Practice of Federalism in Africa: Nigeria's Experience and Way Forward

The Nigerian Independent National Electoral Commission may de-register a number of political parties inside Africa's most populous state. The action may spark a constitutional debate., a photo by Pan-African News Wire File Photos on Flickr.

Practice of federalism in Africa: Nigeria’s experience and way forward

Written by Jonah Isawa Elaigwu

Text of the lecture delivered by Prof Jonah Isawa Elaigwu on Tuesday, November 12, 2013 at Nigerian Institute of International Affairs, Kofo Abayomi Street, Victoria Island, Lagos. The first part was published on Tuesday, December 31, 2013.

Thirdly, while the federal solution is attractive, the political economy of federalism has made it expensive and administratively cumbersome. The cost of maintaining federal and state legislatures, the executive and in some cases, local government councils and staff, is prohibitive. In addition, the need for bureaucratic outfits for these sub-national units not only put additional strain on the purse-strings of the State, but calls for the training of skilled workers to do the job. With problems of welfare services, economic development and other demands on the public treasury, the federal solution was seen by many African rulers as expensive. This was part of Kenyatta’s reason for the retreat from federalism as “rigid, expensive, and unworkable”. For many African leaders, therefore the federal solution while attractive, is by far too expensive to adopt.

To what extent is the federal solution still relevant for Africa? Given the current pattern of events, it does seem the compromises offered by the federal-type solution to conflicts, may still be relevant in managing conflicts in The Sudan, Southern Sudan, South Africa, Kenya, Uganda and the Democratic Republic of the Congo (DRC). The future will tell. Let us now turn to the Nigeria’s experience in federalism.

The Dynamics Of Nigeria’s Federalism
From Unitarism to Federalism

As the late James Coleman once observed, the “present unity of Nigeria as well as its disunity, is in part a reflection of the form and character of colonial government - the British superstructure - and changes it had undergone since 1900”. By 1900, what later came to be known as Nigeria comprised three colonial territories under the umbrella of
British colonialism, but administered separately, receiving orders direct from the metropolis: London. These were the Colony of Lagos and what came to be known as the Protectorates of Southern Nigeria and Northern Nigeria. In 1906 the Colony of Lagos and the Protectorate of Southern Nigeria were unified under a single administrator. In 1914 the Colony of Lagos and Protectorates of Northern and Southern Nigeria were brought together. In 1939, Nigeria was divided into the Colony of Lagos, the Northern, Eastern and Western Groups of provinces, with each province having a Chief Commissioner who was responsible to the Governor in Lagos.

It is our contention that the period 1914 to 1946 witnessed the mere co-existence of Nigerian groups who hardly knew of one another nor interacted in any substantial way horizontally. Like most colonial authorities, the British administration encouraged vertical relations between the individual communities and their administrators. Close horizontal relations among Nigerian groups would have nailed the colonial coffin earlier than the British would have wished, assuming they had any intentions of leaving. It was the Richards Constitution of 1946 which formalized the division of Nigeria into three regions within a unitary colonial state. If the year 1914 marked the birth of colonial Nigeria, 1947 was the beginning of effective horizontal relations among Nigerian groups. Thus, within this period, there was no concept of colonial Nigeria as a State. Nor had Britain consciously created Nigeria. Nigeria evolved in the context of British colonial policies in West Africa, in piecemeal fashion.

In 1947 Nigerians began to interact with one another in the Legislative Council. In response to global trends, the wave of nationalism had begun to sweep across the Southern part of the country. The aggressiveness with which the Richards Constitution was attacked illustrated the upsurge in the political awareness of the emerging Nigerian political elites. Among the serious critics was Dr. Nnamdi Azikiwe operating under the National Council of Nigeria and the Cameroons (NCNC). Dr. Azikiwe’s NCNC had criticized the imposition of the Constitution without due consultation with the Nigerian people. The NCNC also opposed the role given to the Chiefs and the number of regional units. Actually, in 1943, Dr. Azikiwe had recommended the creation of eight political units in Nigeria within the framework of federalism.

Chief Awolowo, bitterly criticizing the 1946 Constitution, called for a federation to allow the various groups to develop at their own pace, and opposed the unitary elements in the Constitution, which according to him, did not reflect Nigeria’s multi-ethnicity. In 1947 Chief Awolowo suggested the division of Nigeria into ten units, along ethnic and linguistic lines.

It had become evident that the colonial administration would soon go, in response to a combination of international and national events. This realization came as Nigerians had begun to establish contacts with one another. No sooner had they started to interact than they realized that they were strange bedfellows in the same polity. They had not interacted long enough with one another to work out an acceptable mechanism of conflict resolution. Given the competitive setting in which they found themselves.

Nigerian politicians withdrew into their ethnoregional or geo-ethnic cocoons in order to mobilize their followers effectively for competition. The new parochialism was not the old one (based on ignorance of one another) but parochialism based on the awareness of others in a competitivesetting, after various group had established contacts. As Mallam Aminu Kano told this writer in an interview, I think regional grouping was a result of sudden awakening. I think there was a period of sudden awakening in Nigeria, but the awakening was misdirected.... The sudden realization of we can take power’ resulted in ethnic grouping and therefore regionalism If the very process of decolonization had spurred regionalism, regionalism also determined the form of government Nigeria was to have - one based on the mutual fears and suspicions among Nigerian groups.

Perhaps the situation was lucidly captured by Clifford Geertz when he wrote of Nigeria’s terminal period of colonialism: Whereas in most of the other new states the final phase of the pursuit of independence saw a progressive unification of diverse elements into an intensely solidary opposition to the colonial rule, open dissidence emerging only after the waning of revolutionary comradeship in Nigeria, tension between the various primordial groups increased in the last decade of dependency.

The sense of distrust among Nigerian leaders and the prevalence of centrifugal forces in the country were amply demonstrated at the constitutional conferences between 1951 and 1958. If the McPherson Constitution of 1951 had initiated the gradual political decentralization of the colonial central government, the Lyttleton Constitution of 1954 confirmed the direction of constitutional reforms in favour of federalism. Regional legislatures had not only sprung up, the central marketing boards had been decentralized. Regional governments became effectively established with nigerianized executives and legislatures. Political parties that had followed the regional pattern had also grafted themselves in regional governments. By 1957 a central government under the leadership of Balewa as Prime Minister had emerged. Regional leaders operated a federal constitution in the context of the Westminster model of government. The 1960 Independence Constitution only ratified what had started in 1954 - Nigeria as a federation.

Our argument is that the pattern of colonial administration had encouraged the emergence of federal government in Nigeria. Even though the British (with a unitary government at home) was noted for including federalism in their political will to their new states, we argue that federalism emerged as a political compromise formula to assuage the fears and suspicions of domination among Nigeria’s heterogeneous population. The social forces at work in Nigeria forced Nigerians to accept federalism as a form of compromise. Thus the foundations of Nigerian federalism are to be found in the pattern of colonial administration and in the responses of Nigerians themselves as they opted for federalism as a compromise formula in inter-group relations.

While it may not be useful to beat the colonial dead horse any longer for the ailments of Nigeria, it may be argued that ambivalent integration under colonial rule was partially responsible for generating fears and suspicions among Nigerians. After the amalgamation of Nigeria in 1914, the colonial authorities made no effort to encourage horizontal interaction among the various groups. As mentioned earlier such encouragement would have heralded the good riddance of the colonial masters from the scene as groups developed confidence and an anti-colonial psychology. Colonial rule encouraged a vertical relationship between the local administrative units and the colonial centres of power.

The resulting parochial nationalism in the terminal colonial period was born out of mutual fears and suspicions among the Nigerian groups. Related to this are two factors which heightened the fears: the structural imbalance in the federal system, and the differential spread in the pattern of Western education. It was John Stuart Mill who once said that in a federal system, “there should not be any one state so much more powerful than the rest as to be capable of vying in strength with many of them combined”.

We suggest that in the First Republic, the lopsided federal structure generated fears and suspicions among groups. The Northern Region was in a position to hold the whole country to ransom, as shown by the following figures: the Northern region had 79% of the country’s total area as compared to the Eastern region’s 8.3%, the Western region’s 8.5% and the Mid-western region’s 4.2%. According to the 1963 census figures, the regions accounted for 53.5%, 22.3%, 18.4% and 4.6% of the total population, respectively. It was not surprising that in the Southern part of the country there was always the fear of domination by virtue of the Northern Region’s large population - the tyranny of population in the context of a democratic polity. The federal structure as it existed made it virtually impossible for the South to control political power at the centre, given the ethnoregional politics of the country.

Similarly, given the Southern headstart in Western education (which had become a passport to occupational roles in the modern sector of the Nigerian political system), the Northern region feared Southern domination in the economic and public service sectors of society. The fear of the tyranny of skills from the South was fresh in the minds of Northern leaders. The North thus sought to protect its civil service from being swamped by the South. It may be suggested that there was a relative division of functions between the North and the South which maintained some delicate balance in the political system. The Northern control of political power was counterbalanced by the South’s monopoly of economic power in the country.

We may even go further to argue that, contrary to Sklar’s contention, the military coup in January 1966 tilted what had been a delicate balance on which Nigeria had been able to survive since independence. The concentration of both political and economic power in the hands of Southern leaders altered the delicate Nigerian balance.
Political power had been the North’s safeguard against the South’s economic and educational advantages. The South’s advantage in the bureaucracy, which if anything was strengthened by the coup, was greatly augmented. The North reacted violently as it saw its last card - the political card - suddenly taken away or rendered ineffective.

These imbalances created problems for the federal system. Centrifugal forces continued to haunt Nigeria’s federal balance. Threats of secession by various regions in 1950, 1953 and 1964 climaxed in the abortive secession of Eastern Nigeria in 1967. This was a manifestation of extreme centrifugalism, and a challenge to the process of state- building. It took a civil war to return Nigeria to a position of relative balance between centrifugal and centripetal pulls. This balance was, however, not to last for long as more recent experiences have shown. We will return to this point later.

The first military coup of 1966, and other events it triggered, culminating in the civil war, soon planted the military firmly in the Nigerian political soil. We shall now turn to a discussion of this crucial factor in the evolution of both the Nigerian state and federation.

Federalism Under Military Rule

In much of Western Political Science literature, federalism is regarded as incompatible with military rule. Reasons adduced for this include the fact that military rule does not provide for popular participation in plebiscitary forms. Military rulers are not elected and, therefore, are not accountable to the electorate. We would like to suggest that participation through plebiscitary mechanism is not the only form of participation. As Henry Bienen showed clearly in his study of Kenya, the Kenya African National Union (KANU) did not offer as much opportunity for participation as the regional administrative structures. The political party was moribund between elections.

There are many dimensions of participation. It may be suggested that political participation takes at least two forms. It can be political access, an input into the decision-making unit from below. People come to participate in decisions which affect their lives through representation, expression of opinions, and involvement in community programmes. This may even involve anomic forms of participation, such as riots and rebellions. Participation in this respect is essentially access to decision-making units from below. Participation also has an output form. This is the mobilization of the people by government for specific activities. Thus, when the military government mobilized people for such activities as Operation Feed the Nation and the census exercise, it was mobilizing people for participation. The point of initiation was at the top.

Our argument is that military rule is not absolutely incompatible with federalism. The nature of military regimes may be hierarchial and the constitution may be so amended that one may not have a strictly federal constitution, but that does not mean one cannot have a federal government. As Wheare wrote: “If we are looking for examples of federal government, it is not sufficient to look at constitutions only. What matters just as much is the practice of government.” The crucial issue is the “working of the system.” However, in its form, federalism thrives best in a democratic setting.

In State-building, the impression is often created that the centre can penetrate the periphery with the little regard for heterogeneity at the subnational level. According to David Apter, a “mobilization system” is typified by a hierarchical authority structure emphasizing organization with “minimum accountability.” On the other hand, a “reconciliation system” emphasizes pluralism and a desire to reconcile diverse interests; it “mediates, integrates and above all, coordinates rather than organizes and mobilizes.”

In Nigeria the military leaders found that a model of government that provided for mobilization or politically induced change from the centre without regard for the interest of subnational units was unsatisfactory in its operation (the reaction to Decree No. 34, 1966 illustrated this). As Nigeria’sfather of military federalism, General Gowon, put the issue:

Our variety is such that you could not get the best out of people under a unitary system of government. You probably could, but at the expense of one group or the other or by being dictatorial and by forcing certain issues. I did appreciate that you could not do that in Nigeria and get away with it.

Hence, the military leaders adopted a compromise solution between Apter’s “mobilization” and “reconciliation” models. The disadvantage of the mobilization system, with its emphasis on coercion and non-accountability, is compensated for by the reconciling elements of the reconciliation system. The weakness of the reconciliation system is compensated for by the mobilizing aspects of the mobilization system. Under military rule, therefore, except for the brief periods mentioned before, Nigeria has always practised some form of federalism, (no matter how warped). General Gowon emphasized this after the creation of 12 states: “I believe in a federation with a strong centre, but with states having enough powers to manage their own affairs.”

Let us therefore turn to the legal or constitutional provisions under military rule in Nigeria’s military federalism. By the terms of the Constitution (Suspension and Modification) Decree No. 1, 17 January 1966, the federal government was given the “power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.” All military administrations in Nigeria maintained this provision, except for the brief period under the Constitution (Suspension and Modification) Decree No. 8, March 17, 1967.

Technically, this provision made the Federal Military Government (FMG) the sole repository of power in the state. This violates the federal principle of non-centralization of powers among component federal units. Legally, Nigeria was unitary under military rule. One expects therefore that in this context, the FMG would merely delegate or devolve its powers to subnational units. However, these decrees also state that the Governor of a region or state could not make laws with regard to all matters in the exclusive legislative list, and is precluded from making any laws with regard to the concurrent legislative list without the consent of the FMG. Yet the Governor of a region or state can “make laws for the peace, order, and good government” of the region or state.

There is a deference to federal principles here. The federal military government had dual roles under these decrees. The FMG could make laws for the whole country and had specific responsibility for the running of the Federal Government. This will become clearer when we deal with the structures.

The state governments were restricted to a residual list. In essence, Nigeria’s military government never suspended the constitutions of 1963 and subsequent ones. Only sections of the constitutions were suspended and/or amended. The legislative powers of the FMG and the regions/states were expressed in the form of decrees and edicts respectively. Interestingly decrees suspending sections of the constitution, for example, Decree No.1, 1966, Section 6, and Decree No.1, 1984, Section 5, state clearly that: “No question as to the validity of this or any other Decree or any Edict shall be entertained by any court of law in Nigeria.” In a way, this negates a cardinal federal principle of the role of courts, but the nature of military legislation and administration make this understandable.

The structure of government decision-making was also provided for by the decrees. Military regimes increased the political visibility and power of the executive branch. The actors in the executive branch had both executive and legislative powers. Under Decree No. 1, 1966, the Governors of the regions were members of the country’s supreme

legislative organ, the Supreme Military Council (SMC). The Supreme Military Council made legislation for the whole country and considered administrative issues involving both federal and state governments. It was usually chaired by the Head of Federal Military Government (HFMG). The Federal Executive Council (FEC) exercised general “direction and control” over affairs of the federal government as contained in the exclusive legislative list. While General Ironsi did not appoint political executives to head the various ministries, General Gowon did in 1967. This trend continued and also changed the composition of the FEC. Most military governments in Nigeria had been run by both military and civilians, with the military having the veto.

The judiciary was left to operate in so far as it did not treat existing decrees with levity. The Nigerian military administration before 1984 did not blatantly tamper with the judiciary except on a few occasions. An illustration of this was the Federal Government’s reaction to a decision of the court on the confiscation of the properties of an ex- politician. By the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 9 May, 1970, the FMG reminded Nigerians that the government had no mandate from anyone and that the judiciary and all unabrogated parts of the constitution existed by its grace. It then stated that for “the efficacy and stability of government.”

Any decision whether made before or after the commencement of this Decree, by any court of law in the exercise or purported exercise of any powers under the constitution or any enactment or law of the Federation or any state shall be null and void and no effect whatsoever as from the date of the making thereof.

This position was reinforced in 1984 after some ex-politicians (i.e. Governors) went to court to seek orders to prevent their having to face military tribunals. On many occasions the military did not obey court orders and often relied on retrospective laws, which grossly violated the rights of citizens.

In terms of federal-state relations under military federalism, two conscious features must be identified. The first is the military superstructure; a military regime in which institutions of popular participation were suspended. In the military hierarchy of authority, the HFMG and Commander-in-Chief of the Armed forces appointed all Military Governors, and they were responsible to him. This negated the traditional principle of federalism and fits into Apter’s model of mobilization with a hierarchical chain of command and “minimum accountability” to the people.

Unlike a civilian Governor of a state who was elected or ousted from office through the ballot box, the Military Governor was appointed from the centre and only removable by Commander-In-Chief who appointed him. This is typical of the hierarchical nature of military rule. One negative impact of this in military administrations was that lapses of the Governors, unlike under civilian rule, reflected on the HFMG or Federal Government. The experience of General Gowon, whose Governors eroded his credibility, is still very fresh in the minds of Nigerians. Similarly, under Generals Babangida and Abacha, Governors were reputed to have committed many acts of gross misconduct about which the people could do nothing. Often, they blamed the Federal Government which had appointed them.

On the other hand, these governors were autonomous in the running of the affairs of their various states. They had substantial powers over the affairs of the state. The degree of supervision of these Governors depended partly on the personality of the HFMG. While Gowon gave the states much autonomy and the Governors much latitude in the performance of their duties, General Murtala was more centralizing in his administrative technique. It was partly to cut the Governors down to size that the Murtala regime established the National Council of States (NCS), thus removing the Governors from the highest ruling body.

The National Council of States under General Babangida and General Abacha was under the supervision of the PRC [or the Armed Forces Ruling Council (AFRC)] through the office of the Chief of General Staff. The Council brought together all State Governors, the Head of State, and the Minister of the Federal Capital Territory (FCT) for deliberation over state issues. This body dealt with “policy guidelines on financial and economic matters” as they affected states, national development plans, such constitutional matters concerning states, and any other matters assigned to it by the PRC. The NCS under military rule was part of a functioning government structure and not a mere advisory body as was the case under the 1979 Constitution. It is pertinent to note that there were few changes in the names of these military political structures under the Babangida and Abacha administrations. The HFMG was called the “President” in the Babangida era but General Abacha preferred the use of “Head of State”. The SMC became the Armed Forces Ruling Council (AFRC) under General Babangida and the PRC under General Abacha; the FEC became the Council of Ministers (COM) under Babangida, and under Abacha, was called the FEC, while the Council of States remained the same.

Besides all of the above, other institutions of federalism existed, which were mainly civilian in terms of their incumbents. These included the federal and state bureaucracies and local government structures, the federal and state judicial institutions, and federal and state corporations - which retained autonomy in their respective spheres of operation, as contained in the Constitution. Each state had a Civil Service Commission as distinct from the Federal Civil Service Commission which took care of recruitment, promotion, discipline and welfare of their staff. Even the membership of the federal and state executive council was often dominantly civilian. The above fits into Apter’s reconciliation model - especially when one takes cognizance of the near absolute powers wielded by the Governors. It is a reflection of Nigeria’s past experiences, a

recognition that there are “social limits to politically induced change from the centre” and that penetration and control of subnational units “carried forward with disregard for local integrity, amount to no more than experiments in violence."

In terms of the degree of autonomy wielded by the old regions, it is to the credit of military regimes that the new (even if highly centralized) federalism evident in Nigeria was effectively created by the military. The autonomy of the old regions under Ironsi and the early Gowon administration was indisputable. The Gowon-Ojukwu tussle in the process of state-building illustrated some of the problems of adjustment of federal pendulum even under a military regime. After May 1967, however, General Gowon, upon creating 12 states took a number of legislative and administrative actions that tilted the federal scale very much in favour of the centre.