Federalism

Federalism is a system of government where there is an equal division and sharing of governmental powers between central and regional governments, simpliciter. Before delving into this topic properly, it is imperative that the student takes note of the widespread call in the nation that the Fourth Republic must be based on the concept of a federation determined by judicious power and revenue sharing formula. There is no universally acknowledged definition of Federalism, as stated by Justice Niki Tobi. Generally, the concept of Federalism relates to the division of power between a national government, and other regional or state governments and sometimes, local governments.

According to Black’s Law Dictionary, Federalism is "a league or compact between two or more states to become united under one central government".

According to K. C. Wheare, Federalism is "the method of dividing power so that general and regional governments are each within a sphere coordinate and independent".

According to Nwambueze, Federalism entails "an arrangement whereby the powers of government within a nation or country are divided between a national, countrywide government and a number of regionalized governments..."

Per Carl Friedrich, Federalism is "the process of federalising as well as the particular pattern or division which the inter-group relations exhibit at a particular time."

In the words of Justice Niki Tobi, there is no universal agreement as to what is Federalism. A federal government means what the Constitution says it means. Although the word "federalism" may be knit in theories of Political Science, it conveys different meanings in different constitutions, as the constitutional arrangements show, particularly in the Legislative lists.

Basis and justification

A Federation evolves in various nations for different reasons. In Nigeria, it came about due to the multi-ethnic nature of the Country, the resultant agitation of the minorities, for a system of government which would ensure continuity and give them a sense of belonging and most importantly, the existence side by side of the two major religions, Christianity and Islam, in such a way as to divide the nation into two major entities. According to Ogwurike, the aim of Federalism in Nigeria was to promote unity, while providing adequately within that unity for the diverse elements.

Essentials of federalism

According to Walter Bagehot, "federal government is rare because the prerequisites are many..." Whatever the prerequisites for the formation of a Federation includes, there is no doubt that there are certain minimum requirements which are the main focus of the Federal concept and which must be in place before a nation can be said to be truly Federal. They include the foregoing:

1. Voluntary Submission of Autonomy

Looking first and foremost at the definition of Federalism given above by K. C. Wheare, there is no doubt that there must be a voluntary submission of some of the powers which formerly belonged to the various federating states or units to the central government thus presupposing the existence of a democracy for there to be a true and sustainable federation. Where this is absent at the beginning, or at the basis of a Federation, there would be the need for a Sovereign National Conference, or at least a conference of nationalities, for the purpose of renegotiating the basis of the Federation. A situation like Nigeria’s where the federal system was created by a mechanical drawing of borders which made strange bedfellows of ethnic groupings, does not augur well for a true and sustainable Federation.

2. Cooperation among various levels of Government

Modern systems of governance have made the idea of separate workings unworkable in governmental administration. This is due to the increasing need for government to be involved in the political, economic and social life of the people and because of certain types of disasters which may traditionally be within a state, but are of national significance or proportions.

3. Division of Powers

The concept of Federalism basically deals with the separation of powers vertically (Federal, State and Local Governments) but such does not totally comprehend division of powers. It is thus a prerequisite that division of powers occurs horizontally (Legislative, Executive and Judicial arms of government) as well.

• Legislative powers: There is no doubt that the manner of dividing legislative powers among the various component units in a Federation is the greatest mirror of the extent to which they are autonomous and independent. Thus Section 4(1) of the 1999 constitution vests the legislative powers of the Federal or central government in the National Assembly, made up of the Senate as the upper house and the House of Representatives as the lower house. It has the power to make laws for the peace, order and good government of the Federation or any part thereof. Another constitutional provision to take note of is Section 4(5) which states that "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." The Case of AG Ogun State v AG Federation serves as a locus classicus for this provision where Kayode Eso JSC, put the law forward by stating that where a State Law is promulgated and a Federal legislation is made on the same issue, the State Law remains in abeyance (not repealed unless it is inconsistent) while the Federal Law is in operation.
• Executive Powers: The Central and regional governments also share executive powers. For instance, section 5(1) of the 1999 constitution vests Federal executive powers in the President while section 5(2) vests state executive powers in the Governor. Both the President and the Governor also have the duty of the execution and maintenance of the Constitution within their spheres of operation.
• Judicial powers: Section 6 of the 1999 constitution also divides judicial power between the Federation and the States, through certain Superior Courts of record established for both the Federation and the States by the Constitution. Respective jurisdictions are thus conferred on these Courts separating them on the basis of which is Federal and which is for the State.

4. Independence and Autonomy

Each component unit must be able to operate without interference from or control by any other unit. This is a reason why despite the requirement for cooperation amongst the levels of government, there is often an expressed or implied prohibition of interference, in order to ensure some measure of independence and autonomy. According to Nwambueze commenting on the 1979 Constitution, "...the Constitution flows the doctrine that the exercise of those (Federal and State) powers is not to be impeded, obstructed or interfered with by the other government while existing within its own powers. There is no express prohibition of interference in the 1999 constitution, and so it is implied.

One way in which Independence and autonomy can be assured in a Federation is through a balanced division of powers and resources. It should however also be taken to note that the creation of certain bodies under the 1999 constitution such as the Revenue Mobilization and Fiscal Commission encroaches upon the idea of independence and autonomy. See Mowoe's Constitutional Law in Nigeria, page 78.

5. Equality of Size and Power

There must be some measure of equality between the State governments in terms of size and allocation of power. The relationship between each State and the Central government must also not be based on any preference, else it may lead to the overthrow of the Federal System. This issue of preference is of course evident in Nigeria's present "federalism", as the Federal government continues to control not less than 95 percent of the revenue on which the States depend for the day to day running of their affairs.

6. Supreme Constitution

The reason for the requirement of a Supreme Constitution as a precondition to a true Federation is so as to make sure that the tiers of government abide by the terms of the basis of their relationship. In agreement with this fact, Nwambueze believes that the "independence" to be attained for a true Federation implies a Constitution which is Supreme over both the general and regional governments.

7. Independence of the Judiciary

This prerequisite comes as a result of the need for the consolidation of a Supreme Constitution. It is the duty of the courts to interpret the provisions of the Constitution and as such, if they are not rid of undue influence or control, the Law cannot be said to stand supreme as they would one way or the other, be forced to derogate from the Law in order to favour their controllers. For the attainment of a Supreme Constitution and in order to gain true Federalism, the Judiciary must be independent. Despite the division of Courts into Federal and State Courts, there should also be a Hierarchy of authority which makes the decision of a superior court enforceable in any Court of subordinate jurisdiction anywhere in the whole Federation.

It is clear from all the above that the Nigerian Federation cannot be referred to as one so properly called, because of absence of the basic voluntary coming together and most especially, the power sharing arrangement under the Constitution which has drastically affected the independence and autonomy of the various units. And yet while the Nigerian federalism does not conform to traditional federalism, it is still a federalism as a federalism is whatever the constitution says it is.