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 (c) Misapplication of purposive in­terpretation by the Supreme Court. Local Councils not part of federating units

The distinguishing characteristic of a federation is the constitutional division of powers between the central government and the component states. Whereas, in a unitary system, all powers flow from the centre, in a federation, powers are dis­persed between the centre and the states. It is a two-tier structure (federal and state) without one tier being subordinate to the other but each deriving its powers and exercising them within the confines of a written constitution. In federalism, you have devolution or decentralisation but in unitarism, you have deconcentration.

According to K.C. Wheare, the feder­al principle is “the method of dividing powers so that general and regional gov­ernments are each within a sphere co-or­dinate and independent.” In the words of Prof Ben Nwabueze, federalism is “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.” Federalism, according to Dicey, “is a political contrivance intended to reconcile national unity with the main­tenance of the state rights.” In the words of Hamilton, one of the founding fathers of the American Constitution, “a federal state is an association of States that form a new one.” Prof M.P. Jain shed more light to the question of federalism: “According to a famous aphorism, federation connotes a legalistic government. There being a di­vision of powers between the centre and the States, none of the governments can step out of its assigned field; if it does so, the law passed by it becomes unconstitu­tional. Questions constantly arise whether a particular matter falls within the ambit of one or the other government. It is for the courts to decide such matters, for it is their function to see that no government exceeds its powers.”

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The British Government never lived under the illusion that Nigeria, with such a vast territory and consisting of ethnic nationalities with disparate backgrounds, languages and cultures, could cohabit suc­cessfully under a unitary system. It was thus that Sir Arthur Richards, the then Governor of colonial Nigeria, broached implicitly the federal principle when he laid before the Legislative Council on 5 March, 1945 the scheme for a new consti­tution: “To create a political system which is itself a present advance and contains the living possibility of further orderly advance – a system within which the diverse elements may progress at varying speeds, amicably and smoothly, towards a more closely inte­grated economic, social and political unity, without sacrificing the principles and ideals in their divergent ways of life.”

As a matter of fact, the North, justifi­ably, never really wanted to be part of Ni­geria from the outset. Indeed, they were able to secure an assurance from Her Majesty Government that there would be no interference with their religion and way of life. This is the reason why in spite of the amalgamation of 1914, the region was administered separately from the other parts of the country by Frederick Lugard, the Governor. This continued un­der Hugh Clifford, who succeeded Lugard in 1919 after the First World War. Whereas the Legislative Council set up by Clifford (which replaced the Nigerian Council created by Lugard) legislated only for the Southern provinces except on the issue of expenditure where the North was brought into view, the Governor legislated for the North by Proclamation. It was not until 1946 that the Northern leaders agreed to sit with their Southern counterparts in the newly inaugurated central Legislative Council. Of course, Sir Donald Cameron and Bernard Bourdillon, both Nigerian Governors before the arrival of Richards, made strenuous efforts in persuading the Northern leaders on the need to be part of the central Legislative Council. The be­wildering diversities of the nationalities that make up Nigeria made federalism inevitable.

Sir John Macpherson became Gover­nor in April, 1948 and pushed the coun­try further on the path of federalism. The question was pointedly asked in the process of drafting a new constitution to replace the much-criticised Richards Constitution of 1946: “Do we wish to see a fully centralised system with all legislative and executive powers concentrated at the centre, or do we wish to develop a federal system under which each different region of the country would exercise a measure of internal autonomy?” That question, we recall, was only partly answered in favour of federalism in the Macpherson Constitution of 1951, which introduced elective principle across the three regions of the country.

At its second annual conference in Benin City in December, 1952, the Action Group (AG) passed a resolution fixing 1956 as the target date for the attainment of self-government for Nigeria. It was the young party stalwart, Anthony Enahoro, who, on behalf of the Action Group, tabled the motion in March 1953 requesting the House of Representatives to accept “as a primary political objective the attainment of self-government for Nigeria in 1956.” Of course, on behalf of the Northern People’s Congress (NPC), the Sardauna of Sokoto, Ahmadu Bello, urged the House to substi­tute “in 1956” with “as soon as practicable.”

To underscore the seriousness of the AG, its four ministers – Bode Thomas, Ar­thur Prest, Ladoke Akintola and Adesoji Aderemi – chose to resign, jettisoning the idea of ‘collective responsibility’ proposed by the central Council of Ministers, in or­der to participate in debating and voting for the historic motion. As it turned out, neither the original motion nor the amend­ment was debated, as Alhaji Ibrahim Imam of NPC moved a dilatory motion for adjournment of the debate. Members of the AG and NCNC then staged a walk-out. Crowds of people in Lagos booed and jeered at the Northern delegation after they left the House of Representatives, whereupon the NPC stalwarts vowed never to return to the central parliament. It was evident that Macpherson Constitu­tion of 1951 had broken down irretrievably.

The crisis generated by the motion of self-government, which was supported by the Western and Eastern Regions but re­jected by the Northern Region, highlighted the inevitability of a full-fledged federalism in Nigeria. That crisis led to the four-day Kano riots of May, 1953. In the deadly riots, 36 Nigerians were killed while about 250 sustained injuries. In the same May, 1953, the House of Chiefs and House of Assem­bly for the Northern Region jointly passed the Eight-Point Programme:

(i) This Region shall have complete legislative and executive autonomy with respect to all matters except the following: defence, external affairs, customs and West African research institutions.

(ii) There shall be no central legislative body and no central executive or poli­cy-making body for the whole of Nigeria.

(iii) There shall be a central agency for all Regions which will be responsible for the matters mentioned in paragraph 1 and other matters delegated to it by a Region.

(iv) The central agency shall be at a neutral place, preferably Lagos.

(v) The composition and responsibil­ity of the central agency shall be defined by the Order-in-Council establishing the constitutional arrangement. The agency shall be a non-political body.

(vi) The services of the railway, air services, posts and telegraphs, electricity and coal mining shall be organized on an inter-Regional basis and shall be ad­ministered by public corporations. These corporations shall be independent bodies covered by the statute under which they are created. The board of the coal corpo­ration shall be composed of experts with a minority representation of the Regional Governments.

(vii) All revenue shall be levied and collected by the Regional Governments, except customs revenue, at the port of discharge by the central agency and paid to its treasury. The administration of the customs shall be so organized as to assure that goods consigned to the Region are sep­arately cleared and charged to duty.

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(viii) Each Region shall have a separate public service.

As can be seen from the above, the Northern leaders called for a confederation or customs union in Nigeria. Proceedings in the Northern House of Assembly in Ka­

 duna in May, 1953, underscored the above:

“…our wishes would be that full auton­omy be given to each Region so as to make the Centre weak or loose.

“Secondly, it is proper and constitution­al that each Region should progress as its own pace so that no one territory will be a drag on the other…”

It was this state of affairs that led the Secretary of State for the Colonies to an­nounce in the House of Commons in Lon­don the inevitability of a new constitution for Nigeria. Hence the London Constitu­tional Conference of July 30 to August 22, 1953 and the Lagos Constitutional Confer­ence, which opened on 19 January, 1954.

Decisions of the two landmark Consti­tutional Conferences include the following:

(i) That the country adopts a federal system of government in which residual powers would be vested in the Regional Governments.

(ii) That legislative powers be shared between the central government and the federating units.

(iii) That the Public Service should be regionalized.

(iv) That the Judiciary should be re­gionalized.

The two conferences led to the prom­ulgation of a full-fledged federal constitu­tion of 1954. The federal arrangement be­queathed to Nigeria both by the Lyttleton Constitution of 1954 and Independence Constitution of 1960 was thus a compro­mise between the centrifugal and cen­tripetal forces in the disparate regions of Nigeria. Of course, the federal principle remained the cornerstone of the Constitu­tion of the Federation 1963 – the republican constitution.

It is seen very clearly that local govern­ment or local council did not and could not have come up for discussion in the land­mark constitutional conferences above. Local councils are in the bowels of regional or state governments in any federation.

I journeyed this far in order to recall that the federal spirit and character of Nigeria did not emerge from the blue. Therefore, any purposive construc­tion (of the Constitution), in the Ni­gerian context, should advance the cause of the federal principle and not constrict it. Regrettably, the 11 July, 2024 judgement of the Supreme Court only advanced the cause of a unitary state, which is antithetical to the spirit and character of the Nigerian feder­ation. A strong Centre is dangerous in a multi-ethnic, multi-cultural and multi-religious society like Nigeria!

…To be continued next Thursday

(Read the online version of the column at www.independent.ng)