By Ola Animashaun
There has always been this assumption made by some Nigerian intellectuals and politicians concerning the concept and practice of federalism. That assumption is that the principles of federalism are calcified and that once there is a deviation from what obtained in America, it is no longer federalism – implying that federalism can only have two government tiers is not true. When one looks at the origin and history of federalism, it is discernible that it is a means to an end and not an end.
When America set out to adopt this system of government, it was not called federalism – the American Constitution did not declare America a federal state. They had a problem, they started with a confederal system with a weak centre which was not working for them. They thus looked for a solution which they found in having a strong centre, with dedicated powers over foreign affairs, defence, inter-state commerce, currency and monetary policy, etc. The powers of government at the centre are listed in the constitution. Anything outside the listed powers belongs to the states. The powers of the states cannot however be exercised in such a manner as to impede the powers and functions of the federal government.
In other words, it is the constitution of the United States of America that dictates the type of federalism practised in America. Federalism as practised in America is different from that practised in India or the Republic of South Africa. Mind you, the Constitution of the United States of America does not mention local government in any of its articles. That means that under the American constitution, local government is absolutely under the jurisdiction of the state – that is the constitution of the United States of America.
When looking at the status of local government in Nigeria, one should look at Nigerian federalism as set up by the Nigerian Constitution. The Nigerian Constitution specifically mentions local governments and assigns functions to them. But I must admit that the framers of the Nigerian Constitution did not do a good job in making local government a tier of government – they were not sure whether they wanted local government as an autonomous tier of government or as a unit under the state government.
They listed local government as a tier of government with the ability to share from revenue in the federation account and assigned functions to them, but still inexplicably made the existence of local government dependent on state laws and paying revenue meant for local government to state governments through the stratagem of state-local government joint account. There is thus chaos in the system of local government, with different states having different tenures for local government. Section 162 of the constitution worsens the situation by allowing states to manage local government revenue from the federation account through the state-local government joint account.
The framers of the constitution assumed that the state governors would behave like statesmen by allowing local government to thrive and even add a share of ten percent of their own internally generated revenue into the joint account. But that has not been the case. In 2005, the National Assembly passed the Local Government Revenue Monitoring Act, seeking to criminalise the diversion of local government funds. Abia, Delta and Lagos State governors (the current president was then the governor of Lagos State) challenged that law at the Supreme Court – see AG Abia State & Ors V. AG Federation & Ors. The Supreme Court in a majority decision of 3 – 2 held that once local government allocation has been paid to the state government, the federal government has no power to dictate or monitor how the fund is used or disbursed, managing the fund was at the absolute discretion of the state government – that is the current state of the law.
The general statement that proper federalism requires states to be in absolute control of local government is not right, and the United States of America is usually referred to as the authority that a federal system can only have two tiers of government. This is not true; the principles of federalism are not cast in stone. They can be modified to suit peculiar situations. For example, local governments in South Africa are not under the absolute control of the provinces. The Constitution of the Republic of South Africa sets up three tiers of government by providing that the government of the Republic is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated. Each has its powers stated in the same manner within the Constitution. The Republic of South Africa’s Constitution, like that of America,did not declare South Africa as a federal state.
In conclusion, the Nigerian Constitution determines the scope of Nigeria’s federalism and not the American Constitution. According to Professor K. C. Wheare, a country can practice quasi-federalism or modified federalism, thus signalling there’s no absolute federalism, any country can adjust the principles of federalism in such a manner and to such a degree to accommodate its peculiar circumstances, just like America did. In a federation, there can be more than two tiers of government. The litigation is a step in the right direction. There is also the need to amend the constitution to have autonomy for local government in Nigeria.
Ola Animashaun, a legal practitioner, writes from Ikorodu, Lagos, Nigeria
[email protected]
