How to Divide the National Cake

This blog post is made possible by TARP Africa’s partnership with the Citizens Classroom.

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An Expository on the Division of Powers

In an earlier article, we defined federalism as a system that allows power to be shared between two tiers of government. In another article, we explained why a  federal system of government is practiced in Nigeria. We also established that the question of federalism in Nigeria is not on its usefulness but on the extent to which it benefits millions of Nigerians.

So, the thorny question of our federalism is not that there is no clear division of powers but that powers are not divided to the satisfaction of everyone. This has partly led to calls for regionalism and restructuring (what some people erroneously call true federalism). You can read the two articles here and here for a better understanding of this article.

“Let us go Back to the Regions.”

When you hear some Nigerians say in op-eds or on the television: “Let us go back to the Regions,” understand that they speak with nostalgia for that time in history when the three regions – Northern, Western and Eastern were given powers through the Constitution to develop at their own pace considering local circumstances. 

However, the minority tribes within these regions were constantly agitating for autonomy. The fear of domination by one group or the other has been a real fear expressed by many Nigerians since amalgamation – Islamisation, Christianization, the fear of an Igbo planet, and so on. That is why many of those calling for restructuring along regional lines are misguided in their approach towards solving the problems of our federalism. (It would also be wrong to assume that solving the problem would require creating new States so that every ethnic group and tribe is a State of its own).

The ‘magic’ of the regions was not merely the existence of a central government with three Regions but in clearly listed areas of responsibility between them, including a well-defined method of sharing revenue.

Balancing Act

Federalism has always been a balancing act. There needs to be balance in how power is shared so that the component states are not too powerful to fly off on their own and the central authority is not too strong to consume the states with its might. It is like the solar system. All the planets that revolve around the sun are not too powerful to be on their own, yet the sun is not too hot to burn them to crisp. The balance that exists in the solar system keeps us alive on Earth. The same goes for federalism.

In theory, the formula for maintaining balance in the division of powers between the two tiers of government is clear: matters of external relations and country-wide interests should be placed in the hands of the central authority, while those that are not of common interest should be placed in the hands of the states. However, there are situations where certain political or historical factors make the formula for division unclear.

Dividing the National Cake

In Nigeria, the legislative arms of the Federal Government (FG) and the State Governments (SG) are at the heart of the satisfactory division of powers. The Constitution of the Federal Republic of Nigeria, 1999 (the Constitution) determines the law-making power of the federal and State legislatures by explicitly stating what each can make law on.

For the National Assembly (Federal law-making body) sections 4 (2) and (4) (a) provide:

(2) The National Assembly shall have the power to make laws for the peace, order and good government of the Federation or any part thereof concerning any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(4) In addition… the National Assembly shall have the power to make laws concerning the following matters, that is to say –

(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite that place.

For the Houses of Assembly (which are state legislatures). section 4 (7) provides:

(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof concerning the following matters, that is to say –

(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;

(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite that place; and

(c) any other matter concerning which it is empowered to make laws by the provisions of this Constitution.

In summary:

1. Only the National Assembly can make laws on the Exclusive Legislative List (ELL).
2. The National Assembly can make laws on the Concurrent Legislative List (CLL) to the extent directed by the Constitution.
3. The State Houses of Assembly can make laws on any item not on the ELL (Residual Matters).
4. The State Houses of Assembly can make laws on any item on the CLL to the extent directed by the Constitution.

These provisions are significant because laws are central, the fabric of our existence and the life wire of governmental relations. It is by and through laws that the government, the armed forces, universities, hospitals, professional bodies, private organisations, and many more exist and are sustained. But it is not just about law and law-making. It is also about executing laws. When the National Assembly, for example, creates a body like the Federal Inland Revenue Service (FIRS), it assumes a life of its own as an executive body (executive arm of government), administering tax laws made by the National Assembly.

Restructuring

Agitations for restructuring are principally on some items on the ELL. Many have argued that the FG has too much power to the detriment of States because most of what it has the power to legislate (and administer) are either high-revenue items (e.g. mines and minerals, registration and regulation of companies, etc.) or of local concern (e.g. policing). They argue that having too many high-revenue items on the ELL has made State Governments lamentably spineless economically and entirely dependent on the FG for handouts. This draws the appeal to the 1954, 1960 and 1963 Constitutions.

Blame it on Military Rule

Power indeed shifted in favor of the FG under the 1999 Constitution. Yet, this seeming over-concentration of power to the FG under the 1979 and 1999 Constitutions is not without reason. Undoubtedly, the linear top-down command structure of the military influenced this over-concentration of powers. However, it would be half-truth if historical and political circumstances before and after the Civil War of 1967 – 1970 were not factored in. Sentiments after the Civil War were for a stronger FG to prevent the States from flying off.

For example, “Arms, Ammunitions and Explosives” were initially on the CLL of the 1960 and 1963 Constitutions. However, the bitter experience of a Civil War (including the fact that the Armed Forces and Police are under the FG) saw its removal to the ELL of the 1979 and 1999 Constitutions. Also, the Census crisis of 1962/1963 contributed to the census taken from the control of the Regions (now States) to the Federal Government.

The Table provides a quick-glance comparison of the Lists. (For a comprehensive assessment, hyperlinks to the Lists available by clicking on the number of items)

Constitution	No. of Items on ELL	No. of items on CLL	Comments
1960 Constitution	44	28	N/A
1963 Constitution	45	49	Items included in the ELL and CLL did not affect the division of powers
1979 Constitution	67	30	Items 2, 3, 4, 6, 8, 9, 12, 13, 15, 16, 19, 20, and 22 of the CLL of the 1963 Constitution were added to the ELL of the 1979 Constitution.
	66	32	Started in the same pattern as the 1979 Constitution. However, two items (Correctional Services and Railways were removed from the ELL and included in the CLL of the 1999 Constitution.

The Need for Cooperation

As noted earlier, federalism is an ideal that all practicing countries do not entirely achieve, even the much-celebrated Constitution of the United States of America, crowned by some as an archetype federal constitution. Globally, power is shifting continuously in favour of central governments because no country can afford to have a weak centre, especially in our information age, where the survival of countries is at stake.

Notwithstanding, we do not imply that the calls for restructuring or the transfer of powers in favour of the States should not be fought for persistently. For example, the persistent insecurity in the country increasingly highlights the need for State police. Nonetheless, there should be greater cooperation between the Federal Government and the Governments of States because the Federal Government, by the items naturally allocated to it: external trade, currency, mineral resources, etc., will continue to control major sectors of the economy. That leads us to another thorny question of our federalism that we will explore in another article: How should generated revenue be shared between the Federal Government and the Governments of States?

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