FEDERALISM, DEMOCRACY AND LEADERSHIP

1. FEDERALISM, DEMOCRACY AND LEADERSHIP • By • Professor Paul Obo Idornigie, PhD, FCIS, MCIArb • Nigerian Institute of Advanced Legal Studies • Abuja, Nigeria

2. Nigeria is not a nation: It is a mere geographical expression. There are no ‘Nigerians’ in the same sense as there are ‘English’ or ‘Welch’ or ‘French’; the word ‘Nigeria’ is merely a distinctive appellation to distinguish those who live within the boundaries of Nigeria from those who do not. Chief Obafemi Awolowo in 1947 2 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

3. Since the amalgamation of Southern and Northern Protectorates in 1914, Nigeria had existed as one country only on paper…. It is still far from being united. Nigerian unity is only a British intention for the country. Alhaji Abubakar Tafawa Balewa in 1947 3 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

4. Sanusi lacks the character, comportment and temperament for this job. Besides he is too controversial. The job requires calm, self-reliant, humility and a disposition to service, not service as an entitlement in itself but service as a duty to truly serve the people, not rule them. Vincent Okwechime on Sanusi 4 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

5. Introduction Doctrinal definitions The Concept of Federalism Federalism in Nigeria The Concept of Democracy Democracy in Nigeria The Concept of Leadership Concluding Remarks Outline 5 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

6. I would like to thank the Nigerian Bar Association, Warri Branch for giving me the opportunity to share my thoughts on the theme of the Law Week – Federalism, Democracy and Leadership. With the on-going National Conference, celebration of Democracy Day and effect of leadership on governance, the theme of the Law Week is quite apt. However, what is the link between 'federalism' and 'democracy' on the one hand and 'federalism' and 'leadership' on the other? Introduction 6 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

7. Put differently what is the relationship between and among the three words? We shall contend that if federalism is democratically practiced, we shall have good and national leaders. Alternatively if the tenets of democracy are practiced in a federation, national leaders will emerge. He who thinks he is leading and there are no followers is only taking a walk. …Introduction 7 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

8. Let me very quickly add a caveat, I perceive that my mandate as a Keynote Speaker is to set the agenda for this Law Week, interrogate several issues and open up debates and discussions. Deliberately, therefore, there will be open-ended questions that, in the course of the week, we will and we should find answers to. In doing this, we will draw from advanced federal democracies (USA, Germany, Canada and Australia) and locate the discourse in Nigeria …..Introduction 8 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

9. In music, a keynote is the note or tone on which a key or system of tones is founded; the tonic. It can also mean, the policy line to be followed, as by a party in a political campaign, that is set forth authoritatively in advance by an address or other formal announcement. Or the main idea or central principle of a speech, program, thought, action, among others. Doctrinal Definitions - Keynote 9 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

10. A Keynote Address is generally a speech, as at a political convention, that presents important issues, principles and policies. For our purpose, therefore, my mandate is to raise important issues that will serve as a tonic for the Law Week. …..Keynote 10 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

11. A principle of government that defines the relationship between the central government at the national level and its constituent units at the regional, state, or local levels. Under this principle of government, power and authority are allocated between the national and local governmental units, such that each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared. …..Federalism 11 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

12. The term federalism is derived from the Latin root foedus, which means "formal agreement or covenant." It includes the interrelationships between the states as well as between the states and the federal government In the United States, Supreme Court Justice hugo l. black in 1971 wrote that federalism meant a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate State governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. …..Federalism 12 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

13. Etymologically, democracy is derived from French word democratie, or Greek demokratia, or Late Latin  dēmocratia - demos "common people," originally "district" and kratos "rule”, “strength“, “power”. Government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system Democracy is a form of government in which all eligible citizens participate equally—either directly or indirectly through elected representatives—in the proposal, development, and creation of laws. It encompasses social, religious, cultural, ethnic and racial equality, justice, liberty and fraternity. …… Democracy 13 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

14. Several variants of democracy exist, but there are two basic forms, both of which concern how the whole body of all eligible citizens executes its will. One form of democracy is direct democracy, in which all eligible citizens have direct and active participation in the decision making of the government. In most modern democracies, the whole body of all eligible citizens remain the sovereign power but political power is exercised indirectly through elected representatives; this is called representative democracy or democratic republic ……Democracy 14 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

15. Leadership is an elastic and situational concept. It means the position or function of a leader; an act or instance of leading; guidance; direction; to lead To lead means to go before or with to show the way, conduct an escort; to conduct by holding and guiding; to influence or induce; to command; to direct; to have directing or principal part in. Leadership is a function of the environmental or structural milieu, etc …… Leadership 15 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

16. The strongest arguments for federalism were written during the ratification of the U.S. Constitution. the federalist papers, a set of 85 essays written by Alexander Hamilton, James Madison, and John Jay, were originally published in 1787 in New York under the pen name Publius. They were meant to explain the advantages of the Constitution and to persuade New York citizens to ratify it. The essays pointed out that the Constitution would allow the principle of popular sovereignty to continue and would help prevent internal dissolution and uneven distribution of power—problems that contributed to the failure of the Articles of Confederation. The Concept of Federalism 16 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

17. Paradoxically, in no where in the American Constitution of 1787 is the word ‘federalism’ used. However, the principles underlying this theory of government are deeply embedded throughout the national charter. The Framers left it for subsequent generations of Americans to work out the details, allowing them, in effect, to provide their own definition of federalism in what best can be described as an ongoing national dialogue. …..Federalism 17 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

18. The most visible federal institutions participating in this national dialogue have been the U.S. Supreme Court and Congress. Typically, cases involving federalism-related issues have come before the Supreme Court after Congress has enacted a law that a state believes encroaches on its sovereignty What is unique about American federalism is that it emerged from existing independent States coming together to form a Union. …. Federalism 18 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

19. German federalism dates back to the founding of the Holy Roman Empire in the Middle Ages, to the reforms that came with the Peace of Westphalia and to the Constitution of the German Empire from 1871. Since re-unification in 1990, the Federal Republic has consisted of sixteen states: the ten States of the former West Germany, the five new states of the former Eastern Germany and Berlin. The Basic Law of the Federal Republic of Germany divides authority between the federal government and the states. …..Federalism 19 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

20. Canadian Federalism is a response to the colonial-era diversity among the Maritimes and the Province of Canada, in particular because of the strong distinction between the French-speaking inhabitants of Lower Canada (Quebec) and English-speaking inhabitants of Upper Canada (Ontario). Canada is a federation with two distinct jurisdictions of political authority – federal and provincial governments and powers shared between the two. ….Federalism 20 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

21. On 1 January 1901 the Australian nation emerged as a federation along the American model The Australian federalism includes a high degree of autonomy for the government institutions of the federation and states and division of powers. Australia has had various phases in federalism – from co-operative federalism to co-ordinative federalism. In a federation there are usually separation of powers, checks and balances and none of the components can operate in a water-tight compartment. …..Federalism 21 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

22. In 1901, Nigeria had the Southern Protectorate and Northern Protectorate divided into provinces until the amalgamation in January 1914 Nigerian federalism emerged from a totally different political arrangements. Contrary to the popular view that federalism started in 1954, federalism started when Nigeria was re-organized into a federation of three regions in 1946 under the Richards Constitution though regions merely advisory and judiciary unitary. Indeed Bernard Bourdillon initiated and laid the foundation of federalism in Nigerian in 1939 by creating three provinces. Federalism in Nigeria 22 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

23. The uniqueness of Nigerian federalism is that it is a collection of ethnic nationalities to form a federation and not independent states From a humble beginning of three Regions in 1960, it now has 36 States with the Federal Capital Territory. Consistent with federalism, powers are shared between the Federal Government and the States. …..Federalism 23 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

24. However, the sharing is lop sided in favour of the centre – borrowing, railways, evidence, labour generally, mines and minerals, national parks, pension, prisons are all in the exclusive legislative list. The fundamental question which the legal regime has failed to address is the issue of ownership of oil minerals in the Niger Delta Region. Two legal maxims are relevant here: first cujus est solum ejs est usque ad coelom et ad inferos (to whom belongs the soil, his it is, even to heaven, and to the middle of the earth); and second quid quid plantatur, solo solo cedi (whatever is fixed to the soil, belongs to the soil). ….Federalism 24 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

25. We also have the UN GA Resolutions 1803 of 1962 and 3281 of 1974 on Permanent Sovereignty over Natural Resources and Art 21 of the African Charter on Human/Peoples Right However, see sections 30 and 31 of the 1960 and 1963 Constitutions respectively, section 1 of the Petroleum Act 2004, section 1 of the Minerals and Mining Act, 2007, sections 40(3) and 44(3) of the 1979 and 1999 Constitutions respectively. ….. Federalism 25 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

26. See also Items 25 in the 1960 and 1963 Constitutions and Items 36 and 39 in the 1979 and 1999 Constitutions respectively dealing with mines and minerals, including oil fields, oil mining, geological surveys and natural gas in the Exclusive Legislative Lists. Even matters on the residual list are contested by the centre. For the purpose of this Keynote Address we will examine Federal Constitutions, Federal Character Principle, the Judiciary and admission into Unity Schools. …..Federalism 26 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

27. In the US, there is the USA Constitution and that of individual states. For instance the State of Virginia had its Constitution in 1776 before the American Constitution of 1787 In Nigeria, the 1963 Constitution had the Constitutions of Western Nigeria, Eastern Nigeria, Northern Nigeria and Midwest State as Schedules Do we continue to have one Constitution in a federal set up especially where the legislative competence of the federal and state are different? Federal Constitutions 27 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

28. Art III, section 1 of the US Constitution provides that the judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may establish – no reference to the jurisdiction of the court in the Constitution. In Virginia, Art VI, section 1 provides that the judicial powers of the Commonwealth shall be vested in a Supreme Court and in such other courts as the General Assembly may establish. Part IX, Art 92 of the German Constitution provides that judicial powers shall be vested in the judges of the Federal Constitutional Court and federal courts provided for in the Constitution and those established by the Parliament. …. Constitutions 28 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

29. In Australia, Chapter III, section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia and in such other federal courts as Parliament creates. In Nigeria, section 6 vests the judicial powers in the Courts established for the Federation and States and in Chapter VII – Judicature the courts are established including their jurisdictions. We also have a Federal Judicial Service Commission and a National Judicial Council. Governors are involved in the appointment of Chief Judges subject to the recommendation of the National Judicial Council (NJC) and confirmation of the House of Assembly of the State – CJN as Chairman of NJC involved in the appointment of all judges – federal and states? Are all these consistent with federalism? … Constitutions 29 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

30. Affirmative action and federal character are principles or policies used in providing special opportunities for, and favouring members of, a disadvantaged group who suffer from discrimination or lack access to basic infrastructure including employment and educational opportunities. Some of the policies are intended to promote the opportunities of defined minority groups within a society to give them equal access to that of the privileged majority population or to ensure proportional representation. Thus the nature and scope of the policies vary from region to region and country to country. Federal Character Principle 30 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

31. Such policies exist in the Americas, Asia, Europe and other parts of Africa. Generally the positions taken on such words and concepts are objective but sometimes subjective depending on who is the beneficiary or critic. In the United States of America, the concept of affirmative action can be traced to efforts after the Civil War in the bid to remedy the devastating effects of slavery. The term ‘affirmative action’ apparently was first used in the National Labour Relations Act adopted in the US in 1935. Federal Character Principle 31 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

32. The context was not race, but rather the affirmative duty of employers to remedy discrimination against union members and union organisers. Employers found to have engaged in such discrimination were required to remedy this by taking steps to ensure that the employees were in the same position in which they would have been had there been no discrimination. The term was first used in the racial context by President J F Kennedy. In 1961, three years prior to the enactment of the first major post-Reconstruction Civil Rights Law, he issued an executive order preventing race discrimination by federal agencies. Federal Character Principle 32 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

33. The principle of ‘federal character’ was given constitutional recognition in Nigeria under the 1979 CFRN, section 14(3) and (4) (See also s 14(3)&(4)of 1999 CFRN) However, there was no mechanism set up for its implementation until 1996 with the passage into law of Federal Character Commission (Establishment, Etc) Act. In the 1999 Constitution, the Federal Character Commission (FCC) was given an enhanced status by including the FCC as one of the Federal Executive Bodies established under the provisions of section 153(1) of the Constitution and also one of the bodies in the Third Schedule , Part I, Section C of the Constitution. Federal Character 33 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

34. The FCC has two broad mandates – proportional representation and provision of socio-economic infrastructure. However, the focus has been on proportional representation rather than socio-ec0n0mic infrastructure. The consequence is that some states cannot fill their quotas; words like ‘indigenes’ are defined including that of a married woman. Federal Character 34 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

35. Consistent with the provisions of section 17(2)(k) of the FCC Act dealing with the powers of the Commission to make regulations defining an indigene of a State, the Regulation has defined an ‘indigene’ of a local government and state including that of Married Women. An indigene of a LG means a person either of whose parents or any of whose grandparents was or is an indigene of the LG concerned or who is accepted as an indigene by the LG provided that no person shall lay claim to more than one local government. If we can allow dual citizenship to Nigerian citizens by birth, we do not see why we should not allow dual indigeneship under certain conditions. After all, many Nigerians have played the American Lottery and have become American citizens even without residency requirements.  … Federal Character Principle 35 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

36. Similarly the position of married women has remained contentious – indigeneship of her state of origin for the purpose of the Act at the national level An analogous concept to that of indigeneship is that of domicile. It is an established principle in international law that nobody can be without domicile. The notion which lies at the root of the concept of domicile is that of permanent home. According to Nwogugu ‘Upon marriage, a woman automatically acquires the domicile of her husband. While the marriage subsists, the woman cannot acquire a domicile of her own. Her dependent domicile changes automatically with that of the husband.’ What happens if a woman from Edo State marries a man in Plateau State and they have their permanent home in Plateau State and the couple have no intention of returning to Edo State? …Federal Character 36 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

37. I personally feel that a married woman should assume the indigeneship of her husband or be given a right to elect at the point a marriage is contracted. Again if we allow foreign married women to become Nigerian citizens by registration under section 26(1)(c) of the Constitution, why don’t we allow married women the option of registering the indigeneshp of their husbands or their choice at the point of marriage?.  …Federal Character 37 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

38. In my view, the major problem in Nigeria is limited opportunities in states and local governments. There is also the problem of access to socio-economic infrastructure, educational facilities and their affordability as well as uneven development. If all governments adopt the provisions of Chapter II of the 1999 Constitution dealing with the Fundamental Objectives and Directive Principles of State Policy and treat them as enforceable and binding and the Constitution makes them justiciable, we may not need a Federal Character Commission. …Federal Character 38 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

39. In terms of distribution of posts each State of the Federation and the FCT, the guidelines provide that it shall be equitably represented in all national institutions and in public enterprises Where vacancies shall not go round the distribution shall be on zonal basis and if only two positions, distribution shall be between the northern and southern zones. Where the indigenes of a State or FCT are not able to take up all the vacancies, the indigenes of any other state within the same zone shall be given preference with a proviso that if they fail, any other zone will be considered Each state shall produce 2.75 per cent of the total work force in any federal establishment. Federal Character 39 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

40. Considering the fact that University Primary Education (UPE) started in 1976 and we still have the Universal Basic Education Commission (UBEC/SUBEB) of 2004, do we still need a Federal Character Commission in 2014? Why can’t the Commission exercise their socio-economic mandate? Should the Commission be a permanent organ on its role interventionist? In considering the mandate of the Commission, we should also examine candidates for entry into Unity Schools Federal Character 40 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

41. The 2013 National Common Entrance Examination Cut-Off Marks released (State-by-State) makes quite an interesting reading; as well as offering a holistic insight into the subject of ‘federal character’ in the country. The notification that pupils who “scored above the cut-off marks based on their state of origin are eligible for admission on merit” does little to eliminate the concerns about the quality of education in the federation and the gap that currently exist. Admission Into Unity Schools 41 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

42. Abia – Male(130) Female(130)Adamawa – Male(62) Female(62)Akwa-Ibom – Male(123) Female(123)Anambra – Male(139) Female(139)Bauchi – Male(35) Female(35)Bayelsa – Male(72) Female(72)Benue – Male(111) Female(111)Borno – Male(45) Female(45)Cross-Rivers – Male(97) Female(97)Delta – Male(131) Female(131)Ebonyi – Male(112) Female(112)Edo – Male(127) Female(127)Ekiti – Male(119) Female(119)Enugu – Male(134) Female(134)Gombe – Male(58) Female(58)Imo – Male(138) Female(138)Jigawa – Male(44) Female(44)Kaduna – Male(91) Female (91)Kano – Male(67) Female(67)Kastina – Male(60) Female(60)Kebbi – Male(9) Female(20)Kogi – Male(119) Female(119)Kwara – Male(123) Female(123)Lagos – Male(133) Female(133)Nassarawa – Male(58) Female(58)Niger – Male(93) Female(93)Ogun – Male(131) Female(131)Ondo – Male(126) Female(126)Osun – Male(127) Female(127)Oyo – Male(127) Female(127)Plateau – Male(97) Female(97)Rivers – Male(118) Female(118)Sokoto – Male(9) Female(13)Taraba – Male(3) Female(11)Yobe – Male(2) Female(27)Zamfara – Male(4) Female(2)FCT Abuja – Male(90) Female(90) All Marks out of 200 42 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

43. A cursory review of the data above will indicate that, a candidate from states such as Yobe, Zamfara, Taraba, Sokoto, Kebbi, Jigawa, Kano, Kaduna, Niger, Borno, Bayelsa, Adamawa, Bauchi, Gombe  and FCT Abuja will be admitted on "MERIT". Words like ‘minorities’, ‘special areas’, ‘indigenes’, ‘quota’, ‘catchment areas’, ‘educationally disadvantaged areas’, ‘power rotation’, ‘zoning’, ‘equal opportunities’ have the same effect. Unity Schools Admission 43 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

44. In the ThisDay Newspaper of Sunday, 27 April, 2014 at page 16, it was reported that out of a total number of 95,926 candidates that sat for the National Common Entrance on 26 April, 2014, Lagos State had the highest number of 26,926 and Zamfara State had 113 candidates. The critical question, is in the next 12 years, how will the Federal Character Commission perform its function of 2.75 per cent representation by state? Consistent with the Compulsory, Free Universal Basic Education Act, who has been jailed for failure to give basic education to his child/ward? In any case, in a federation, do we need a UBEC when primary education is a matter for State Governments? Admission into Unity Schools 44 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

45. Coincidentally, we have just celebrated Democracy Day. When is ‘democracy day’ in Nigeria - June 12 or May 29? What is it that we are celebrating? Absence of military rule since 1999? Meeting international benchmark - 3 successive changes? The Concept of Democracy 45 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

46. The political class in terms of earnings and corruption, what have they learnt? Like the Bourbon Monastery of France, they have learned nothing and forgotten nothing Instead they have improved on the ills of the First Republic, perfected subversion of the electoral process, corruption, earn ‘unearned’ income Fundamentally, democracy can be procedural or substantive …..Concept of Democracy 46 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

47. Procedural - choice of leaders; ideal of democracy However, in Nigeria, is there a link between the votes of the people and those emerging as leaders? What is the level of voter education and participation? Substantive - how does the procedural translate into bread and butter, improved standard of leaving, access to health , education and other social amenities? … Democracy 47 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

48. What is the average salary and pension rights of the working class as opposed to that of the political class? Challenge of the electoral process - votes cast, their collation and results announced, how transparent and representative – indirect democracy? What is the level of participation of electoral observers? Consider the effect of the subversion of the electoral process, winning at all costs. How do we deal with the issue of integrity of the process? ….Democracy 48 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

49. If fairness and credibility are established, level of election petitions will be reduced. How does a rebased GDP translate into improved standard of living, access to basic necessities of life, security, good governance, etc. INEC - in the spirit of federalism, efficiency and effectiveness, INEC should be unbundled - Nigeria is too large for such a body to handle. I join the Uwais Committee in the demand for the creation of an Electoral Offences Tribunal - other matters and causes are suffering because of election petitions!!!! …. Democracy 49 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014

50. Leadership can be defined as one's ability to get others to willingly follow. Every organization needs leaders at every level a fortiori governance Leaders can be found and nurtured if we look for character traits. A leader with vision has a clear, vivid picture of where to go, as well as a firm grasp on what success looks like and how to achieve it. But it's not enough to have a vision; leaders must be charismatic and be able to also share their vision and act upon it Leadership and Leadership Attributes 50 Being the Keynote Address delivered at the NBA Warri Law Week: June 11, 2014