Fresh Agitation After Constitutional Amendment

The signing of 16 constitutional amendments by President Muhammadu Buhari has not just signalled a victory for the advocates of restructuring, but has also fuelled fresh agitations for a comprehensive review of the 1999 Constitution in line with the foundational federal principles, Gboyega Akinsanmi writes

On March 17, President Muhammadu Buhari signed 19 bills into laws. Significant among the newly enacted legislations are the Fifth Alteration Acts 2023, which made 16 new amendments to the Constitution of the Federal Republic of Nigeria, 1999. The latest alteration was obviously the fifth amendment to the grundnorm since it came into force on May 29,1999 to herald the Fourth Republic.

 The amendments touched different sections of the 1999 Constitution. The first part made minor changes to the nomenclatures of seven local government areas (LGAs) in five states of the federation. The LGAs are Afikpo North and Afikpo South in Ebonyi State, Egbado North and Egbado South in Ogun State, Kunchi in Kano State, Atigbo in Oyo State and Obia/Akpor in Rivers State.

As revealed in the legislations, Egbado North and Egbado South LGAs now rechristened Yewa North and Yewa South LGAs respectively. In their own cases, Afikpo North and Afikpo South LGAs will henceforth be addressed Afikpo and Edda LGAs respectively. The new regime also renamed Kunchi LGA as Ghari LGA; Obia/Akpor LGA AS Obio/Akpor LGA and Atigbo LGA as Atisbo LGA.

Besides alteration to the nomenclature of the seven LGAs, the amendments also touched the nerve of the federal powers under Second Schedule, Part I of the 1999 Constitution. This part defines the Exclusive Legislative List, which outlines 68 powers and responsibilities that the federal government can exercise or discharge without recourse to other federating units.

 Fundamental among the 16 amendments is the removal of prisons and railway from the Exclusive Legislative List to the Concurrent Legislative List as shown in Fifth Alteration Nos. 15 and 16. Each of these functions has been the exclusive preserve of the federal government, which according to former Lagos State Governor, Mr. Babatunde Fashola (SAN), had undermined the plans of the state governments to ensure effective prison management and build rail infrastructure of their own without undue federal interference.

 Critical also is the Fifth Alteration No. 17. In essence, it ended the regime that inhibited the states from generating, transmitting and distributing electricity in areas covered by the national grid. This provision enables states can now attract investors to develop its own power sector without any encumbrance from the apex government.

Again, the new provision brought to mind the resolve of the Lagos State Government to end power outages within its jurisdiction in 1999. Precisely, on December 15, 1999, Lagos, then under Senator Bola Ahmed Tinubu, entered into a power purchase agreement with Enron Nigeria Power Holding, a subsidiary of Enron Corporation, mainly “to build, arrange, finance and run electricity generating plants and natural gas pipelines in the state.” 

Even when it guaranteed the agreement, the federal government never allowed Lagos State exclusive access to power generated from the plant Enron constructed. With Fifth Alteration No. 17, states can now exercise powers “to generate, transmit and distribute electricity in areas already covered by the national grid.”

 Beyond the Second Schedule, the new amendments also touched other parts of the 1999 Constitution. Specifically, for instance, Fifth Alteration No. 6 provides for the financial independence of the State Houses of Assembly and Judiciary, which before now, had been a subject of intense national debate among the critical stakeholders, especially socio-cultural organisations.

 Also, Fifth Alteration No. 9 finally put an end to reference to the provisions of the Criminal Code, Penal Code, Criminal Procedure Act, Criminal Procedure Code or Evidence Act, which the former Lagos State Attorney General and Commissioner for Justice, Mr. Adeniji Kazeem argued, would no doubt deepen, expedite and revolutionise the enforcement of the Administration of Criminal Justice Act, 2015.

Equally salient is the Fifth Alteration No.23. It first mandated the President to submit to the Senate the names of nominees for the Federal Executive Council for confirmation within 60 days. It equally directed the governors to nominate members of the State Executive Council to the state Houses of Assembly for approval also within 60 days after taking the oath of office. 

This provision will definitely checkmate the executives, who always exercise discretion to appoint their cabinet members. In his case, President Buhari did not constitute his cabinet six months after taking the oath of office in 2015; almost nine months in the case of Ondo State Governor, Mr. Oluwarotimi Akeredolu in 2021; and 24 months after former Osun State Governor, Mr. Rauf Aregbesola took the oath of office in 2014.

 But as significant as the amendments are, they have not comprehensively addressed the core demands of the advocates of restructuring. Consequently, the limit of the Fifth Amendment has stoked fresh questions among senior constitutional lawyers, leaders of socio-cultural organisations and proponents of constitutional democracy campaigning for the entrenchment of the foundational federal principles.

 The first question typically centres on whether the local governments can still be granted the financial and legislative autonomy in line with the eternal quest of the Nigeria Union of Local Government Employees (NULGE) and Association of Local Governments of Nigeria (ALGON).

To them, the local governments have been at the mercy of the state governments, hence the need for their independence. But is the local government a federating unit? In principle, as such federalists as Emeritus Prof. John Ayoade, Prof. Rotimi Suberu and Prof. Dele Olowu once observed, federations worldwide are founded on two levels of government – national and sub-national or federal and state as they are called in Nigeria.

While the national government seeks to achieve common objectives, they further argued that the sub-national governments maintain their peculiarities with the power to exercise limited sovereignty within their jurisdictions. However, as federalists have argued, the extent to which the sub-national governments can exercise such powers are always defined in the Constitution, the country’s grundnorm for multi-national governance.

By implication, they observed, the underpinnings of federal democracy shaped the resolve of the majority of the State Houses of Assembly to reject the proposal seeking financial and legislative autonomy for the local governments during the proceedings of the Fifth Alteration Bills 2023.  

The second question revolves around the unitarist inclination of the 1999 Constitution, which according to the National Chairman, Afenifere Renewal Group, Hon. Olawale Oshun, the Fifth Alteration Act 2023 failed to decisively address, especially with respect to the quest for state police. The proposal, as its proponents have argued, would largely remain an antidote to grievous security conditions that gripped the federation.

Even in recent years, nearly all governors of the northern states have collectively subscribed to the state police proposal amid intractable armed violence that claimed no fewer than 5,763 lives in 2016; 8,340 in 2019 and 9,079 in 2022 as captured in the records of the Nigeria Security Tracker, a project of the Council of Foreign Relations.

Like other leaders of socio-cultural organisations, Oshun acknowledged the imperative of the Fifth Alteration Act 2023, adding however that it failed to address the core demands to devolve more powers to the sub-national governments beyond state policing. This failure threw up diverse questions that seek antidotes to the unitarist tendencies of the 1999 Constitution.

 Among others, Oshun rhetorically asked: “Why should the federal government still collect value added tax (VAT) contrary to the provisions of the constitution? What, for instance, is the intent behind the National Water Resources Bill? Does the federal government have the power to regulate water transportation within the internal waters of a federating unit? Can the federal government regulate lottery and games outside its area of control?”

 The last question relates to whether the current 36-state federal structure is cost-effective enough to guarantee desired outcomes that underpin the existence of Nigeria as a federation. First, as most governors have observed, the current structure largely reflects the federal peculiarities of Nigeria and should be retained. Its retention, they argued, required that most of the items under Second Schedule, Part I of the 1999 Constitution be reviewed in favour of the sub-national governments.

 Second, former President, Nigerian Bar Association (NBA), Chief Joseph B. Daudu (SAN), disagreed with the governors. He argued that the current structure “is detrimental to the healthy competition among the federating units as witnessed under the First Republic.”

He further argued that the structure contains 36 federating units that are fiscally weak to meet basic obligations of their citizenry, not to talk about developing strategic infrastructure and providing enabling environments for divergent national and foreign actors.

 On these grounds, like the leaders of socio-cultural groups, Daudu proposed a six-structure federation in line with the report of the 1995 Constitution Review Conference that recommended North-central, North-east, North-west, South-east, South-south and South-west as the federating units. Daudu justified this proposal on the premise that it would minimise the cost of governance and practically reduce the overbearing powers of the Presidency in favour of the states.

Irrespective of the new questions different stakeholders have now raised, Ayoade observed that the Fifth Alteration Act 2023 “is not just a victory for the advocates of restructuring, but also a sign of what to come under the next administration.” This will no doubt require the federalists to come up with new strategies to engage the President-elect with a view to evolving a more efficient and cost-effective federation that can respond decisively to the perennial public demands.