FEDERALISM

 The Definition of Federalism

 Theoretical Aspects of Federalism
 Characteristics of Federalism
 Federalism in Nigeria
 The Pre-Independence Constitutions of Nigeria
 The 1922 Clifford Constitution
 The 1946 Richard Constitution
 The 1951 MacPherson Constitution
 The Lyttleton Constitution of 1954
 The 1960 1ndependence Constitution of Nigeria
 The Republican Constitution 1963
 Remarkable features of The Independence and the Republican Constitution
(1960 and 1963)
 Constitutional Development under the Military Regime:
 Federalism under the 1979 Constitution.
 Federalism under the 1999 Constitution
 Fiscal federalism under the 1999 Constitution:
 Judicial interpretation of the division of powers between the federal and states
government in Nigeria
 Challenges facing Federalism in Nigeria

The Definition of federalism

The term "federalism" is used to describe a system of government in which
sovereignty is constitutionally divided between a central governing authority and

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several constituent political units (such as states or provinces). Though federalism
has no universally acceptable definition, however, we must critically analyze its
nature and characteristics through some definitions proffered by different scholars
over the years. Generally, it could be said that federalism is a system of
government in which the power to govern is shared amongst national (central) and
state (local) governments, creating what is often called a Union.

Federalism has also been described as a system based upon democratic rules and
institutions in which the power to govern is shared between national and
provincial/state governments, creating a ‘federation’. Proponents are often called
federalists in contrast to ant-federalists who are generally suspicious of the idea of
a federation. The natural fear of domination and oppression by the weaker
members of the union has led to the reality that most federal systems are based on
written constitutions wherein the relationship amongst the units, inter se, and
between the units and the center are formalized and made amenable to judicial
review in the event of any infraction by any of the party to the union.

Lord Haldane in Attorney General for Commonwealth of Australia V Colonial

Sugar Refinery Co. was of the view that:

“………..the natural and literal interpretations of the word ‘federal’

confines its appellation to cases in which states while agreeing in a measure
of delegation of powers to a common government yet in the main continue
to preserve their regional constitution. The word could only be used
loosely, to describe states which agree to delegate their powers with a view
to entirely new constitution even of the states themselves”. This definition
presupposes a voluntary act on the part of the federating states in keeping

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 with the theory of the social contract and perhaps does not contemplate a
situation of federal state coming about as a result of coercion or the
mechanical drawing of borders, which was the case in Nigeria.

To Carl Fredrich

Federalism is the process of federating as well as the particular pattern or

design which the inter-group relation exhibits at the particular time…..not
only unification (Germany, USA), but also proliferation (Russia, India) are
examples of federating and the two processes may be going on at the same
time.

According to Prof Ojo

Federalism is capable of different meaning and conceptions, depending on

the perspective and the background of the perceiver. There are writers
whose emphasis has been on the form of the constitution and certain
institutions and as far as they are concerned the absence of these makes any
discussion on federalism futile. Another school holds that federalism is the
product of social forces and that the ultimate political structure is dependent
on those forces; still is another school that the party system is a crucial
federal variable while another is that inter-governmental institutions and
arrangements are critical for structuring political and social interaction.
However, with the nebulous and uncertain form and content of federalism,
we are in agreement that it is better to avoid argument about definition until
theory and practice could be harmonized satisfactorily. This is most

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 important in the developing countries which are presently laboratories of
political and constitutional activities.

There is no doubt that it is still necessary to be in agreement as to the

theory of the concepts before there can be any harmonization.

Williams Living Stone believes that:

The essential nature of federalism is to be sought not in the shading of legal

and constitutional terminology, but in the forces-economic, social, political,
cultural – that have made the outward forms of federalism necessary
…………… The essence of federalism is not in the constitutional or
institutional structure, but in the society itself. Federal Government is a
device by which the federal qualities of the society are articulated and
proffered. In otherwords, it is factors that impel the formation of a
federation that determine its essence or nature. The only conclusion that
can be reached from this is that since various factors necessitate the
forming of federalism in various states, their nature, form and scope
necessarily differ. There is no Universal agreement as to what federalism
is. A federal government means what the constitution says it means.

Federalism being largely artificial creation is always based on some intricate power
balancing in which neither the federal nor the constituent units of government are
constitutionally or politically subordinate to the other as each level is allotted their
spheres of influence and jurisdiction. In that way, sovereign powers are
collectively derived from the constitution rather from another level of government,

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each level is empowered to deal directly with its citizens in the exercise of its
legislative, executive and taxing powers, and each directly elected by its citizens.

In a typical federation, each level of government enjoys considerable autonomy, a

separate existence and independence of the control of any other government. Each
government exists, not as an appendage of another government (e.g. the federal or
central government) but as an autonomous entity in the sense of being able to
exercise its own will on the conduct of its affairs free from direction by any
government within the sphere constitutionally allocated to them. 

Several countries of the world now practice federalism although in varying forms.
Some of these countries are United States of America, Switzerland, Canada,
Australia, Austria, Germany, Brazil, Nigeria, etc. The United States of America,
the first modern federation, adopted federalism as the organising principle for its
structure of government in 1789 following the Philadelphia Convention of 1787.
This resulted from the failure of a confederal form of government established
under the Articles of Confederation of 1781. Originally comprised of 13 states, the
United States of America has evolved into a federation of 50 states plus 2
federacies, 3 local home-rule territories, 3 unincorporated territories and over 130
Native American domestic dependent nations.

The federal institutions are based on the principle of separation of powers between
the executive and the legislature. After more than two centuries of operation, the
American federation has become increasingly integrated. Virtually all subsequent
attempted federations elsewhere have taken some account of the constitutional
design and operation of the United States in developing their own federal
structures.
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Theoretical aspects of federalism

Innumerable attempts have been made to explore the theoretical nature of

federalism. Due to the long history, worldwide existence and interdisciplinary
character of federalism, a plethora of literature has been written on the topic. Yet,
these endeavours have not resulted in a clear and commonly accepted definition of
the term. Surely, it is one of the great dilemmas of this field of law that despite so
much discussion, there is still no settled common denominator of explaining the
concept of ‘federalism’. Whereas practical studies and exchange of experiences
between the various federal systems offer a more conventional research arena,
comparative theoretical approaches are much more seldom.

At first glance, it is difficult to understand the terminology of federalism, the

meaning of which differs according to the perspectives of constitutional law,
political science or economics of whoever is writing. Again, differences between
theories may be due to different academic approaches, particularly between
understanding federalism as an overall principle or as a more concrete concept of a
federal state and, in particular, whether the constituent units of a federal entity are
‘states’, and, if states, whether they are sovereign.

Despite apparent differences, all theories of federalism are more or less based on a
small number of historic prototypes that serve as model federal systems. The
analysis of the historic prototypes and their comparison to other, similar systems
allows us to conceptualize the main characteristics of a federal system. Thus
comparison is necessary in order to find out what the crucial elements of federal

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systems are and to be able to identify systems as federal systems and others as not.
Moreover, comparative federalism is not just a method ancillary to the theory of
federalism, but has become a subject in its own right.

In the 19th and 20th centuries, a serious dispute arose between those that believed
that the constituent parts of a federal state were states themselves (dualistic
theories) and those that attributed this quality only to the state as a whole (monistic
theories). Fewer scholars adhered to the concept of the so-called “three-circle-
federalism”, with the federation and the constituent units (and their respective
constitutions) on an equal level, beneath the state as a whole (or the overall
constitution of the federal state).

Clearly, the concept of federalism requires a distinction between the statehood of

federal entities (the state as a whole) and the statehood of the constituent units (or
the central state), as this would otherwise create a confederal system. The
constituent units exercise state power, without which they could not exercise their
competences through their own authorities, but only within the limits set by the
federal constitution. If, however, state power is identified with sovereignty, as has
been done by many, and most of them with a slightly different understanding of
sovereignty, then, of course, problems will arise particularly as to the difference
between “external” and “internal” sovereignty.

In a federal system, no constituent unit may enjoy full external sovereignty, which
is a characteristic of an independent state under international law, whereas limited
external powers are compatible with federalism. As regards internal sovereignty, a
distinction must again be made between the internal self-determination of a
constituent unit and state power as delegated by the federal constitution. The first
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meaning refers to the traditional genesis of federal systems, namely that of
combining various independent units to a federal system (i.e. a process of
centralisation), whereas a federal system that emerges from decentralizing a former
unitary state is not based on the previous self-determination of a constituent unit.
The second meaning of internal sovereignty also relies on a concept of limited
sovereignty, since it is inherent in the delegation of state power by the federal
constitution that this delegated power is subject to the limits drawn by the federal
constitution itself.

Due to this variety of meanings, sovereignty is another issue of severe academic

dispute. Whereas some of those that believe the constituent units to be states also
believe them (as well as the federal state itself) to be sovereign, others
acknowledge their statehood, but not their sovereignty. In the latter case, only the
federal state as a whole is believed to be sovereign, because sovereignty is
considered to be indivisible and typical only of independent states as subjects of
international law. The “constitutional compact theory”, in its turn, regards only the
constituent units, and not the federal state, as the true bearers of sovereignty which
approaches the concept of con-federalism rather than federalism. According to the
monistic “decentralisation theory” of the Viennese School of Legal Positivism, the
constituent units are neither states nor sovereign, but just decentralized units on a
scale that makes no qualitative difference between local government and a
constituent unit of a federal system.

Federalism is thus not seen as a distinct principle of its own, but as a mere
emanation of the principle of decentralisation that may either create a federal
system or a unitary state with only administrative regions or local government. The
same theory emphasizes the normative character of a state that is identified and
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thereby reduced, as it seems – with a legal system. According to this concept of
“pure” normativism, a federal state is nothing but a legal system establishing this
state, whereas the historical foundation or political practice of the federal state are
considered to be of no significance. The School of Legal Positivism was founded
by Hans Kelsen who together with Hans Nawiasky, is the most prominent
representative of the theory of “three-circle-federalism”. Nevertheless, Kelsen’s
“three-circle” theory slightly differs from “decentralisation theory”, as Kelsen does
not only recognize the legal orders of the central and constituent units, but also the
legal order of the state as a whole. The three circles cannot, however, be applied to
a unitary state with only a central and a local level.

Kelsen’s theory seems to achieve a compromise between the monistic and dualistic
theories and evades the criteria of statehood and sovereignty that are not crucial to
the theory of the three circles. What makes this theory less convincing, however, is
the lack of evidence of the existence of the third circle, i.e. the “overall
constitution”. Kelsen argued that the procedures for creating overall constitutional
law were identical with those of creating federal constitutional law and that the
legislative organs involved in the procedures of creating overall constitutional law
were identical with those involved in the creation of federal constitutional law.
This goes hand in hand with the fact that “overall constitutions”, in contrast to
federal constitutions, are usually unknown to federal states, and that, therefore,
partial identity of overall and federal constitution seems to be a highly fictitious
suggestion. Due to their overlapping nature, provisions regarding the distribution
of powers or joint bodies of the federation and the constituent units materially
belong to the sphere of overall constitutional rather than to federal constitutional
law. There are only rare instances, where overall constitutional law may be
formally detected within the framework of federal constitutional law, e.g. if joint
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constitutional laws of the federation and the constituent units are necessary for
certain amendment procedures.

The classical (dualistic) theories of federalism conceive of a federal state as a dual

system that consists of the federation and the states. The local level, although
regularly present in all federal states and multi-tier-systems and sometimes
enshrined even by the federal constitution, does not
constitute an integral part of the federal state and is thus not regarded as a
theoretical precondition of a federal system. That also explains why the reference
to the local governments in Nigeria as constituting the “third tier” is more of
administrative relevance than constitutional significance. By the decentralization
theory, the difference between a federal state and local government within a
unitary state is only one of degree. This notion is incompatible with the classical
theories of federalism that distinguish between the quality of a constituent unit and,
for instance, a municipality.

However, federalism very much affects local government, both legally and
politically. The impetus for this seems to stem from fiscal federalism that regularly
affects and involves local government, the federation and the constituent units, but
also from asymmetric federalism where some municipalities, such as large towns
or capitals, are at the same time recognized as constituent units. Nevertheless,
municipalities cannot generally become equal “third” partners within the federal
system.

Characteristics of federalism:

a. Government as the Basis for federalism:

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Federalism is an arrangement for the devolution of power between governments,
rather than among geographical entities comprising of different people.
Relationship in a federal system is aimed at division of power between the central
government and the constituent units in the federation. This is without disruption to
the federal state, its territory and people which is one and indivisible. For instance,
Section 2(1) of the 1999 Constitution of the Federal Republic of Nigeria provides
that Nigeria is one indivisible and indissoluble sovereign state to be known by the
name federal republic of Nigeria. According to Prof B.O Nwabueze, the federation
is the only territorial entity known by law and its people form one nation. Thus, the
territorial divisions (states or regions) exist simply for the purpose of delimiting the
areas within which each states can exercise power constitutionally assigned to it.
Their existence does not imply that power is shared between them and the
federation as geographical territory with distinct legal entity or between their
different peoples and the federation. In Massachusetts v Melon it was held that a
state government cannot sue the federal government to claim against it the rights of
the inhabitants of the states. Thus any claim by the constituent units in the
federation against the central government must be on the basis of government
rather than the rights of the citizens which constitute indivisible component within
the federation.
b. Divisions of Powers:
The fundamental objective of a federal system is to determine how legislative and
administrative powers are divided between the central government and the regional
governments (states). In federalism some powers are handled exclusively by the
central or federal government; some are within the residual authority of the
regional governments, while others are shared concurrently between the central or
federal government and the regional (state) government. Articles I and II of the
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America Constitution enumerate the affirmative powers of the federal government
which many in the framing generation believed would imply a negative check on
the exercise of states powers. The Tenth Amendment of the American Constitution
provides that un-delegated powers were “reserved to the State respectively, or to
the people.” Article I, section 10 expressly prohibits States from entering into
treaties, coining money, granting titles of nobility, passing bills of attainder, ex
post facto laws or laws impairing obligations of contract, and requires
congressional consent before states may impose custom duties, enter interstate
compacts or engage in war. Otherwise, the American Constitution provides for
numerous and indefinite power of the states, which is subject only to the limits of
the states own constitutions, and federal constitutional limits on states violation of
individual rights.

In the same vein, the 1999 Constitution divided the constitutional powers in the
federation between the federal and states government under the Exclusive
Legislative List, the Concurrent Legislative List and Residual powers. The
National Assembly shall have power to make for the peace, order and good
government of the federation or any part thereof with respect to any matter
included in the exclusive legislative to the exclusion of the House of Assembly of
State and any matter in the concurrent legislative list to the extent prescribed
thereto. 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 with respect to;
any matter not included in the exclusive legislative list set and matter included in
the concurrent legislative list to extent prescribed thereto.
While section 4(5) provides for the doctrine of covering the field, thus: if any law
enacted by the House of Assembly of a State is inconsistent with any law validly
made by the National Assembly, the law made by the National Assembly shall
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prevail and that other law shall to the extent of the inconsistency be void. While
residual powers are left to the jurisdictions of the states. Residual powers comprise
of matters not covered by the exclusive and the concurrent list.

c. Independence of each government in the federation:

One of the key features of federalism is the autonomy or independence of each
government, thus making each government free from the control of the other
governments. The central government in a federal arrangement has its own arms of
government; executive, legislature and the judiciary while each of the components
regional or states government also enjoys the same governmental arrangements
with its own, executive, legislature and judiciary, and constitution as the case may
be. The autonomy requires that each government must exist, not as an appendage
of another government, but as an autonomous entity in the sense that each is able
to exercise its own will in the conduct of its affairs, free from direction by another
government. In A.-G., Abia State v A-G Federation ,the Supreme Court held that
“…generally, the principle of federalism requires that the central and State
governments shall be independent of one another within its jurisdiction or
legislative competence. None is subordinate to the other but coordinate with each
other.

It is therefore necessary to understand that each of the federating states

governments is not an appendage of the central government but as an autonomous
and independent entity being able to exercise its constitutional responsibility the
way it sees fit.” Autonomy also implies that neither the central government nor the
regional government can assign functions or duties on the functionaries of the
other without the consent of the other. Though these provisions are not expressly
provided in the 1979 and 1999 Constitutions respectively, it is however implied
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that the central government can only assign functions or impose duties on the
officers of the state government with the consent of the Governor of the State.

d. Equality between regional or State governments:

Federalism also ensures the legal (not territorial equality) equality between the
State governments within then federation. The powers of the states government
and their relationship with the central or federal government should be the same.
Giving one state more or less powers than the others or in relation to the national
government contradicts the governmental equilibrium which federalism breeds
between the components units (States or regions) such equality must also extend to
the areas and population over which the regional government exercises their
powers within the federation. Perhaps, the equality of the constituents units within
the federation is within the scope of division of power between the central and the
regions, it does not extent to the economic might or potentials of any of the region.
Thus, economic inequalities are bound to exist among the constituents units in the
federation. This can be as result of the mechanism of fiscal decentralization
adopted by the federal system. The proviso to section 162 (2) that “provided that
the principle of derivation shall be constantly reflected in any approved formula as
being not less than thirteen per cent of the revenue accruing to the federation
account directly from natural resources”.

e. Representation in Central Institutions:

Federalism also provides for how citizens, minority groups and subunits within the
federation are represented in federal institutions, such as parliament, executive
(ministries, department and agencies of the central government). In some cases the
minorities have a constitutional guarantee of a certain minimum representation in
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certain institutions. In other cases such representation is based on long standing
conventions or “affirmative action” programs to ensure adequate representation of
certain group. The 1999 Constitution of Nigeria makes provision for the
establishment of Federal Character Commission for the purpose of providing and
monitoring equal representation of Nigeria citizens in federal establishments.
Federal character principle was adopted in the 1999 Nigerian Constitution as a
directive principle of state policy. Accordingly, therefore, section 14(3) of the
Constitution provided that:
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
manner as to reflect the federal character of Nigeria and the need to
promote national unity and command national loyalty thereby
ensuring that there shall be no predominance of persons from a few
state or from a few ethnic or sectional groups in that government or
any of its agencies.
Similarly, in section 14(4), the constitution also provided that:
The composition of the Government of a State, a Local Government
Council, or any of the agencies of such Government or Council, and
the conduct of the affairs of the Government or Council or such
agencies shall be carried out in such a manner as to recognise the
diversity of the peoples within its area of authority and the need to
promote a sense of belonging and loyalty among all the people of the
Federation.
f. Distinct Legal system.
Some federations have component units with distinct legal system or constitutions.
For instance Louisiana and Quebec both have French –based civil law, while some
states in India use Muslim family law). Under the 1960 and 1963 Constitution,
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each region had their Constitutions distinct from the federal Constitution. This did
not result in differences in the legal system but merely created territorial
limitations with respect to the laws enacted by the various regions. Exception may
however be pointed by the differences that existed in the Criminal laws of the
southern states and those of the northern state where we have the criminal code and
the penal code respectively. Otherwise, there are no substantial differences
between the laws of the federating units beyond minor modification to
accommodate local circumstances and peculiarities.

g. Underlying justification for federal arrangement:

Federalism is premised upon the existence of plurality society with diversity in
race, religion, language, culture or economics. Thus, the objective of federal
arrangement particularly in the context of Nigeria is to discourage the domination
by any of the geographically segregated groups within the federation based on
race, ethnic religion culture etc. The federal system of government thus ensure that
the various interests are cater for, by leaving matters of local concern to be govern
residually, while matters of common interest are to be managed centrally and those
that are of both local and nation are governed concurrently.

With this the various interest of the components groups within the federation are
accommodated for the purpose of securing national peace and security and
preventing conflict inherent in heterogeneous society. Federalism also provides the
appropriate mechanism for the accommodation of multicultural interests in a
society, which while retaining their cultural distinctiveness and autonomy are
inextricably bound to each other in relation to economic and political
interdependence. It also provides avenue for national minorities to be represented
in the federation. Democratic federations have too an extent be successful in the
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representation and management of minorities interests due to its ability to
domesticate and provides for individual rights and freedoms, than Communist
federations.

h. Procedure for Constitution amendment:

The procedure for the Constitutional amendment whether federal constitution or

regional constitution goes to the heart of the very idea of federalism. The process
for constitutional amendment must reflect the true federal nature of the country, it
has been suggested that an arrangement is not truly federal if it can be altered
without the consent of the subunits (or member states. most federal constitutions
are difficult to amend, because of the requirement of ratification by majority of the
subunits coupled with a majority of the federal legislature. For instance, section
9(2) 1999 Constitution provides thus an act of the National Assembly for the
alteration of this Constitution, not being an act to which section 8 of this
Constitution applies, shall not be passed in either House of the National Assembly
unless the proposal is supported by the votes of not less than two –thirds majority
of all the members of that House and approved by resolution of the Houses of
Assembly of not less than two –thirds of all the States.
i. Provision for succession:

Very few federations have explicit provision for succession in their constitution.
The former Soviet Union had one. More recently the supreme court of Canada
through judicial activism has issue an opinion that seems to provide a vague rule
for a legal succession from other long- standing constitutional principles.

FEDERALISM IN NIGERIA
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The Pre-Independence Constitutions of Nigeria

During the period 1900 to 1906, the Governor of the Protectorate of Southern
Nigeria, exercised full executive powers and was also the legislature. This applied
to the Protectorate of Northern Nigeria from 1900 to 1914. The Governor in each
case made laws by proclamation. Such proclamation was, however, subject to
approval by the British Government. In 1900 the Southern Protectorate and the
Colony of Lagos were amalgamated under the title "The Colony and Protectorate
of Southern Nigeria." In the same year, a Legislative Council was created for the
protectorate. At this stage, the Legislative Councils were, however, constituted by
officials of government.

In 1914, the Colony and Protectorate of Southern Nigeria, and the Protectorate of
Northern Nigeria, were amalgamated, and ruled by one Governor-General, Lord
Lugard. The Legislative Council of the Colony was restricted to making laws for
the Colony alone, whilst the Governor-General made laws for the whole country.

a. The 1922 Clifford Constitution.

The Clifford’s Constitution was born in 1922 revoking the 1914 Constitution.
Under the Constitution, the Governor was empowered to administer the country
with the advice of an Executive council and Legislative council, however, the
composition of these councils was the prerogative of the Governor –General. The
jurisdiction of the Legislative Council was limited to the colony of Lagos and the
Protectorate of Southern Nigeria. The Governor continued to be the legislative
authority for the Northern half of the country. Also an executive council was
established for the whole country.

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 b. The 1946 Richard Constitution

In 1946, Governor Arthur Richards promulgated a new Constitution which came

into effect on 1st January, 1946. Prior to this Nigeria had been divided into three
Regions in 1939, the Northern, Western and Eastern Regions. The following
features of the 1946 Constitution are worth noting:

o The new Council was composed of the Governor as President, 16 officials

and 28 unofficial (the latter including the four elected persons). This meant
that for the first time the non-officials were more in member than the
officials.

o The majority of the non-officials were elected or nominated by the Regional

Legislatures which the 1946 Constitution also brought into being. This
meant that the unofficial majority were not subject to the Governor's control.

o The Regional Houses were not competent to legislate, even for their own
Regions. They could only consider bills affecting their regions, and make
recommendations or pass resolutions for the central legislature in Lagos to
consider.

c. The 1951 MacPherson Constitution

This Constitution marked a new phase in Nigeria Constitutional history. It

introduces some fundamental changes into the Imperial/Native relationship and the
relationship between the Native Nigerian groups themselves. The 1951
Constitution came into being after an unprecedented process of consultation with
the peoples of Nigeria as a whole, starting from village, district provincial,
divisional meetings and national conference. In order carry out a review in line

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with the popular feeling, will and aspiration of the people and the report of each
region were submitted to the Legislative Council to be reviewed by the drafting
committee of the Legislative Council. On 9 January, 1950, a General Conference
of representatives from all parts of Nigeria started meeting in Ibadan to map out
the future system of Government in Nigeria with the recommendation of the
Regional Conference as the working documents. The General Conference was
composed of 25 unofficial members drawn from the earlier regional conferences as
representatives of the three regions, 25 unofficial members from the Northern
Legislative Council, 3 official members and the non-voting Chairman who was the
Attorney-General of Nigeria. The Conference rose on 29 January, 1950 with
recommendations which were accepted and implemented by the Governor of
Nigeria. The Constitution introduces; elected majorities in the Central Legislature
and in the Regional Houses of Assembly. And also making the Legislative Houses
independent in many matters of state activity and established for the first time a
Federal System for Nigeria. In alluding to the federal nature of the Constitution the
General Conference of 1950 stated thus: "We have no doubt at all that the process
already given constitutional sanction, and fully justified by experience, of
devolution of authority from the Centre to the Regions should be carried much
further so that a Federal System of Government can be developed. And that The
Central Legislature and Executive must retain both residual and overall powers,
but since the Central Legislature and Executive will themselves be made up of
representatives of the Regional Legislatures and since the policy of greater regional
autonomy is so widely accepted, we do not fear that there will be any desire at the
Centre unnecessarily to interfere with purely regional legislation or administration.
In this vast country, with its widely differing conditions and needs, and that the
policy which had received enthusiastic support throughout the country was the
policy of achieving unity at the Centre through strength in the Regions. It was
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confidently expected that when the Regions felt that they had wide powers to run
their own regional affairs, they would be more likely ready to co-operate with the
other Regions through their representatives in the Council of Ministers and the
House of Representatives in serving the interest of Nigeria as a whole".

d. The Lyttleton Constitution of 1954

With the demise of the Macpherson’s Constitution primarily on regional conflict

between 1951 and 1953, a series of constitutional conference between elected
Nigerian nationalist and British officers in London (1553) and Lagos (1954) aimed
at evolving a truly federal constitution for the country. The Constitution made
radical changes not only as regards the structure of the emerging Nigeria
federalism, but also in the devolution of legislative, executive and judicial powers
in the country. Nigeria became a federation of five parts, i.e. the Northern Region,
Western Region, Eastern Region, the Southern Cameroon and the Federal Territory
of Lagos. The federal territory (Lagos) epitomized the federal legislature and
executive authority was excised from the Western Region, while the Sothern
Cameroon was excised from the Eastern Region to become a separate entity having
the same devolved authority but no ministerial until 1958. With respect to the
three regions, they were granted full political status and the constitution ensured a
complete transfer of all legislative and executive powers to the regions except with
some restrictions with regards to the exclusive legislative list which was reserved
for the central legislative council. The central legislature and regional exercise
legislative authority on items on the concurrent legislative list, and this was the
hallmark of the federal structure of government practiced under the Constitution.

Between 1954 and 1959, all officials in the House of Assembly and the Central
Legislature, were progressively withdrawn. In 1954, there was, for the first time,
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direct elections into the Federal Legislature. In 1958, all modes of indirect
elections were abolished and throughout Nigeria, all elections from then on were
by direct polls. The Governors ceased to preside over the Executive Councils in the
East and West by 1957 and in the North, in 1959.

In 1954, the office of Premier was created in the Regions and the office of Prime
Minister was established at the Centre in 1957. Subsequent changes were not
fundamental, but merely in further preparation for full independence. For example,
the Western and Eastern Regions attained self-government (with the Regional
Governor becoming a mere titular figure) in 1957 and in the North in 1959.

e. The 1960 1ndependence Constitution of Nigeria.

The independence Constitution of 1960 was a product of the 1957 and 1958
Constitutional Conference. The Constitution (Nigeria independence Act) of 1960
marked the end of British dominance in the government of Nigeria. The British
government transfers both Executive and Legislative powers to Nigerian. Thus,
removes all the existing overriding legislative powers of the British parliament.
One significant feature of the 1960 Constitution was that it maintained the federal
system of government, and the Westminster Model type of parliamentary
government wherein both the central and the regional government operated the
bicameral legislature. The Constitution adopted for each of the three regions
(Western, Eastern and Northern Regions) Constitution. The Constitution by virtue
of section 78 provides that the executive authority of the federation was vested in
her majesty the Queen of England, although exercisable on her behalf by the
Governor – General. The Constitution also makes provision for the Council of
Ministers who were appointed by the Governor- General. The Council of Ministers
was collectively responsible for any advice to the Governor –General by any of its
22
members. With respect to the regions, the executive authority was exercise by the
Governor on behalf of her Majesty. The Governor appoints the Premier of the
region from the regional House of Assembly, who must be a member of the House
and must also command the support of the majority of members. The position in
the Northern region was quite different; the premier could be a member of the
House of Chiefs in the region. The Constitution also makes provision for the
judiciary, it provides for the establishment, composition, jurisdiction and procedure
for appointment of Chief Justice of the federation and other justice of the Supreme
Court.

e. The Republican Constitution 1963.

The I963 Constitution which was adopted on the 1st October 1963 granted Nigeria
full republican status with a President as the Head of State and authority to
exercise federal executive power for the federation. While the Governor in each
region exercise the executive power in the region. Allegiance of the citizens of
Nigeria was to the Federal Republic of Nigeria and no longer to Her Majesty the
Queen of England. The Constitution also makes a remarkable feature in respect to
the judicial arm of government, the Chief Judge of the Region ceased to be the
Judge of the Supreme Court. It also abolished appeals to the Privy Council, making
the Supreme Court as the apex court in Nigeria. The Constitution also retained the
fundamental rights provisions, public service commission and the revenue
allocation formula (derivation) under the independence constitution.
However, the republican constitution was most regarded as the first
auctothonomous or indigenous constitution in Nigeria. According to T .O Elias,
while conceding to the auctothonomous nature of the 1963 constitution states that,
since the Governor – General would in any case have assented on behalf of the
23
Queen to the Bills passed by the legislature and since the Queen by virtue thereof
could be regarded as the “Queen of Nigeria” for that very purpose, then it will be
correct to suggest that the final act was not alien to Nigeria. Abiola Ojo on the
other hand reasoned differently, he posits that the source of the constitution is not
entirely local, this is because the legal validity of the constitution is traceable to
section 4 and 5 of the independence of 1960, thus leaving the legal chain between
the two Constitutions unbroken. Prof B.O Nwabueze reasoned along the same line
with Abiola Ojo, when he argued that the 1963 Constitution was not
auctothonomous, because it was enacted by parliament by virtue of its powers
derived from the pre-existing imperial constitution (1960 Constitution). It was
anchored (though not directly) by the British government, but the tie that link the
Nigeria legal order to the British government was still intact. To him the link was
supposedly broken by the event of military coup of January 15th 1966.

Remarkable features of The Independence and the Republican Constitution

(1960 and 1963)

The Independence and Republican Constitutions, as earlier stated retained the

federal system of government with some remarkable features in terms of
devolution of powers between the central government and the components regions.
The 1960 Constitution grants extensive powers to the regional governments,
making them effectively autonomous entities, with revenue arrangement which
ensured that the regions had the resources to carry out the immense
responsibilities. Thus making the regions stronger in terms of revenue generation
and meeting the responsibilities of government. The 1960 and 1963 Constitution
created a federal system wherein the Federal State has limited powers. The 1960
and 1963 Constitutions has similar features in terms of their inherent federal
24
structure. The only remarkable differences were the were the provisions for
ceremonial President (1963) in place of the Queen of England (1960) and the
judicial appeals system which terminated with the Supreme Court (1963) rather
than the Judicial Committee of the British Privy Council (1960).

The 1960 and 1963 Constitutions makes provisions for a true federal
arrangement for the Country wherein each regions:

a. Had its own separate Constitution, in addition to the Federal Government

Constitution.

b. Had its own separate Coat of Arms and Motto, from the Federal State or
Government.

c. Has its own separate semi-independent Mission in the U.K. headed by

'Agents-General’?

d. Had Residual Powers, i.e., wherein any matter not covered by the Exclusive
and Concurrent List, automatically became a matter for Regional
jurisdiction.

e. Had its separate Judiciaries and the power to establish, not only High Courts,
but also Regional Courts of Appeal.

f. The Regions had their own separate electoral commissions for Local
Government elections. However, the Chairman of the Federal Electoral
Commission was the statutory Chairman of the State Commission.

25
g. The Revenue Allocation system under the 1960 and 1963 Constitution was
strictly based on derivation.

h. Under the 1960 and 1963 Legislative lists, matters such as Aviation,
Borrowing of moneys outside Nigeria, Control of Capital issues, Copyright,
Deportation, External Affairs, Extraction, Immigration, Maritime Shipping,
Mines and Minerals, Military Affairs, Posts and Telegraphs, Railways,
where within the Exclusive Legislative competence of the Federal
Government.

i. while items like Arms and Ammunition, Bankruptcy and Insolvency,

Census, Commercial and Industrial Monopolies, Combines and Trusts,
Higher Education, Industrial Development, the Regulation of Professions,
Maintaining and Securing of Public Safety and Public Order, Registration of
Business Names, and Statistics where within the concurrent legislative
competence of both the federal government and the regional governments
subjects only to the doctrine of covering the field.

j. The Constitutions by virtue of section 69(5) vests residual powers in the

regions.

k. In order to justify the description of the Regions as “a self –governing

Region of the Federal Republic of Nigeria” and guarantee their economic
independence, the 1960 and 1963 Constitutions, under Section 140 makes
provision for the sharing of the proceeds of minerals, including mineral oil,
thus: "There shall be paid by the Federal Government to a Region, a sum
equal to fifty per cent of the proceeds of any royalty received by the

26
 Federation in respect of any minerals extracted in that Region and any
mining rents derived by the Federal Government from within any Region."

l. By Section 136(1) 30 per cent of general import duties were paid into a
distributable pool for the benefit of the Regions. With regard to import
duties on petrol, diesel oil and tobacco, the total sum of import duty
collected less administrative expenses, were fully payable to the Region for
which the petrol or diesel oil or tobacco was destined. A similar provision
was made for excise duty on tobacco.

m. The Republican Constitution was to be amended by two –third majority in

both legislative Houses of the appropriate legislature, i.e. the federal
parliament in the case of the federal constitution and the regional legislature
in the case of the regional constitution.

The federal arrangement under the 1960 and 1963 Constitution creates a sense of
true federalism for the country with stronger and autonomous regions and weaker
federal or central government.

f. Constitutional Development under the Military:

The credible federal arrangement that were put in place by the 1960 and 1963
Constitutions were truncated by the military coup of January 15th 1966. Soon after
which the military promulgated the Constitution (Suspension and Modification)
Decree of 1966, otherwise known as Decree No. 1 which provides thus: “this
constitution (the federal constitution of 1963) shall not prevail over a Decree and
nothing in this constitution shall render any provision of a Decree void to any
extent whatsoever”. The effect thereof was the make the Decree the supreme law

27
of the land and makes the provisions of the constitution subject to the provisions of
the Decree. The legislative and executive arms of government were abolished and
replace with military Head of State and Regional Military Governors. The
Supreme Military Council (SMC) takes over the law making function of the
legislature, as the apex policy making arm of the military government. This was
provided in section 3(1) of the Decree thus: “the federal military government shall
have power to make laws for the peace, order and good government of Nigeria or
any part thereof, with respect to any matter whatsoever”.

With respect to the judicial arm of government, the period between 1966 and 1979
ouster clauses, restricting the jurisdictions of the courts via military Decree.
Section 6 of the Decree No. of 1966, oust the jurisdiction of the court in
questioning the validity or otherwise of the Decree. A Decree is deemed to have
been validly made once it has been signed by the federal military government. It
must however, be noted that the federal structure under which Nigeria was
governed since independence greatly obstructed and put aside by Decree 34 of
1966 by the General Johnson Aguiyi - Ironsi regime. The regime of General
Aguiyi –Ironsi was brought to a bloody end by the July 1966 coup which ushered
in General Yakubu Gowon as the then Head of State. The Gowon regime divided
the country into 12 States from the four regions. The aim was to provide greater
autonomy to the minority ethnic groups.

g. Federalism under the 1979 Constitution.

The 1979 Constitution was initiated with the setting up of the Constitution Drafting
Committee (C.D.C) in September 1979, with the responsibility of producing a draft
constitution founded on the desire for; a federal system of government based on
28
democracy and the rule of law and which guarantees fundamental human rights;
establishments of genuine and truly national political parties; an Executive
Presidential system of government and independent judiciary. The C.D.C report’s
was to be deliberated upon by a Constituent Assembly, which was inaugurated in
1977. The powers of the Constituent Assembly were circumscribed by the enabling
Decree, as it was not conferred with the powers of enacting the constitution as a
final product but to again be sent to the military authorities for ratification: The
Constituent Assembly upon completion of its deliberation and proposals presented
same to the Supreme Military Council (the highest law making organ of the
military regime in Nigeria) for approval. The approval came with the promulgation
of the Constitution Federal Republic of Nigeria (Enactment) Decree No. 25 of
1978.
The 1979 Constitution was fashioned along the American Constitution. It provided
for a presidential system of government. It also adopted the principle of separation
of powers, with clear-cut division of powers between the executive legislature and
the judiciary. The constitution also provided its own supremacy as against the
parliamentary supremacy under the republican constitution of 1963. Section 1(1)
declared the supreme status of the Constitution above all other laws and organs of
government. It also provided for an Exclusive Legislative List wherein the
National Assembly can legislate to the exclusion of the Houses of Assembly of
State, Concurrent Legislative List which both the National Assembly and Houses
of Assembly of States can legislate to the extent prescribed thereto. While residual
powers were left of the states. The 1979 Constitution abolished the existence of
separate constitutions for the regions.

Federalism under the 1999 Constitution

29
Nigeria federalism has undergone a series of metamorphosis in terms of states
creations. In 1954, it began as a federation of three regions but by 1964, it became
four with the creation of the mid-western region from the then western region. By
1967, the federal structure became subdivided into 12 states while by 1976; it was
further split into 19 states. By 1989, it became a federation of 21 states, increasing
to 30 by 1991 and by 1996 it had subdivided to become a federation of 36 states. In
addition, the creation of more states has always been accompanied by the creation
of additional Local Governments areas. Thus, from 301 in 1976, the country
currently boasts of about 774 Local Government Area Councils.

The 1999 Constitution adopts a federal system of government for country. Section
2(2) provides that Nigeria shall be a Federation consisting of States and a Federal
Capital Territory. In A.-G., Lagos State v A.-G., Federation (2003) 12 NWLR Pt
833 pp 119 -236, the Supreme Court held that by virtue of the doctrine of
federalism which Nigeria has adopted by virtue of section 2(2) of the 1999
Constitution, the autonomy of each government, which presupposes its separate
existence and its independence from the control of the other governments including
the Federal Government, is essential to the federal arrangement. Therefore, each
government exists not as an appendage of another government but as an
autonomous entity in the sense of being able to exercise its own will in the
conduct of its affairs, free from direction by another.

The Constitution also vertically divided powers between the federal government
and the states government under the Exclusive Legislative List, the Concurrent
Legislative List and Residual powers. National Assembly shall have power to
make for the peace, order and good government of the federation or any part

30
thereof with respect to any matter included in the exclusive legislative to the
exclusion of the House of Assembly of State and any matter in the concurrent
legislative list to the extent prescribed thereto. 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 with respect to; any matter not included in the exclusive
legislative list set and matter included in the concurrent legislative list to extent
prescribed thereto.
While section 4(5) provides for the application of the doctrine of covering the
field, thus: if any law enacted by the House of Assembly of a State is inconsistent
with any law validly made by the National Assembly, the law made by the
National Assembly shall prevail and that other law shall to the extent of the
inconsistency be void. While residual powers are left to the jurisdictions of the
states. Residual powers comprise of matters not cover by the exclusive and the
concurrent list.\ Reaffirming the federal structure of Nigeria, under the 1999
Constitution, the Supreme Court in A.-G, Abia State v AGF (supra) held that
Nigeria, as a federation, operates federalism. This is made possible by the federal
Constitutions enacted in the past, culminating in the current Constitution of the
federal republic of Nigeria. Chapter 1, part 1 clearly describes Nigeria as a federal
republic.

In the spirit of federalism, the Constitution of 1999, makes a clear distinction

between legislative powers of the National Assembly and House of Assembly of a
State. Section 4 is the source legislative powers. While section 4(1) to (4) provides
for the legislative powers of the National Assembly, section 4(6) and (7) provides
for the legislative powers of the House of Assembly of a State and section 4(5)
provides for the common law doctrine of covering the field. By section 4(1), the
legislative powers of the federal republic of Nigeria are vested in the Senate and
31
the House of Representatives which are duly provided for in section 47 and 49 of
the Constitution. By section 4(2), the law-making power of the National Assembly
is not restricted to the federal government, but also extends to any part of the
federation if the matter is in the Exclusive Legislative List. The second arm of
section 4(2), like the first arm, is not open ended. It is restricted to matters included
in the Exclusive Legislative List set out Part 1 of the Second Schedule to the
Constitution. In other words, and putting it in a positive language, the National
Assembly is vested with legislative powers across the country if the matter is an
item contained in the Exclusive Legislative List set out in Part 1 of the Second
Schedule to the Constitution. On the other hand, the National Assembly cannot
exercise legislative powers in matters not included in the Exclusive Legislative
List. By virtue of section 4(3) the power of the National Assembly to make laws
for the peace order and good government of the federation in respect of matters in
the exclusive list is to the exclusion of the Houses of Assembly of States. In
addition, section 4(4) vests in the National Assembly, the power to make laws with
respect to (a) any matter in the Concurrent Legislative List set out in the First
Column of Part II of the Second Schedule to the Constitution to the extent
prescribed in the second column opposite thereto; and any matter with respect to
which it is empowered to make laws in accordance with the provisions of the
Constitutions, the legislative powers of the a State is vested in the House of
Assembly of the State. As it is, the legislative powers of the National Assembly
under section 4(2) extend to the federation or any part thereof, which include the
states. Section 4(7) extends the legislative powers of a state House of Assembly to
the States and any part thereof, which includes the Local Governments.

Fiscal federalism under the 1999 Constitution:

32
Fiscal federalism as a set of guiding principles helps in designing financial
relations between the national and sub-national levels of the government, fiscal
decentralization on the other hand as a process of applying such principles. Fiscal
federalism concerns the division of public sector functions and finances among
different tiers of government.

The fiscal decentralization of revenue accruing to the federal republic of Nigeria,

between the federal, state and local government has over the years, necessitated the
engagement of several commissions and committees, for the purpose of fining an
appropriate formula or principle for revenue sharing among the three tiers of
government. The fiscal structure of Nigeria has been characterized with a lot of
struggle, agitations and acrimony among the lower ties of government (States and
local government), among of this agitation is the call for resource control in the
Niger –Delta. Nigeria fiscal arrangement is distorted because; much of the revenue
accruing to the federation is concentrated at the center or federal government.
Under the 1999 Constitution, the Revenue Mobilisation Allocation and Fiscal
Commission are established and provisions are made for the fiscal structure
between the three tiers of government thus: Section 162(1) provides that:

The federation shall maintain a special account to be called “the federation

account” into which shall be paid all revenues collected by the Government of the
federation, except the proceeds from the personal income tax of the personnel of
the armed forces of the federation, the Nigeria Police Force, the Ministry or
department of government charged with the responsibility of foreign affairs and the
residents of the federal capital territory, Abuja. Section 162(2) provides that: The
President, upon the receipt of advice from the Revenue Mobilisation Allocation
and Fiscal Commission shall table before the National Assembly proposals for
33
revenue allocation from the Federation Account, and in determining the formula,
the National Assembly shall take into account, the Allocation principles especially
those of population, equality of states, internal revenue generation, land mass,
terrain as well as population density. Provided that the principle of derivation shall
be constantly reflected in any approved formula as being not less than thirteen per
cent of the revenue accruing to the federation account directly from natural
resources.
Section 162 (3) provides that:
Any amount standing to the credit of the Federation Account shall be
distributed among the Federal and State Governments and the Local
Government Councils in each State on such terms and in such manner as
may be prescribed by the National Assembly.
By Section 162 (4).
Any amount standing to the credit of the States in the Federation
Account shall be distributed among the State on such terms and in such
manner as may be prescribed by the National Assembly.
Section 162 (5) provides:
The amount standing to the credit of local government Councils in the
Federation Account shall also allocation to the States for the benefit of
their Local Government council on such terms and in such manner as
may be prescribed by the National Assembly.
Section 162(6) provides:
Each State shall maintain a special account to be called "State Joint Local
Government Account" into which shall be paid all allocations to the local
government Councils of the State from the Federation Account and from the
Government of the State.
Section 162(7) provides:
34
 Each State shall pay to local government Councils in its area of jurisdiction
such proportion of its total revenue on such terms and in such manner as
may be prescribed by the National Assembly.
By Section 162(8), the amount standing to the credit of the local government
Councils of a State shall be distributed among the Local Government Councils of
that State on such terms and in such manner as may be prescribed by the House of
Assembly of the State.

The Proviso to section 162(2) of the 1999 Constitution entrenches, with respect to
natural resources; the “principle of derivation” in the formula the National
Assembly may come up with. By this principle, revenue accruing to the federation
Account from the any natural resources is deemed to have been derived from the
State where such resources are located and not less than 13 % of the revenue
accruing to the Federation Account directly from any natural resources shall be
payable to a State of the federation from which such natural resources are derived.
For a state to qualify for this allocation of funds from the federation account, the
natural resources must have come from within the boundaries of the State that is
the resources must be located within the state.

Thus, under the fiscal federalism as provided under the constitution, no tier of
government has the power to withhold for any reason statutory allocation due to
another. It has been held that President has no power vested in him (by executive
or administrative action) to suspend or withhold for any period whatsoever the
statutory allocation due and payable to Lagos State Government pursuant to the
provision of section 162 (5) of the 1999 Constitution but in respect of the 20 Local
Government Areas for the time being provided by section 3 subsection (6) of the

35
Constitution and not the new Local Government Areas created which are not yet
operative.

The fundamental problem with the fiscal structure of the country is the over
concentration of so much resources at the central or federal government which has
created fiscal disequilibrium within the federation and fiscal subordination of the
constituents units to the central or federal government and thus preventing the self
–realisation and autonomy of the constituents units which is essential for a true
fiscal decentralisation. Indeed, it has been noted that financial subordination of
units or marked inequality between them in terms of wealth, population and land
mass constitute potent destabilizing factors in federations and may make an end of
federalism. Perhaps, there was a large devolution of powers to the regions in
federal structure created under the 1960 and 1963 Constitutions. Under the said
constitutions, each region enjoyed considerable autonomy over its internal affairs
in addition to having a regional police force and civil service.

In terms of resource distribution, the principle of derivation occupied a significant

place in the distribution formula. This followed recommendations of the Louis
Chick Commission of 1953 which was set up to ‘assess the effect, on the public
expenditure of Nigeria as whole, of the reallocation of functions between the centre
and the regions’. Thus, derivation remained a major emphasis in federal revenue
allocation between 1954 and 1966 when the military took over leadership of the
country, albeit some other commissions were set up whose recommendations led to
some minor modifications in the revenue sharing arrangement. However, due to a
number of factors that include the military’s adventure into Nigerian politics, the
need to arrest the ever bourgeoning powers of the regions and its concomitant
weakness of the centre with the attendant consequence of being unable to give the
36
country a sense of direction and above all, the seeming gradual disintegration of
the federal structure, there was a gradual shift to some other forms of consideration
in revenue allocation as a strategy to arrest the situation. Beginning from 1966,
therefore, the principle of derivation was greatly downplayed while other
principles also became prominent. Other basis of allocation include, population
size, need and, national interest. Ironically, this period coincided with the period of
oil boom and a massive decline in the value of cocoa and other export produce
from other regions at the international market. In other words, there was a twist of
fortune and faith as the south eastern region, with the oil boom, gradually became
the life wire of Nigeria’s revenue generation while the northern and western
regions, the major producers of groundnut and cocoa respectively, receded. Thus,
while the northern and western regions were indifferent to the new revenue sharing
arrangement, the eastern region wanted federal allocations to the regions to
continue fully on the basis of derivation. Ever since this period, the principle of
derivation in the sharing formula has continued to suffer decline under Nigeria’s
fiscal practice while ‘attempt to arrive at a national consensus on the revenue
sharing formula in spite of several revenue commissions has hardly yielded any
acceptable outcome’.

Judicial interpretation of the division of powers between the federal and states
government in Nigeria

An analysis of Nigerian federal system would be incomplete if we consider only

the division of power under section 4, without looking at the judicial
interpretations of some of the key section of the constitution dealing with
federalism by the courts. Because it belongs to the courts the authority to control
the limits of the respective legislative authority of the federal and states
37
government, they have always been concerned with the principle of federalism and
have in the process contributed to the understanding of Nigerian federalism. In
A.G. Abia State v AGF, considering the legislative competence of the National
Assembly to passed into law the Monitoring of Revenue Allocation to Local
Governments Act 2005, the Supreme Court held that the intendment of the
provisions of the 1999 Constitution is to grant power and autonomy to State
Government in its relation with local government councils in a state and to
subordinate local government councils to a state government. That explains why
section 7(6) and 162(5) of the Constitution only give the power to allocate funds
from the federation account to a local government council to the National
Assembly through a state, and to leave the distribution of such funds to the state
government while confining the National Assembly only to allocation of funds.
Under the Nigeria Constitution, the federal and states governments are sovereign
when acting within the limits of the powers granted them by the Constitution, thus
the National Assembly by enacting Monitoring of Revenue Allocation to Local
Governments Act 2005 into law had unwittingly engaged in a path that is a
hindrance to the autonomy granted a state government in its power to control the
local government councils.

Also in A. G., Ondo State v AGF the Supreme Court in determining the
constitutionality of the Corrupt Practices and Other Related Offence Act 2000 and
considering the submission by the plaintiff, that “corruption” is not a subject under
the either the Exclusive or Concurrent Legislative Lists and therefore being a
residual matter, the National Assembly has no power to legislate upon it, the Court
Per Uwais CJN, held that the submission overlooks the provision of section 4(4) of
the Constitution which provides that the National Assembly has the power to
legislate on any matter with respect to which it is empowered to make law in
38
accordance with the provisions of the Constitution. Section 15(5) directs the
National Assembly to abolish practices and abuse of power. The question is, how
the National Assembly can exercise such powers. It can only do effectively by
legislation. Item 67 under the Exclusive Legislative List read together with the
provisions of section 4(2) provides that the National Assembly is empowered to
make law for the peace, order and good government of the federation and any part
thereof. It follows, therefore that the National Assembly has the power to legislate
against corruption and abuse of office even as it applies to persons not in authority
under public or government office.

The power of the National Assembly is not therefore residual under the
constitution, but might be concurrent with the powers of State Houses of Assembly
and local government council, depending on the interpretation given to the word
“State” in section 15(5) of the Constitution. On the extent of the legislative power
of the National Assembly, the Court also held that where an enactment is in
relation to matter within enumerated classes of subjects expressly assigned to the
National Assembly by section 15(5) and item 60(a) on the Exclusive Legislative
List of the 1999 Constitution, the National Assembly may by that enactment
provide for matters which, although within the legislative, or even executive,
competence of the States, are necessary incidental or ancillary to effective
legislation by the National Assembly in relation to that enumerated matter

The Supreme Court of Nigeria has also use the common law doctrine of covering
the field to interpret the division of power between the federal and State
governments. This doctrine recognizes that, in case of conflict between a federal
and a state law, federal law prevails, and state law is rendered inoperative to the
extent of the incompatibility. In A.G., Abia State v AGF it was held that section
39
4(5) of the 1999 Constitution which provides for the common law doctrine of
covering the field can only apply in a situation where the National Assembly
exercise its law – making power under section 4(2) of the Constitution. It will not
apply in a situation where the National Assembly encroaches on the law –making
power of the House of Assembly of a state under section 4(7) of the Constitution.
Section 162 (6) of the Constitution clearly empowers a State to maintain a special
account to be known as “ State Joint Local Government Account” and so the
National Assembly has no legislative function to exercise thereon. Therefore, the
National Assembly has no business to perform in the proviso to section 7(1) of the
Monitoring of Revenue Allocation to Local Government Act 2005 because it is
exclusively a State Affair.

The main difficulty in the supremacy of federal legislation over that of States in
case of conflict consists in determining the degree of incompatibility needed to
trigger the application of the doctrine of covering the field. Indeed, a broad
interpretation of the presumed incompatibility would expand the powers of the
central government, but a narrower interpretation would give states more latitude.

Challenges facing Federalism in Nigeria

The problems of Nigeria federalism are multifaceted in nature in that they cut
across all facets of the Nigeria state. They include:

a. Lack of a truly Nigerian Constitution.

40
The fundamental challenges facing Nigeria federation is the absence of a
Constitution that is based on the will of the people. The 1999 Constitution as its
stands today is a product of the military regime, the basis of the preamble of the
Constitution is yet to be legally ascertained, this is because the constitution does
not emanate from the will and aspiration of the people. The current 1999
Constitution was the Decree No.4, of 1999 which was foisted on Nigerian by the
military regime. Thus, the basis of our corporate existence as a sovereign state is
yet to be constitutionally and legally determined.

b. Concentration of power at the federal government:

The division of power between the federal and states government under the 1999
Constitution concentrated too much power at the Central government. Thus,
resulting to stronger federal government and weaker States. The federal
government has legislative authority over matters in the Exclusive Legislative List
which contains 68 items to the exclusion. While both the federal and States
government has legislative authority over matters in the Concurrent Legislative list
which contains just 30 items, to the extent prescribed thereto. While little or
nothing is left for the residual power of the States. This over concentration of
power at the federal government is the bane of the Nigeria federal arrangement.
Under the 1960 and 1963 Constitution, the Concurrent Legislative List was made a
free legislative shopping center for the both the federal and states government,
subject only to the common law doctrine of covering the field, this created stronger
regions and a weak central, who rely on the strength of the regions with
autonomous power to expand their economic potentials.

c. Lack of autonomy for the constituent units:

41
Another major challenge facing the practice of federalism in Nigeria under the
1999 Constitution is the lack of state and local government autonomy. This has
resulted to the call or agitations for States control over their resources particularly
in the Niger – Delta. This lack of autonomy of the constituents units has resulted to
over dependence on the central, thus, making states not economically viable. Worst
in this situation in the local government, which is financially dependent on the
states government via the State Joint Local Government Account.

d. Weak institutions of government:

Federalism can only flourish where institutions of government are strong. Nigeria
federal structure has been characterized with powerful individuals with weak
institutions. This was the remarked by President Barack Obama of US when he
visited Ghana; he stated that Africa should build powerful institutions rather than
powerful individual. Powerful government institutions, like vibrant legislature with
effective oversight capacity, purposeful executive and independent and impartial
judiciary are sine qua non for a true federalism to be realizable.

e. Poor political leadership:

The quality of federalism in any country depends more on the capacity of the
political leadership. Political leadership is necessary to coordinate the established
mechanisms of federalism. Visionless political leadership is the major cause of
lack of good governance in Nigeria.

f. Insufficient representation of minorities’ interest:

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Federalism as practiced in under the 1999 Constitution does not make adequate
provisions for minorities’ interest. Apart from the federal character principle as
provided under section 14 of the 1999 Constitution. There are adequate provisions
in the Constitution to cater.

g. Ethnic agitations and tension:

Agitations by ethnic nationalities, like the Ohaneze Idi Igbo, Arewa Consultative
Forum, and the Oodua People’s Congress, IPOB, Oduduwa Nation among others
create sense of ethic dissatisfaction in the federal structure. If not properly
managed these ethnic agitations can lead to political instability and national
insecurity in the federation.

h. Centralism of fiscal power of the federation at the Central:

The current federal arrangement over concentrated the fiscal might in the
federation at the central, with little or nothing for developmental needs of the states
and local government. This has resulted to agitations for state and local
government and resource control.

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