as the national question in Nigeria. Nigeria is a mere geographical expression’, bound together by nothing except the coercive apparatus of the state. The major challenge the nation faces is how to galvanize the various ethno-religious groups into nationhood with the instrumentalities of federalism. This paper offers practical solutions to this challenge (Infra).
(Decentralized subunits exclusivity)
Representation and accountability go hand-in-hand: elected leaders are more likely to represent their constituents faithfully when they know they are held accountable for their actions. Accountability is impossible without transparent responsibility. Therefore, it is claimed that authority decentralization improves accountability because citizens are more likely to see the effects of government action at the local level and respond accordingly in the ballot box.
Nigerian citizens face a key challenge in holding their political representatives accountable, since decentralization reforms tend to be partial in nature, leading to the involvement of multiple tiers of government in the provision of public goods. Under complete decentralization, voters can limit governments rent seeking by setting appropriate reelection incentives. The ability of voters to hold politicians accountable is lower under partial decentralization than under complete decentralization.
Decentralization of expenditure responsibilities from central to local levels of government is generally thought to mitigate the problem by bringing the policymaking process closer to citizens and, hence, to increase overall government accountability. The World Bank, for example, has strongly advocated decentralization on the basis that it will help to solve corruption problems, especially in developing countries. The standard intuition that decentralization should be accountability-improving is consistent with theoretical models considering complete decentralization, i.e. the full transfer of a given expenditure responsibility from a higher level of government to a lower one.
ANTI-TYRANNY AND RIGHTS
(Cooperative between central government and its subunits)
Federalism’s inherent fragmentation is well-suited to block tyranny; when decision-making power is subdivided, they tyrant cannot easily gain full control. It is a common practice in Nigeria that the ruling class could abuse its powers to oppress the governed just as easily as a king. The minority groups such as women, children and the less privileged are faced with the dangers of tyranny of their rulers. Centralization of power and majority’s tyranny over political and social minorities is “a constant threat” to Nigerian democracy.
HIGHER QUALITY REPRESENTATION
(Cooperative between central government and its subunits)
Both centralization and decentralization are important for federalism to improve the quality of representatives. With two levels of government, people can gain experience with their local leaders. Accountability is easier at this level, so voters are more likely to make the right decisions about voting poorly performing politicians out of office while retaining better ones. In order to find this solution fruitful in Nigeria, there must be restoration of confidence in the country’s electoral system.
Sometimes the federal government justifies its encroachments on states non-compliance, even when the subject of compliance is unconstitutional or too expensive for the state to implement. Very often, the federal government uses intergovernmental retaliation to enforce compliance. Intergovernmental Retaliation is a severe type of safeguard. It is a safeguard with potentially disastrous effects. It can lead to Civil war. It is best not to involve intergovernmental retaliation for the mundane matters of minor transgressions, but preferably to reserve it for significant transgressions. When intergovernmental retaliation is the only safeguard available, it is inevitably a severe sanctioning mechanism. When it is reinforced by other safeguards (structural, political, judiciary and popular – supra) it may have potential to span a wider range of punishment force. For example, in the United States the federal government withholds funds to induce state compliance, for example, with highway funds, education, and pollution control. This limited intergovernmental retaliation is both tolerated and kept in check by other safeguards, particularly popular safeguard.
The success of Nigerian federation hinges on widespread confidence in its safeguards. The ability and commitment of the safeguards to uphold the boundaries of authority must be beyond question. No single force – whether constitutionally derived or tyrannical – should be able to dictate the boundaries of federal and state authority or force other governments to work for it. Each government should remain relevant. With a well-functioning system, major violations are punished, upholding compliance; minor transgressions, when allowed promote exploration of the policy space and adaptation of the rules; and the multiple safeguards, each judging governmental actions independently, means that the system is not vulnerable to the failings of one component.