Although our emphasis will be on the 196 and 1979 Nigerian Constitutions, reference will be made to their

predecessor, the Independence Constittion of 1960, as and when necessary.

Nigeria, under the First and Second Republics, was generally speaking an orthodox federation by virtue of her adoption of most of the procedural mechanisms of classical federalism: a system of government in which the national and subnational units are autonomous; each level of government being constitutionally invested with powers for legislation, execution, arbitration, and fiscal self-sufficiency, and within their allotted spheres, neither of the governments could encroach on each other's area of competence. Indeed, the federal principle was the dominant factor in Nigerian government.

6:1 Division of Powers Between the National and Regional Governments

Division of powers between the national and regional governments is the pivot upon which the concept of federalism revolves. There can be no autonomy if one level of government can override the other in all matters.' Thus, according to Professor Wheare,

"if there is to be federalism one condition must be fulfilled. There must be some matter, even if only one matter, which comes under the exclusive control, actual or potential, of the general government and something likewise under the regional government. If there were not, that would be an end to federalism.1,4

The rationale for division of powers rests on two assumptions: first, the national government has a plenary jurisdiction over certain sectors of policy-making; and second, certain other sectors of decision-making are reserved

4 K.C. Wheare, op. c i t .. p.75. See also A.V. Dicey, The Law of the Constitution, o p .c i t .. p . 143.

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in equally plenary fashion to the peripheral units (the s tates). It is irrelevant where the residual power remains. What is important is that the totality of governmental powers and functions - legislative, executive and judicial should be shared among the two tiers of government with substantial areas of exclusive competence reserved for each of them. The weight of authority conferred on the individual level of government is also not of crucial importance.5

Even though there is no universally accepted formula for sharing powers among governments, historically two methods are employed. The first is that the constituent states, while delegating certain powers to a new central government, retain under their original constitutions the residue of powers not expressly or impliedly delegated to the centre. This formula was adopted by the United States and the Australian Commonwealth. The second method, which was chosen by Canada and India, is that whereby self-contained states agree to delegate their powers to a common national government with a view to having new constitutions for the federal and provincial governments. The new constitutions would grant the provinces or states only enumerated powers leaving the residue with the new central government.

The Nigerian Constitutions of 1960, 1963 and 1979 exhibited many similarities to the Constitution of the United States of America, 1787. It should, however, be noted that there are significant differences which not only reflect 5 See Milton R. Konvitz, "Constitutionalism and Federalism", International Encyclopedia of the Social Sciences. 3 (1968), p . 302.

Nigeria's peculiar social and political circumstances but also represent a conscious attempt on the part of the country to improve upon the American constitutional practice. The Nigerian Constitutions were much longer and more detailed than their American counterpart. For example, they were more specific in enumerating fundamental rights and the qualifications that condition these rights, and more specific in setting out legislative powers of the Federal Legislatures vis-a-vis State Legislatures. Secondly, the Nigerian Constitutions did not establish separate federal and state judicial systems. Thirdly, the 1960 and 1963 Constitutions of the First Republic incorporated many conventions of British constitutional practice, principally due to Nigeria's adoption of "Westminster model" of government.

6:1:1 Division of Legislative Powers

The division of legislative powers in Nigeria under the First and Second Republics was similar to those provided by the American and Australian Constitutions, with delegated powers being conferred on the Federal Government and reserved powers remaining with the states. Sections 69(2) and 4(2) (3) of the 1963 and 1979 Constitutions respectively granted to the Federal Legislature competence to make laws to the exclusion of regional/state legislatures with respect to any of the items specified in the Exclusive Legislative List. The list includes such matters of national significance as aviation, currency, coinage and legal tender; customs and excise duties; defence; deportation, external affairs, incorporation, maritime; naval, military and air forces; passports and

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visas.6 These are similar to the powers expressly granted to Congress under Article I of the United States Constitution.7 Under the Nigerian Constitutions, the Federal Legislature shared with the States' Legislatures competence to legislate on matters enumerated in the Concurrent Legislative List, among which are, agriculture, antiques and monuments, archives, exhibition of cinematograph films, higher education, health, local government administration, scientific and technological research, industrial and commercial development, and statistics.8 In the event of conflict or inconsistency, the laws of the Federal Government prevailed over those of the Regional/State Governments, and the former void to the extent of the inconsistency.9 Similarly in America, the authority of the states to act on matters within the Concurrent List (for example, education and commerce) is qualified by the rule that any exercise of legislative power within these areas which is incompatible with that of the Federal Government is

invalid.10

6 See Part I of the Exclusive Legislative List,