FEDERALISM AND MILITARY RULE IN
NIGERIA
by
JOHN ALEWO MUSA AGBONIKA
LL.B. (Hons.)/ LL. M . , B . L . ; Solicitor & Advocate of the Supreme Court of Nigeria
A thesis submitted to the University of London
as an internal student of the University College, London for the Degree of Doctor of Philosophy
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DEDICATION
This thesis is dedicated to my deceased mother MRS. AMINA OTINI AGBONIKA who could not live to reap the fruit of her labour.
Epitaph
"Death is a black camel which kneels at every man's gate. Death rides on every passing breeze. He lurks in every flower.
Mors Omnibus Communis."
A ^ iM N U W J _ i.E ilJ ljlvl£iJN I S
I wish to express my gratitude to all those that contributed to the completion of this thesis.
I am deeply indebted to my supervisors, Professor Jeffrey Jowell and Mrs. Dawn Oliver of the Faculty of Laws, University College, London (UCL) for their diligence, constructive criticisms and useful suggestions. I benefitted immensely from Mrs. Oliver's critical comments and incisively tireless shaping and reshaping of my thoughts over the central arguments of my work. In her I found a most delightful and keen collaborator.
My special thanks go to Professor William Twining, Professor John Dodgson, Miss Allison Clarke, and Mr. Nigel Percival of UCL; Professor James Read, School of African and Oriental Studies; Professor Leonard Leigh and Mr. Leslie Wolf-Phillips, London School of Economics and Political Science; Dr. Gordon Woodman, University of Birmingham, U.K.; Miss Jill Cottrell, University of Warwick, U.K.; Professor Davies Rufus, University of Melbourne, Australia; and Professor Neil Gold, University of Windsor, Canada for their inspiration, academic and moral support. Their fascinating and thought-provoking discussions at seminars and conferences widened my horizon. I also gained a lot of experience in working as research assistant with Professor Terence Daintith, Director, Institute of Advanced Legal Studies, University of London.
(Justice) T.A. Aguda, Professor Abiola Ojo, Professor (Mrs.) J.O. Akande; Mr. Samuel Asagba, a one-time Secretary-General, Nigerian Bar Association; and Mr. J.O. Malomo, Nigerian Law School, Lagos.
I seize the opportunity to record my gratitude to the library staff of UCL, L S E , SOAS, Institute of Advanced Legal Studies, Institute of Commonwealth Studies, and the Senate Building, University of London for their friendliness and cooperation.
My appreciation goes to Amen Obaseki, Susan Hunt and Linda Wibram for the interest and speed with which they typed the thesis at short notice.
Thanks to my cousin, Dr. D.O. Atanu, who was the never-ending source of advice and encouragement throughout the duration of my studies in Britain.
I must not fail to express my heart-felt gratitude to my wife, Josephine (LL.B., LL.M., B.L.), who shared with me the anxiety of finishing the course within the prescribed minimum period. Hers is a memory of valuable friendship.
I also give glory to the Almighty God for His guidance and providence and for blessing me with lovely triplets -Louisa, Theresa, and John Jr. - during the course of my s tudies.
Finally, I declare that I am fully responsible for any short-coming in this work.
ABSTRACT
FEDERALISM AND MILITARY RULE IN NIGERIA
This thesis examines the practice of federalism under military rule in Nigeria. The primary objective is to determine to what extent federalism is practicable under military governance.
The argument is that military rule and federalism are two fundamentally different concepts of political organisations, and that it is a misnomer to call a military government federal because of the inherent contradictions between the two.
The thesis is divided into twelve chapters. Chapter 1 deals with the introduction. Chapter 2 provides the theoretical framework. It examines the concept of federalism. Chapters 3, 4, 5 and 6 provide the empirical background to the study. They trace the development, basis, as well as the status of Nigerian federalism under civil rule. They also examine the contradictions between federalism and military rule. Chapter 7 discusses the advent and legality of military government in Nigeria. Chapters 8, 9 and 10 look at the machinery of the military administration, while Chapter 11 analyses the federal-state fiscal and financial relations. The concluding Chapter 12 summarises the broad issues of the preceding chapters and highlights the effects of military rule on the Nigerian Federation in particular and on the study of federalism in g e n e r a l .
6
TABLE OF CONTENTS
Dedication
Acknowledgements Abstract
CHAPTER ONE: CHAPTER TWO:
2:1 2:2 2 : 3
INTRODUCTION ... THE CONCEPT OF FEDERALISM
Evolution of the Federal System Definition ... ... ... Determinants of Federalism ...
Page
1 2 4
14 18 18 21 31
CHAPTER THREE: THE EVOLUTION OF NIGERIAN FEDERALISM 3 5 3:1 Description ... ... ... ... 35 3:2 The Birth of Nigerian Federalism ... 39 3:2:1 British Colonialism ... ... 39 3:2:2 The Early Form of Government in
Nigeria ... ... ... ... ... 46 3:2:3 British Administration in Nigeria ... 48 3:2:4 Direct Political Control ... ... 51 3:2:5 Lugard's Amalgamation Scheme ... 54 3:2:6 Lugard's Constitution, 1914 ... ... 60 3:2:7 Clifford's Constitution, 1922 ... 62 3:2:8 Richards Constitution, 1946 ... ... 64 3:2:9 Macpherson's Constitution, 1951 ... 69 3:2:10 The Lyttleton Constitution, 1954 ... 71
7
CHAPTER FOUR: THE BASIS OF NIGERIAN FEDERATION 80 4:1 Factors Influencing the Desire for
Unity in Nigeria 80
4:1:1 British Colonial Rule ... 81 4:1:2 Imitation ... ... ... ... ... 83 4:1:3 Positive Nationalism and Statesmanship 84 4:1:4 Economic Complementarity ... ... 86 4:2 Factors Supporting a Measure of Regional
Independence in Nigeria 90
4:2:1 Geographical Differences ... ... 90 4:2:2 Ethnic Pluralism ... ... 93 4:2:3 The Need to Protect the Minorities ... 95 4:2:4 Mutual Fear of Domination Among the
Major Ethnic Groups ... ... ... 97 4:2:5 Differences in Religious Beliefs ... 102 4:2:6 Lack of Uniformity in Traditional
Administrative Practices ... ... 104 4:2:7 Incompatibility in Social and Cultural
Values ... ... ... ... ... 105 4:2:8 Educational Disparity ... ... ... 106 4:3 The Capacity for Working the Federal
System ... ... ... ... ... 110 4:4 The Uniqueness of Nigerian Federalism 111 4:5 Summary ... ... ... ... ... 114
CHAPTER F I V E : THE CONTRADICTION BETWEEN FEDERALISM AND
MILITARY RULE 116
8
5:1:5 Cultural Dissensus ... ... ... 121 5:1:6 Compromise ... ... ... ... 122 5:1:7 Rigid Constitutional Amendment ... 123 5:1:8 Democracy ... 124 5:1:9 Judicial Review ... ... ... ... 126 5:1:10 Supremacy of the Constitution ... 127 5:2 Military Rule ... ... 128 5:2:1 The Nature of the Military ... 128 5:2:2 Characteristics of Military Rule ... 135 5:2:3 Unity of Command ... ... ... 137 5:2:4 Coercion ... ... ... ... ... 137 5:2:5 Penchant for Discipline ... ... 138 5:2:6 Concentration of Authority ... ... 140 5:2:7 Authoritarianism ... ... ... 141 5:2:8 Esprit de Corps ... ... ... 148 5:2:9 Conservatism ... ... ... ... 151 5:3 Summary and General Observation ... 152
CHAPTER SIX: THE STATUS OF NIGERIAN FEDERALISM UNDER
CIVIL RULE 154
6:7 6:8 6:9 6:10 6:11 6:12 6:13 6:14 6:15 6:16 6:17
CHAPTER SEVEN: 7:1 7:2 7:2:1 7:2:2 7:2:3 7:2:4 7:2:5 7:2:6 7:2:7 7:2:8 7:2:9 7:2:10 7:2:11
Fundamental Rights ... ... ... 185 The Rule of Law ... ... ... 190 Democratic Constitutionalism ... 193 Separate and Independent Existence
of National and Regional Governments 195 Existence of Federal and Regional
Constitutions ... ... ... 196 Equal Jural Status Between the National and Regional Governments ... ... 197 Equality Among the Regional Governments 199 Existence of Balanced Component States 2 00 Indivisibility and Indissolubility of
the Corporateness of the Federation 2 02
Fiscal Autonomy 2 05
Summary 2 05
THE ADVENT OF MILITARY RULE IN NIGERIA 208 The Traditional Role of the Military 209 Reasons for Military Intervention in
Nigerian Politics ... ... ... ...214 Political Instability ... ... 215 Corruption ... ... ... ... 223 Economic Mismanagement ... ... 225 High Unemployment and Lack of Social
10
7:3 The Legitimacy of the Nigerian Military Government ... ... ... ... 242 7:3:1 Political Legitimacy ... ... 242 7:3:2 Constitutional Legitimacy ... 244 7:3:3 Analysis, Critique, and General
Observation ... ... ... ... 257
CHAPTER EIGHT: THE MACHINERY OF MILITARY GOVERNMENT 2 65 8:1 Challenges to Nigerian Federalism 266 8:1:1 General Ironsi's Unification Scheme 266 8:1:2 Confederal Attempt ... ... 273 8:2 The Military System of Administration 281 8:3 The Legislature ... ... ... 282 8:3:1 The Supreme Military Council ... 282 8:3:2 The Functions of the Supreme Military
Council ... ... ... ... ... 283 8:3:3 The Legislative Process Under Military
Rule ... ... ... ... ... 284 8:3:4 Validity of Decrees and Edicts ... 290 8:3:5 Federal-State Legislative Relationship 292 8:4 Legislative In-roads and Federal
Dominance ... ... ... ... 296 8:4:1 Instances of Legislative Incursions
and Violation of the Federal Principle 296
8:5 Summary ... ... ... ... 317
CHAPTER NINE: THE EXECUTIVE UNDER THE MILITARY 321 9:1 The Nature and Structure of the
Executive ... ... ... ... 321 9:1:1 The Head of the Federal Military
11
9:1:4 The State Executive Councils ... 337 9:1:5 The Civil Service ... ... ... 341 9:1:6 Advisory and Consultative Administrative
Bodies ... ... ... ... 355 9:2 S u m m a r y ... 361
CHAPTER TEN: THE JUDICIARY UNDER THE MILITARY 3 63 10:1 The Structure of the Nigerian Judiciary 364 10:1:1 The Supreme Court ... ... ... 3 66 10:1:2 The Court of Appeal ... ... ... 3 68 10:1:3 The Federal High Court ... ... 3 69 10:1:4 State High Court ... ... ... 370 10:1:5 Sharia Court of Appeal ... ... 371 10:1:6 Customary Court of Appeal ... ... 37 2 10:1:7 Magistrates’ Court and Area/
Customary Courts ... ... ... 372 10:2 The Advisory Judicial Committee ... 373 10:3 The State Judicial Service Committee 37 4 10:4 The Impact of Military Rule on the
Judiciary ... ... ... ... 374 10:5 The Independence of the Judiciary 375 10:5:1 Individual Independence ... ... 376 10:5:2 Institutional Independence ... 377 10:5:3 Independence of the Judiciary under the
Civilian and Military Era Compared 377 10:5:4 Security of Tenure of Judges ... 400 10:5:5 Adequate Remuneration ... ... 409 10:5:6 Freedom from Governmental Pressure 413 10:5:7 Ouster of Judicial Review ... 418 10:5:8 Transfer of Jurisdiction to Special
12
10:5:9 Judicial Immunity ... ... ... 427 10:5:10 The Public Image of the Judiciary 428 10:5:11 Summary ... ... ... ... ... 452
CHAPTER ELEVEN: FISCAL FEDERALISM UNDER THE MILITARY
ADMINISTRATION 454
11:1 Meaning of Fiscal Federalism ... 457 11:2 The Importance of Fiscal Federalism 458 11:3 Federal-State Fiscal Relationship in
Nigeria before Military Rule ... 459 11:3:1 Fiscal Autonomy and Financial
Self-Sufficiency ... ... ... ... 461 11:4 The Nature and Structure of Fiscal
Federalism Under the Military ... 465 11:4:1 Revenue Sharing Under the First Military
Administration, 1966-79 ... ... 465 11:4:2 The Binns Revenue Allocation Commission,
1964—66 ... ... ... ... ... 466 11:4:3 The Dina Interim Revenue Allocation
Review Committee, 1968 ... ... 468 11:4:4 Transfer of Tax Jurisdiction ... 470 11:4:5 Abolition of Sources of State Revenue 473 11:4:6 Attitudes of the State Governments 477 11:4:7 The Aboyade Technical Committee on
Revenue Allocation, 1977 ... ... 479 11:5 Revenue Sharing Under the Second
Republic, 1979-83 ... ... ... 483 11:5:1 The Okigbo Presidential Commission on
Revenue Allocation, 1979 ... ... 484 11:5:2 The Allocation of Revenue (Federation
Account, etc.) Act No.2, 1982 ... 486 11:5:3 The Advantages of the Presidential Revenue
Allocation Formula ... 486
11:6 Revenue Sharing Under the Second
11:7
11:7:1 11:7:2 11:7:3 11:7:4 11:8
1 1
:
8:11 1
:
8:2 11:8:31 1:8:4
11: 9
13
Factors Responsible for Federal Fiscal
Dominance Under Military Rule ... 490 The Nature of Military Rule ... 490 The Creation of More States ... 491 The Impact of the Civil War, 1967-70 493 The Emergence of Oil Boom ... 493 Effect of Changes in Fiscal Federalism
on the National and Subnational
Governments ... ... ... ... 495 Revenue Sharing Between the Federal and State Governments ... ... ... 495 Revenue Sharing Among the States 503 Federal-State Planned Capital Investment Relationships ... ... ... ... 505 Federal Grants-in-Aid and Loans to State Governments ... ... ... ... 511 Summary ... ... ... ... 520
CHAPTER TWELVE: CONCLUSION 522
ABBREVIATIONS ... TABLE OF CASES ... TABLE OF STATUTES
LIST OF CHARTS,MAPS AND TABLES BIBLIOGRAPHY
533
539
547
553
CHAPTER ONE INTRODUCTION
The establishment of a federal system of government in 1954 for Nigeria was a conscious and rational attempt to solve her problem of pluralism. Whilst the country was in the throes of the decolonisation process in the early 1950's, the British Colonial Administration and the indigenous political elite considered the introduction of classical federalism1 to be an effective means of reconciling the divergent forces that exist within the Nigerian society. Consequently, in 1954, federalism was formally adopted. In 1960, Nigeria obtained her independence from Britain and became an independent sovereign state and a member of the Commonwealth. She attained a republican status in 1963.
Federalism is a dynamic process, and since 1954, Nigeria has had her own peculiar experiences in the federal experiment. One of them is the emergence of military rule which has been in force since 1966. This phenomenon has become pervasive in most countries of the Third World especially in Latin America, the Middle East, Asia and Africa. Over half of the continent of Africa is now governed by military or civil-military regimes, and in most cases, the period of military rule has lasted much longer than that of the supplanted civilian administrations, thus leading one to question the validity of the proposition
that military rule is nothing but "a political aberration".2
In Nigeria, the frequency of military intervention in government3 and its aftermath effects, has been the over concentration of authority and powers in the Central Government at the expense of the States. This has brought about what one might call a 1master-servant' relationship in terms of federal-state relations with gradual erosion of the powers of the subnational units.
A careful study of federal and military characteristics4 reveals that military rule is antithetical to the federal nature of the political and social structures which Nigeria has contrived. The military features impede coordination of authority and distort the equilibrium in federal-state power-sharing which, of course, are the sine qua non for the practice of federalism. Hence, arising out of this study are the questions: why is it impracticable for Federalism to thrive under military rule; and which aspects of the military political process militate against the achievement of functional federalism in Nigeria?
In attempting to answer these questions, four main aspects of military administration in relation to federal-state partnership are considered in this study. They
2 Adebayo, Augustus, Principles and Practice of Administration in Nigeria (Ibadan: Spectrum Books Ltd. ,
1981), pp.85-86. See also Samuel Decalo, "Military Coups and Military Regimes in Africa", Journal of Modern African Studies, 11 (March 1973), p p . 105-127.
3 Military coups have become cyclical in Nigeria. Since 1966, 5 coups (excluding 3 attempted) have taken p l a c e .
include the constitutional, political, administrative and fiscal relations. The list is by no means exhaustive, but they are considered as the most important, and a reasonably intensive study of them gives a reliable indication of the nature and scale of the violation of the federal principle by the Nigerian military government.
The main criterion used in determining whether or not the Nigerian military adheres to the concept of Federalism, is the extent of "federal predominance" in the constitutional structures, administration and policy implementation of the government. In doing so, two tests are applied.5
First, "Is the federal principle predominant in the military Constitution?" If so the Constitution may be called federal. If on the other hand, there are many modifications or deviations in the constitution that the federal principle ceases to be of any significance, then, the constitution cannot be termed federal.
It is not sufficient for the military (or any other government) to have a federal constitution. That is something, but there is no guarantee that a federal system will operate. What determines the issue is the working of the system. The second test therefore is, "Does the system of military government embody predominantly a division of powers between the general and regional authorities, each of which, in its own sphere, is coordinate with and independent of the other?" If so, that government is
federal, and vice versa.6
It is argued in this study that because of the inherent contradictions between military rule and federalism, the former would not augur well for a heterogeneous society like Nigeria where regional autonomy in certain matters is fundamental for the corporate existence of the federated units. Besides, as the most populous sovereign state in Africa and one of the architects of Pan-Africanism, Nigeria is expected to be a model of constitutional government. Hence, to assert its leadership role,7 federalism which she claims to have been practising must be functional, viable and authentic.
It is against this background that we set out to examine the practice of federalism under military rule.
6 Note that in Nigeria, the Military Constitution is an amalgam of the unsuspended parts of the civilian constitution, Decrees, Edicts and other subsidiary legislations promulgated from time to time by the Supreme Military Council or the Military Governor of a State. In this study, unless otherwise expressly stated, the words
"federal", "general", and "central", are used interchangeably and they refer to the national government while "region", "canton", "province", "subnational" are synonymously used in relation to state governments. The phrase, "Federal Military Government" is used notionally because the argument of the thesis is that military government is not federal.
CHAPTER TWO
THE CONCEPT OF FEDERALISM
Before examining the impact of military rule on federalism in Nigeria, a preliminary discussion on the concept of federalism is needed both for the sake of clarity and to set out the framework for the analysis. Such a preliminary clarification is necessary for two reasons: firstly, at least from the legal point of view, the term "federalism" has often been used loosely and imprecisely by many scholars, especially social scientists;1 secondly, it will enable us to compare and contrast the type of government which the Nigerian military purports to run and that which it actually operates. Thus, this Chapter is essentially a synthesis and a critique of some of the existing theories on federalism.
2:1 Evolution of the Federal System
Though the origin of federalism cannot be ascertained with any degree of precision, its concept is not entirely new. The first appearance of what can be called federal government occurred in ancient Greece after the Peloponnesian war during the thirteenth century. The circumstances that inspired the 'invention1 were mainly military - the fear of the city states to defend themselves against the war threats from Sparta, Macedon and Rome. The city states delegated to military rulers only defence powers while retaining for themselves decisions on diplomatic matters and other non-military issues. In addition to military alliances, there were found in Greece
the Amphiktyonies, the Acheans and the Aetolian Leagues which were communities of city states of a rather religious character but wielded great political influence. Also, in the Italian city states of the Middle Ages, in the American and Swiss Confederations before 1787 and 1848 respectively, there existed some loose federal unions through which the states were linked together.
The unique feature of each of these groups was the provision of a formal structure to look after the common affairs of the group while leaving the individual member or unit to take care of such matters that were not of general concern.2 This fact of union of group selves, united by one or more common objectives but retaining their distinctive group being for other purposes is the inner essence of federalism.
Between the evolution of the city states of ancient times and the development of the modern states, particularly since the formal adoption of a federal Constitution by the United States in 1787, federalism has assumed a new dimension. The end of World War II in 1945 marked the beginning of an extraordinary popularity of the idea of Federalism as a panacea for a great variety of socio-political and econo-cultural problems at all levels of governmental organisation in many parts of Europe, America, Asia, Australia, and Africa. This contemporary
interest in federalism arose from post-war developments and the proliferation of political systems which manifest
division of authority and powers among different levels of government. Indeed it has now become fashionable among the Commonwealth countries to use federalism as a means of softening political tensions. Thus, newly independent nations wishing for the realities of economic and political sovereignty, and not merely its ceremonial trappings, turn frequently to some kind of a federal system. Apart from the post-war developments, the historic success of federalism in the United States, Canada, Australia and Switzerland, to some extent, gave impetus to developing nations and also lent credence to federalism as a solution to the common contemporary problem of units, which standing alone, are frail, uncompetitive and economically non-viable. By the 1960's, half of the land mass of the world was ruled by governments that described themselves as federalist.3 One can, therefore, agree with Professor Riker's view that the 2 0th century is the Age of Federalism.4 Riker's view is supported by Elazar who maintains that the federal revolution is as much a product of the modern era as contemporary urbanism, and that it has become significant in shaping modern political life.5
The increasing tendency by governments in modern times to apply democratic principles particularly in the decision-making process and policy implementation has
3 Examples include Argentina, Austria, Australia, Brazil, Canada, Congo, Ethiopia, West Germany, India, Malaysia, Mexico, Nigeria, Pakistan, the Soviet Union, Switzerland, the United States, Venezuela and Yugoslavia.
4 See Riker, William H. , Federalism: Origin. Operation. Significance (Boston: Little, Brown, 1964), p . 2.
21
rendered the introduction of federalism attractive. Federalism seeks to resolve the theoretical antimony of the unity of the whole and freedom of its constituent parts. But what exactly is the meaning of "federalism11?
2:2 Definition
A proper examination of the working of a federal system of government should of necessity begin with a definition of federalism.
The word "federalism" is derived from the Latin term foedus which means treaty or alliance. This implies that at the root of every federation lies an agreement among the federating units.
It should however be noted from the onset that no one single definition of federalism has been universally accepted because of the difficulties of relating theoretical formulations to the evidence gathered from observing the actual operation of federal systems. What exists is the multitude of definitions - a score or more of descriptive frameworks, and a plethora of different "types" of federalism, all of which involve the use of a preceding adjective, for example, "cooperative federalism", "coordinate federalism", "quasi-federalism", "dual federalism", "organic federalism", "modern federalism", "new deal", "military federalism", and the latest, "intergovernmental relations" to designate various shades of federalism.6
According to Professor K.C. Wheare, the exponent of modern contemporary federalism, a federal government is a constitutional arrangement which divides law-making powers, executive and judicial functions between two levels of government within the same polity.7 To him, this constitutional form is brought about by circumstances where people are prepared to give up only certain limited powers but wish to retain others, both sets of powers being exercised by coordinate authorities.8 Apparently, this is based on the short definition of Sir Robert Garran who describes federal government as one in which sovereignty or political power is divided between the central and subnational units such that each of them, within its own competence is independent.9
A federal government is governed by the federal principle which in W h e a r e 1s words "is the method of dividing powers so that the general and regional governments are each, within a sphere coordinate and independent".10 The important criterion therefore is the division of powers between two levels of government.11
However, W h e a r e 's definition has been variously
7 See Ransome, Patrick (ed.), Studies in Federal Planning (London: Macmillan, 1943), p . 43.
8 Wheare, Kenneth C . , Federal Government, op.c i t ., p . 3. 9 See the Report of the Royal Commission on the Australian Constitution, 1929, p . 230.
10 Wheare, Kenneth C . , o p .c i t .. p . 10.
criticised as being too legalistic and inflexible12 and that it neglects sociological and political factors which are crucial to an understanding of the dynamics of federalism.13 According to Dicey, Wheare's theory tends to produce conservatism, legalism and predominance of the judiciary.14 The fact that no real federal system has achieved absolute "independence", which Wheare seems to propose, has led Watts also to suggest "interdependent federalism" from a recognition of the extent of social, political and economic interactions and interdependence of governments within a federation.15 Professor Vile also argues that the interdependence, constitutional and political, of two levels of government is as important as their independence, and that more important than the coordinate status of the two levels is the requirement that neither should be subordinated to the other.16
Livingston and Jinadu bring to bear more fundamental criticism of the Whearean definition. Professor Livingston insists that federal institutions are significant only if they reflect a diversified society with a marked degree of differences. According to him, federalism is not an absolute but a relative term, and that there is no specific
12 See A.H. Birch, "Approaches to the Study of Federalism", Political Studies. 14, 1 (1966), p.15; and Riker, William H., Federalism; Origin, Operation. Significance, o p .cit.. pp.98-99. 13 William S. Livingston, "A Note on the Nature of Federalism", Political Studies Quarterly. 62 (1952).
14 Dicey, A.V. , The Law of the Constitution, 10th edn., pp.171-180.
15 Ronald L. Watts, Administration in Federal Systems (London: Hutchinson, 1970), p.7.
point at which a society ceases to be unified and becomes diversified.17 Livingston, a sociologist, also deploys the dominance of the legal view of federalism. He sees federalism as the product of the interaction of socio cultural and political factors noting that documentary constitution may be a poor guide to whether a political system is federal or otherwise. According to him, the essential nature of federalism is to be sought for, not in the shading of legal and constitutional terminology but in the economic, social and cultural forces that have made the outward forms of federalism necessary.18
Livingston has introduced a sociological element into the federalism concept - the interaction between constitutional framework and socio-cultural substructure, by demonstrating that the form of the constitution is not independent of the centripetal and centrifugal forces operating within the society. The defect of this definition, however, is that while he enumerates the factors which affect the operation of a federal system, it is full of vagueness. It fails to identify which of these factors are requisite or fundamental to the formation of a federation. Secondly, his definition of a federal system is rather sweeping - so broad that all societies with division of powers can find a niche in the classification. This approach does not help us in sorting out the boundaries between federal states like the United States of
17 Livingston, William S., "A Note on the Nature of Federalism" (supra), p.25.
25
America and highly centralised unitary systems such as Britain.
Jinadu, on the other hand, thinks that the basic defect of W h e a r e 's position is his failure to distinguish between an idea and its institutional manifestations. According to him, Wheare fails to take into account two crucial elements: firstly, that a system of federal government even if it works according to W h e a r e 1s model, may apply only to a particular society and does not provide a sufficient basis for the assumption that the federal principle which he propounds will be respected universally; and secondly, that the paraphernalia of government and the constitution of a country may contain no formal recognition of federalism (there might even be no constitution at all) , and yet that society might still be living by the principles of federalism as was the case of Greece.19 Jinadu seems to be justified in his statement, for although
it is sensible to use the United States as the parameter on historical grounds, there is no justification for insisting as Wheare does that any federal system which was not a prototype of the U.S.A. would thereby be condemned as unreal. In this respect, Wheare seems to have fallen prey to a kind of historicism.
There is also a great deal of truth in the criticism of his dual theory of federalism. Apart from being too formalistic and legalistic, its rigidity on strict compartmentalisation between national and regional governments makes it impracticable and inadequate for
2 6..
modern societies. Wheare deliberately puts forward a rigid definition maintaining that:
"I have put forward uncompromisingly a criterion of federal government... ; to the extent to which any system of government does not conform to this criterion, it has no claim to call itself federal."20 Therein lies again his shortcoming. The truth is that the federal principle has acquired a functional and dynamic character emphasising cooperation (though not subordination) between the general and regional governments rather than dualism. The necessity in modern times for social, economic and political inter-governmental cooperation for optimal utilisation of the available resources makes interdependence a more viable political reality. Furthermore, Professor W h e a r e !s insistence on the presence of certain (fixed) institutional criteria21 for the establishment of a federal system is no longer tenable because each federation is a product of its own environment. Wheare should however be given the credit for laying the foundation for the development of modern theories of federalism.
Davis, a political scientist, maintains that the exclusive hallmark of every constitutional system which is federal is the presence of an explicit division of legislative power in the constitution. He dismisses as unattainable W h e a r e 's requirement of financial autarchy and instead proposes a system of equalisation grant controllable by the national government. This, he claims, would lead to the maintenance of some uniform standard
20 See Ransome, Patrick (supra), p . 34.
among the component units of the federation.22
Though Professor Davis' view is laudable, it requires some qualifications: first, "an explicit division of legislative power in the constitution" per se might not provide enough safeguard for the proper functioning of a federal system. A lot depends on the social, economic and political forces operating within a particular federation. For example, in recent years, in America and Australia, the need to create a welfare state with a view to providing basic social services to all citizens has inevitably led to federal dominance in areas that constitutionally belong to the states.23 Secondly, although autonomy of each tier of government in its own sphere is undoubtedly an essential principle of federalism, a state government cannot claim, to exclusion of the national government, ownership or dominion over the territory and people within the state.24 What is required is that each government should have a reasonable degree of autonomy within its prescribed competence. Such area of competence must be substantial without the possibility of de facto coercion and/or inducement of one government by the other.
As regards Davis's principle of "equalisation grant" vis-a-vis maintenance of uniformity of standard among the component units of the federation, it must be clearly
22 Davis, Rufus S., The Federal Principle (Berkeley: University of California Press, 1978), p p . 142-43.
23 For a lucid discussion on the modern trends, see Schwartz, Bernard, American Constitutional L a w . 2nd edn (New York: Greenwood, 1969)? and Sawer, Geoffrey, Australian Federalism in the Courts (Melbourne: Melbourne University Press, 1967) .
understood that the problem of revenue allocation in any federal system does not lend itself to one simple solution as he seems to contend. It is dependent on a number of variables such as population, need, development, the relative poverty or affluence of the constituent states, and some other political considerations. Besides, while it is the business of the federal government to ensure in its fiscal scheme that every unit reaches an equal standard of financial self-sufficiency, preferably by its own efforts, differences in the availability of human and material resources among the units will seem to make such a goal unattainable in practice. Furthermore any fiscal scheme adopted must be adjustable from time to time to take into account the social and economic changes within the country. The important thing is that each unit should be financially sufficient to enable it to carry out its constitutional responsibilities without necessarily "equalising" with others.
Professor Sawer, a legal scholar, on his own part, defines federalism as "any system of government in which there is a considerable devolution of power on geographical basis, and the terms of the devolution are respected, or at least, not frequently and in any important degree disregarded, over appreciable periods of time". Professor Sawyer's approach seems reasonable; he has shifted from the rigid position adopted by Wheare and does not believe in strict compartmentalisation between two levels of government. He regards federalism as a process
29
or a "spectrum" rather than a static phenomenon. Once a basically federal structure is established and stabilised and becomes part of the political habit of the people concerned, he says, the strains which may push it in the centralising or in the disintegrating direction are apt to set up counter-pressures, and the system as a whole will then move ponderously one way or the other in the federal spectrum.26 In fact, instead of committing himself to any one single definition of federalism, Sawer prefers to speak of "a federal situation", that is, a situation where geographical distribution of power to govern is desired or has been achieved in a way that gives the several government units of the system some degree of security.27
The controversy generated by the foregoing theories demonstrates the pervasiveness of the concept of federalism. It confirms our earlier assertion that there is no consensus among all scholars on the general theory of federalism. Each definition has arisen within the confines of a particular discipline, and the approach of each author seems to reflect his own immediate environment. As can be seen from the preceding analysis, it has been predominantly social scientists who have spearheaded the criticism of a strict legal perception of federalism. They borrow models derived from other aspects of their discipline and attempt to bring them to bear on federalism.28
26 Sawer, Geoffrey, Modern Federalism (supra), p . 2. 27 Ibid. . p. 2 .
However, as a working definition for this study, we conceive federalism as a constitutional arrangement whereby the powers of a state are shared between two levels of government - national and regional - such that each is supreme in a definite sphere of its own. It should however be added that the independence which each level of government enjoys in federal relationship in no way implies that there is a water-tight compartment between the national and subnational governments. Federalism is more fully understood if it is viewed as a process, as an evolving changing relation rather than a static design regulated by firm and unalterable rules. It is an amalgam of legal, sociological and political facts. As Franck rightly observes, "what we mean by federalism is not a fixed point on a map, it is a tendency which is neither unitary nor separatist".29 Federalism is therefore a compromise solution between unitarism and confederalism.30 The essential nature of federalism could be summarised as follows:
(a) the federal relationship is between two levels of government, the national and the state, each operating
(New York: Holt, Rinehart & Winston, 1970); MacMahon, Arthur W. (ed.), Federalism: Mature and Emergent (New York: Doubleday, 1955) ; and Erhlich, Stanley, "Reflections on Federations and Federalism", International Political Science R e v i e w . 5, 4 (1984), p .3 60.
29 Franck, Thomas M. (ed.). Why Federations Fail: An Inquiry into the Requisites for Successful Federalism (New York: New York University Press, 1968), p.x.
directly on the people;
(b) each level enjoys separate and independent existence, and none is subject to the control of the other;
(c) there are constitutionally defined areas of competence over which each government could exercise legislative, executive and judicial powers;
(d) each tier of government is financially sufficient to discharge its constitutional responsibilities;
(e) the component units of the federation should be relatively equal in size and population;
(f) all the component state governments have equal juridical status in relation to the national (federal) government;
(g) there is a written constitution which is supreme; (h) each government may have its own constitution; and (i) there exists an independent judiciary which interprets
the constitution and acts as its guardian.
By the combination of these characteristics the classical 31
model of federalism ensures that each level of government within the federal polity is not just a 1house-keeper1 but a 'house-holder'.
With the foregoing attempt at the definition of federalism, it seems relevant to consider briefly the preconditions for the establishment of a federation.
2:3 Determinants of Federalism
What motivates people, tribes, colonies, provinces, cantons, regions, states or nations to form a federation?
What are the peculiar circumstances that could render the introduction of federalism as a model of government imperative in any political community? To answer these questions, it is necessary to highlight some of the factors that have been responsible for the formation of federal systems.
Given the contention that "the study of federalism is still in a state of partial theories",32 it is not yet possible, except by using W h e a r e ’s criteria (albeit with some modifications) to determine the prerequisites of federalism.
According to Professor Wheare, the pioneer of modern federalism, federal government is rare because its prerequisites are many. It requires the co-existence of several national characteristics which are not found together anywhere in the world.33 But notwithstanding the fact that it is not feasible to formulate universal criteria, the following are a number of socio-economic and geo-political conditions that have exerted some influence in determining the choice of federalism in many countries of the world. They include common desire, common culture, common defence, ethnic forces, heterogeneity, geographical contiguity, economic and administrative advantages, historical association, similarity of political and social institutions, pre-existence of independent states;34 a community of outlook based on race, religion and language;
32 Dare, Leo 0., "Perspectives on Federalism", in Akinyemi, Bolaji A. et al (eds.), Readings on Federalism, o p . c i t . . p . 34.
33 K.C. Wheare, o p .c i t . . p. 35.
the existence of successful older federal models, and the character of political leadership.35
It needs however to be added that some of these factors which traditionally have been identified by Wheare and other scholars as "essential prerequisites" may be useful or even necessary, but they are not enough to ensure the success of federalism. The failure of some federations, such as the East African Federation, the Federation of Rhodesia and Nyasaland, the West Indian Federation, and the Federation of Malaysia, suggests that within a hierarchy of necessary elements for federation, these factors, though frequently cited as sine qua n o n , are actually secondary factors of secondary importance. Their value lies in the fact that they may engender a common commitment to primary factors and goals of federalism.36 In effect, they serve as catalysts, promoting the primary-goal factors (such as charismatic and ideologically committed leadership) which give rise to a federal condition that elevates the federal value above all other political considerations and in which the ideal of the federal nation represents the most important political fact in the lives of the people and leaders of each unit of the federation (see Chart A bel o w ) .
35 For a comprehensive account of the contributions of these factors to the development of federalism, see for example, Wheare, Kenneth C. , o p.cit.. pp.1-52; and Watts, Ronald L . , New Federations: Experiment in the Commonwealth (Oxford: Clarendon Press, 1966), pp.42-66. For the application of some of these factors to the Nigerian situation, see Chapter 4 (infra).
C H A R T A
T H E F A C T O R - G O A L C O M P O N E N T S IN F E D E R A T I O N M O T I V A T I O N
G o a l - F a c t o r
T y p e F a c t o r s G o a l s
C o n t r i b u t i o n t o S u c c e s s o f F e d e r a t i o n
P r i ma r y
S e c o n d a r y
T c r l i a r v
I de ol ogi c al f e d e r a l i s m P o p u l a r o r e l i t e c h a r i s m a S u p r e m a c y o f t h e p o l i t i c a l f e d e r a l v a l u e
C o m m o n l a n g u a g e S i m i l a r v a l u e s , c u l t u r e
C o m p l e m e n t a r y e c o n o m i e s C o m m o n c o l o n i a l
h e r i t a g e
C o m m o n e n e m i e s C o m m o n c h a l l e n g e
E t h n i c b a l a n c e H o p e o f e a r l i e r i n d e p e n d e n c e C o l o n i a l p o w e r ’s n e e d t o r i d i t s e l f o f u n c c o n o m ic c o l o n i a l t e r r i t o r y
Fe d e r a t i o n for its o w n s a k e M a n i f e s t d e s t i n y N a t i o n a l g r e a t n e s s
F e d e r a t i o n f o r t h e s a k e o f m u t u a l e c o n o m i c a d v a n t a g e S e c u r i t y a g a i n s t a t t a c k
" O p e n i n g u p o f t h e f r o n t i e r "
M o r e i m p o r t a n t r o l e i n i n t e r n a t i o n a l a f f a i r s C o m m o n s e r v i c e s
P r e v e n t i o n o f r a c i a l / t r i b a l
friction
1 n d e p e n d e n c e S o l v e n c y
T h e p r e r e q u i s i t e n e e d e d t o e n s u r e a g a i n s t e v e n t u a l f a i l u r e .
T h e s e f a c t o r s m a y b r i n g f e d e r a t i o n i n t o b e i n g a n d t h e r e a f t e r e n g e n d e r t h e p r i m a r y f a c t o r s . T h e f a c t o r s o f
c o m m o n c h a l l e n g e a n d c o m m o n e n e m i e s a p p e a r t o s t a n d t h e b e s t c h a n c e o f e f f e c t i n g t h e t r a n s i t i o n t o p r i m a r y f a c t o r s . I f s o , t h e f e d e r a t i o n i s l i k e l y t o s u c e e d ; b u t it is b y n o m e a n s c e r t a i n t h a t t h i s s e
q u e n c e w i l l o c c u r . I f it d o e s n o t , t h e f e d e r a t i o n i s s u s c e p t i b l e t o
f a i l u r e d e s p i t e t h e f a v o u r a b l e m o t i v a t i o n b a s e d o n s e c o n d a r y f a c t o r s a n d g o a l s .
T h e m o t i v a t i o n b a s e d o n t h e s e f a c t o r s a n d g o a l s m a y b r i n g a b o u t a f e d e r a t i o n b u t , u n l e s s r a p i d l y r e p l a c e d b y s e c o n d a r y a n d p r i m a r y g o a l - f a c t o r m o t i v a t i o n , t h e s e t e r
t i a r y g o a l s c a n b e s a i d t o c o n t a i n t h e s e e d s o f t h e i r o w n d e f e a t . In t h e m s e l v e s , t h e s e f a c t o r s r a r e l y e n g e n d e r t h e d e v e l o p m e n t o f s e c o n d a r y a n d p r i m a r y f a c t o r s .
S o u r c e ' . F r a n c k , T h o m a s M. , W h y F e d e r a t i o n s F a i l , o p . c i t . , p . 172.
CHAPTER THREE
THE EVOLUTION OF NIGERIAN FEDERALISM
The Chapter discusses the origin and development of federalism in Nigeria as well as the constitutional
framework existing in the country when the military first seized political power on the 15 January 1966. It also looks at the physical and cultural backgrounds of Nigeria. Such a geo-historical approach would give us a better
understanding of how the Federation of Nigeria came into being. It would also provide a fuller picture of the growth of federalism in Nigeria. In effect, in order to assess the impact of military rule, we must understand the present, and to understand the present, we need to know the past.
3 J1 Description
The Federal Republic of Nigeria consists of twenty one states and the Capital Territory of Abuja.1 Her population is now estimated to be over 100 million, greater than those of Australia, Canada and New Zealand combined, and much greater than that of any other single country in the continent of Africa.2 Nigeria has the
1. See Map I and Chart B below.
R
E
P
U
B
L
I
C
OF
BE
NI
N
Jt>
M A P I
THE FEDERAL REPUBLIC OF NIGERIA
N I G E R
• S o k o t o
K A T S I N A
B O R N O K A N O
S O K O T O
K a n o
® K e d u n a
N I G E R K A D U N A B A U C H I
K W A R A M i n n a
Jliver
p l a t e a u G O N G O L A
' M a k u r d i
O N D O
B E N U E
A b s o k u t a
B E N D E L
GULF OF GUINEA
ATLANTIC OCEAN
C ? f CAMEROON ?. ) REPUBLIC
Newly created States (1987)
Bleht of Biafra
CHART B
THE 21 STATES OF THE FEDERATION
State
Capital City
Area (Sq. km)
Population
(1963 census) (1982 projection)
Anambra Enugu 17,675 3,596,618 5,735,400
Bauchi Bauchi 64,605 2,431,296 3,877,100
Bendel Benin 35,000 2,460,962 3,924,400
Benue Makurdi 45,174 2,427,017 3,870,300
Borno Maiduguri 116,400 2,997,498 4,780,000
Cross River/
Akwa-Ibom Calabar/Uyo 27,237 3,478,131 5,546,400
Gongola Yola 91,390 2,605,263 4,154,500
Imo Owerri 11,850 3,672,654 5,856,600
Kaduna/ Kaduna/
Katsina Katsina 70,245 4,098,306 6,535,400
Kano Kano 43,285 5,774,840 9,208,900
Kwara Ilorin 66,869 1,714,485 2,734,000
Lagos Ikej a 3,345 1,443,568 2,644,800
Niger Minna 65,037 1,191,508 1,904,800
Ogun Abeokuta 16,762 1,550,966 2,473,300
Ondo Akure 20,959 2,729,690 4,352,900
Oyo Ibadan 37,705 5,208,884 8,306,400
Plateau Jos 58,030 2,026,657 3,231,800
Rivers Port Harcourt 21,850 1,719,925 2,742,700
Sokoto Sokoto 102,535 4,538,787 7,237,800
Federal Capital
Territory Abuj a 7,315
TOTAL 923,768 55,670,055 89,117,500
largest black population in the world, and with an average Gross National Product (GNP) of about £16 million, she is considered to be the richest in tropical Africa.3 "ihe country is blessed with a variety of resources both human and material.4
The country is situated on the west coast of Africa-on the shores of the Gulf of Guinea. It lies between parallels of 4° , . 0
an north, entirely within the tropics. It is bounded on the south by the Atlantic Ocean, on the west and north by the Republics of Benin and Niger respectively, and on the east by the Republic of Cameroon.5
The approximate size of Nigeria is 923,768 square kilometres, four times greater than Britain and more than twice Belgium and France put together. The greatest
length from east to west is over 1,200 kilometres; with its width, from north to south, over 1,000 kilometres.6 3:2 The Birth of Nigerian Federalism
The roots of federalism in Nigeria must be sought in the process by which the country came into being, the administrative structure of colonialism that was set up, and in the varying responses of Nigerians to both the
3. See Crowder, Michael and Abdullahi, Guda Nigeria: An Introduction to its History (London: Longman, 1979).
4. For details, see Chapters 4 and 11 (infra). 5. See Map I, above.
process and structure of colonial rule. Without
colonialism it is doubtful if the Nigerian Federation would have emerged.7 Therefore, in order to understand the origin and growth of Nigerian federalism, it is necessary to examine how Nigeria was governed into federation by the British imperial power.
3:2:1 British Colonialism
The earliest social interactions between Britain and Nigeria was mainly through trade both in goods and human beings (slavery). By the eighteenth century, British adventurers like Mungo Park, John Lander and Richard Lander had gone to the territory now called Nigeria on expedition sponsored by some mercantile organisations in the United Kingdom. The initial aim of the expedition was to discover the source of the Niger (the river from which Nigeria later derived its name) with a view to
establishing commercial intercourse.
The success of the Lander brothers, among others, in 18 3 0 served as a stimulus to a Liverpool merchant,
McGregor Laird to come to Nigeria in 1832 on trading mission. Thereafter, other British merchants and
adventurers came one after the other many of whom died as a result of malaria fever. Trading posts were set up along the coast of the Bights of Benin and Biafra,
especially at the posts of Calabar, Warri, Lagos, Benin River, Brass and Bonny. But the absence of a constituted
