Bashorun’s brilliant thought provoking paper on true federalism

.               Preamble

Nigeria has been bedeviled with myriad of problems, especially in three decades (1985 – 2015). Major among these problems are insecurity, leadership corruption and mass unemployment. Efforts made by various administrations to address these problems have not only failed to produce the desired results, but have also led to people propounding irrelevant panacea.

That is why we talk about restructuring, fiscal federalism, true federalism, regionalism, resource control devolution of powers, et el. The time is ripe for us to move away from these “jargons” and settle for what will be in the interest of majority of Nigerians, irrespective of tribe, ethic nationality, religion or creed.

We must consciously develop optimism and prayers in seeking the WELFARE of our people. The Western and Eastern blocs are now silent (or have abandoned) SOCIALISM, CAPITALISM and COMMUNISM:  they all practice WELFARISM.

Let Nigeria take a cue from this and put in place a Constitution that will guarantee the well-being and genuine aspiration of all Nigerians.

My memorandum will seek to address a constitution that will ensure this noble objective is achieved. I am happy our President, Muhammadu Buhari, is laying a solid foundation for a Welfare State of my dream.

2. CREATION/MERGER OF STATES

No new States should be created; there is also no need to merge the existing ones. We should continue on the basis of 36-State structure. State creation is an engine of growth sort of, but we should not continue to proliferate it.

• We should give the 36 States more time to develop and overcome the teething problem of funding.
• From 3 regions at independence in 1960, we have moved from 12 to 19, 19 to 21, 21 to 30 and 30 to 36 States as at 1996.

3. DEVOLUTION OF POWER

In our own federalism, the central government has certain legislative powers (in the Exclusive Legislative list) as part of the second schedule to the 1999 Constitution (as amended) while the State holds and operates on the residual powers. There is also the Concurrent Legislative list in part II of the second Schedule to the 1999 Constitution (as amended) where the central and states operate pari-pasu.

My recommendation is as follows:

• Transfer some powers from Exclusive List to Concurrent list and add new ones to concurrent list. See Annexure I.
• Remove some powers from exclusive list to become part of residual powers. See Annexure I.

4. FEDERATING UNITS

We should maintain the 36-State structure. For administrative convenience and because they are already being used in certain circumstances with approval of all States, 6 Geopolitical zones should stay and their existence should be legalized with a law by the National Assembly, but merely as administrative units.

They are;

REGIONALISM should not be contemplated at all.

See Annexure II for my detailed position on this subject.

5. REVENUE ALLOCATION AND FISCAL FEDERALISM

The new sharing formula shall take care of the additional function transferred from the Exclusive List to the Concurrent/Residual functions which by implication become more functions for the States.

On fiscal federalism, especially in the area of remuneration for political office holders in the state and local Governments (Governors and Council Chairmen in particular), uniform rates across the 36 States and 774 Local Governments should stop.

Instead, every State and Local Government should fix such remuneration based on the quantum of fund available, both Statutory allocation and internally generated revenue; the principle of “cut your coat according to your cloth” should apply.

6. FORM OF GOVERNMENT

The form of government should remain Presidential/Federalism.

central government with Exclusive Legislative Powers and 36 States as federating units with Residual Powers.

As discussed above, geopolitical zones shall be legally recognised as mere administrative units.

7. INDEPENDENT CANDIDACY

I fully support a constitutional provision to allow qualified Nigerians to contest election at all levels, viz councillor, council chairman, state governor, state assembly member, house of representative member, senator and president.

8. LOCAL GOVERNMENT AUTONOMY

The current Section 7(1) of the 1999 Constitution (as amended) should continue to be the grundnum of Local Government System in Nigeria. For avoidance of doubt, I reproduce the Section as follows;

“The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and  functions of such councils.”

Their functions should remain as in Schedule IV of the 1999 Constitution (as amended). I still maintain and reiterate that Local Government System as specified in the Section 7(1) quoted above should be constitutionally remitted to the State government.

A comprehensive paper on the subject of remission is attached to this memorandum as Annexure III.

On autonomy, I do not agree that local government administration in Nigeria should be autonomous. If “autonomy” by dictionary definition is (1) “immunity from arbitrary exercise of authority; or (2) political independence”, our local government councils are not ripe for it. The proponents of autonomy are complaining that State Government manipulates the Joint Account to the detriments of the councils; this is not general.

What we have heard and seen in many cases is that, most councils owe council staff and primary school teachers several months’ salary; and even have no fund for performing their constitutional functions because their States tamper with funds in the joint account.

My recommendation is for other States which have not done so, to take a cue from Lagos State by deducting at source all payments due to the Councils’ Staff and Primary Schools’ staff and remitting same to the councils and, in the case of Primary Schools, to SUBEB; the balance is then credited to the councils for other services.

We should instead of seeking autonomy prematurely, address two major lapses in the revenue allocation and distribution to the Local Governments.

First, the provision of Section 162(7) of the 1999 Constitution (as amended) that states should give a proportion of their total revenue to local government is not being implemented in virtually all the States.

I suggest that the various state assemblies should ensure compliance, and I propose that it should be 10% of total revenue (the Constitution is not definite on the quantum).

Secondly, Section 162(8) of the Constitution (as amended) requires the State House of Assembly to make a law to prescribe the modality for sharing the federal allocation to Local Governments in a state in bulk to the state government and the state contribution.

The State Assemblies should be bold enough to enact this sharing formula law and thus stop the arbitrariness currently involved in the sharing of the fund in Joint Account.

9. POWER SHARING AND ROTATION

We should have a policy of rotation of key elected positions – an extension of section 14(3) (4) of 1999 Constitution (as amended).

NATIONAL

• President shall rotate between the Northern and Southern (3 Zones) Nigeria provided that it will rotate among the zones in either side of the divide.
• Vice President shall be from the side of the divide not producing the President and shall rotate among the zones – either side of the divide.

Governor

Governorship shall rotate among the three Senatorial Districts of a State.

Deputy Governor shall be produced by any of the two other Districts.

CONCURRENT LEGISLATIVE LIST

(Extent of Federal and State Legislative Powers)

Item

1. Subject to the provisions of this Constitution, the National Assembly may by an Act make provisions for –

(a). The division of public revenue

(i). between the Federation and States,

(ii). among the States of the Federation; and

(b). grants or loans from and the imposition of charges upon the

Consolidated Revenue Fund or any other public funds of the Federation or for the imposition of charges upon the revenue and assets of the Federation for any purpose notwithstanding that it relates to a matter with respect to which the National Assembly is not empowered to make laws.

2. Subject to the provisions of this Constitution, any House of Assembly may make provisions for grants or loans from and the imposition of charges upon any of the public funds of that State or the imposition charges upon the revenue and assets of that State for any purpose notwithstanding that it relates to a matter with respect to which the National Assembly is empowered to make laws.
3. The National Assembly may make laws for the Federation or any part thereof with respect to such antiquities and monuments as may, with the consent of the State in which such antiquities and monuments are located, be designated by the National Assembly as National Antiquities or National Monuments but nothing in this paragraph shall preclude a House of Assembly from making Laws for the State or any part thereof with respect to antiquities and monuments not so designated in accordance with the foregoing provisions.
4. The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public record of the Federation.
5. A House of Assembly may, subject to paragraph 3 hereof, make laws for that State or any part thereof with respect to archives and public records of the Government of the State.
6. Nothing in paragraphs 3 and 4 hereof shall be construed as enabling any laws to be made which do not preserve the archives and records which are in existence at the commencement of this Constitution, and which are kept by authorities empowered to do so in any part of the Federation.
7. Bankruptcy and Insolvency.*(from Exclusive List)
8. The National Assembly may make laws for the Federation with respect to the registration of voters.(new)
9. The National Assembly may make laws for the Federation or any part thereof with respect to

(a)          electricity and establishment of electric power stations;

(b)          generation and transmission of electricity in or to any part of the Federation and from one State to another;

(c)           the regulation of the right of any person or authority to dam up or otherwise interfere with the flow of water from sources in any part of the Federation;

(d)          the participation of the Federation in any arrangement with another country for the generation, transmission and distribution of electricity for any area partly within and partly outside the Federation;

(e)          the promotion and establishment of a national grid system; and

(f)           the regulation of the right of any person or authority to use, work or operate any plant, apparatus, equipment or work designed for the supply or use of electrical energy.

10. A House of Assembly may make laws for the State with respect to –

(a)          electricity and the establishment in that State of electric power stations;

(b)          generation, transmission and distribution of electricity within the State; and (new)

(c)           establishment within that State of any authority for the promotion and management of electric power stations established by the State.

11. In the foregoing provisions of this item, unless the context otherwise requires, the following expressions have the meanings respectively assigned to them –

“distribution” means the supply of electricity from a sub-station to the ultimate consumer;

“management” includes maintenance, repairs or replacement;

“power station” means an assembly of plant or equipment for the creation or generation of electrical energy; and “transmission” means the supply of electricity from a power station to a sub-station or from one sub-station to another sub-station, and the reference to a “sub-station” herein is a reference to an assembly of plant, machinery or equipment for distribution of electricity.

12. The National Assembly may make laws for the establishment of an authority with power to carry out censorship of cinematograph films and to prohibit or restrict the exhibition of such films; and nothing herein shall –

(a)          preclude a House of Assembly from making provision for a similar authority for that State; or

(b)          authorise the exhibition of a cinematograph film in a State without the sanction of the authority established by the Law of that State for the censorship of such films.

13. FINGERPRINTS, IDENTIFICATION AND CRIMINAL RECORDS.*(FROM EXCLUSIVE LIST)
14. The National Assembly may make laws for the Federation or any part thereof with respect to –

(a)          the health, safety and welfare of persons employed to work in factories, offices or other premises or in inter-State transportation and commerce including the training, supervision and qualification of such persons;

(b)          the regulation of ownership and control of business enterprises throughout the Federation for the purpose of promoting, encouraging or facilitating such ownership and control by citizens of Nigeria;

(c)           the establishment of research centres for agricultural studies; and

(d)          the establishment of institutions and bodies for the promotion or financing of industrial, commercial or agricultural projects.

15. Labour, industrial relations; conditions, safety and welfare of labour; industrial disputes; prescribing a minimum wage.*(from Exclusive List)
16. Parks.* (from Exclusive List)
17. Promotion and Regulation tourist traffic.*(from Exclusive List)
18. Subject to the provisions of this Constitution, a House of Assembly may make Laws for that State with respect to industrial, commercial or agricultural development of the State.
19. Nothing in the foregoing paragraphs of this item shall be construed as precluding a House of Assembly from making Laws with respect to any of the matters referred to in the foregoing paragraphs.
20. For the purposes of the foregoing paragraphs of this item, the word “agricultural” includes fishery.
21. The national Assembly may make laws to regulate or coordinate scientific and technological research throughout the Federation.
22. Nothing herein shall preclude the House of Assembly from establishing or making provisions for an institution or other arrangement for the purpose of scientific and technological research.
23. The National Assembly may make laws for the Federation or any part thereof with respect to statistics so far as the subject matter elates to-

(a)          any matter upon which the National Assembly has power to make laws; and

(b)          the organisation of a co-ordinated scheme of statistics for the Federation or any part thereof on any matter whether or not it has power to make laws with respect thereto.

24. A House of Assembly may make Laws for the State with respect to statistics and on any matter other than that referred to in paragraph 17(a) of this item.
25. Traffic on Federal trunk roads.*(from Exclusive List)
26. The National Assembly may make laws for the Federation or any part thereof with respect to trigonometrical, cadastral and topographical surveys.
27. A House of Assembly may, subject to paragraph 26 hereof, make laws for that State or any part thereof with respect to trigonometrical, cadastral and topographical surveys.
28. The National Assembly shall have power to make laws for the Federation or any part thereof with respect to university education, technological education or such professional education as mat from time to time be designated by the National Assembly.
29. The power conferred on the National Assembly under paragraph 28 of this item shall include power to establish an institution for the purposes of university, post-primary, technological or professional education.
30. Subject as herein provided, a House of Assembly shall have power to make laws for the State with respect to the establishment of an institution for purposes of university, technological or professional education.
31. Nothing in the foregoing paragraphs of this item shall be construed so as to limit the powers of a House of Assembly to make laws for the State with respect to technical, vocational, post-primary, primary or other forms of education, including the establishment of institutions for the pursuit of such education.

NB:

• Amended items are shown in italics.
• New items are shown in italics with one asterisk.

OLORUNFUNMI BASORUN,

1, Olorunfunmi Basorun Crescent, Igbogbo, Lagos State.

Mobile: 08022912498

September 14, 2017