By Femi Falana

Continued from Saturday, December 19, 2020

Politics of Restructuring
AT a recent memorial public lecture held in Kaduna in honour of the late Ahmadu Bello, Dr Kayode Fayemi stated that: “In essence, our desire to build a more perfect union should be anchored on the principle of devolution of powers – that is, re-allocation of powers and resources to the country’s federating units. The reasons for this are not far-fetched. First, long years of military rule have produced an over-concentration of powers and resources at the centre to the detriment of the states. Two, the 1999 Constitution, as has been argued by several observers, was hurriedly put together by the departing military authority and was not a product of sufficient inclusiveness.” He opined that restructuring will cement the unity of Nigeria and engender a perfect union among its peoples, irrespective of their ethnic, religious, cultural and linguistic differences.

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Governor Fayemi concluded by calling for an equitable revenue allocation formula that will speak to the federalism that Nigeria has adopted, and give more resources to states and local governments, which bear more responsibilities than the federal government. In his view, a review of the sharing formula to 43% for states, 35% to the federal and 23% to the local governments will go a long way to devolve more responsibilities to constituent units and reduce the concentration of powers at the centre.

In his contribution at the lecture, Governor el-Rufai stated that restructuring “will empower state governments to cease passing the buck to the president and the federal government when most of the problems our citizens face daily as a nation are, and can be solved by improved and focused governance at the states’ levels! It is time to make this sort of well-defined restructuring work, for the benefit of the peoples of this country. We therefore have no excuse not to seize this moment and do the heavy lifting for our country and our people. It is in our hands to make the structures, laws and constitutional arrangements in our country conducive to modern governance that will ensure our nation thrives in the 21st century.”

There should be a greater clarity of purpose in the proposition of restructuring. The diversity and complexity of Nigeria should obviously make the idea of ethnic restructuring impractical in the Nigerian circumstance. When members of the major ethnic groups talk of restructuring in which maps of Biafra and Oduduwa Republics are neatly drawn, do they give a thought to some ethnic groups whose members are only a few thousands? Some languages are spoken each by fewer than a thousand persons while others are spoken each by tens of millions. How do you restructure on ethnic basis in such a complex terrain? That is why the focus should be devolution of powers and responsibilities along class lines. The competence and capacity of states and local governments to govern should be bolstered by awakening institutions of democracy including the civil society.

With respect, it is submitted that the adoption of the equitable allocation formula suggested by Governor Fayemi can never solve the crisis of poverty in the land. For instance, the 2020 budget of Nigeria, a country of 206 million people is $30 billion, whereas the budget of Brazil, a nation of 208 million people is $650 billion. Instead of rushing to Abuja every month to share poverty by distributing the dwindling revenue from the sale of crude oil in the Federation Account, the people of Nigeria should be mobilised to create wealth.

Apart from demanding a new revenue allocation formula the fiscal and monetary policies of the nation ought to be challenged as its exclusive control by the federal government as well as the International Monetary Fund and the World Bank has continued to undermine the national economy. The state and local governments must closely monitor the generation and distribution of the revenue in the Federation Account in strict compliance with the provisions of the constitution.

At the political level, the articulation of restructuring should be rid of its contradictions. On the one hand, there is the clamour for devolution of powers to make states more autonomous, on the other hand, there is the demand of some other ethnic and regional champions for creation of more states and establishment of development commissions for the zones by the same “over-bearing and suffocating” centre. It does not matter to the ethnic and regional champions if most of the existing states are not viable enough to pay the salaries of primary school teachers and health workers.

There should be a greater clarity of purpose in the proposition of restructuring. The diversity and complexity of Nigeria should obviously make the idea of ethnic restructuring impractical in the Nigerian circumstance. When members of the major ethnic groups talk of restructuring in which maps of Biafra and Oduduwa Republics are neatly drawn, do they give a thought to some ethnic groups whose members are only a few thousands? Some languages are spoken each by fewer than a thousand persons while others are spoken each by tens of millions. How do you restructure on ethnic basis in such a complex terrain? That is why the focus should be devolution of powers and responsibilities along class lines. The competence and capacity of states and local governments to govern should be bolstered by awakening institutions of democracy including the civil society.

Those who advocate restructuring hardly play the politics of restructuring very well. Like I indicated earlier, the problems of federalism are to be approached strategically with negotiation and engagement. Since the issues will ultimately be resolved with constitutional amendments or if need be, writing a new constitution, the various ethnic and regional champions should engage robustly with their people in the National Assembly and State Houses of Assembly.

It is inexplicable that restructuring hardly features in parliamentary debates in Abuja or in any of the state capitals. Restructuring should not be an alibi for governance to go on vacation as we are beginning to see in some states of the federation. States do not have to wait for restructuring to fix primary schools without roofs or health centres without drugs and equipment. The absence of restructuring cannot be a justification for some states to fail to access funds from the Universal Basic Education Commission for primary and basic education to remove 14 million children from the streets. State governments need not wait for restructuring before mobilising the people to embark on food production and industrialisation.

Advocates of restructuring should not only put pressure on Buhari to lead the process of restructuring, they should also push the state governors to take advantage of legal openings to deepen Nigerian federalism as Lagos State has done. Some Supreme Court decisions from which all states now benefit were as a result of cases pursued by the Lagos State government against the federal government. In other jurisdictions, court pronouncements have also helped to recast the structure and mechanisms of the federation.

The politics of restructuring suffers from enormous distortion and dis-articulation. For instance, sometimes you find it difficult to distinguish between the rhetoric of those proposing the restructuring of a united Nigerian federation and the agitation of separatists and secessionists who are declaring their own republics on the internet. Again, the cure to that malaise is persuasion and engagement. To win those who have lost faith in Nigeria because of its political and socio-economic decay, the system should be run in a way that makes all feel inclusive.

In addition to reshaping the Nigerian map, a lot of political and socio-economic engineering should be done by the leadership. Nigeria cannot be successfully restructured without the implementation of chapter II of the Constitution and the involvement of women, workers, youths and people with disabilities in the politics.

Lopsided Appointments
In order to command national loyalty, in recognition of the diversity of the people and the need to promote a sense of belonging among the people of Nigeria, Section 14 (3) &(4) of the constitution provides the composition of the government of the federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria by ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that government or in any of its agencies. It is submitted that lopsidedness in political appointments is prohibited by the constitution. Hence, the Federal Character Commission, a federal executive body has been assigned the responsibility to deal with allegations of lopsided appointments in public and private sectors.

The posts which shall reflect federal character in the public service include those of the permanent secretaries and chief executive officers of public enterprises. The Federal Civil Service Commission has been specifically empowered to appoint persons to offices in the federal civil service and exercise disciplinary control over them. The Commission shall comprise the Chairman and not more than 15 other persons.

The Commission shall also ensure that every company or corporation reflects the federal character in the appointment of its directors and senior management staff. The Federal Character Commission Act provides that the Federal Character principle shall be reflected in the distribution of political posts and social amenities. This, in effect, means that all parts of the country shall be entitled to equality in the area of development.

About two years ago, my repeated calls on state governors to requisition the meetings of the Nigeria Police Council fell on deaf ears. Hence, I sued the President at the federal high to convene the meetings of the Council to address the security challenge in the country. However, section 6(4) of the Nigeria Police Act 2020 has made provision for at least two meetings of the Council per year and emergency meetings when necessary. In spite of the worsening security situation in the country, governors have not requisitioned a single meeting of the Nigeria Police Council. But last week, the APC governors held an emergency meeting with President Buhari and persuaded him not to honour the invitation to address members of the House of Representatives on the security situation in the country. Apart from making a mockery of the basic tenet of accountability and separation of powers, the APC governors have brazenly subverted federalism.

The federal character principle is equally applicable to major political appointments in the public service of each state of the federation. Recently, a female judge in the Cross River State judicial service was not appointed the Chief Judge on the ground that she is an indigene of Akwa Ibom State even though her husband hails from Cross River State. Similarly, another female Judge was denied appointment as the Chief Judge of Gombe State on the ground that she is a Christian.

It is submitted that the decisions of both governments of Cross River and Gombe states run afoul of section 42 of the Nigerian Constitution and Article 2 of the African Charter on Human and Peoples Rights Act which have  abolished discriminatory practices on the basis of circumstances of birth, religion, gender or political opinion. Instead of fanning the embers of ethnicity and religion in the composition of the government at the federal or state levels, aggrieved citizens and groups should fight lopsided appointments politically and legally. Nigerians should promote national integration and gender equality by compelling the government of Nigeria to emulate Rwanda, South Africa and Ethiopia with gender-balanced cabinets.

Maintenance of Internal Security in Nigeria
In the last few days, governors have, like Pontius Pilate, claimed that they are helpless in maintaining security in the country because of lack of control of the police. According to Governor Seyi Makinde of Oyo State, the recent #EndSARS protests called into question “why state governors are called Chief Security Officers of their states whereas, they do not have the necessary powers to control the police force. Peaceful protests are a big part of our democratic process. The right to freedom of speech and assembly are guaranteed by our constitution, and I will never support any attempt to rob citizens of their fundamental human rights.”

With profound respect, the constitution empowers state governors to share police powers with the president but for reasons best known to them they have abdicated that responsibility to the federal government.

In the circumstances, the federal government, the Inspector General of Police and the Police Service Commission have dragged themselves to court over the power to recruit members of the Nigeria Police Force. Yet the Nigeria Police Council, which is constitutionally empowered to administer, organise and supervise the Nigeria Police Force, has not deemed it fit to intervene in the dispute.

About two years ago, my repeated calls on state governors to requisition the meetings of the Nigeria Police Council fell on deaf ears. Hence, I sued the President at the federal high to convene the meetings of the Council to address the security challenge in the country. However, section 6(4) of the Nigeria Police Act 2020 has made provision for at least two meetings of the Council per year and emergency meetings when necessary. In spite of the worsening security situation in the country, governors have not requisitioned a single meeting of the Nigeria Police Council. But last week, the APC governors held an emergency meeting with President Buhari and persuaded him not to honour the invitation to address members of the House of Representatives on the security situation in the country. Apart from making a mockery of the basic tenet of accountability and separation of powers, the APC governors have brazenly subverted federalism.

In Inspector-General of Police v. All Nigeria Peoples Party (2008) 12 NWRN 68, the Court of Appeal held that the power to authorise public meetings, rallies and protests in every state is vested in the governor of each state under the Public Order Act. For the avoidance of doubt, the court held that the Inspector-General is not even mentioned in the law and as such cannot exercise any power under the law. But there have been instances when the Inspector-General of Police cancelled political rallies without the consent or knowledge of the governor of a state. In at least 5 cases, the Federal High Court and Court of Appeal had declared that it is illegal and unconstitutional for soldiers to be involved in the conduct of elections. But in some instances, state governors have requested the authorities of the armed forces to involve soldiers in the conduct of elections and peaceful rallies.

Furthermore, by the nature of the Nigerian federation, it is the constitutional responsibility of state governments to prosecute not less than 95% of all criminal offences, including armed robbery, kidnapping and murder or culpable homicide. Every state has a Security Council chaired by the governor. The Commissioner of Police and heads of other security agencies in the state are members of the Security Council.

The operations of the anti-robbery squads set up by the Nigeria Police Force are largely funded by state governments. The Attorney-General of each state is required by law to give legal advice in respect of criminal cases that have been investigated by the police and file charges against criminal suspects when there is prima facie evidence that they have committed criminal offences. Since it is erroneously believed that internal security is the exclusive responsibility of the federal government, state governments have failed to supervise the police and other security agencies operating in the states.

A few days ago, President Muhammadu Buhari publicly acknowledged that aggrieved citizens have the fundamental right to exercise their freedom of expression through peaceful rallies, marches and protests. The position of the President is backed by the provisions of Section 39 of the constitution and Article 9 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. However, the President warned hoodlums not to hijack such protests. But to the utter embarrassment of the federal government, some commissioners of police announced a ban on protests and any other form of public meetings in many states.

It is high time the attention of such Police Authorities was drawn to the case of All Nigeria Peoples Party v. Inspector General of Police (2006) CHR 181. In that case, the Presiding Judge, Chikere J., declared police permit for rallies illegal and unconstitutional and proceeded to grant an order of perpetual injunction restraining the defendant (Inspector-General of Police), whether by himself, his agents and privies from preventing the plaintiffs and other aggrieved citizens from organising or convening peaceful assemblies, meetings and rallies. In affirming the epochal judgment  of the Federal High Court in the case of Inspector General of Police vs. All Nigeria Peoples Party (2008) 12 WRN 65, the Court of Appeal per Adekeye JCA (as she then was) held inter alia:

“The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done. If as speculated by law enforcement agents that breach of the peace would occur, our criminal code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.”

In view of the clear state of the law, the President should, without any further delay,  prohibit armed soldiers from usurping the powers of the police by getting involved in the maintenance of internal security in any manner whatsoever and however. However, to prevent hoodlums from hijacking peaceful protests, rallies and marches, we call on the President to direct the Inspector-General of Police and Commissioners of Police in all the states of the federation to comply with section 94 of the Electoral Act 2010 as amended which provides as follows:

“Notwithstanding any provision in the Police Act, the Public Order Act and any regulation made there under or any other law to the contrary, the role of the Nigeria Police Force in political rallies, processions and meetings shall be limited to the provision of adequate security as provided in subsection (1) of this section.”

Not only were unarmed protesters not protected during the recent #EndSARS protests, they were violently attacked by hired thugs. Since the hired thugs were not arrested, hoodlums hijacked the protests and unleashed mayhem on the society. In the process, properties worth billions were destroyed. Over a hundred protesters were killed by the army and the police. The members of the political class who use the area boys as thugs during elections should be held liable for allowing them to metamorphose into hoodlums during protests. Let the members of the political class who recruit and arm thugs for elections only to dump them without demobilising them stop blaming the youths for organising peaceful protests.

Permit me to assure the Nigerian people that the identities of those who were seriously injured and brutally killed in Abuja, Ogbomoso, Benin, Port Harcourt, Lekki and other parts of Lagos will soon be revealed. It may interest the public officers who are dancing on the graves of the slain protesters that the bereaved families are quietly shedding tears over their irreparable losses. I am compelled to call on the Nigerian people not to allow the Nigeria Police Force and other security agencies to infringe on their fundamental rights of freedom of expression and assembly.

Funding for the Nigeria Police Force
On 24th June, 2019, the Nigerian President signed the Nigeria Police Trust Fund (Establishment) Bill into law. The main purpose of the Trust Fund includes training, overall improvement of personnel of the Nigeria Police Force in the discharge of their duties, purchase of equipment, machinery and books and the construction of police stations and living facilities for members of the Nigeria Police Force. The Police Trust Fund is expected to be a special intervention fund to finance necessary expenditures of the Nigeria Police Force.

Section 4 of the Act lists the sources of funds as follows:

i. 5% of the total revenue accruing to the Federation Account;

ii. a levy of 0.005% of the net profit of companies operating a business in Nigeria;

iii. any take-off grant and special intervention fund as may be provided by the federal, state or local government;

iv. monies appropriated by the National Assembly in the budget to meet the objective of the Act;

v. aids, grants and assistance from international agencies, non-governmental organisations and the private sector;

vi. grants, donations, endowments, bequests and gifts (whether of money or property) from any source;

vii. money derived from investment made by the Trust Fund.

Even though the deductions of the 0.5% of the total revenue accruing to the Federation Account and the levy of 0.005% of the net profit of companies operating a business in Nigeria commenced last year, there has been no noticeable improvement in the training, overall improvement of personnel of the Nigeria Police Force in the discharge of their duties, purchase of equipment, machinery and books and the construction of police stations and living facilities for the Nigeria Police Force.

Owing to the refusal of state governments to comply with section 123 of financial autonomy for the judiciary, the President issued Executive Order 10 of 2019 to authorise the Accountant-General of the Federation to deduct and pay to the head of the courts money standing to the credit of the judiciary in each state. I agree with governors that Executive Order 10 is totally unnecessary. At the same time, the refusal of state governments to comply with section 121 of the constitution is embarrassingly indefensible. I am however not unaware of the statement credited to the Chairman of the Nigeria Governors Forum, Dr Kayode Fayemi to the effect that the President has assured the governors that Executive Order 10 would be suspended. But the Attorney-General of the Federation, Mr Abubakar Malami SAN, has insisted that Executive order 10 is sacrosanct.

As Chief Security Officers of the states, governors should henceforth monitor the disbursement of the Police Trust Fund and curb the excesses of the police and other security personnel operating in all the states of the federation. Attorneys-General of the states should monitor the investigation of criminal cases and ensure the prosecution of all indicted criminal suspects. The Office of the Public Defender in each state should be adequately funded to take up cases of human rights violations and provide legal services for indigent and vulnerable citizens.

In order to end the abuse of the human rights of the Nigerian people, state governments have resolved to establish human rights and security committees in all the states of the federation. In view of the revelations of horrendous brutalisation of the Nigerian people in the ongoing judicial commissions of inquiry into police brutality, the human rights and security committees should be established without any further delay.

Financial Autonomy for State Judiciary and Legislature and Presidential Executive Order 10
Section 81(3) of the constitution provides that any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the federation and the state under section 6 of the constitution.

Similarly, section 121(3) of the amended constitution prescribes that the fund of the judiciary and House of Assembly in the consolidated revenue fund of the state shall be paid directly to both institutions. These constitutional provisions have been confirmed by two judgments of the Federal High Court which have directed the federal and state governments to comply with the provisions of section 81(3) and 121(3) of the constitution. The federal government has complied with the judgments while state governments have ignored them without any legal basis. Disobedience of court orders in a democratic country that operates under the rule of law is tantamount to totalitarianism. It constitutes a threat to law and order in a civilised society. Disobedience of court orders is always resisted by authorities in a democratic society because a government that rules by law cannot be permitted to ignore court orders.

Owing to the refusal of state governments to comply with section 123 of financial autonomy for the judiciary, the President issued Executive Order 10 of 2019 to authorise the Accountant-General of the Federation to deduct and pay to the head of the courts money standing to the credit of the judiciary in each state. I agree with governors that Executive Order 10 is totally unnecessary. At the same time, the refusal of state governments to comply with section 121 of the constitution is embarrassingly indefensible. I am however not unaware of the statement credited to the Chairman of the Nigeria Governors Forum, Dr Kayode Fayemi to the effect that the President has assured the governors that Executive Order 10 would be suspended. But the Attorney-General of the Federation, Mr Abubakar Malami SAN, has insisted that Executive order 10 is sacrosanct.

Instead of the unnecessary controversy, other state governments should emulate the Delta State government which has enacted a law for financial autonomy for the state judiciary and House of Assembly in line with section 121 (3) of the amended constitution. That is the most effective way to resist the interference in the management of the internal affairs of state governments by the federal government with respect to financial autonomy for state judiciary and legislative houses.

Constitutional Duty of State Governments to Fight Corruption
Each tier of the government is under a legal obligation to fight corrupt practices in line with section 15(5) of the constitution. In Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 33 WRN 1, the Supreme Court rejected the prayer of the plaintiff to strike out the Act but upheld the power of the National Assembly to enact the Independent Corrupt Practices and Other Related Offences Commission Act.

The Commission established pursuant to the Act has been given the mandate to receive and investigate reports of corruption and in appropriate cases prosecute the offender(s), to examine, review and enforce the correction of corruption prone systems and procedures of public bodies, with a view to eliminating corruption in public life, and to educate and enlighten the public on and against corruption and related offences with a view to enlisting and fostering public support for the fight against corruption.

The apex Court also held that “the power to legislate in order to prohibit corrupt practices and abuse of power is concurrent and can be exercised by the federal and state governments by virtue of the provisions of section 4 subsections (2), (4)(b), and (7)(c) of the constitution.”

While the federal government has enacted some anti-corruption laws and established anti-graft agencies to fight corruption, state governments, apart from Kano State, have not set up anti-corruption agencies. In fact, the Attorneys-General in all the states of the federation have given fiats to the anti-graft agencies set up by the federal government to prosecute economic crimes including state offences. Thus, the authorities of state governments have left the federal government alone to fight economic and financial crimes including corruption committed by officials of state governments. In Shema v Federal Republic of Nigeria JELR 46263 (SC), the Supreme Court held that the fiat of the Attorney-General of a state is not required by the EFCC to prosecute state offences pertaining to economic crimes.

To be concluded… 

Falana SAN, delivered this as the 20th Convocation Lecture of the Ekiti State University on Wednesday, December 16, 2020.

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