Constitution: The task before the national conference

By Dr Olisa Agbakoba, SAN & Chinedu NnekeThis year, Nigeria celebrated 100 years of existence as a political entity. Also this year, the President convened a National Conference to deliberate and find solution to Nigeria’s Constitutional problems.
These are actually problems confronting Nigeria since it came into existence in 1914.The root of the problem is that Nigeria is a plural, diverse and divided state. We have 3 major fault lines, which are ethnicity, religion and language. In its 100 years of existence, Nigeria has never confronted the challenges posed by these 3 major fault lines, by enacting a genuine Peoples’ Constitution.
Peoples’ Constitution is about an agreed framework for co-existence among our diverse ethnic nationalities. Unity is our key challenge. And Federalism is the only known political system that accommodates divisions and diversity. Even our colonial masters recognized this. Macpherson prescribed Federalism. Zik, Awo, etc. also advocated Federalism.
Remodelling Nigeria’s Centralized Federalism to a Balanced Federalism
Nigeria is one of the 28 countries in the world that practise different models of federalism. The problem with Nigerian model is that power is too centralised. Nigeria consists of 802 Governments made up of 774 Local Governments, 36 State Governments, and 1 Federal Government.
Exercise of Legislative Power between Federal and State Government is divided into Exclusive and Concurrent Legislative Lists. The Federal Government exercises power over 68 items on the Exclusive List and 30 items on the Concurrent List. The State may exercise power on the Concurrent List only if the Federal Government has not already ‘covered the field’ in any of the 30 items. In effect all the other 801 Governments are in combination weaker than the Federal Government.
Thus under the present Constitution, Nigeria is a federation of excessively strong Federal Government where the States actually exercise power at the pleasure of Federal Government.Another feature of Nigeria’s Centralized Federation is the excessive Revenue Power of the Federal Government. Presently the Federal Government collects 97% of revenue accruing to Nigeria. This is one of the most extreme cases of Centralised Revenue Power, second only to Venezuela’s 98%.
A balanced Federal System is not attainable under the present Constitution. Therefore, there is urgent need to remodel our Centralized Federation to a Balanced Federation, by massively devolving powers to the States and also create a balance between the Revenue Powers of the Federal and State Governments.This is the task before the National Conference. The National Assembly also has the task of creating the legal framework for the adoption of the outcome of the National Conference.
How to Devolve and Share Power between Federal Government andthe States
The powers that need to be devolved or shared between Federal and State Government are Technical and Political in nature. Technical Powers are those that seem more relevant to the States than the Federal Government in which the States will be more efficient than the Federal Government.
For Example, States are better able to manage the following items than the Federal Government: agriculture, micro finance banks, solemnization of marriages, regulation of labour and industrial relations at state level including prescription of minimum wage for the state, incorporation of business enterprises with state objects, taxes on income and profits within the State other than Income and Profits of Companies, trade within states.
On the other hand, Political Powers, such as police, election, judiciary, etc. may be more difficult to deal with; as it is perceived to mean exercise of political control. As a result, the concept of shared or joint power will help to resolve Political Powers.For instance, it is possible to introduce municipal policing for States, while streamlining the present Nigeria Police Force in a shared power scheme between Federal and State Governments.
Massive devolution
A massive devolution and sharing of powers, as prescribed,  will result into a new list of Legislative powers divided into, (1) Federal Legislative Lists, for powers exclusive to the Federal Government, (2) State Legislative Lists, for powers exclusive to States, (3) Concurrent or Shared powers between Federal and State Governments, and (4) Residual powers for States.
How to attain Fiscal Federalism and balanced Revenue Sharing
Fiscal Federalism is crucial for the functioning of the Federal system. In fact it is one of the key features of Balanced Federalism. It is therefore very important to create a balance between the Federal and State Governments in Revenue generation, sharing and spending.
The General principle is to rebase the Revenue Power by (1) Transferring ownership of certain resources to States, (2) Re-allocating some taxation to States; and (3) Re-allocating money to States as a result of major re-allocation of power from Federal to State Governments.
For example (1) review of Land Administration within the framework of the Land Use Act, but with ownership returning to original owners, and (2) review of Tax Administration so VAT, for example is State and not Federal Tax.

    Dr. Olisa Agbakoba SAN and Chinedu Nneke are of Olisa Agbakoba & Associates, Lagos

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