‘Amend constitution to place LGs under National Assembly’

Recently, many prominent Nigerians have joined the call for the restructuring of the country. In this interview with JOSEPH ONYEKWERE, a constitutional lawyer and author, Chief Sebastine Hon (SAN), examines what restructuring will entail.

Starting with what would be restructured, when the process starts, he said: “I must say that only two things are permanent: God Almighty and change. We have reached a level in Nigeria where change is inevitable; and I hereby urge my compatriots to be liberal on this – for us to move forward. I have several areas I would ordinarily have spoken on, but I will for now limit myself to fiscal federalism, citizenship, state police and the Judiciary. I will start with fiscal federalism or ‘resource control.’ Parts I and paragraphs 25 each of the Schedules to the 1960 and 1963 Constitutions vested exclusive legislative powers in the Federal Government over “Mines and minerals, including oil fields, oil mining, geological surveys and natural gas.” The 1979 Constitution, the botched 1989 Constitution and the 1999 Constitution as amended all maintained this stance, clearly, therefore vesting exclusive powers over mineral resources in the Federal Government.”

On the issue of resource control, he has this to say: “In Germany, Article 74(11) of the German Constitution, 1990 vests jointly in the Federal and the Regional Governments ‘resource control.’ In India, however, Articles 53 and 54 of the Exclusive List of the Indian Constitution of 1950 have listed items of ‘resource control’ on the central Government. Also, Article 22(XII) of the Constitution of Brazil, 1988, vests exclusive legislative powers in the Federal Government on “mineral deposits, other mineral resources, and metallurgy. On the other hand, there is nothing in the US Constitution expressly vesting ‘resource control’ in the constituent States. See Articles 8(1) and 10(2) and the 16th Amendment. From the above, none of the countries operating a federal Constitution has allowed total ‘resource control’ by the federating States as has been consistently argued in Nigeria.”

Part of what is on the front burner is fiscal federalism. Hon said government had in the past tried to assuage the agitation for fiscal federalism. His words: “Let me say that the Nigerian Government has from time within known history taken commendable steps to assuage ethnic and regional agitations for ‘fiscal federalism.’ I will demonstrate this here. Chapter XII of the 1963 Republican Constitution had established the “Niger Delta Development Board,” which under section 159(4) of that Constitution was to be “responsible for advising the Government of the Federation and the Governments of Eastern Nigeria and Mid-Western Nigeria with respect to physical development of the Niger Delta.”

Successive governments in Nigeria created Akwa Ibom, Bayelsa State and Delta, to strengthen the Niger Delta. Today, these States and two Ibo-speaking States – Abia and Imo – are all enjoying 13 percent derivation of all oil revenues. Also, during General Ibrahim Babangida’s regime, the Oil Minerals Producing Development Commission (OMPADEC) was established; and currently, we have the NDDC undertaking similar assignments. As we speak, the Petroleum Industry Bill is receiving favourable attention in the National Assembly. Of importance, too is section 162 of the 1999 Constitution, which has been tested in courts of law and applied proactively in favour of the Niger Delta. I will refer to a few cases here. In A-G Federation vs. A-G Abia & Ors. (2002) 4 SCNJ 1, the apex Court refused to accede to the counter-claim of Northern and Middle-Belt States that “natural resources” be equated with “mineral resources” – for the purpose of computing the constitutional 13 percent derivation under section 162(2) of the Constitution.

The Court also held that the FCT Abuja (in the Middle-Belt) cannot benefit from the said derivation. It further held that section 1(d)(iv) of the Allocation of Revenue Act, Cap. 16, LFN, 1990, in so far as it stipulated derivation of 1 percent instead of “not less than 13 percent”, was null and void. This judgment led to fierce agitations from the Niger Delta, compelling the Olusegun Obasanjo-led Government and the National Assembly to enact the Revenue Allocation (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004. Section 1(1) of this Act provides that “two hundred water depth isobaths contiguous to a State… shall be deemed to be part of that State for the purposes of computing revenue accruing to the Federation.” Irked by the provisions of section 1(1) of the 2004 Act, some northern States, in A-G Adamawa vs. A-G Federation (2006) All FWLR (Pt. 299) 1450 S.C., argued before the Supreme Court that the said subsection had unconstitutionally extended the seaward boundaries of the littoral States, in contravention of the 1999 Constitution. In spite of the state of law and our Constitution, the apex Court dismissed this Suit.

The Supreme Court was later to admit in A-G Rivers State vs. A-G Akwa Ibom State (2011) All FWLR (Pt. 579) 1023 at 1081 that the agitations in the Niger Delta following the 2002 ‘resource control’ decision of the Supreme Court actually had compelled the National Assembly to enact section 1(1) of the 2004 Act! I must emphasise here once again that section 1(1) of the 2004 Act was just enacted to favour the Niger Delta, since the National Assembly knew or ought to have known that it was in conflict with international Treaties entered into by Nigeria. These were the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958; the Geneva Convention on the High Seas, 1958 and the UN Convention on the Law of the Sea, 1982. What sacrifice can be greater than this? It is on these incontrovertible facts that I hereby urge the Niger Delta people not to see the Federal Government only in the light of being oppressive. State Governments and oil companies working in that Region should also rise up to support the FG; and again, let me express my support for the peace that has returned to the Region. May the Good Lord help us to achieve greater peace, not only there, but in the whole country.”

On regional and local government autonomy, he expressed mixed reaction. “I hereby make it clear that I am against secession. We are greater as one nation than if we fragment and go our separate ways. That is not to say, however, that genuine steps should not be taken to address perceived and real cases of injustice and imbalance. I suggest an amendment of the 1999 Constitution either to extricate the Local Governments under the grip of the State Governments, or to place them under the National Assembly. I also suggest that we amend the Constitution by reverting to the 1963 Constitution whereby the Regions were given powers to enact their Constitutions, which Constitutions were, by virtue of sections 1 and 5, subject to the Federal Constitution. This will enable the Regions or States have their Constitutions and judiciary, including Supreme Courts, as we have in the US. Several Constitutions of sovereign countries, including those countries that are not up to half of Nigeria’s greatness, have permitted full local government or municipal autonomy. See section 153 of the Constitution of South Africa, 1997, section 25(0) of the Federal Constitution of Brazil, 1988; section 116 of the Constitution Australia, 1900; sections 104-105 of the Constitution of Armenian, 1995; section 55(2) of the Constitution of Cameroon; section 132 of the Constitution of Croatia, 1990; section 39 of the Constitution of Belgium, 1970; section 142 of the Constitution of Azerbaijan, 1995; Chapter III of the Constitution of Bangladesh, 2004; section 28A of the Constitution of Ireland, 1937; section 141(3) of the Constitution of Afghanistan, 2004 and Articles 108(3) and (4) and 111(2) of the Constitution of Albania, 1998, etc. Alternatively, the Nigerian Constitution should be amended to place the local government councils under the National Assembly – as in section 111 of the Constitution of Namibia, 1990,” he stated.

Talking about the issue of citizenship, he pointed out that the law prohibits discrimination. “Even though section 42(1) of the 1999 Constitution has prohibited discrimination against any citizen on account of his having coming from a particular community or his having a particular place of origin, we cannot deny that this ugly trend is even on the rise in Nigeria. I will recommend either the Russian or the USA model, or a blending of both. For, Article 6(2) of the Constitution of Russia, 1993, provides that “Every citizen of the Russian Federation shall have all the rights and liberties on its territory and bear equal duties stipulated by the Constitution.” Also, Article IV, section 2(1) of the US Constitution provides that “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” But in order to fully realise this, we have to adopt the provisions of the XIV and the XV Amendments to the US Constitution, which require Congress to “enforce, by appropriate legislation,” in case any State of the Federation fails to enforce similar crucial provisions.”

He also said Nigeria is ripe for state Police. His words: “On State police, I agree that Nigeria is ripe for that, since we are operating the American-type presidential and federal Constitution. We should all know that the USA has permitted State police since May 2, 1905, when the State of Pennsylvania formally established, for the first time in the USA, its own police. On reforms in the Judiciary, I first of all recommend that Regional Courts of Appeal and State Supreme Courts be created, as in the USA, to ease the workload on the Court of Appeal and the Supreme Court. Secondly, ad hoc Judges be appointed to handle election matters and corruption cases. This will greatly restore the credibility of the Judiciary. Let it be known that section 127 of the Constitution of India, 1950, has permitted the appointment of ad hoc Judges, who may have retired from the Bench. I recommend this for our country. Salaries and emoluments of Judicial Officers should be reviewed upwards – to stem corruption in the Judiciary. I want all Nigerians to know that a Chief Magistrate in America receives more than a Justice of the Nigeria Supreme Court! This should not be!”