1. Introduction
The phrase may sound hackneyed, but Professor Nawbueze has “done it again”. Defying the laws of nature, Nwabueze’s output increases with his age. Here is an old man, putting the rest of us engaged in legal scholarship to shame. In 2005, Professor Nawabueze published a massive 5-volume work entitled Constitutional Democracy in Africa, with each volume dealing with a separate topic under that theme. And now in 2007, three books have emerged from the intellectual production line of this great African scholar. These are (i) The Judiciary as the Third Estate of the Realm, (ii) How President Obasanjo Subverted the Rule of Law and Democracy and (iii) How President Obasanjo Subverted Nigeria’s Federal System.
In spite of this prodigious output, the rich and lucid language, profound thought process, comprehensive scope and analysis have been sustained at the highest level. The present review effort is only in relation to the book on How President Obasanjo Subverted Nigeria’s Federal System.
2. About Federalism
Federalism, says the Author, is predicted upon the existence of a society composed of various geographically segregated groups divided by wide fundamental differences of race, religion, language, culture or economics. Its purose, according to him, is to enable each group to be free from interference or control of others, to govern itself in matters of local concern, leaving matters of common interest to be managed centrally and those which are of both local and national concern to be administered concurrently. By this, differing interests and circumstances of the component groups are accommodated while at the same time securing the peace, security and stability of the country and its survival against the forces of division and conflict inherent in the heterogeneous nature of society. He concludes that:
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“With the decentralization of powers to the regional governments and the consequent reduction in the powers exercisable centrally, the national government cannot become an instrument of total domination, so that the question of who controls it can be expected to excite less conflict and bitterness than if all powers are concentrated at the centre.”
The legal and constitutional consequence of this type of relationship has been encapsulated in Nwabueze’s brilliant definition of Federalism, which has received frequent judicial approval at the highest level.
“By section 2(2) of the 1999 Constitution, Nigeria shall be a Federation and by the doctrine of federalism, which Nigeria has adopted, the autonomy of each Government, which presupposes its separate existence and its independence from the control of the other governments including the Federal Government, is essential to federal arrangement. Therefore, each government exists not as an appendage of another government but as an autonomous entity in the sense of being able to exercise its own free will in the conduct of its affairs, free from direction by another government...” (See Uwais, CJN, in A-G of Lagos State v. A-G Federation [2003] 35 WRN 1 at p. 140)
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Given the multilingual and multinational nature of Nigeria, it was no surprise that when the Constitutional Conference delegates of Nigeria’s first such Conference were asked in January 1950, which type of government they preferred for Nigeria, they decided almost unanimously for a federal system, hence the 1951 Macpherson Constitution and 1954 Lyttleton Conference formally brought about and consolidated federalism in Nigeria.
3. Obasanjo’s Subversion of Federalism
As everyone knows General, later, President Obasanjo had no patience, time or inclination for Federalism. Whilst this attitude was forgivable during his first coming as a military dictator it was clearly intolerable and unacceptable, during his tenure as a democratically elected President of a Constitutional democracy. His carryover contempt for federalism is accurately portrayed in the book, in the following words of the Author.
“The subversion by President Obasanjo of the federal system established by the Constitution consists in very significant part of a deliberate policy matched by actions to degrade the status of the States and their Governors and to bolster up that of his Federal Government as the sole repository of the country’s sovereignty. As far as President Obasanjo is concerned, the States and their Governors exist only as instrumentalities of the Federal Government and subject to its direction, just as in the days of the Federal Military Government (FMG), invested with supreme, absolute and all-encompassing power.
His attitude towards the State Governors as his subordinates, rather than as heads of autonomous governments – a carry-over from the days of his tenure as the Head of the FMG from 1976 to 1979 – is reflected in his insistence that State Governors must inform him, or perhaps even obtain his permission, before traveling abroad, implying a relation of subordination, the subjection of the Governors and the State Governments to his authority. They now also require the permission of the Economic and Financial Crimes Commission (EFCC), a Federal Government agency, before traveling out of the country.”
Indeed, Obasanjo viewed himself in all his grandeur as the Colonial Governor-General of Nigeria, with State Governors, a little better than his vassals. Hence on a visit to Anambra State in 2006, he parted Governor Peter Obi on the back and said, “You are my agent in Anambra State”. This was never challenged or corrected.
The list of specific acts of subversion of Federalism by Obasanjo, provided by the Author is long and disturbing. Each type of subversion is also chronicled and subjected to detailed legal and constitutional analysis. These include: (i) interference in the management of the financial affairs of state governments, (ii) misuse of the EFCC and ICPC, (iii) interference in States’ local government affairs, (iv) the removal of State Governors, using federal Agencies (Bayelsa, Plateau, Ekiti) or using a combination of the police and political henchman, (Oyo, Anambra), (v) illegal declaration of a state of emergency.
As the Author correctly observes, even the mechanism for the disbursement to the State Governments of the share due to them and their local governments from the Federation account, is so contrived by Obasanjo so as to force the Governors and their officials to leave their various capitals and go physically, cap-in-hand, to the Federal Government at Abuja to hassle for it every month, thus creating a master and servant relationship between the Federal Government on the one hand and the State Governments on the other hand.
4. Interference in the Management of States’ Financial Affairs
The ICPC and EFCC were established for the laudable objective of fighting corruption. Unfortunately, not only were the Acts establishing them in gross violation of the Constitution in several aspects, also in their operations they have engaged in acts totally contemptuous of the Constitution and autonomy of States. Indeed, they have concentrated their attentions on States and local governments, whilst turning a blind eye on their primary constituency, the Federal Government.
Taking the ICPC first, the Act establishing it is riddled with sections in gross violation of the Constitution. Although Nigeria is a Federation, with each State having its criminal or penal code, covering corruption amongst other things, and inspite of the fact that criminal law with few exceptions is a matter within the exclusive jurisdictions of States, Section 2 of the ICPC Act 2000 makes the Act applicable to
“a person employed in any capacity in the public service of the federation, states or local government, public corporations or private company wholly or jointly floated by any government or its agency including the subsidiary of any such company whether located within or outside Nigeria and includes judicial officers serving in magistrates, area/customary courts or tribunals.” [Emphasis supplied]
As the Author notes the Act also applies to corruption, fraud or related offences committed by such persons in the discharge of their official duties “in relation to the money, property or affairs of the government, federal, states or local government, arising from the award of contracts, issuance of licences or permits, employment of staff or any other business or transaction”.
The Act goes on to empower the Chief Justice of the Federation, to appoint an independent Counsel to in effect to inquire into, supervise, review, State and Local Government systems and procedures in order to curtail corruption.
Whilst admitting the laudable objectives of checking or abolishing corruption and fraud, Nwabueze queries the right of the Federal Government to make laws, affecting states, their resources and officials. Putting the issues in the proper constitutional context he states as follows:
“the above –mentioned provisions of the Act provoke the question as to the extent to which the Federal Government can make law with respect to corruption, fraud and related offences for all the governments in the country, federal, state and local government, and applicable to all persons, both private persons and persons employed in the service of the federal, state or local governments while discharging their duties as such employees, as well as to money and property to whomsoever belonging, whether to the federal, state, or local government. The question, more specifically, is whether the creation and punishment of criminal offences, including corruption, fraud and related offences, belong to the Federal or State, Governments under the division of powers in the Constitution, and whether the government, Federal or State, having the power, can make laws with respect to corruption, fraud or related offences committed by employees of the other governments in the discharge of their official duties in relation to the money, property or affairs of that government.”
REVIEWER: PROFESSOR I.E. SAGAY, SAN
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