NIGERIAN BAR ASSOCIATION IKEJA BRANCH LAW WEEK 2021

Theme:

The Nigeria Of Our Dreams– The Nigerian State and The Call For Restructuring

(Being a Paper Presented at the 2021 Law Week of the Nigerian Bar Association, Ikeja Branch on 12th July, 2021)

By

Ebun-Olu Adegboruwa, SAN

INTRODUCTION

This topic could not have come at a better time than now, and from the vintage Tiger Branch. In recent times, there have been lots of clamour from Nigerians, for the All Progressive Congress (APC) led government, to fulfil its promise of restructuring, to the nation. By way of reminder, the APC had covenanted in its Manifesto, before the 2015 general elections, to “initiate ACTION to amend our Constitution with a view to devolving powers, duties and responsibilities to states and local governments in order to entrench true Federalism and the Federal spirit.” You would well agree with me that you can only “entrench” that which does not hitherto exist. So, the APC was well aware that Nigeria has not been operating “true Federalism”, and thus, the major campaign theme for the 2015 election for the APC, was devolution of powers. The sing song then, from prominent APC stalwarts, was true federalism. It is thus understandable, why the party has been under severe criticisms, for abandoning its own Manifesto, after it secured power, following its victory in the 2015 and 2019 general elections. It is totally uncharitable, for any political party to climb to power on the altar of sloganeering and deceit. And that is exactly what the APC has done, such that six years down the lane after it took over the reins of power, Nigeria is still neck deep in unitary federalism.

WHAT IS RESTRUCTURING?

In the words of the learned authors of Merriam-Webster Dictionary, to RESTRUCTURE is “to change the makeup, organization or pattern of” something, meaning that restructuring involves some fundamental alteration of the existing structure. The structure of the entity presently called Nigeria is spelt out in a document referred to as the Constitution of the Federal Republic of Nigeria, 1999. Although it claims to be a federal Constitution, it was in fact enacted by the military regime of General Abdulsalam Abubakar (Retd.), as a document imposing a unitary system of government on the people of Nigeria, by concentrating all powers in the federal government and leaving the States and the local governments totally powerless, and I dare say, rudderless.

Presently, virtually all regions in Nigeria are in support of and yearning for restructuring, through a fundamental rejigging of the entire fabric of what is left of Nigeria. What we should ponder upon now is why the entity called Nigeria is no longer suitable to the South and the North, given the latest agitations from all the regions. The simple answer, to my mind, is that Nigeria is in the hands of a cabal, a tiny few, cutting across tribe and religion, spread and entrenched within the business sector and indeed all important aspects of our national life, not excluding even the legal profession. They have cornered the commonwealth of the nation, they are in charge of everything useful to our economic life and because of this, they are not directly affected by the sufferings and problems that the masses go through, which in itself explains why they are vehemently opposed to the idea of any form of change at all, relishing as it were, the booties falling their way from the status quo.

Restructuring therefore means fiscal federalism or resource control, state police and devolution of powers to the States and Local Governments, which will empower every part of the union for greater productivity. Before the 1966 military incursion, Nigeria was practicing true federalism, whereby the regions controlled their resources as autonomous political territories. With over 250 ethnic nationalities, diverse cultures, multiple faiths and irreconcilable historical experiences, federalism is the only suitable form of government for Nigeria. To insist on anything contrary to federalism for this nation is to ask for its eventual balkanization. Today, of the 37 units making up Nigeria, only one of them is viable, being the Federal Government. The 774 local governments merely exist in name, almost choked out of any meaningful impact, by the States. The States and Local Governments cannot functionally respond to critical issues in their locations without the intervention of the Federal Government. That is unacceptable.

Why should Lagos and Kano States not be allowed to grow their separate economies in accordance with their growth, capacities and resources? Sao Paulo is the second richest city in Brazil with a GDP that exceeds those of countries like Argentina and Paraguay. In Australia, there is healthy competition between the regions in mining, agriculture and industries. The monthly IGR of Lagos State is now in excess of N300B, which exceeds those of five countries in Africa. How do we hold down the development of such a State in the name of unitary federalism?

THE BASIS FOR RESTRUCTURING

In its section 16 (1), the Constitution of the Federal Republic of Nigeria states expressly that “the State shall:

(a)      harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy; for every citizen on the basis of social justice and equality of status and opportunity.

(d)     that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of a few individuals or of a group.”

As you would well agree with me, Nigeria is running exactly on the opposite of the constitutional imperative stated above, given that the national resources of this great nation are only circulating between very few individuals and their favoured agents. We surely cannot continue in this form at all and expect things to remain normal. No. A time is coming, and it is nearer than it used to be, when the people will revolt, when the gunpowder will explode, when tolerance will be exhausted and endurance will thin out. No one should take the people for granted permanently. So, our leaders should listen to the voices of reason and do the needful very urgently. Without any doubt, APC claimed to have set up a committee on restructuring without any meaningful result, playing political tricks on the people and dancing on the tribulations of its followers. For sure, the national assembly is currently on its regular weather-beaten track of constitutional amendment, with almost very predictable results. This must stop. We cannot keep taking people round in endless circles all the time and think that they are fools. Nigerians are chocking right now! It is becoming totally unbearable and something has to give.

WHY RESTRUCTURING?

Someone would well ask me, why do we need restructuring? Please come along with me, on a small exercise. Section 153 (1) of the Constitution established the following federal agencies:

Independent National Electoral Commission                               Council of State

Federal Character Commission                                       Federal Civil Service Commission

Code of Conduct Bureau                                                   Federal Judicial Service Commission

National Defence Council                                                                National Economic Council

National Judicial Council                                                                National Population Commission

National Security Council                                                                Nigerian Police Council

Police Service Commission                                               Federal Mobilisation Allocation and Fiscal Commission

From all the above, it can be seen that the powers of the federation called Nigeria are all concentrated in either this “federal” institution or that “national” agency. In fact, some states do not have any agency as such, of their own, established for any purpose, other than these federal bodies. Not stopping there, the Constitution then finally castrated the states and the local governments, by enacting the following provisions, in section 4:

“4 – (2) The National Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.”

Now, let us travel to the Second Schedule of the Constitution, to examine some of the matters concentrated in the hands of the federal government to the detriment of the rest of the federation.

EXCLUSIVE LEGISLATIVE LIST

“Arms, Ammunitions and Explosives,                         Aviation,

Bankruptcy and Insolvency                             Banks, Commercial and Industrial Monopolies

Control of Capital Issues                                 Copyright, Currency, Customs and Excise Duties

Defence, Drugs and Poisons                           Evidence, Exchange Control, Export Duties,

Fishing and Fisheries, Immigration                Incorporation of bodies corporate, Insurance, Labour, Trade Unions, etc                                Maritime shipping and navigation, Meteorology,

Military,                                                       Mines and Minerals, oil fields, oil mining, natural gas,

National Parks,                                                           Nuclear energy, Passports and Visas,

Patents, Trade Marks, Business names,                      Pensions, Gratuities,

Police and Government Security Services       Posts and Telegraphs and Telephones,

Prisons, Public Holidays, Quarantine                        Railways, Regulation of Political Parties,

Stamp Duties, Taxation, Marriages,               Trade and Commerce, Inland Waterways,

Weights and Measures                                                Wireless Broadcasting and Television, etc.”

The existing structure of Nigeria from the above table, is that everything is in the hands and under the control of the federal government; the states and local governments do not exist at all, as far as the Constitution is concerned. This is the reason why the governors don’t want state police, because they simply don’t have the funds to run it. And it is the same reason why they are against minimum wage, autonomy for the judiciary and the local government. Everything that generates income in Nigeria resides in the federal government, which is controlling even domestic matters such as marriage. What kind of federation is that, where the other federating units have no capacity for survival or any chance of self-sustenance? It is a federation where the federal government sits upon all resources and then begins to hand out bailouts to the other federating units. So, in point of fact, there is nothing like the Federal Republic of Nigeria at all, but rather the Federal Government of Nigeria. No state can handle electricity generation or distribution, they cannot set up telephone companies or even run television or radio stations, or even attempt to regulate the mines and minerals in their domain. Is that a true federation? What is the federal government doing with banking, advertisement, waterways, railways and even electricity?

How do we run a system whereby the federal government appoints judges for the States and the federal government controls the security of the States, to the extent that the governor is totally powerless if the Commissioner of Police of the State decides not to obey his lawful directives as the chief security officer of the State? Why will anybody insist on perpetuating this lopsided arrangement except of course he is an enemy of the people? This is what is promoting corruption, as the fastest way to sudden wealth in Nigeria presently is to be connected to the federal government one way or the other, through one of those moribund agencies that have no relevance to the lives of the people. How do we sustain this parasitic system that takes away true development from our people, simply because some privileged few are feeding fat on the commonwealth?

The immediate solution is in genuine restructuring, not this surface attempt of one step every year, as is being executed by the National Assembly in the name of constitutional amendment. We must encourage the President and the legislators to go the whole hug and break down the Constitution into a workable template that can deliver true federalism, for our collective dream of a true Nigeria, as stated in the APC Manifesto. The President should not block his ears to the cries of all our people. He has proved himself to be man enough to touch the sacred cows, so he should confront the monster of the faltering imbalance called Nigeria. It is the only lifeline to rescue the sinking ship.

A LOPSIDED FEDERALISM: THE CASE OF ZAMFARA GOLD AND NIGER-DELTA OIL

Not too long ago, news broke out that the Central Bank of Nigeria was in talks with the government of Zamfara State to buy five billion naira worth of gold. Many were shell-shocked at such strange development, given the position of the federal government on issues of mines and minerals as part of the items listed in the Exclusive Legislative List of the Constitution, which has hitherto been held as being the exclusive preserve of the Federal Government. Even though the CBN and Zamfara State have offered some feeble defences on this transaction, it has raised fresh agitations within the Niger-Delta region, which has been denied control and use of minerals within their territory. The Zamfara gold has only thrown open the absurdity of the present unitary government of Nigeria stylishly termed federal. The new slogan in the Niger-Delta that has trended online is: ‘if Zamfara can sell gold, Niger-Delta can retain and sell its oil’. Whether this is right or wrong is not the issue presently but rather that these fundamental contradictions have only highlighted the need for restructuring of the federation to achieve an equal sense of belonging by all the federating units. The regions should be allowed to develop their resources according to their capacities and through mutual agreements, they can engage in bilateral commercial arrangements that will allow exchange of goods and services between themselves. What this translates to is that the federal government has to shed weight, very urgently.

THE ENDSARS PROTESTS AND RESTRUCTURING

Even though it is not expressly stated in the demands of the organisers of the EndSARS protest, the entirety of their agitation speaks of a genuine desire for change, contrary to the slogans of the All Progressive Congress, APC and the deceptions of the People’s Democratic Party, PDP, these many years. What the protesters are yearning for is nothing but a call for restructuring. The youth are tired of the status quo and ‘audio promises’, as they have now labelled the empty statements of the politicians. To imagine that we have had to remind APC of its own promise voluntarily made to restructure Nigeria, by amending the Constitution to achieve devolution of power is nothing but betrayal. The EndSARS protest is thus a loud testimony of the demand for restructuring. Never in our history have we seen it like this, with people from all sectors of our national life uniting for a cause. Now, everything that should define our nationhood is in shambles; from insecurity to a dwindling economy, decayed infrastructure, corrupt leadership and over-bloated bureaucracy, there is cause for us all to worry about Nigeria.

THE HYPOCRISY OF LEADERSHIP

What has made the situation worse now is that the President seems to be living in denial of the true facts of the imminent disintegration of the foundation of the nation, given the utterances of his spokespersons, to the protests.  The mood of the nation since the Edo State governorship election should have given enough warning signals to the powers that be as to the angst of Nigerians over certain unpalatable policies of the government. How do we cope with rising inflation, increase in electricity tariff and insecurity across the land? Everybody has now voted for restructuring, from South-South leaders in PANDEF, to Northern leaders in NCF, South-West leaders in Afenifere, South-East leaders in Ohaneze Ndigbo and indeed Middle-Belt leaders. The Southern Governors and Legislators have recently joined the call for a total overhaul of the nation. The question then is this: who is opposed to restructuring or frustrating its manifestation?

I got this post through one of my WhatsApp groups and it speaks to the current state of affairs of Nigeria. Please read along with me.

“It’s difficult to comment on this EndSARs protest. The reasons are not far-fetched. The Govt has responded reasonably well to almost all demands and in record time too. One wonders why the youths are still protesting. If it’s based on the reasons stated by the time the protesters started the Govt has done well. But, truth be said, in my own opinion, the protest has continued because people are just angry with the way the country is. They are disillusioned with the governance of the country. They have been patient and hoped for change, the Govt keeps claiming Nigeria is getting better but to the common man he knows his life is not particularly better now than the way it was in 2015. It is even open to discussion if it has not gotten worse! Based on facts, these protesters can’t logically argue why they are still on the street, but deep down he/she knows it’s difficult to palpate the change that has been so much anticipated from this Govt.

I know this because I saw how people prepared for the botched Labour strike. People hitherto supporters of the Govt were ready to hit the streets to tell PMB in particular that they are disappointed in him. The consensus and support amongst different stakeholders in the country for that strike has been unprecedented for this administration. I knew it then that the Govt was lucky to make Labour back down. But alas! People were just waiting for the opportunity.

Why are they angry? The petrol and electricity hike, I guess was what tipped people over. Let us not forget that this administration has increased PMS price before but the streets were silent. The reason in my opinion was simple. Majority still had some confidence in PMB. That is no longer the case. That support base has waned seriously. Those who tell the President otherwise are deceiving him. While the Govt may still have some justification for the PMS hike, the people cannot fathom the basis to keep paying crazily more for the electricity that is just not there. And to add salt to injury, you can be in the same street and you have different rates for electricity under the guise of cost reflective tariff!

And what do we say about the cost of food in the land? Well the ever increasing inflation rate should answer that. A bag of rice now is more than the minimum wage! Yeah, the people were patient to see the results of the rice revolution. They anticipated. They waited. Now, Nigeria is said to be the highest producer of rice in Africa. Bravo! But what is the explanation for this killing increase in price. Before the revolution, rice was between 5k-8k. Now, so-called local rice is hovering around 25k, foreign above 30k. Even if we are expected to jettison the foreign, why is the local this expensive? Why? We can continue to give excuses for the Govt, but what the common man wants is just to eat. If they can’t afford chicken peri-peri at least they should be able to eat pocket-friendly local rice. I don’t think that is too much to ask for. Check other food stuffs, Garri, bread etc, just getting totally out of hand.

At a point, the only argument left for the administration was that at least security is getting better. But can we still say that in all confidence? BH is increasingly getting bold all over again. But even if we say the capacity of BH is not like 2015 and preceding years, what do we say about the spreading menace of bandits? Kidnapping is now a national emergency even if the Govt hasn’t declared it so. Yet call to rejig the security apparatus has met deaf ears. People have even questioned if the President is aware in time, place and person!

So in my opinion it’s all these disillusion in the governance of the country that is behind this agitation. EndSARs just provided the opportunity. They want to tell the President in clear terms – You are not doing well!! Perhaps some of us feel its political jobbers that are behind this. I don’t think so. Obviously they want to take advantage of it and they will do it. If we notice some of the protesters have tried in their own little way to ward off political opportunists but surely this kind of protest won’t last without some funding. Those who wish to create anarchy in the land will surely seize the opportunity. They had wanted to bring the President /administration down from day 1. They threw several things to make the people rise against it but consistently the masses had looked away. They actually had trust in the Man at the center until now. It is not strange that opportunists cash in on things like this. Lest we forget, a similar thing happened during the protest against the last administration. Tables have turned now, nobody should cry foul.

I hope the President is reading this whole scenario well. I hope he gets the right message from it. His legacy is obviously being questioned. He should be mindful of what he will be remembered for. He can’t blame anybody, he asked for this position 3 times before he was given on the 4th time asking. He also has the luxury of a renewed mandate. History will not accept any excuse from him.”

I have nothing more to add, save to call upon the President to do the needful, NOW!

Thank you all for listening.

God bless Nigeria.