An Open Letter to the Nigeria National Conference, Part I: On the Form of Government and Political Restructuring

By

 Dr. Emmanuel Ojameruaye

emmaojameruaye@yahoo.com

In spite of its structural weaknesses and skepticism about its likelihood of success, the National Conference (NC) is the only opportunity and hope to fundamentally restructure the country’s polity in order to resolve some of the long-standing structural problems that have hindered political and socio-economic development of the country and caused recurring tensions and conflicts among the various ethnic nationalities that were amalgamated into a country called Nigeria by the British Colonial rulers some 100 years ago. Before the “forced” marriage, these groups lived independently of each other. Although most analysts believe that the marriage has not worked well during the course of the past 100 years, they also believe that divorce or disintegration is not a desirable solution. Therefore the key challenge facing the National Conference is how to make the “marriage” function optimally and produce a better outcome for the constituent parts and people of this great country, the “sleeping giant” of Africa. 

The fundamental problems facing the country cannot be addressed by merely tweaking the current (1999) Constitution imposed on the civilian administration by the military after 29 years of a unitary military government (1966-1979; 1984-1999). The National Assembly through its “constitutional review” cannot be relied upon to adequately address the fundamental problems because its members have sworn to uphold the 1999 Constitution. Moreover, they will be bogged down by party and group loyalty, rivalry and lobbying. Also, the Presidency or the Executive Arm of the federal government cannot address the fundamental problems because it must work with the National Assembly and may be more interested in maintaining the status quo or remaining in power or expanding the powers of the federal government. This is why the National Conference is critically important to “realistically examine and genuinely resolve, long-standing impediments to our cohesion and harmonious development as a truly United Nation”[i].  However, after reading reports on the deliberations of the various committees of the National Conference during the past two months[ii], I am worried that the lofty goal of the conference may not be achieved because of a lack of clarity and adequate knowledge of some critical issues, misunderstanding of the issues, poor sequencing of the issues and unwillingness to compromise on some of the issues. 

Of the 20 Committees that have been set up by the NC, the Committee on the Devolution of Power and the Committee on Political Restructuring and Forms of Government are perhaps the most important because the success of the conference will largely be determined by the ability of these two Committees to come up with agreed and generally acceptable solutions to some of the most divisive fundamental issues. As we enter the third month of deliberations, there are already strong indications of schisms and deep disagreements among members of the Conference on some critical issues. If the vexed issues are not handled in an informed manner, the Conference may end in a stalemate like the 2005 National Political Reform Conference staged by President Obasanjo which report was consigned to the dustbin of history and recommendations never saw the light of the day. There is a general consensus amongst Nigerians that current systems and arrangements in Nigeria are ineffective, inefficient and prone to recurring conflicts and tensions among the ethnic groups in the country. We simply cannot continue to conduct the “national business” as usual.  We therefore need a “new Nigeria” that will function better. The National Conference cannot afford to turn out to be an endorsement of the status quo. Therefore the success of the Conference will be determine by the extent to which it delivers a “new Nigeria”. In this letter, I will examine some of the foundational issues and offer some “genuine” solutions for the consideration of the Conference. The paper is divided into two parts. This first part deals with the form of government and political restricting while the second part deals with the issues of fiscal federalism, revenue allocation and resource control.

1. Form of Government

The first and most important issue that the Conference must decide is the form of government for the new Nigeria. Although about 170 “forms” of government have been identified in the literature[iii], the Conference should seriously consider only three – Federation, Confederation and Unitary forms of government - and agree on one. There seems to be some confusion about these three forms of government in the Nigeria. It is taken as a given that Nigeria is a federation and will remain so. But should it? Many analysts have advocated for “true federalism” which is a tacit admission of the fact that Nigeria has been practicing “false” or “adulterated” federalism, a form of “quasi” federation.   However, a survey of the literature on federalism shows that the term “true federalism” is used in Nigeria only. Political scientists elsewhere do not use any adjective to qualify federalism. A cursory examination of the form of government in Nigeria since 1966 shows that it approximates a unitary government more than a federation. During the military era (1966-79, 1984-1999), Nigeria was essentially a unitary government although it was called a “federal” military government which is a misnomer. Similarly, some politicians have called for a “confederal” federation which is also a misnomer. I will briefly explain some of the features of a unitary, confederal and federal states to assist members of the Conference to decide which one is most appropriate for the New Nigeria. However, since the most likely choice is a federation, I will focus more on the essential features of a federation.

1.1 Unitary Government: A unitary state or government is “one that is governed as one single unit in which the central government is supreme and the administrative divisions (or subnational units) exercise only powers that the central government chooses to delegate” In a unitary state, “subnational units are created and abolished and their powers may be broadened and narrowed, by the central government”.  The United Kingdom, France, Ireland, Sweden, Denmark, Norway and Ukraine are examples of unitary states. By their very nature, monarchies or monarchical governments and military regimes are unitary governments. Some of the modern day unitary states are former monarchies that have become democracies while remaining unitary in form and structure. The central democratically government controls the subnational (state, provincial, district or local or municipal) governments. There is nothing intrinsically wrong with a unitary state provided it is well-governed in a democratic, transparent and accountable manner and with well-defined separation of powers between the executive and legislature and an independent judiciary. However, in many of the modern unitary states, especially those that are multi-ethnic, there is a strong desire for devolution of some powers from the central government to the subnational governments.

1.2 Confederation: A confederation or confederacy is “a union by compact or treaty between states, provinces or territories that creates a central government with limited powers with the constituent entities retaining supreme authority over all matters except those delegated to the central government”. A confederation is also defined as “a permanent union of sovereign states for common action in relation to other states”.  The closest entity to a confederation in recent times is the European Union which is a union of sovereign West European states. It can be argued that the ultimate goal of other similar “unions” of sovereign states such as the African Union, the ECOWAS, and the Arab League, is to metamorphose into confederations but the road to a confederation is usually long and laden with controversy among opponents and proponents in the sovereign states.  When the Canadian federal system was established in 1867 it was referred to as a “confederation” but it has since been recognized that that was a misnomer because the provinces are not sovereign and do not claim to be. In fact, Canada is a federation. Also, while Switzerland is still officially called the Swiss Confederation, this is also now a misnomer because the Swiss cantons (provinces) lost their sovereign status since 1848.

1.3 Federation: A federation or a federal state is a “political entity characterized by a union of partially self-governing states or regions or provinces under a central (federal) government” or “form of government in which sovereign power is formally divided -- usually by means of a Constitution -- between a central authority (federal government) and a number of constituent regions (or states or provinces) so that each region retains some management of its internal affairs”. The governmental or constitutional structure found in a federation is known as federalism. In a federation, the power of the central or federal government is restricted while the component parts or federating units (regional/state/provincial governments) retain a degree of self-government. The self-governing status of the federating units, as well as the division of power between them and the central government, are entrenched in the Constitution of the federation and cannot be altered unilaterally by either the federating units or the central government. In a federation, the central or federal government exerts influence directly upon both citizens/individuals as well as upon the regional government but in a confederation the central government exerts influence directly on the regional government only and indirectly on the citizens through the regional governments.

According to K.C. Wheare, a leading authority on federalism, the federal principle is "the method of dividing powers so that the general and regional governments are each within a sphere co- ordinate and independent."  In other words, the central and regional governments have autonomous sphere of power that can be exercised independently of the other level, and the powers of the central government are exercised directly over individual citizens, rather than indirectly through the states or provinces. Another authority, A.V. Dicey, notes that the three key characteristics of a "completely developed federalism" are: a) the distribution of powers among governmental bodies (each with limited and coordinate powers); b) the supremacy of the constitution; and c) the authority of the courts as the interpreters of the constitution. Furthermore, building on Wheare’s definition, Donald Smiley, defines a federal state as one in which: a) legislative powers are distributed between a central and a regional government; b) the powers of the central and regional governments are not subject to change by the other level of government; and c) individual citizens are subject to laws enacted by both the central and the regional governments.

The above definitions clearly distinguish federation on the one hand from unitary or confederate forms of government on the other. In a unitary state, ultimate political authority resides in the central or national government which may establish regional or local governments which powers are not constitutionally entrenched and may be unilaterally altered by the central government.  On the other hand, in a confederation, ultimate political authority resides in the state or regional governments, and the central government acts as their delegate and may not even have the power to enact laws that directly affect individual citizens. For example, the Articles of Confederation adopted by the American colonies in 1777 did not grant the national government any free-standing power of taxation. Instead, the national government's sole source of funds was grants received from the state governments and only the states had the power to levy taxes directly on the population. However, after the conclusion of the American War of Independence in the 1780s, a consensus emerged among the states that the national government's powers needed to be strengthened. This led to the Constitutional Convention of 1787 and the adoption of the final form of the American (federal) constitution, which granted the national government significant new powers such as the right to levy taxes and to regulate interstate and foreign commerce. The United States thus transformed what had been a confederacy into the first example of a truly federal form of government.

The federating units or component states of a federation usually possess no powers in relation to foreign policy, and so they do not have an independent status under international law. In most cases, a federation is born out of an initial agreement between a number of separate states to solve mutual problems, provide for mutual defense, or to create a nation state for an ethnicity spread over several states. In some cases, as in the case of Australia, a federation is formed through a referendum (vote) by the citizens of each state. Most federations are multi-ethnic and cover a large territory, but these are not necessary conditions for a federation. In fact, federations come in various sizes and there is a wide variation in the number of federating units. Examples of federations include the Argentina, Brazil, Ethiopia, Germany, India, Iraq, Nepal, Pakistan, Russia, Switzerland, Sudan, United States and Venezuela. Table 1 below shows population and the number of states in some federations.

Table 1: Examples of Federations

Source: Compiled from Wikipedia

In some federations, some states have more autonomy than others. Such federations are called asymmetric federations. A good example is Malaysia where the states of Sarawak and Sabah entered the federation on different terms and conditions from the states of Peninsular Malaysia. Furthermore, in some multi-ethnic federations like India, the federating units or states are structured more or less according to the ethnic groups, i.e. the states are made up of one or a few ethnic groups, and the is a wide variation in the area and population of the federating units or states, as shown in table 2.

Table 2: Some Federating Units (States) in India

 Source: Compiled from Wikipedia

In my view, given Nigeria’s multi-ethnic composition, large expanse of land, population, history and geography, the best form of government for the government is a Federation – “a completely developed federation”. In other words, Nigeria should remain a federation but all the elements of a unitary state in the current arrangement and (1999) Constitution should be identified and eliminated. Examples include the Nigerian/centralized police force, the revenue mobilization and fiscal commission, overdependence of the federating units on federally collected revenue and federal government ownership of mineral resources.

Once the Conference has agreed on a federation, the devolution of powers –transfer of some powers from the federal/central government to the federating units (states) – becomes inevitable. In other words, devolution of power naturally follows as we move from a unitary (or quasi- unitary/quasi federal) form of government to a federation. The issue is what powers should be devolved. This should not require too much debate if we look at the constitutions of well-functioning federations, especially those countries that have transited from unitary states to federal states. Examples of powers or institutions that are devolved include national police force which should be replaced by regional/state police or by municipal or local government police.

2. Structure of the Federation

Once the Conference has agreed that Nigeria should become a “completely developed federation”, the next task should be to determine the structure of the federation, i.e. how the “federating units” will be formed, their number and names. Should the federating units be formed based on ethnicity, geography or some other actors? What should they be called -regions, states or provinces? How many should they be? Into what sub-units should they be divided and how should the sub-units be called - local governments or districts or divisions or counties or municipalities?  In the case of multi-ethnic federations where each ethnic nationality has a well-defined (aboriginal) area, it is usually recommended that each large ethnic nationality and a combination of small ethnic nationalities should constitute the federating units because this will ensure some degree of ethnic homogeneity of the units and minimize ethnic conflicts and tensions within each unit. The federating units can be called regions or states or provinces, and they may be named after ethnic nationalities as in the case of India. While there is no rule to determine the number and size of federation units, it is essential for them to be economically and politically viable entities that are capable of self-governance. Table 1 above shows that there is a wide variation in the “average population per federating unit” among the selected countries. Table 2 also shows that in the case of India (and in many other countries), there is a wide variation in the population and area of the federating units. For the selected countries in table 1, the median average population per federating unit is about 6.5 million with Nigeria situated in the first quartile at 4.81 million per state compared to India’s 43.71 million per state. This means that the states in Nigeria are comparatively too small as federating units.

Most scholars of federalism would agree that the current structure of Nigeria’s federation of 36 states (federating units?) and a FCT is not optimal because they are artificial entities created by the various military regimes as part of their policy of centralization of power – i.e. concentration o power at the federal level - and tendency towards a unitary state. Not only are the states not based on ethnicity, but they are too many as federating units. In addition, most of them are not economically and politically viable for self-governance or autonomy.  Therefore, the 36 -state structure should be reviewed and a more organic approach should be adopted to create new federating units. Some analysts have suggested a return to the 4-regional structure of the First Republic (1960-1966) while others have suggested that the so-called six geo-political zones should formally be constituted into the new federating units. I do not that we should return to the 4-regional structure because it will re-subjugate the ethnic minorities in the “middle belt” (North Central zone) under the Hausa/Fulani –dominated Northern region, and the ethnic minorities in the South-South East (Rivers, Akwa Ibom and Cross-River States) under the Igbo-dominated Eastern Region. This will generate tensions similar to what we had in some of the regions in the First Republic.  Furthermore, I do not think that the six geopolitical zones should be constituted into federating units because they are arbitrary concepts created by the military which could worsen the ethnic disequilibrium and tensions in country by dividing some large ethnic nationalities and creating “forced marriages" of some ethnic nationalities within the same zonal government. Obviously, we cannot make each ethnic group a federating unit because we will end up with an unwieldy federation of over 200 federating units most of which will not be economically and politically viable.  Therefore, the Conference must come up with a creative way of creating sustainable, peaceful and virile federating units. The federating units must not be of approximately equal size or population (as the geographic zones). Given the fact that ethnicity is deeply embedded in the Nigerian psyche and political economy, it cannot be wished away. Therefore, the federating units should be based on ethnicity as much as possible. Since we cannot afford to have 200+ single ethnic federating units, some ethnic nationalities must of necessity be merged to form federating units. A minimum population of 5 million (based on 2006 census data) can be set as a benchmark for a federating unit such that if an ethnic group has a population of 5 million or more (as of the 2006 population census), it can form a federating unit. All other ethnic nationalities with a population of less than 5 million should vote to join with other contiguous ethnic nationalities to form a federating unit. With regards to the naming of the federating units, I will suggest that they should be called Provinces to distinguish them from the “regions” in the First Republic and the current “states” or the” geographic zones”. Furthermore, those provinces with homogenous ethnic nationalities can be named after their nationalities while the multi-ethnic federating units could be given neutral geographic names. A federal structure based on the ethnic nationalities will resemble the ethnic map of the country.  

Based on the above, I would recommend 10 federating units (provinces) for the consideration of the Conference as shown in the table 3. Before the Provinces are created, the people in some of the current LGAs at borders of two of the proposed Provinces should vote to choose which of the two proposed neighboring Provinces they would like to join. For instance, the people of Oshimili LGA in Delta State could vote to join either the Mid-West Province or Igbo Province, the people of Owan East and West as well as Akoko-Edo LGAs in Edo state should vote to join either the Mid-West Province or Yoruba Province, and the people of Ilaje and Ese-Odo LGAs of Ondo State should vote to join either Yoruba Province or Mid-West Province (or even South-South Province). This will enable small ethnic nationalities to join the Provinces of their choice or where they feel their interests will be best served.  

3. Local Governments

Each Province should be divided into local government areas which shall be called Districts. It should be the responsibility of the Provincial Government to create its own districts provided no district shall have a population of less than 500,000 people and more than 1 million people. The district governments in large urban areas (cities) may be called municipal governments. The federal government shall not have any direct control over the district (local) governments. The district governments shall not participate in revenue allocation between the federal government and the provincial governments. Each provincial government will however allocate part of its revenue from federal allocation to the district governments. However, the federal government shall provide competitive grants directly to the district governments to fund special initiatives that are o national priority such as afterschool programs, HIV/AIDS treatment and prevention and green energy.

Table 3: Recommended Federating Units (Provinces)

 .

4. System of Government

Another issue that must be decided is whether Nigeria should continue with the Presidential system of government or return to the Parliamentary system that was adopted during the First Republic (1960-1966). Some federations like India practice the parliamentary system while others like the United States practice the presidential system. It is an open secret that the Presidential system did work very well during the Second Republic (1979-1983) and has not been working very well under the Third Republic (1999 to date). It is therefore important for the Conference to re-examine the pros and cons of both systems in relation to Nigeria’s peculiar circumstances and agree on which system to adopt in the “new Nigeria”. The table below summarizes some of the salient features of both systems:

Table 4: Presidential and Parliamentary Systems of Government

A careful examination the pros and cons of both systems within the context of Nigeria’s political economy would suggest that the country should continue with the presidential system with built-in greater checks and balances, greater accountability and transparency, greater independence of the legislature and judiciary from the executive, and greater watchdog role by the media and civil society. In order to reduce cost of government, the size of the executive and legislature should be reduced significantly.

5. Type of Legislature:

The Conference also needs to decide whether Nigeria should continue with a bilateral legislature (two chambers -House of Representatives and Senate) or adopt a unicameral legislature (one chamber – just one National Assembly or Congress or Parliament). Again, the Conference needs to conduct a detailed cost-benefit analysis of a unicameral legislature versus a bicameral legislature. The following table summarizes some of the features of the two types of legislatures:

Table 5: Bicameral and Unicameral Legislatures

Source: Compiled from National Democratic Institute for International Affairs (NDI): One Chamber or Two? Deciding Between a Unicameral and Bicameral Legislature. Research Series, Paper #3. Nd.

The experiences of other countries could provide a guide in answering the question as to whether Nigeria should continue with a bilateral legislature or change to a unicameral legislature. A 1986 survey of 83 countries shows that of the 66 countries with unitary form of government only 12 have bicameral legislatures while 54 (or 82%) have unicameral legislatures; on the other hand of the 17 countries with federal form of government (federations) only 1 has a unicameral legislature while 16 (or 94%) have bicameral legislatures.  In other words, federal systems almost always have bicameral legislature but there are a few exceptions. Based on this and the advantages of a bicameral legislature, I would suggest that Nigeria should continue with the bicameral legislature. However, in order to reduce cost and ensure efficiency, the number of members of both chambers should also be reduced significantly. For the House of Representatives, one member should represent about 1 million people (compared to 600,000 people in the United States). Thus, if Nigeria’s projected population in 2015 is 180 million, the House of Representatives will have approximately 180 members. However, the number will be adjusted based on approximation to 1 million at the provincial level. For instance, if a province has a population of 11.6 million (= approx 12 million), it will have 12 federal electoral districts and elect 12 members to the House of Representatives; but if a province has 15.4 million (= approx 15 million) people, it will have 15 members. However, the electoral district map will be redrawn/updated every 10 years based on the most recent population data. In the case of the Senate, each province shall elect 5 senators, hence the total number of Senators shall be 40 (i.e. 4 x 10 provinces). In addition to the above, the members of the National Assembly should be part-time members and should sit for a minimum of 80 days and a maximum of 120 days in a year. They should be paid allowances only for the days they seat and work.

Following the example of the United States, members of the House of Representatives (HR) should be elected every three years (two years in the US) while members of the Senate should be elected every six years. However, the entire HR should run for re-election simultaneously on the same day to make it possible to alter the composition of the House if voters are not satisfied with the performance of the House or the Executive. On the other hand, only half (50%) of the Senate shall be up for re-election every three years in order to limit the amount of turnover at any one time and create a more stable and experienced upper chamber. In order to achieve this, the 50% (i.e. 20 or 2 per province) of the first set of Senators in the new Nigeria will be elected for a 6-year term (these will the two senators in each state with the highest votes) while the other 50% will be elected for a 3-year tenure (these will be the other two senators with smaller number of votes) but they will be allowed to re-contest the election after their first three-year tenure for a new 6-year tenure. In order to avoid the “sit-tight syndrome” in Nigerian politics and inject fresh blood into the HR, each member shall serve for a maximum of nine years which can either be consecutively (i.e., contest and win 3 consecutive elections) or with a break (i.e., context and win once, then take a break and come back after some time to contest and win two other times). Similarly, a member of the Senate shall serve for only a maximum o 12 years, i.e., two terms of 6 years each, either consecutively or with a break.

6. The Executive/Presidency

Some of the factors responsible for poor governance and tension in the polity include the tussle for the presidency among the various ethnic nationalities, the feeling of marginalization by some groups and the tendency of the incumbent President to remain in power using all available means.  To address these maladies, I would recommend as follows:

·         The President should be elected for a single term of 6 years with the proviso that he is eligible to contest a Presidential election 12 years after his tenure. This will provide an opportunity for Nigerians to bring back a good leader after a period of 12 years and would serve as an incentive for good governance. It will also prevent the use/abuse of power of incumbency when an incumbent  can immediately run for a second-term or implant a “holding” President if he can re-run after 4 to 6 years break as exemplified in the classic case of Putin and Medvedev in Russia. 

·         There should be 3 Vice Presidents – who should oversee specific ministries. The first VP should oversee Defense, Security/Internal Affairs and Foreign Affairs; the second VP should oversee the Economy, Finance, Energy and Natural Resources including Agriculture; and the third VP should oversea all the other ministries. The ministers will be appointed by the President but they will report to the VPs who would then report to the President. There shall be a maximum of 20 ministers and there shall be no deputy ministers or ministers of state. Each province shall have at least one minister but not more than three ministers. The director-general of each minister shall act as the minister when necessary.

·         The following 10 positions shall each be allocated to the 10 provinces in that order:

Ø  The President

Ø   The 3 VPs,

Ø   The President/Head of the Senate

Ø   The Speaker/Head of the House of Rep

Ø   The Chief Justice of the Federation

Ø  The Deputy President of the Senate

Ø   The Deputy Speaker,  and

Ø  The Secretary to the Federal Government.

In order words, no province shall occupy more than one of the above positions. 

In my next letter I will discuss fiscal federalism, revenue allocation and the so-called resource control issue. Meanwhile, I will conclude this section of my paper by reiterating that the National Conference offers a unique opportunity to create a new Nigeria for the 21^st Century. We cannot continue business as usual otherwise we may either not survive this century as one country or we may continue to be a country marred  in constant tensions and crisis that will continue to prevent us from being “one nation bound in freedom, peace and unity” and from attaining the “great lofty heights” envisaged in our National anthem.  In this letter, I have offered far-reaching and ground-breaking proposals that will propel Nigeria forward as a “completely developed federation” for the 21^st Century. I urge the conference to seriously consider the proposals.

Thank you.

Dr. Emmanuel Ojameruaye

Phoenix, March 25, 2014