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‘Nigeria’s architecture for governance and federalism is faulty’

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Professor Oyewo

Professor Edward Oyelowo Oyewo of the Faculty of Law, University of Lagos, in this interview looks at the various challenges facing Nigeria’s practice of federalism, stressing that much needs to be done to make the local government administration efficient. He spoke to KABIR ALABI GARBA and LEO SOBECHI.

Do you think something positive would come from President Muhammadu Buhari’s idea of direct funding of local governments even as the debate about local government autonomy also rages?
Basically, President Buhari’s comments must be flowing from the 4th amendment which guarantees the financial autonomy of the Local Government as provided under the 1999 constitution (as amended). It creates a Local Government fund to which direct allocation is made to the Local Government.

That in itself is further enhancing the status of the local government as a constitutional third level of government within our federal system. When you talk about federalism, it is a relationship between the central government and the federating units, which are the states and in Nigeria now, the local government councils.

What that means is one of the objectives of federalism; and federalism as unity in diversity. The modern interpretation of federal goes beyond unity in diversity. It goes to co-existence for co-development and co-prosperity. And what this means in essence is that when you look at federalism, we have national issue and local issues.

Like I said during my inaugural lecture (on March 20, 2019), borrowing the language from my mentor, Prof. Abiola Ojo, Local Government is local and their problems are local which the federal and state governments cannot immediately deal with. So, the Local Governments are empowered and further broken into wards.

So, it is the nearest level of government to the people and that is why it is called grassroots governance. It impacts directly on the people. Basically the 4th alteration particularly with respect to the autonomy of the Local Government is the right move in the right direction.

What do you make of the nation’s organisational structure?
It is one thing I addressed during my inaugural lecture titled: “Nigeria, what manner of federation is this?” If you look at the constitutional development of Nigeria, initially, we had a three regional government that eventually devolved into 36 states.

The process of devolution of these states has been quite debated and a lot of observations have been made about it but one thing that is clear is that more and more power has gone to the centre and state has become weakened and so as institutions for governance, we have a lot of failed states.

In fact, out of the 36 states, we have more than 19 states that cannot perform the duties of paying salaries not to talk of engaging in development.

A lot of agitations have come towards having what we call true federalism. Issues like police and security. It is an existential problem now.

The Federal Government should be able to focus on central issues like security and policing at the local and state levels should have some intervention from that level.

Some people feel that even the constitution enables the Inspector General of Police and the governor to work out arrangement like Babatunde Fashola did, to have the police in that state strengthened; you know the police have what is called supplementary laws.

A state, for instance, can decide to have policemen to be financed and equipped, IOCs (Independent Oil Companies) do it, and they will be for the state in those areas that you want them and at the same time, they will be under the police.

Another school of thought is that why should I finance police that will be used against me; so there is a lot of politics involved in it. You find the example of Rivers State, imagine if (Governor Nyesom) Wike had his own police, soldiers are even being killed within an environment like that.

These are issues we need to address, but the truth of the matter is that the architecture for our governance and federalism is faulty and whether constitutionally or politically, it is not working. If you look at us in 1960 and 2019, the breakdown and statistics is there and then you also have the problem of poverty.

We must talk about poverty because it is also an existential issue where more and more people are getting poorer.

In fact, Nigeria has been declared the headquarters of poverty in the world, so these are issues clearly indicate that something is wrong with our organisational, political, constitutional governance and everything. We need to do something!
Based on that, at what point would you say Nigeria miscarried the federalism enunciated by colonialist for the disparate ethnic groups in the country?

Look at the progression of federalism from one Nigeria in 1914 to the independence in 1960, and later, three regions, four regions, 12, 19, 21 states and now 36. More of these devolutions happened from 1967 to 1995 under (Gen. Sani) Abacha, it became 36 states.

We went from four regions to 36 states under the military; and under the military, there were no debates and inputs from the ethnic nationalities and groupings. The basis for it was just the military gathering some people and making decisions.

The joke is made about Delta State, where the capital was sited in Asaba from where the wife of the military president hails. And that tells how these things came about.

The devolution process did not follow any constitutional or political processing, rather, it was based on the military agenda, which has now turned out to be identical to the concept of unity and federalism, the fear and equitable of the ethnic nationalities and tribal groupings in Nigeria.

How can the nation address these pathetic anomalies?
We have to look at the problems we want to deal with and how to do it. People talk about the concept of true federalism. The opposite of true federalism is false federalism. What it means is that we are practicing false federalism.

There are some who talk about re-balancing; that is focusing on the distribution of power between the federal, state and local government. There is concentration of power at the federal level. There are also those who feel that we should disintegrate; those pushing for secession as well as those pushing for decentralization and what (Sanusi Lamido) Sanusi calls the terminology for whatever is wrong with Nigeria. Some of the national questions we need to look at include the security architecture, the Army Act, the Police Act and the armed forces.

They are completely obsolete in terms of structure, personnel and operation. There is no comprehensive security architecture.

So, we end up having so many institutions created, yet the problems keep on increasing. If you look at security in those days, it was about external invasion, but now, we talk about terrorism and the army does not seem to be trained for that. They are waiting for conventional warfare, which does not happen anymore.

Our security architecture was not designed for the present internal conflicts facing us now. We have Fulani herdsmen and thankfully, we have court decisions helping to address it. We just heard the NOA’s case that says that the Federal Government as a state party to the ECOWAS has a duty to protect all persons whether minority or whatever.

And this was a matter brought up by the Benue killing in the pastoral and the agrarian herdsmen conflict. By our constitution, it is the primary obligation of the Federal Government to protect lives and property. If you take the security architecture, that is a problem, especially based on the items in the legislative list.

Going by the 1960 to 1963 constitution compared to the 1979 and 1999 constitution, the imbalance within the power structure between the federal and state government is huge. Is this federal structure sustainable?
Can we look at the structure and go to what we call regional integration and so instead of dealing with 36 states, you deal with six geo-political regions? And within those regions, the state can work into regional parts but in terms of integral development planning, similar to what they are doing in Ethiopia, so that the unity in diversity will translate to co-existence for co-development and co-prosperity.

You have to look at resources available to you. If you look at the North Central, it is agrarian, if you look at the South-South, it is based on mineral resources and the joke of it is we are focusing only on oil. We have gold in the North West, in Zamfara and we have minerals in all regions. It will become the duty of each region to use the resources, because no region that is not resource blessed. We need also to address the issue of poverty. There are so many aspects to it.

If you look at our educational sector, it is a poverty-designed model; we have lost it. In the olden western region, we had not only secondary and primary schools, we had A levels, we had trade centres, we had technical institutions, we had polytechnics and then universities.

Now, we have collapsed all that and we have only secondary and universities whereas empowering people is not only about reading and writing and mastering concepts. It is about helping them use their tools.

So, the area of skills that prosper should be supported. People prosper from skills usage.

You need to get into most of our houses that look beautiful outside but terrible inside. Our taps do not work because the person who fixed it was not properly trained; our tiles can fall you because those who laid it did not get it properly done. Those people who trained their people in Cotonou, Benin Republic are now taking the jobs from our people. We need to address empowerment in terms of financing.

The present government has social investment programmes, but it has been acknowledged that it does not have any legal framework and carefully, I think, they are addressing that.

Some critics will say we cannot agree on this until we have the concept of Sovereign National Conference. That concept of sovereign national conference and supremacy of our constitution are antithetical to each other. So, what it means is that following the process of the 4th amendment, for instance, for the first time we will have issues being addressed and there are still bills with the presidency that have not been passed.

We need to revisit the national conferences reports. We had the national political conference under Obasanjo, we had the national conference report under Jonathan in 2014. We can have a conference that will cover all the problems in the country and when we bring them out, but let us note that we do not intend to solve all the problems of Nigeria in one year.

You cannot solve the problems of a nation in one year. We prioritise and let this regime deal with security. The National Assembly will talk about reforms. We could do two, deal with insecurity and poverty. We must always think of co-existence, co-development and co-prosperity. No arm of government should be left out.

It could be out of inherent frustration that some lawmakers started agitating for a change from presidential system to parliamentary system, how far do you think the review could go to achieve citizens inclusion?

I think you have to be able to project that along the course of the constitutional evolution of Nigeria. We came into existence as a parliamentary system and we practised it from 1914 to 1979, so, we have practised parliamentary system more in the life of this country than presidential system. If you dispense the 1914 to 1960, we practised parliamentary system from 1960 to 1966. But if you look at the political instability that parliamentary system had in 1960 and 1963, we are ill-suited temperamentally towards the parliamentary system.

Look at what is going on even at the National Assembly, the mace snatching and all that. They indicate that we are not suited towards a parliamentary system. And flowing from the political conference and the Constitution Drafting Committee report, they believe that there is synergy of power in the presidential system as opposed to the diffusion of power in the parliamentary system.

It means the president is the chief executive, commander-in-chief and both the political and legal focus of power.

What it means is, it is not the fault of our system, but the political party system that does not supply us with persons that has the energy. We have been having half-dead and half-alive people as presidents and this was confirmed when one of our presidents died.

Most of our presidents do not campaign during the selection process. They do not campaign and they do not debate. This president has not debated. For somebody to be a presidential candidate in the presidential system, you must go through a process. Most of the people that have emerged did not go through that process.

Even (former President Olusegun) Obasanjo did not go through that process. Alhaji Shehu Musa Yar’Adua did not go through the process and Jonathan did not go through that process. I can tell you that President Buhari did not go through the process. So, how can you say the system is faulty when you have not followed the rudimentary requirement of the system?

It is not the system that has problems, but the way we operate them, because a presidential system is fed by political process. Look at our political party selection process. Do we have the kind of structure they have abroad? Look at the system that produced Obama, can an Obama come out in the Nigerian system? No way! That is why we need to go to the fundamentals.

INEC (Independent National Electoral Commission) has also acknowledged that it cannot function within the constitutional power given to it. And you remember the electoral reforms that the (Justice Mohammed) Uwais panel made comprising seven recommendations, before they came with the white paper to negate it.

One of them was the decentralisation of the functions of INEC. INEC should be broken down into four bodies. There will be one that deals with election and another to deal with the registration of voters and so on. You separate them and the record of that one will be different from the others. That is why most people that are wise do not want to go for election petition because you are fighting not only the party that won, but you are also fighting INEC and at the national level, INEC becomes a political party. We are running a mongrel system.

Experts say prolonged military rule and military hangover have adverse effect on Nigerians, do you agree with that inference?
There have been a lot of writings on that but it is a phenomenon that African countries have gone through. It is therefore not an excuse. An example is Rwanda. Rwanda went through extreme genocidal experiences but today the story is different because there is a leadership that is rewriting the history of that country.

Ghana went through the military but the story of Ghana has changed. Look at the democratic or international index whether Mo Ibrahim or otherwise. Nigeria is far behind and the issue with Nigeria is we focus on problems instead of solution.

Our leading elite are very timid. Nobody is sacrificial. All they want is the perquisites of office and so those who are not supposed to be leaders are emerging as leaders. So, most of the political spaces are controlled by thugs, who have control of weapons of intimidation and fear, moneybags whereas in other places like Ghana, you cannot compare (Lt Jerry) Rawlings with Obasanjo.

After Rawlings, look at Kofo and the man that died, Atta Mills. Atta Mills was a professor of law and also a Ph.D holder in economics.

The current Ghanaian president, Nana Akuffo, is a third generation intellectual. His father was a minister and went to the best schools. Which schools did our leaders go to? We are debating if our president has certificate. It is the quality of the political leadership that we have that has hoisted this dysfunctional interpretation in the operation of our political system.

While President Buhari talks about giving more powers to the Local Government and looking at the constitution which empowers states to oversee the Local Government do you think this process can bear any good fruit?
Now, when you look at the LG and the way they are now and their contribution to national governance, there is a challenge.

In 1979 constitution, in section 7 provided for Local Government for the first time. And the local government went from strictly state affairs to federal affair. So, they were in section 7 and in the 4th schedule. Knight Frank and Ruthley and also Bamidele and Lagos State, a Supreme Court decision settled it.

The constitutional implication of this is that the local government becomes a constitutionally recognised level of government as well autonomy of local government, because if you look at section 7, sub-section 5, it says that the establishment of the local government shall be by laws made by the state.

This means that structure of the local government is subject to state laws. The constitution provided the architectural design. Lagos State has comprehensive legislation on local government administration, finance, personnel and structure. And that is necessary because the National Assembly cannot make laws for the Local Government.

In the light of envisaged constitutional amendment, before, we used to have the state local government fund, but now we will have funds for the local government that will come directly to the Local Government, which means the local governments now have their destinies in their hands.

The local chairman appoints supervisory councillors and basically, those people come in like commissioners, because they are not elected. The councillors are elected, but are called the parliament. These other people (supervisory councillors) are nominated by the chairman and given functions so that the chairman will constitute a check on each other.

We are not yet there, in terms of local government transparency, which is why the civil societies should do more. Under the military, the civil societies were very active but under the civilian era, they become confused and go to sleep and rarely perform the role of checking.

In civil governance, the people are known to the civil societies, but as part of the academia and because what we do is in the best interest of the nation, because my friend is the minister, I cannot make comments. But do not forget federalism is about co-existence, co-development and co-prosperity.

Looking at the issue of fiscal federalism and federal structure, is there any contrast?
Fiscal federalism, as the word implies, is the way resources are managed within the federal system. So, you evolve principles for resource management and resource allocation. The fiscal aspect of it is for instance, your income, your expenditure and your resources. How are you going to share it? You will share it in a way that takes cognisance of the federal system.

So, where the resources are does not necessarily mean that is where it will be shared and spent. For instance, oil is in the South-South, but it is shared among all the parts of the nation. VAT is in Lagos, it is in the South West, but it is spent on all.

If you look at other things within the concept of fiscal federalism, it is the principles by which it is financed.

That is why we are having consolidated revenue funds and you have monies to be shared and sharing ratio to be determined by the Revenue Mobilisation and Fiscal Allocation Commission (RMFAC) and that also goes through the National Assembly, the budget system and the fiscal system. The constitution has provisions for the fiscal relationship between the different tiers of government.


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