The
1999 Constitution entrenches the concept of federalism, division of powers
between the central government and component states in other words between the
federal government and the state/local governments each enjoying a degree of
autonomy.
There is no doubt that the 1999 Constitution distributes powers
amongst the three tiers of the government the major criticism is that 1999
Constitution gives too much powers to the central (federal) government. An all
too powerful central government is not acceptable to those not in control of
the federal government. Main point to note is that the vesting of more powers
in the central government was deliberately done as the central needed to be
stronger than the states to prevent secession and to ensure uniformity.
Section
4 of the 1999 Constitution provides for the legislative powers of the federal
government and state governments. In brief, legislative powers are vested in
the National Assembly (federal) and House of Assembly (state). They are
required to make laws for the peace, order and good government of the
federation and states respectively. The
1999 Constitution grants National Assembly powers to make law with respect to
matters included in the exclusive legislative list, Houses of Assembly cannot
legislate on such matters. National Assembly can also legislate on matters set
out in the concurrent legislative lists “and any other matter to which it is
empowered to make laws in accordance with the provisions of the Constitution”.
A State House of Assembly is also empowered to make laws on matters listed in
the concurrent legislative list but any law enacted by the House of Assembly
(on a matter set out on the concurrent legislative list) if inconsistent with
any valid laws of the National Assembly will become inoperative and void to the
extent of the inconsistency. Both parliaments cannot legislate laws which are
inconsistent with provisions of the 1999 Constitution, the Judiciary will
declare such laws null and void.
Again
the main criticisms from of the above arrangement is that the 1999 Constitution
granted too much powers to the federal National Assembly, in that a state's
House of Assembly cannot legislate on matters on the exclusive legislative list
and its laws may be overridden by the a National Assembly Act if it covers a
field listed in the concurrent legislative list. It is on this critics have
either argued for a change of structure, a new constitution or an amendment.
Critics wants the document (The Constitution) itself to forbid the federal
National Assembly from legislating on almost half of the matters listed in the
exclusive legislative list and also bar the National Assembly from passing any
Act overriding that of the a State House of Assembly Law on such matters. They
want a less powerful federal government and a stronger state government. These
critics have not fully considered the demerits of a weaker federal government
and a stronger state government. The key ones being structural instability and
undue interference by the federal government aside these there is no known
federal system of government where the components are stronger than the central
lailai.
On
Decentralization and Devolution
A
common and erroneous view is that the under 1999 Constitution in its current
state, devolution of powers in not achievable. It must be sounded loud and
clear that no provision or section of the 1999 Constitution precludes, prevents
or forbids the National Assembly from making constitutional Acts devolving
powers to the Houses of Assembly on a matter listed in the exclusive
legislative list. What the 1999 Constitution did is to grant powers to National
Assembly to make laws on matters listed in the exclusive legislative list. The
1999 Constitution does not expressly or impliedly bar the National Assembly
from making laws that will devolve powers. The National Assembly can in
accordance with Section 4(3) enact Acts that will grant states powers to
establish state prisons, allow states to record finger prints, save criminal
records and establish railway authorities among others things. The implication
of Section 4(3) of the 1999 Constitution is that the National Assembly can
enact not only substantive laws on matters in the exclusive legislative list
but also regulatory and power conferring laws for states via legislation
(devolution). This arrangement is a better alternative to having the
Constitution directly devolving most powers to the states, a future amendment
of such constitution will be rigid and almost impossible but with powers
residing in the National Assembly a simple Act of Parliament can grant and
withdraw powers to and from the states when necessary.
Due
to the foregoing, Nigerians calling for structural change should have a re-think
and use the mechanism in place (provisions of the 1999 Constitution) to achieve
their aim. The potential of the 1999 Constitution have not been fully explored
at all. The best means of achieving decentralization and devolution is to elect
enlightened and visionary parliamentarians, future candidates must be ready to
undertake that he/she will pursue devolution by sponsoring radical and
extensive bills that will go a long way in changing the structure of
governments and their institutions. The key to achieving devolution is hidden
in the National Assembly, Nigerians must push this institution to come up with
Acts that will allow the federal to surrender powers to the states. It is important to note that the mode of distribution of powers by the 1999 Constitution
to the two top tiers of government has been via legislative competences. Thus,
the “structure” of the federal and state governments can be modified by
legislation and exercise of legislative powers.
Section 4(3) of the 1999 Constitution has been used by the National
Assembly to confer powers on the federal government (executive and judiciary)
it can also be used to confer powers on state governments as long as it in the
interest of peace, order and good government of the federation and is not inconsistent
with the express provisions of the 1999 Constitution.
On
Fiscal Federalism and Resource Control
Fiscal
Federalism relates to the division of economic and financial functions amongst
the tiers of government. A major aspect of this principle is that the central
government should be more willing to surrender powers to the states government
in matters regarding allocation of resources while the federal should be
responsible for economic stabilization and income re-distribution. Fiscal
decentralization being the best means of achieving effective and efficient
solutions to social and economic challenges.
It
should be noted that the principle of fiscal federalism can apply to federal
and non-federal Countries as it deals with the central government's willingness
to surrender policy responsibilities (e.g revenue collection) to the component
states. The are two majors way of achieving fiscal federalism in a federation a
Constitution could actually state the boundaries or the Constitution allows the
central government to devolve at will. To elaborate, it is either a
Constitution expressly states the competences of the tiers of government and
then precludes the central from interfering except under some special
circumstances or the Constitution grants central government enormous powers of
which it can now decided what to and what not to surrender to the state, here
the central will have an absolute discretion (in theory) in deciding when to
withdraw such powers. The 1999 Constitution adopts the latter approach.
It
should also be made clear that the 1999 Constitution does not contradict the
principle of fiscal federalism and resource control. The Constitution rather
than expressly granting more powers to the states preferably granted powers to
the National Assembly, Revenue Mobilisation, Allocation and Fiscal Commission
(RMAFC) and the President. One of RMAFC's duties is to “review from time to
time the revenue allocation formula and principles in operation to ensure
conformity with changing realities”. The RMAFC tables proposal to the President
who then forwards it to the National Assembly.
A
brief history of the revenue allocation proposals highlights the possibility of
achieving a situation where states can be granted more allocation. The 1963
Constitution provided for a 50% derivation to the region where mineral rents
were derived and the rest to be distributed based on various basis and indices.
Okigbo commission recommended 45% to the federal, 35% to states and 10% to the local
government. In 1992 recommendation was 48.5, 24% to state and 20% to local, with 7% for special funds. RMAFC
made a its first proposal under the 1999 Constitution as 41.3%, 31% and 16% to
the federal, states and local governments respectively and a special fund of
11.7% which was later held to be unconstitutional under the 1999 Constitution.
In May 2002 President Obasanjo invoked an executive order and held the formula
as 56%, 24% and 20% this was later adjusted in July after serious discontent to
54.68%, 24.72% and 20.60. In March 2004, Dr. Okonjo Iweala adjusted the second
executive order to 52.68%, 26.72 and 20.60 this being the current formula.
It
is important to note that over the years the RMAFC has submitted series of
proposal (46.63%, 33% and 20.37 in 2003, 47.19%, 31.10% and 15.21% in
2004/2005) which for one reason or the other have not being adopted. The
questions here should be why has these proposals not been successful? and why
are we are not clamouring for a review of and change in the existing sharing
formula? A matter like this is what I
believe should be trending as it borders on the core structure of system. At a
time like this where states are unable to pay workers' salaries, raising
matters of sharing formula review will be fair and reasonable.
Nigerians
must insist on process following, it should be clear by now that the inability
of Nigeria to revise its revenue sharing formula in the past 12 years cannot be
due to a fault in the 1999 Constitution, it can only be attributed to the
failures our leaders and representatives to make use of the process laid down
by the 1999 Constitution.
On
resource control, section 162(2) provides for the principle of derivation and
states that not less than 13% of the revenue accruing to the federation
directly from any natural resources in a state must be remitted to such state.
Important point to note is that the 13% derivation is not a cap but the minimum
that must be remitted to an entitled state, in essence it could be increased to
15%, 20%, 30%or more. Increment can be achieved by an Act of Parliament, so for
those clamouring for resource control best way is to lobby, negotiate with and
demand for the National Assembly to act as the 1999 Constitution empowers it.
It
has been generally argued that the monthly revenue allocation to states have
made states lazy, idle and lacking in vision this may be true but the revenue
allocation between the federal government and the state governments is a major
feature of a federal system of government. There is nothing wrong with it. Major
federations or federal systems all have their different version of revenue
allocation which is also their life line and with its own disadvantages. In
India there is the Financial Commission (Act), Germany has the Fiscal
Equalisation Laws, USA has the aid in grants principle amongst other
arrangements, Australia has the Commonwealth Grants Commission and Canada has
Federal-Provincal Fiscal Arrangement Act. The common feature is that the
central government has the responsibility of sharing revenues mainly tax,
between it and the components and also amongst the components with most
advanced federations have in their sharing system complex equalization
principles. The main point here is that revenue sharing should not be seen as a
problem rather it is a feature of the system of government we practice, it is
the states that should seeks ways of increasing their internally generated
revenue.
In
all, it is the National Assembly that must live up to its responsibility, there
is a reason while the parliament is bi-carmeral. A progressive and liberal
executive is also needed to complement a radical National Assembly. When next
we are to choose a President can we please ensure the such person supports
devolution and fiscal decentralization ? A rigid and conservative President may
frustrate a liberalist/radical National Assembly and vice versa. Two new
strives must now be added to the fight against corruption and good governance.
It is fiscal decentralization and devolution of powers which can be easily
achieved within the framework of the 1999 Constitution.
'H.A Sotayo-Aro
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