Mr Femi Falana, a Senior Advocate of Nigeria, human rights and pro-democracy fighter, on Wednesday, 16 Decemober, seized the opportunity of the convocation lecture he delivered at the Ekiti State University, Ado Ekiti to revisit the issue of restructuring of Nigeria or a return to true federalism.
He said it was wrong to say that the unity of Nigeria is not negotiable. In his words: ” As a matter of fact, making a federation to work, building a nation or promoting national integration is never a finished business. As the experiences of countries defined by diversity and complexity have shown, the business of a functional federation is actually a work in progress. After all, what’s federalism if not a system of continuous negotiations and compromises. That’s why it’s a gross misnomer when some people pronounce arrogantly that “Nigeria’s unity not negotiable.” That’s wrong. Federations are, of course, subject to negotiations when the need arises in any generation. What is to be done is to accept the reality of negotiation and compromise so as to give everyone a sense of belonging. This will invariably spur a sense of commitment to the union. Come to think of it, there will be negotiations and engagements from generation to generation as issues arise.”
Below is the full speech
RESTRUCTURING AND THE LIBERATION OF NIGERIA
By Femi Falana
In an age in which crucial debates on the future of Nigeria are led by ethnic warlords, demagogues and clairvoyants from their declared “territories” with captive audiences, it is worthy of salute that the management of the Ekiti State University decided to go back to the tradition of making the universitya centre of ideas. The voices from the campuses are no more resonant in pointing to the way forward for the country. Things used not to be this way as I will demonstrate in this lecture anon. There was a time in this country when scholars provoked and led debates from their various ideological perspectives.For instance, the making of the 1979 Constitution that was the ground norm of the Second Republic had a lot of inputs from the university system.
Scholars of various ideological hues were members of the 49-member committee that drafted the 1979 constitution. Voices from the university were very strident in the subsequent debates on the draft at the Constituent Assembly of 1977/78. The university was visibly represented in the assembly. As if envisaging the vigorous debate on the structure of Nigeria that came up on the floor of the assembly, the Department of Sociology of the University of Lagos had published a book in 1976 entitled Ethnic Relations in Nigeria. The point at issue here is that deep thinking about problems was once in currency in this country. Orthodoxies and shibboleths were roundly challenged by scholars. In a chapter of the book, eminent sociologist, Professor Onigu Otite examined the “concept of a Nigerian society” and concluded as follows: “In the current culturally melting stage, the solidarity and stability of the Nigerian society cannot be achieved through processes involving an imposition of single loyalty and perspective but by a process of compromising diverse loyalties and viewpoints, thus providing for group and individual interests through shared participation in different institutional spheres and internal and external systems.”
Given the magnitude of ethnic manipulation being promoted by the various factions of the Nigerian elite, it is as if Otite was writing about today’s Nigeria. In yet another chapter of the book, Professor Bolaji Akinyemi, as a young university lecturer in political science, also at the University of Ibadan, expressed what he described as a “non-conformist view.” Armed with verifiable statistics, Akinyemi reviewed the 1959 federal election conducted. He made a profound and thought-provoking observations as follows: “We set out to prove that at least on the eve of independence Nigerian electoral behaviour was more complex than that which a crude theory of ethnic voting has ascribed to it.” Akinyemi disproved claims which many still give as the basis of the Nigerian crisis. In other words, contrary to the myth still being parroted in many quarters that Nigerians never looked beyond their ethnic enclaves politically, there were other factors that influenced voting over 60 years ago. That was 34 years before the June 12, 1993 presidential elections in which BashorunM.K.O. Abiola was said to have defeated Alhaji Bashir Tofa in Kano.
In addition to ethnicity, voters were also influenced by preference for party policies, the urge to be part of power sharing at the centre and even the psychology of being with the winners. For instance, the Ekiti people voted Awolowo’s party because of free primary education for their children and not necessarily for any Yoruba solidarity. After all, the Ekiti dialect is markedly different from Awolowo’s Ijebu tongue among other mutual prejudices and stereotypes among the two intra-ethnic communities. The choice of this topic by the university is, therefore, quite apposite in the context of the present Nigerian condition. Yes! We must restructure Nigeria. But we must quickly add that Nigeria should also be liberated from the shackles of poverty, inequality and gross socio-economic injustice. We must banish hunger, disease and ignorance. These vertical and horizontal steps are important ones to take simultaneously for the development and progress of Nigeria. The implication of the foregoing is that the debates on restructuring should be reframed in the interest of social justice, geo-political equity, genuine freedom and the unity of the people of Nigeria.
Restructuring alone will not automatically answer the menacing question of rising youth joblessness and hopelessness plaguing the Nigerian society. To reframe the question, some myths should be exploded. First, stripped of all obfuscation,restructuring is basically about making the Nigerian federation work better for the purpose of governance and development. That should be the objective of restructuring rather the elusive pursuit of “true federalism.” There is nothing like a true federalism. Every federation is structured for the specific purpose of each country. That is why the Indian federation is not identical to that of Australia or America. The Swiss federation is operated differently from that of Canada or Brazil. The German federation is working not because it’s “true,” but because it meets the specific historical need of the Germans. So we should stop mystifying the debate by calling for a “true federalism” instead of asking for a workable federation of Nigeria.
As a matter of fact, making a federation to work, building a nation or promoting national integration is never a finished business. As the experiences of countries defined by diversity and complexity have shown, the business of a functional federation is actually a work in progress. After all, what’s federalism if not a system of continuous negotiations and compromises. That’s why it’s a gross misnomer when some people pronounce arrogantly that “Nigeria’s unity not negotiable.” That’s wrong. Federations are, of course, subject to negotiations when the need arises in any generation. What is to be done is to accept the reality of negotiation and compromise so as to give everyone a sense of belonging. This will invariably spur a sense of commitment to the union. Come to think of it, there will be negotiations and engagements from generation to generation as issues arise.
Hence, the question of federalism has engaged the attention of philosophers and other thinkers for ages. Problems of federalism were examined in the 18th and 19th centuries by Immanuel Kant, David Hume, Baron de Montesquieu Jean-Jacques Rosseau, John Stuart-Mills, Rudolph Hugo and Maddison. In fact, in the last century the eminent Marxist scholar of the London School of Economics, Harold Laski, actually posited that the “authority of the modern state is federal” in ultimate terms. In contemporary times, thinkers in various countries are coming up with ideas to make their respective federal union more efficient. That’s how it should be in Nigeria. Here lies the task of the university. There ought to be contesting schools of social science in Nigerian universities. They should conduct researches on the question so as to generate solutions to the festering problems of Nigerian federalism.
To be sure, Nigerian scholars in the past theorised and conducted researches published volumes on federalism. There was a lot thinking about the problem. The challenge of the moment is how to continue with this illustrious tradition. Secondly, restructuring is ultimately a constitutional question. For instance, to put into effect devolution of powers from the centre to the units, constitutional amendments have to take place have to amend the constitution. Some matters might require only executive orders. For instance, it is an anomaly having federal roads within a state. State should have more money to fix the roads within their geography. The federal ministry of works should only be concerned with inter-state highways and bridges to have appropriate road network in the country. Thirdly, a lot of confusion has been introduced into the restructuring debate. In fact, in some quarters, restructuring has become a nebulous concept. Some warlords and their intellectual megaphones sometimes use the word restructuring interchangeably with secession. Defenders of the status quo equally accuse advocates of restructuring of nursing plans to break up the country. This is largely due the fact that the debate has been hijacked by those without clarity of purpose. Restructuring is not synonymous with secession or separation.
Fourthly, the idea of restructuring as a fad should be questioned. Opportunistic politicians join the campaigns for restructuring when they are out of power. Whereas when they are in power they muster all their strength to resist the moves to restructure even when they have restructuring in themanifestoes of their political parties. Politicians treat the topic of restructuring as a veritable tool for ethnic and regional mobilisation and nothing more. However, approaching the problems of the structure of the Nigerian federation has been part of the Nigerian political history since the colonial times. Unfortunately, the historical context for restructuring is often missed in the debate which has generated more heat than light.
Restructuring in History
From November 1884 to February 1885, a gang of Europeans colonisers held a conference in Berlin, Germany for the scramble and partition of the continent of Africa. Since Britain was allocated the territory around the Niger area its army of expedition invaded and attacked the various communities. The colonial army conquered the entire territory because it had superior weapons. After the conquest, the British government appointed Lord Frederick Lugard as the governor of both the Northern Nigeria Protectorate and the Colony and Protectorate of Southern Nigeria. On January 1, 1914, Governor Lugard, the governor of both Protectorates, signed a document consolidating the two, thereby creating the Colony and Protectorate of Nigeria. The amalgamation of Nigeria was achieved pursuant to three legal instruments i.e the (Nigerian Council) Order-in Council 1912); The Nigeria Protectorate Order-in-Council 1913; and Letters Patent of 1913. It is not correct to say that six Nigerians signed the amalgamation treaty with Governor Lugard.
Contrary to a popular myth, the amalgamation documents did not provide for the dissolution of Nigeria after 100 years. In fact, in order to facilitate the exploitation of the nation’s resources in perpetuity by imperialism the British wanted Nigeria to remain a united entity. The British colonial regime ran Nigeria as a unitary state and engaged in the reckless exploitation of the resources of the territory. The territory of Nigeria was not handed over to the British on the basis of any negotiation. Olorode has rightly recalled that “Colonial rule and exploitation result from colonial conquest and occupation. Its main aim was trade and investment by colonising powers. Its mode of operation was exploitation ( putting in as little as possible and extracting as much as possible in return). The extraction involved a variety of resources including raw materials, human labour in different parts of colonial Nigeria (forced labour) and unpaid labour through slave trade which deprived black Africa, in particular massive human power. The victims of these varieties of pillage and exploitation resisted for as long as exploitation and pillage lasted. The resistance took place across Nigeria in Bonny, Akasa, Arochukwu, Jos, Iseyin, Sokoto, Benin, Ijebu-Ode etc, etc (Okoye, 1964, 1986; Asiegbu, 1984).”
Contrary to the false impression that is sometimes created in the course of the unstructured debate on restructuring, it is not really a new advocacy. It has always been a proposition to answer the National Question. Strictly defined, the National Question in the Nigerian context is about how the various ethnic groups (some of which are, in fact, nationalities),zones and regions relate within the Nigerian federation. On the agendas of the consecutive constitutional conferences in the pre-independence Nigeria was the structure of the federation. As things congealed the structure emerged. For instance, the Richard Constitution of 1946 was considered unitary while the Macpherson Constitution of 1951 was viewed as more federal in terms of devolution of powers to the regional governments of the north, east and west.
There was a fierce debate among the political parties on the nature of Nigerian federalism. Chief Obafemi Awolowo and his Action Group (AG) was profoundly in support of federalism in which the regions would be relatively strong and autonomous.The AG government governed so competently that it introduced free primary education in the region which stressed from Badagry in the present Lagos State to Patani in the present Delta State. In other words, one premier and about a dozen ministers (now commissioners) governed the area now delineated into eight states. The National Council of Nigerian Citizens (NCNC) of Dr. Nnamdi Azikiwe preferred a relatively stronger centre. In fact, some NCNC leaders accused Awolowo of actually rooting for a confederal Nigeria rather than the federalism the AG had canvassed. Sir Ahmadu Bello’s Northern People’s Congress (NPC) guarded the regional autonomy of the north jealously. After 60 years of disastrous misrule by military and civilian regimes the pre-independence era is now often invoked as the golden era of Nigerian federalism in which the regions competed healthily in their developmental strides.
Yet extant issues of Nigerian federalism were invariably inherited by the independent Nigeria. The symptoms of the deformity in the structure were patent enough for the departing British colonialists to set up the Henry Willinks Commission to address the fears of the minorities.Soon after independence, agitation began for creation of more regions – Middle Belt in the north; Calabar-Ogoja-Rivers (CORE) state in the east and the Mid-West State in the west. As it were, only the Mid-West state was created from the Western Region in 1963 with the capital in Benin City. The idea of the Mid-West state was supported by the politicians from the north and east who, ironically, opposed the creation of the Middle Belt and CORE states from their respective regions. So, the politics of restructuring didn’t start today!
Soon after the federation was engulfed in a political crisis and eventually the First Republic was terminated by soldiers in the January 15 military coup. Efforts to resolve the Nigerian crisis included the meeting facilitated by the Ghanaian government in a place called Aburi. The federalist content of the famous Aburi Accord, on which Emeka Ojukwu decided to “stand” as civil war raged , is obvious. Yakubu Gowon was said to have reneged on it on sensing that the Accord whittled down the powers of the central government especially the control of the military and the police. As the civil war was about breaking out in May 1967, General Gowon created 12 states from the four regions. The restructuring prayers of the minorities of the north and south were answered with a stroke of the pen. Gowon himself is a minority element from Plateau state which combined with the present Benue state to form the then Benue-Plateau state. That was restructuring of sorts at the time. Since then successive military governments increased the number of states to 19 in 1976; 21 in 1987; 30 in 1991 and the present 36 in 1996.
Curiously, it is said that there are currently dozens of requests for the creation of more states by agitators. The refrain has been “to bring development closer to the people.” However, instead of development, we have witnessed greater opportunities for politicians to become governors, senators, ministers and chairmen of boards of parastatals. Bureaucracies and appointments have multiplied for permanent secretaries and directors. The framing of the 1979 Constitution, which has been the nucleus of all subsequent constitutions, was informed by the need to make the federation more workable in the composition of the legislative lists -exclusive and concurrent while residual matters were left for state governments. The federal character principle was enshrined in the Constitution. For instance, land in each state wasvested in the state governor. So even the federal government would need the permission of the state governor to use land in a state!
The focus of advocacy for a national conference which began in 1990 is the urgent need to restructure Nigeria. When Alao Aka-Bashorun and others planned to stage one in August 1990 at the National Theatre few months after an aborted military coup led by officers from minority areas, the military government of President Ibrahim Babangida forcefully stopped it. The call for a national conference later became the battle cry of the coalition forces fighting for the validation of the June 12, 1993 election won by Bashorun M.K.O.Abiola. Implicit in the agitation for national conference was restructuring. The “resource control” that is the slogan of the exploited and neglected oil-bearing Niger Delta is also an aspect of restructuring.
Since the advent of the Fourth Republic in 1999 attempts have been made to review the constitution to make the federation more functional among other reasons. President Olusegun Obasanjo actually set up a multi-party committee to review the constitution. The National Assembly at the time was said to be reviewing the constitution. Obasanjo followed it up with a political conference. His attempt to have a third term by changing the constitution put an end to the process. The government of President Goodluck Jonathan convened a national conference in 2014 in which eminent Nigerians were active participants. The report of the conference embodies answers to some of the structural questions of Nigerian federalism. The important document has been routinely ignored by the Buhari administration. Some of them would require pieces of legislation for implementation. Others could be put into effect by executive orders. For instance, if the conference’s recommendation on ranching had been implemented in 2014 the tension generated by the needless controversy on the “offensive” idea of “cattle colonies” five years later could have been avoided. Jonathan who summoned the conference did nothing about the report in the last one year of his term.
President Muhammadu’s All Progressives Congress (APC) has restructuring in its manifesto. The party later set up a panel headed by Kaduna State Governor Nasir el Rufai on restructuring when reminded that the issue was ignored after the party assumed power in 2015. Although the committee recommended restructuring there is no clear commitment by APC, which controls the executive and legislative arms of government, to restructure the country. Yet there appears to be a growing demand for the national consensus that implementing the recommendations of the 2014 National Conference as a way of addressing the lingering questions of Nigerian federalism. So history matters in pondering restructuring.
Awolowo and Restructuring
No doubt, Chief Obafemi Awolowo was the leading advocate of federalism among his peers. A line in his famous 1945 book, Path to Nigeria Freedom, has been conveniently quoted out of context to by some protagonists of restructuring. The line,“Nigeria is a mere geographical expression…, ” has more or less become the authority for restructuring or even secession by some political forces. Awolowo wrote that book as part of the literature of anti-colonial struggle. As stated earlier, nationalist politicians were engaged in spirited debate on the future and structure of Nigerian federation. Awolowo argued vigorously for a suitable federalism for Nigeria, not “true federalism,” by the way. That was an era in which politicians were at home with ideas. They had organic linkage with scholars, not thugs.
Almost two decades later, while in Calabar prison,Awolowo wrote other books – The People’s Republic and The Strategy &Tactics of the People’s Republic of Nigeria. In both publications, Awolowo enunciated a social democratic agenda for Nigeria and the governance culture to put it into practice. At that stage of his remarkable political life, Awolowo was thinking of how to develop Nigeria and push the frontier of human progress in this part of the world. He was not on a mission to preside over any Oduduwa republic or to lead the Yoruba alone to “develop at their own pace,” unmindful of the realities of the Nigerian political economy. Little surprise that 32 years after the publication of Path to Nigerian Freedom, Awolowo sought to be Nigerian President (not Aare of Oduduwa Republic!). His platform was the Unity Party of Nigeria (UPN). The word ‘unity’ in the party’s name was instructive and deliberate. More significant is that the cardinal programmes of the UPN were free education, free healthcare, full employment and integrated rural development.
Federalism or restructuring was no more Awolowo’s preoccupation. His position was to theeffect that if every Nigerian child in Maiduguri, Yenagoa or Ado-Ekiti had access to quality education, Nigeria would be on the road to reducing inequality. Similarly if every woman and her children in Kuje, Badagry or Akampa had access to quality healthcare service, maternal and infant mortality would be ended and thereby tackling anaspect of poverty at the basic level. In his later years, Awolowo was more concerned about the social democratic development of Nigeria, rather than limiting himself to the struggle for the phantom “true federalism.” Here we are talking of the Awolowo who gave the well-received Kwame Nkrumah memorial lecture in Accra, Ghana entitled “The Problems of Africa: The Need for an Ideological Appraisal”, which was later published into one of the most philosophical books of Awolowo. Ironically, despite the fact that Awolowo’s last party was deliberately named a unity party, Awolowo’s opponents still accuse him in death of ethnic chauvinism, which they erroneously call “tribalism” (as if, sociologically, there are still tribes in Nigeria!). So let the advocates of restructuring quote Awolowo not only on federalism; they should also quote him on his programme of social democracy programmes as a basis of Nigeria’s sustainable development.
Chapter II of the Constitution
Doubtless, there is a lot of critique to be made of the 1999 constitution. But it is strange when critics dismiss the whole document as “useless” because it does not give expression to “the will of the people.” The nucleus of the 1999 Constitution was taken from the 1979 Constitution. It is pertinent to ask: is the Chapter II of the 1999 constitution not in the interest of the people? Should that chapter also be dismissed along with the problematic clauses in the constitution? As I said earlier, the 1979 constitution was a product of a vigorous debate, the Great Debate of 1977/78. One of the enduring products of that process was the Chapter II of the 1979 Constitution which has been replicated in the 1999 Constitution. It was the concession the majority report of the committee, headed by Chief Rotimi Williams, SAN, to the radical views of the two historians who were members – Bala Usman Segun Osoba. It is the chapter entitled the “Fundamental Objectives and Directive Principles of State Policy.”
Even though Awolowo turned down his appointment as a member of the Constitution Drafting Committee he lauded the adoption of the fundamental objectives and made a strong case for their justiciability. The chapter is the people’s content of the constitution. Enshrined in the chapter are basic elements of socio-economic justice in the areas of education, health, environment, social protection, mass transit, mass housing, transportation etc. They remain the national goals. It is noteworthy that some Nigerians including scholars crafted these social, economic and political goals four decades before the United Nations came up with Sustainable Development Goals (SDGs) which look more like a copy of the Chapter of the Nigerian constitution. If the provisions had been implemented, Nigeria could have been greater than some of the countries that some of our elite point to as models of development. Although the provisions of Chapter II are not made justiciable in the constitution, political parties are expected to include the elements of the chapter in their programme. It is on record that the delegates to the 2014 national conference unanimously voted for the justiciability of the provisions of chapter 11. The advocacy for the vertical restructuring of the Nigerian federation should also be accompanied with the struggle for the horizontal transformation of the socio-economic landscape or the liberation from mass poverty and the misery of the people. Nigerian people rejected the Structural Adjustment Programme and foreign loans in the 1980s. The political Bureau of 1986 recommended the adoption of the socialist system as the best way to fulfill the fundamental objectives enshrined in the Constitution. But the Babangida junta jettisoned the wishes of Nigerians and imposed the policies of imperialism on the country.
Politics of Restructuring
At a recent memorial public lecture held in Kaduna in honour of the late Ahmadu Bello, Dr. Kayode Fayemi stated that “In essence, our desire to build a more perfect union should be anchored on the principle of devolution of powers – that is, re-allocation of powers and resources to the country’s federating units. The reasons for this are not far-fetched. First, long years of military rule have produced an over-concentration of powers and resources at the centre to the detriment of the states. Two, the 1999 Constitution, as has been argued by several observers, was hurriedly put together by the departing military authority and was not a product of sufficient inclusiveness.” He opined that restructuring will cement the unity of Nigeria and engender a perfect union among its peoples, irrespective of their ethnic, religious, cultural and linguistic differences.
Governor Fayemi concluded by calling for an equitable revenue allocation formula that will speak to the federalism Nigeria has adopted and give more resources to states and local governments, which bear more responsibilities than the federal government. In his view, a review of the sharing formula to 43 per cent for states, 35 per cent to the federal and 23 per cent to the local governments will go a long way to devolve more responsibilities to constituent units and reduce the concentration of powers at the centre. In his contribution at the lecture, Governor El-Rufai stated that restructuring “will empower State Governments to cease passing the buck to the President and the Federal Government when most of the problems our citizens face daily as a nation are, and can be solved by improved and focused governance at the states’ levels! It is time to make this sort of well-defined restructuring work, for the benefit of the peoples of this country. We therefore have no excuse not to seize this moment and do the heavy lifting for our country and our people. It is in our hands to make the structures, laws and constitutional arrangements in our country conducive to modern governance that will ensure our nation thrives in the 21st century.”
With respect, it is submitted that the adoption of the equitable allocation formula suggested by Governor Fayemi can never solve the crisis of poverty in the land. For instance, the 2020 budget of Nigeria, a country of 206 million people is $30 billion whereas the budget of Brazil, a nation of 208 million people is $650 billion. Instead of rushing to Abuja every month to share poverty by distributing the dwindling revenue from the sale of crude oil in the Federation Account the people of Nigeria should be mobilized to create wealth. Apart from demanding a new revenue allocation formula the fiscal and monetary policies of the nation ought to be challenged as its exclusive control by the federal government as well as the International Monetary Fund and the World Bank has continued to undermine the national economy. The state and local governments must closely monitor the generation and distribution of the revenue in the Federation Account in strict compliance with the provisions of the Constitution.
At the political level the articulation of restructuring should be rid of its contradictions. On the one hand there is the clamour for devolution of powers to make states more autonomous, on the other hand there is the demand of some other ethnic and regional champions for creation of more states andestablishment of development commissions for the zones by the same “over-bearing and suffocating” centre. It does not matter to the ethnic and regional champions if most of the existing states are not viable enough to pay the salaries of primary school teachers and health workers. There should be a greater clarity of purpose in the proposition of restructuring. The diversity and complexity of Nigeria should obviously make the idea of ethnic restructuring impractical in the Nigerian circumstance. When members of the major ethnic groups talk of restructuring in which maps of Biafra and Oduduwa Republics are neatly drawn, do they give a thought to some ethnic groups whose members are only a few thousands? Some languages are spoken each by fewer than a thousand persons while others are spoken each by tens of millions. How do you restructure on ethnic basis in such a complex terrain? That is why the focus should be devolution of powers and responsibilitiesalong class lines. The competence and capacity of states and local governments to govern should be bolstered by awakening institutions of democracy including the civil society.
Those who advocate restructuring hardly play the politics of restructuring very well. Like I indicated earlier, the problems of federalism are to be approached strategically with negotiation and engagement. Since the issues will ultimately be resolved with constitutional amendments or if need be writing a new constitution, the various ethnic and regional champions should engage robustly with their people in the National assembly and State Houses of Assembly. It is inexplicable that restructuring hardly features in parliamentary debates in Abuja or in any of the state capitals.Restructuring should not be an alibi for governance to go on vacation as we are beginning to see in some states of the federation. States do not have to wait for restructuring to fix primary schools without roofs or health centres without drugs and equipment. The absence of restructuring cannot be a justification for some states to fail to access fundsfrom the Universal Basic Education Commission for primary and basic education to remove 14 million children from the streets. State governments need not wait for restructuring before mobilising the people to embark on food production and industrialisation.
Advocates of restructuring should not only put pressure on Buhari to lead the process of restructuring. They should also push the state governors to take advantage of legal openings to deepen Nigerian federalism as Lagos state has done. Some Supreme Court decisions from all which states now benefit were as a result of cases pursued by the Lagos state government against the federal government. In other jurisdictions, court pronouncements have also helped to recast the structure and mechanisms of federations. The politics of restructuring suffers from enormous distortion and dis-articulation. For instance, sometimes you find it difficult to distinguish between the rhetoric of those proposing the restructuring of a united Nigerian federation and the agitation of separatists and secessionists who are declaring their own republics on the internet. Again, the cure to that malaise is persuasion and engagement. To win those who have lost faith in Nigeria because of its political and socio-economic decay, the system should be run in a way that makes all feel inclusive. In addition to reshaping the Nigerian map, a lot political and socio-economic engineering should be done by the leadership. Nigeria cannot be successfully restructured without the implementation of chapter II of the Constitution and the involvement of women, workers, youths and people with disabilities in the politics.
In order to command national loyalty, in recognition of the diversity of
the people and the need to promote a sense of belonging among the people of Nigeria Section 14 (3) &(4) of the Constitution provides the composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria by ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or in any of its agencies. It is submitted that lopsidedness in political appointments is prohibited by the Constitution. Hence, the Federal Character Commission, a federal executive body has been assigned the responsibility to deal with allegations of lopsided appointments in public and private sectors.
The posts which shall reflect federal character in the public service include those of the Permanent Secretaries and chief executive officers of public enterprises. The Federal Civil Service Commission has been specifically empowered to appoint persons to offices in the federal civil service and exercise disciplinary control over them. The Commission shall comprise the Chairman and not more than 15 other persons. The Commission shall also ensure that every company or corporation reflects the federal character in the appointment of its directors and senior management staff. The Federal Character Commission Act provides that the Federal Character principle shall be reflected in the distribution of political posts and social amenities. This in effect means that all parts of the country shall be entitled to equality in the area of development.
The federal character principle is equally applicable to major political appointments in the public service of each State of the Federation. Recently, a female judge in the Cross River State judicial service was not appointed the Chief Judge on the ground that she is an indigene of Akwa Ibom State even though her husband hails from Cross River State. Similarly, another female Judge was denied appointment as the Chief Judge of Gombe State on the ground that she is a Christian. It is submitted that the decisions of both governments of Cross River and Gombe States run foul of section 42 of the Nigerian Constitution and Article 2 of the African Charter on Human and Peoples Rights Act which have abolished discriminatory practices on the basis of circumstances of birth, religion, gender or political opinion. Instead of fanning the embers of ethnicity and religion in the composition of the government at the federal or state level, aggrieved citizens and groups should fight lopsided appointments politically and legally. Nigerians should promote national integration and gender equality by compelling the government of Nigeria to emulate Rwanda, South Africa and Ethiopia with gender balanced cabinets.
Maintenance of Internal Security in Nigeria
In the last few days, governors have, like Pontius Pilate, claimed that they are helpless in maintaining security in the country because of lack of control of the police. According to Governor Seyi Makinde of Oyo State, the recent #endsars protests has called into question “why State Governors are called Chief Security Officers of their states whereas, they do not have the necessary powers to control the Police force. Peaceful protests are a big part of our democratic process. The right to freedom of speech and assembly are guaranteed by our constitution, and I will never support any attempt to rob citizens of their fundamental human rights.” With profound respect, the Constitution has empowered state governors to share police powers with the President but for reasons best known to them they have abdicated the responsibility to the federal government.
In the circumstances, the federal government the Inspector General of Police and the Police Service Commission have dragged themselves to court over the power to recruit members of the Nigeria Police Force. Yet the Nigeria Police Council which is constitutionally empowered to administer, organise and supervise the Nigeria Police Force has not deemed it fit to intervene in the dispute. About two years ago, my repeatedly calls on state governors to requisition the meetings of the Nigeria Police Council fell on deaf ears. Hence, I sued the President at the federal high to convene the meetings of the Council to address the security challenge in the country. However, section 6(4) of the Nigeria Police Act 2020 has made provision for at least two meetings of the Council per year and emergency meetings when necessary. In spite of the worsening security situation in the country, governors have not requisitioned a single meeting of the Nigeria Police Council. But last week, the APC governors held an emergency meeting with President Buhari and persuaded him not to honour the invitation to address members of the House of Representatives on the security situation in the country. Apart from making a mockery of the basic tenet of accountability and separation of powers the APC governors have brazenly subverted federalism.
In Inspector-General of Police v. All Nigeria Peoples Party (2008) 12 NWRN 68 the Court of Appeal held that the power to authorise public meetings, rallies and protests in every state is vested in the Governor of each state under the Public Order Act. For the avoidance of doubt, the Court held that the Inspector-General is not even mentioned in the law and as such cannot exercise any power under the law. But there have been instances when the Inspector-General of Police has canceled political rallies without the consent or knowledge of the Governor of a state. In at least 5 cases the Federal High Court and Court of Appeal have declared that it is illegal and unconstitutional for soldiers to be involved in the conduct of elections. But in some instances, state governors have requested the authorities of the armed forces to involve soldiers in the conduct of elections and peaceful rallies.
Furthermore, by the nature of the Nigerian federation it is the constitutional responsibility of state governments to prosecute not less than 95 percent of all criminal offences including armed robbery, kidnapping and murder or culpable homicide. Every state has a security council chaired by the Governor. The Commissioner of Police and heads of other security agencies in the state are members of the security council. The operations of the anti-robbery squads set up by the Nigeria Police Force are largely funded by state governments. The Attorney-General of each state is required by law to give legal advice in respect of criminal cases that have been investigated by the Police and file charges against criminal suspects when there is prima facie evidence that they have committed criminal offences. Since it is erroneously believed that internal security is the exclusive responsibility of the federal government state governments have failed to supervise the plice and other security agencies operating in the states.
A few days ago, President Muhammadu Buhari publicly acknowledged that aggrieved citizens have the fundamental right to exercise their freedom of expression through peaceful rallies, marches and protests. The position of the President is backed by the provisions of section 39 of the Constitution and article 9 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. However, the President warned hoodlums not to hijack such protests. But to the utter embarrassment of the Federal Government some Commissioners of Police announced a ban on protests and any other form of public meetings in many states. It is high time the attention of such Police Authorities was drawn to the case of All Nigeria Peoples Party v. Inspector General of Police (2006) CHR 181. In that case, the Presiding Judge, Chickere J. declared police permit for rallies illegal and unconstitutional and proceeded to grant an order of perpetual injunction restraining the Defendant (Inspector-General of Police) whether by himself, his agent and privies from preventing the Plaintiffs and other aggrieved citizens from organising or convening peaceful assemblies, meetings and rallies.” In affirming the epochal judgment of the Federal High Court in the case of Inspector General of Police vs. All Nigeria Peoples Party (2008) 12 WRN 65 the Court of Appeal per Adekeye JCA (as she then was) held inter alia:
“The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done. If as speculated by law enforcement agents that breach of the peace would occur our criminal code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.”
In view of the clear state of the law the President should, without any further delay, prohibit armed soldiers from usurping the powers of the Police by getting involved in the maintenance of internal security in any manner whatsoever and however. However, to prevent hoodlums from hijacking peaceful protests, rallies and marches we call on the President to direct the Inspector-General of Police and Commissioners of Police in all the States of the Federation to comply with section 94 of the Electoral Act 2010 as amended which provides as follows: “Notwithstanding any provision in the Police Act, the Public Order Act and any regulation made there under or any other law to the contrary, the role of the Nigeria Police Force in political rallies, processions and meetings shall be limited to the provision of adequate security as provided in subsection (1) of this section.”
Not only were unarmed protesters not protected during the recent #endsars protests they were violently attacked by hired thugs. Since the hired thugs were not arrested hoodlums hijacked the protests and unleashed mayhem on the society. In the process, properties worth billions were destroyed. Over a hundred protesters were killed by the army and the police. The members of the political class who use the area boys as thugs during elections should be held liable for allowing them to metamorphose into hoodlums during protests. Let the members of the political class who recruit and arm thugs for elections only to dump them without demobilising them stop blaming the youths for organising peaceful protests. Permit me to assure the Nigerian people that the identities of those who were seriously injured and brutally killed in Abuja, Ogbomoso, Benin, Port Harcourt, Lekki and other parts of Lagos will soon be revealed. It may interest the public officers who are dancing on the graves of the slain protesters that the bereaved families are quietly shedding tears over their irreparable losses. I am compelled to call on the Nigerian people not to allow the Nigeria Police Force and other security agencies to infringe on their fundamental rights of freedom of expression and assembly.
Funding for the Nigeria Police Force
On 24 June 2019, the Nigerian President signed the Nigeria Police Trust Fund (Establishment) Bill into law. The Act establishes the Nigeria Police Trust Fund. The main purpose of the Trust Fund includes training, overall improvement of personnel of the Nigeria Police Force in the discharge of their duties, purchase of equipment, machinery and books and the construction of police stations and living facilities for members of the Nigeria Police Force. The Police Trust Fund is expected to be a special intervention fund to finance necessary expenditures of the Nigeria Police Force. Section 4 of the Act lists the sources of funds as follows:
i.0.5% of the total revenue accruing to the Federation Account;
ii.a levy of 0.005% of the net profit of companies operating a business in Nigeria;
iii.any take-off grant and special intervention fund as may be provided by the Federal, State or Local Government;
iv.monies appropriated by the National Assembly in the budget to meet the objective of the Act;
v.aids, grants and assistance from international agencies, non-governmental organisations and the private sector;
vi.grants, donations, endowments, bequests and gifts (whether of money or property) from any source;
vii.money derived from investment made by the Trust Fund.
Even though the deductions of the 0.5 percent of the total revenue accruing to the Federation Account and the levy of 0.005% of the net profit of companies operating a business in Nigeria commenced last year there has been no noticeable improvement in the training, overall improvement of personnel of the Nigeria Police Force in the discharge of their duties, purchase of equipment, machinery and books and the construction of police stations and living facilities for the Nigeria Police Force. As Chief Security Officers of the states, Governors should henceforth monitor the disbursement of the Police Trust Fund and curb the excesses of the police and other security personnel operating in all the States of the Federation. Attorneys-General of the States should monitor the investigation of criminal cases and ensure the prosecution of all indicted criminal suspects. The Office of the Public Defender in each State should be adequately funded to take up cases of human rights violations and provide legal services for indigent and vulnerable citizens. In order to end the abuse of the human rights of the Nigerian people state governments have resolved to establish human rights and security committees in all the states of the federation. In view of the revelations of horrendous brutalisation of the Nigerian people in the ongoing judicial commissions of inquiry into police brutality the human rights and security committees should be established without any further delay.
Financial Autonomy for State Judiciary and Legislature and Presidential Executive Order 10
Section 81(3) of the Constitution provides that any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National judicial Council for disbursement to the heads of the courts established for the Federation and the State under section 6 of the Constitution. Similarly, section 121 (3) of the amended Constitution has prescribed that the fund of the judiciary and House of assembly in the consolidated revenue fund of the state shall be paid directly to both institutions. These constitutional provisions have been confirmed by two judgments of the federal high court which have directed the federal government and state governments to comply with the provisions of section 81 (3) and 121 (3) of the Constitution. The federal government has complied with the judgments while state governments have ignored them without any legal basis. Disobedience of court orders in a democratic county that operates under the rule of law is tantamount to totalitarianism. It constitutes a threat to law and order in a civilised society. Disobedience of court orders is always resisted by authorities in a democratic society because a government that rules by law cannot be permitted to ignore court orders.
Owing to the refusal of state governments to comply with section 123 of financial autonomy for the judiciary the President has issued Executive Order 10 of 2019 to authorise the Accountant-General of the Federation to deduct and pay to the head of the courts money standing to the credit of the judiciary in each state. I agree with governors that Executive Order 10 is totally unnecessary. At the same time, the refusal of state governments to comply with section 121 of the Constitution is embarrassingly indefensible. I am however not unaware of the statement credited to the Chairman of the Nigeria Governors Forum, Dr. Kayode Fayemi to the effect that the President has assured the governors that Executive Order 10 would be suspended. But the Attorney-General of the Federation, Mr. Abubakar Malami SAN has insisted that Executive order 10 is sacrosanct. Instead of the unnecessary controversy other state governments should emulate the Delta State government which has enacted a law for financial autonomy for the state judiciary and house of assembly in line with section 121 (3) of the amended Constitution. That is the most effective way to resist the interference in the management of the internal affairs of state governments by the federal government with respect to financial autonomy for state judiciary and legislative houses.
Constitutional Duty of State Governments to Fight Corruption
Each tier of the government is under a legal obligation to fight corrupt practices in line with section 15 (5) of the Constitution. In Attorney-General of Ondo State v Attorney-General of the Federation (2002) 33 WRN 1 the Supreme Court Supreme Court rejected the prayer of the plaintiff to strike out the Act but upheld the power of the National Assembly to enact the Independent Corrupt Practices and Other Related Offences Commission Act. The Commission established pursuant to the Act has been given the mandate to receive and investigate reports of corruption and in appropriate cases prosecute the offender(s), to examine, review and enforce the correction of corruption prone systems and procedures of public bodies, with a view to eliminating corruption in public life, and to educate and enlighten the public on and against corruption and related offences with a view to enlisting and fostering public support for the fight against corruption. The apex Court also held that “the power to legislate in order to prohibit corrupt practices and abuse of power is concurrent and can be exercised by the federal and state governments by virtue of the provisions of section 4 subsections (2), (4)(b), and (7)(c) of the constitution.”
While the federal government has some enacted some anti-corruption laws and established anti-graft agencies to fight corruption state governments, apart from Kano State, have not set up anti-corruption agencies. In fact, the Attorneys-General in all the States of the Federation have given fiats to the anti-graft agencies set up by the federal government to prosecute economic crimes including state offences. Thus, the authorities of state governments have left the federal government alone to fight economic and financial crimes including corruption committed by officials of state governments. In Shema v Federal Republic of Nigeria JELR 46263 (SC) the Supreme Court held that the fiat of the Attorney-General of a State is not required by the EFCC to prosecute state offences pertaining to economic crimes.
Restructuring and the Economy
Under the current political dispensation the national economy shall be managed by the President with the advice of the National Economic Council constituted by the Vice President, State Governors, Central Bank Governor and Minister of Finance. The basis of the constitutional arrangement is that there are certain enterprises that are owned by the Federation which are required to be jointly managed by the federal and state governments. But since 1999, the President has managed the economy on the basis of the advice and prescriptions of the International Monetary Fund and the World Bank as well as a team of presidential economic advisers. Apart from campaigning for currency devaluation and the advising the federal government to implement neoliberal policies and thereby impose hardship on the people the local and foreign economic advisers have never questioned the policies designed by imperialism to promote poverty and underdevelop the country.
The status quo has been sustained to the disadvantage of state and local governments. Thus, the enterprises jointly owned by all tiers of government are controlled by the federal government alone. For instance, licences for oil blocks and solid minerals are awarded by the President without any input from state and local governments while the State and local governments are not represented in the boards of the NNPC and other 121 revenue generating agencies belonging to the Federation. In particular, state and local governments have no representatives in the board of the Bureau of Public Enterprises established by law to privatise and commercialise the enterprises owned by the Federation.
In a recent letter dated 15th June 2020 addressed to the Minister of Finance the Alliance on Surviving Covid 19 and Beyond (ASCAB), a coalition of about 80 labour and other civil society organisations, noted that the Appropriation Bill that the President presents to the National Assembly each year does not contain the full, gross revenues and expenditures of the 122 Federal Government Owned Enterprises and that it is only the net expenditure (total expenditure less any local income for each organisation) that is included as part of the Government’s annual budget. The ASCAB further sated that after the enactment of the nation’s Appropriation Act the individual Appropriation Bill of each of the agencies of the Federal Government listed in the Schedule to the Fiscal Responsibility Act, 2007 is separately considered and passed by the National Assembly. The investigation conducted by ASCAB has revealed that the total gross budget of the said Government Owned Enterprises is usually higher than the budget of the Federal Government. For example, whereas the 2020 budget of the Federal Government was N10 trillion the budget of the Central Bank of Nigeria alone was N2 trillion. Thus the citizens of Nigeria are not currently able to understand the full economic significance of the Government’s annual budget.
In addition, at the end of each year, the revenue realized due to surpluses from Government Owned Enterprises is not fully remitted to the Consolidated Revenue Fund in line with the provisions of section 22 of the Fiscal Responsibility Act. For instance, in a town meeting held at Abuja with the Chief Executive Officers of Government-Owned Enterprise on December 19, 2018 the Director-General of the Budget of the Federation, Mr. Ben Akabueze stated that the 122 Government-Owned Enterprise were owing about N10 trillion in unremitted operating surplus as at the end of August 2018.The Director-general accused the agencies of not remitting up to N1 trillion per annum even though the Federation had spent not less than N40 trillion in establishing them. Based on the outcome of the meeting our law firm, at the instance of the ASCAB, requested for copies of the 2020 Appropriation Acts of the agencies. The Director- General did not have the copies. Even though he directed our request to the national assembly the copies have not been made available to us. Meanwhile, the state and local governments have not shown any interest in the disbursement of the huge fund generated by the agencies.
However, in another letter dated September 28, 2020, the Alliance on Surviving COVID-19 And Beyond (ASCAB) called on the Federal Government to recover the sum of N94 trillion being money withheld or diverted from the Federation Account by certain public and private corporate bodies. It is hoped that the Nigeria Governors Forum will show interest in the sources of the revenue set out in the letter as well as the reports of the investigation being conducted by the national assembly on the mismanagement of the economy by both houses of the national assembly. It is interesting to know that the Minister has not replied both letters.
Payment of Remittances in Naira
In order to ensure the scarcity of dollars in Nigeria the Central Bank of Nigeria banned the payment of remittances to beneficiaries in foreign currencies. Pursuant to the Regulation of the CBN, remittances were paid in local currency while the dollar component was retained abroad. Two years ago, it was revealed by the World Bank that the remittances stood at $25 billion per annum. But the CBN questioned the figure and claimed that the remittances were not more than $2.6 billion per annum. Convinced that CBN was deceiving the government and the Nigerian people I requested for the actual amount under the Freedom of Information Act. When the CBN turned down the request I filed a suit at the federal high court to compel disclosure of the volume of the remittances. Before then, I had alleged in a petition to the EFCC that the policy which allowed the dollar component of the remittances to be kept abroad was tantamount to economic sabotage. As the dangerous policy could not be defended before the EFCC and the court the CBN has been compelled to reverse it. While announcing the new policy, a fortnight ago, the Governor of the CBN, Mr. Godwin Emefiele said that the forex market would be boosted by not less than $24 billion per annum!
COVID-19 Relief Fund
In order to cushion the debilitating effects of Covid-19 pandemic the CBN claimed that the sum of N200 billion has been earmarked for housing while N358 billion had been disbursed for agriculture, industries and manufacturing. In response to the #endsars protests the Bank has set aside N75 billion for job creation for young people between 2021 and 2023. Apart from the fact that the huge fund was not appropriated by the National Assembly the disbursement is not based on equitable criteria. Hence, our law firm has requested the CBN to furnish us with the names of the beneficiaries of the sum of N358 billion alleged to have been disbursed. More than two months ago, the CBN asked for time to provide the list of the beneficiaries! If our request is not met before the end of the year we shall approach the Federal High Court for legal redress. Curiously, state governments have not demanded the Covid-19 recovery fund be distributed on equitable basis and not at the discretion of the management of the CBN. It is however hoped that the National Assembly will soon muster the courage to ensure that the CBN does not disburse any public fund without appropriation.
Dual Exchange Rates
The dual exchange rates which turn people into multi billionaires is solely controlled by the Central Bank. At a public event held in Kano on August 24, 2,016, the then Emir of Kano, Mallam Sanusi Lamido Sanusi accused the federal government of causing economic recession through the operation of the dual exchange rates by the CBN. According to him: “When the CBN was selling dollars at N197 and people were buying at N300, if I sit in my garden and make calls on the phone, I will have enough people to call in the industry to get me $10 million at official rate. Do you doubt it? As a former MD, former governor of the CBN and what they now call a royal father? Think about it. I sit in my garden and make a few phone calls, and get $10 million at N197 per dollar and sell at N300 to the dollar, I will make a profit of N1.03 billion. If I do that four times in a year, for doing nothing, I would have had N4 billion. And people were telling us that this policy was to help the poor. We are not devaluing the Naira, because if we do the poor people would suffer. The people that were profiting from this were people that were telling the government that if it devalued the Naira people would suffer.”
It is submitted that the dangerous policy has continued on a worse scale as many people now buy $10 million at N305 only to trade them at N500 and thereby become instant billionaires to the detriment of the national economy. State and local governments should join the campaign for the abolition of the discriminatory and illegal operation of the dual exchange rates because it is subversive of the national economy. However, like a fortune teller, the CBN Governor has predicted that the second recession will end in the first quarter of 2021. No doubt, the prediction is based on the sale of crude oil whose price has increased from $37 to $50 dollars per barrel. But unless the mismanagement of the economy by the CBN is halted the country will not recover from recession.
In fact, the World Bank has predicted that the recession will last until 2023 unless certain “unpopular measures” are adopted by the federal government. According to the bank,”In the next three years, an average Nigerian could see a reversal of decades of economic growth and the country could enter its deepest recession since the 1980s,” In a report, titled: “Rising to the Challenge: Nigeria’s COVID response” Shubham Chaudhuri, World Bank Country Director for Nigeria said that “Nigeria is at a critical historical juncture, with a choice to make”. The Bank argues “that this path could be avoided if progress in the current reforms is sustained and the right mix of policy measures is implemented. The report lauded the measures taken by the government including the efforts to harmonize exchange rates, introduce a market-based pricing mechanism for gasoline, adjust electricity tariffs to more cost-reflective levels, and reduce non-essential expenditures and redirect resources towards the COVID-19 response. The World Bank is asking the Federal Government to impose more excruciating economic hardship on hapless Nigerian people. Since the federal government is likely going to adopt the “unpopular measures” advocated by the World Bank we call on the Nigerian people to be prepared for a sustained battle against the recolonisation of the country by imperialism.
Illegal Substitution of Foreign Currencies in the Federation Account by CBN
The federal, states and local governments are in financial straits partly due to the fluctuation in earnings from the Federation Account, occasioned by oil price volatility and challenges of boosting internally-generated revenue. In a bid to challenge inflation promoted through the manipulation of the foreign exchange market the Nigeria Governors Forum once demanded that states and local governments be paid their shares of revenue from the Federation Account in dollars. Even though the demand is in consonance with section 162 (1) of the Constitution the governors did not pursue the matter for reasons best known to them However, in the cases of Attorney-General, Lagos State v Attorney General of the Federation (2004)18 NWLR Pt (904) 1 at 141 the Supreme Court held that “Under the Constitution, the three tiers of government, that is the Federal, States and Local Governments are to share the funds in the Federation Account in line with the guidelines laid down by the National Assembly.”
But in violation of the constitutional mandate, the Central Bank of Nigeria unilaterally determines the naira exchange rate and thereafter unconstitutionally captures the distributable revenue and prints in replacement as statutory allocations, which are then domiciled in the bank accounts of beneficiaries. As repeatedly pointed out by the late Henry Boyo, ” the ministries and state governments that require imports to enhance social infrastructure, become constrained to buy back their earlier captured dollars at a higher regulated rate from commercial banks, that strangely become the prime beneficiaries of the CBN’s dollar auctions. Ultimately, Naira exchange rate comes under threat as increasingly surplus naira is unleashed by the CBN to chase the dollar rations it regularly auctions. Consequently, the market dynamics of demand and supply become unfavourably skewed against the naira, ironically, despite the CBN’s custody of relatively impressive reserves”
In 2016, Senator Francis Alimikhena sponsored a bill seeking to direct the Central Bank to issue dollar certificates to the three tiers of Government with respect to revenues earned in foreign currencies. The bill which was anchored on Section 162 of the Constitution had scaled the second reading before the dissolution of the Eighth Session of the National Assembly. Meanwhile, as Boyo said “the ministries and state governments that require imports to enhance social infrastructure, become constrained to buy back their earlier dollars at a higher regulated rate from commercial banks, that strangely become the prime beneficiaries of the CBN’s dollar auctions. Ultimately, naira exchange rate comes under threat as increasingly surplus naira is unleashed by the CBN to chase the dollar rations it regularly auctions. Consequently, the market dynamics of demand and supply become unfavourably skewed against the naira, ironically, despite the CBN’s custody of relatively impressive reserves.” State and local governments are enjoined to press for the distribution of of revenue in the Federation Account in local and foreign currencies.
Diversion of $22 Billion from Federation Account by NNPC
The House of Representatives is currently probing the refusal of the Nigerian National Petroleum Corporation to remit the $22 billion dividends paid by the NLNG into the Federation Account. In justifying the illegal diversion of the fund the Group Managing Director of the NNPC, Mr. Mele Kyari has said that the fund belongs to the federal government alone. According to him, “All withdrawals (from NLNG dividends fund) were based on approved mandates of the relevant authorities. As far as NNPC is concerned, investments in NLNG, were done on behalf of the federal government. I was the treasurer of NLNG, so I was aware of the federal government’s investment in the project. The same matter came at the Federal Executive Council (FEC) and was referred to a committee, headed by the Governor of Kaduna State, but the fact is that the federal government, through the NNPC, is the true owner of the investment (the sum withdrawn). It is accrued to the federal government, not the Federation Account.”
It is submitted that Nigeria Liquefied Natural Gas Limited was incorporated as a limited liability company on 17 May 1989, to produce LNG and natural gas liquids (NGL) for export. Nigeria LNG Limited is jointly owned in the following proportions: Nigerian National Petroleum Corporation (NNPC) owns 49%, Shell Gas B.V. owns 25.6%, Total LNG Nigeria Ltd owns 15% and Eni International owns 10.4%. It is submitted that the NNPC is holding the shares on behalf of the Federation and not on behalf of the federal government. To that extent, the sum of $22 billion dividends paid by the NLNG belong to the Federation and ought to be recovered and paid into the Federation Account.
Refusal to collect outstanding $62 billion Royalties from OICS
In July 2015, our law firm questioned the deliberate refusal of the relevant authorities to collect the revenue which ought to have accrued to the Federation Account under the Deep Offshore Inland Production Contract and called for a review of the law. The campaign which was vigorously waged for 4 years culminated in the amendment of the Deep Offshore Inland Production Contracts Act last year. It has been said that the amendment will increase the revenue in the Federation Account by not less than $1.5 billion per annum. Before the amendment of the Act the governments of Akwa Ibom, Bayelsa and Rivers States had sued the federal government over the non implementation of the Act which led to the loss of several billions of dollars. The consent agreement between the parties to the suit was adopted as the judgment of the Supreme Court in October 2018. The firm of accountants engaged by the federal government to inquire into the revenue lost by Nigeria for a period of 18 years put the figure at $62 billion. The efforts of the Attorney-General and Minister of Justice, Mr. Abubakar Malami SAN to recover the fund have been frustrated by the Ministry of Petroleum Resources. The Nigeria Governors Forum ought to ensure that the lost revenue is recovered and paid into the Federation Account in line with the judgment of the apex court.
Nigeria’s Rising Debt
Notwithstanding the so called debt relief and the payment of $12.4 billion to the London/Paris Club by the federal government the people of Nigeria are worried that the federal and state governments have been plunging the country into another debt trap. It is common knowledge that members of the national assembly have not been subjecting the terms of foreign loans to critical analysis before approving them. It has been confirmed that Nigeria’s total debt stock (foreign & domestic), as at June 2020 stood at N31.01 trillion ($85.9 billion)- 8.31% increase when compared with N28.63 trillion ($79.3 billion) recorded in March 2020. This was disclosed in the Nigeria public debt report, recently released by the Debt Management Office (DMO).
The breakdown shows that total external debt stood at N11.36 trillion ($31.47 billion), accounting for 36.65% of the total debt stock, while domestic debt represented 63.35% of the total debt. Domestic debts stood at N19.65 trillion ($54.42 billion) as at June 2020. The report also reveals that N921.9 billion was used to service domestic debts between January and June 2020, while N288.6 billion ($759.6 million) was used on foreign debts, making a total of N1.21 trillion. Compared to N1.06 trillion spent in the same period of 2019, debt service increased by 14.6%. The Federal government has earmarked 25% for payment and service of debts; 30% for capital and 45% for recurrent in the 2021 budget. It is indubitably clear that the development of the country cannot be guaranteed with 30% for capital projects in the budget.
Diversion of CERPAC Fund from Federation Account
Sometime in 2019, I found that through the Combined Expatriate Residence Permit and Aliens Card, CERPAC, the Nigeria Immigration Service generated N20,358,233,000 billion in 2018. Following the increase of the Cerpac fee from $1,000 to $2,000 per expatriate the revenue increased to N40,786,437,950 billion in 2019. We found that the Ministry of Interior and the company reviewed the sharing formula for the collected revenues: 55 per cent to the company, 33 per cent to the federal government, five per cent to the ministry of interior and seven per cent to the NIS. Since the revenue was earned by Nigeria the entire revenue ought to have been remitted to the Federation Account. We requested the federal ministry of finance to cancel the illegal contract and direct the Nigeria Immigration Service to collect the revenue as stipulated by the Immigration Act, 2015. My request was ignored. In a suit filed at the federal high court the legality of the contract and the sharing of the revenue was challenged.
In the ruling delivered in November but just obtained by PREMIUM TIMES, the judge, Rilwanu Aikawa of the Lagos Division of the Federal High Court, also declared as unconstitutional the contract between the interior ministry and Continental Transfert Technique Ltd, or Contec, for the collection of the CERPAC fee. Justice Aikawa ruled that only the Nigeria Immigration Service is lawfully empowered to collect such fees. The federal government filed an appeal against the judgment and obtained a stay of execution of the judgment. The state and local governments which are entitled to 48 percent of the revenue from Cerpac fees have left me alone to wage the legal battle.
The apparent defects in the federal system form the legitimate demand for urgent restructuring in order to liberate our country. It is indisputable that prolonged years of military dictatorship aided the usurpation of residual powers of state governments by the federal government. In many instances, the 36 state governments have had to resort to litigation to challenge the several laws and policies of the federal government which have violated the basic tenets of federalism. In spite of the vehement determination of the federal government to retain powers that were taken vi et armis from state governments the courts have ruled in favour of federalism. Apart from litigation, a few state government have dared the federal government by enacting laws in areas not covered by the exclusive and concurrent legislative lists in the Constitution. Thus, the legal and political struggle waged by state governments has altered the national economy to the advantage of all state governments. This must continue in many other areas that were exclusively reserved for regional governments before January 1966.
The national assembly has continued to consolidate and expand the powers of the Federal Government to the detriment of federalism while the courts have interpreted the Constitution to justify the control of the judiciary by the federal government through the National Judicial Council. The crisis of federalism has also been compounded by some decisions of the courts that have upheld the powers of the federal government to encroach in the areas of state offences.The way forward is that the struggle forrestructuring and the liberation of the poor people of Nigeria from the bondage of poverty and inequality require the adoption of vertical and horizontal measures to build a peaceful and united Nigeria rooted in social justice, equity and genuine freedom.
Notwithstanding the shortcomings of the 1999 Constitution there are some residual powers reserved for state governments which have not been explored to promote the development of the country. We have identified specific areas where state governments have refused to jointly exercise powers with the federal government as stipulated by the Constitution. In view of the strident opposition of the ruling party to power devolution the Nigerian people are not deceived by the campaign for restructuring which is being championed, in recent time, by politicians who are interested in the 2023 presidential race. Instead of dismissing the campaign state governors who are genuinely interested in restructuring should democratise the powers that have devolved to state governments from the centre through litigation. They are also advised to insist on power sharing with the federal government with respect to the management of the economy and security of the nation as stipulated by the Constitution.
Finally, permit me to end this lecture on a note of warning. The warning is that the power devolution to the states from the centre without the democratization of the said powers will not promote development of the country. In other words, restructuring without the equitable redistribution of the commonwealth will not engender unity as unity is not an abstract phenomenon. In concrete terms, unity means the corporate existence of Nigeria. The fact that the unity of the country is based on the ruthless exploitation of the working people is of no moment as far as members of the ruling class are concerned. Since the rich are united in exploiting our national resources the exploited poor and oppressed people should equally unite to free themselves from poverty.
-(Being the text of the 20th Convocation Lecture of the Ekiti State University delivered by Femi Falana SAN on Wednesday, December 16, 2020)