The Abuja School
Text of Keynote Speech by Dr Sam Amadi at the Justice, Development and Peace Annual General Meeting of CHARITAS Nigeria on September 25, 2024 in Abuja
Introduction:
This paper tries to remap Nigeria’s federalism and outline the institutional design and policy choices we should make in the current circumstances to develop out of the present poverty and instability traps. To start the discussion, I would like to focus a bit on the discussion of the national question. Nigerians are back to the discussion of national question. In the later years of military rule in Nigeria, civil society leaders mounted strong advocacy for reconsidering the ‘national question’. The ‘national question’ is a popular name for questions about nationalism, national identity and co-existence. When the ‘national question’ was raised at the twilight of military rule in Nigeria, the immediate task proposed was a national conference of ethnic nationalities to deliberate on the future of Nigeria and agree on the nature of federalism Nigerians really want. The bigger context of a quest for a sovereign national conference to decide on the national question is the belief that the national project has failed or failing. The proponents of sovereign national conference in the 1990s took the view that the federation we inherited from colonial administration and battered by military dictatorship was no longer able to serve the strategic interests of self-determination, ethnic justice and religious liberty in Nigeria. This was not a unique feature of political development in Nigeria. It characterized the politics of West Africa, as well as other countries arising from the twin destabilization of colonial and military rules.
Unlike in Benin Republic, the military juntas in Nigeria did not sanction a sovereign national conference. They rejected the clamour until they unwillingly and hurriedly handed power to civilians. The new democratic regime of President Obasanjo in 1999 was too confident of its mandate and intolerant of any form of popularism, and therefore did not countenance a move for a national conference, sovereign or not. There was an effort at some kind of national auditing in the form of the Oputa Panel set up to conduct a national justice and peace reconciliation. The Oputa Panel was a mixed success to the extent that the major military protagonists like General Ibrahim Babangida and President Obasanjo did not testify and some sociocultural groups like Ohaneze Ndigbo and Arewa Consultative Assembly testified and stated their grievances.
President Goodluck Jonathan made the only effort at a national conference. The effort was opposed by the leadership of the opposition All Progressives Congress (APC). Nevertheless, the conference was well attended by delegates that cover the ethnic, religious and social diversities of the Nigerian state. The conference settled on major structural change to Nigeria, including regionalization and fiscal federalism. But President Jonathan could not push the implementation of the report of the conference, and till date the promise of restructuring the Nigerian federation has not materialized. This is even more surprising considering that the ruling APC promised restructuring but has failed to do anything about it for the last 10 years.
Constitution, Constitutionalism and the National Question:
The national question is a debate about the form the nation-state should take. In the early days of colonial struggle and the early days of forging colonial states into strong post-colonial states, the nationality question was a principal issue of the day. This importance was reinforced by the Marxist scholarship that placed the nationality question alongside class struggle in revolutionary struggles across the world, especially in post-colonial countries. The ‘national question’ has come up in Nigerian history many times.
The ‘national question’ was first seriously raised during the struggle for independence. It started with agitations by minorities about their fate in the emergent independent Nigerian state. The minorities feared that they would be oppressed and marginalized in Nigeria after colonialism. This agitation arose on the background of sociocultural differences arising from the fact that the various ethnic groups brought together into the Nigerian nation-state in 1914 had disparate political and cultural histories before the amalgamation. Although these groups have had interactions amongst them, they did not have significant political and administrative ties that built strong common bonds for a harmonious nation-state. The difference of ethnicity and religion further complicated the search for trust and cohesion amongst the amalgams.
The colonial authority responded to the agitations by appointing a special commission to inquire into the fears of the minorities and recommend trust-building solutions. The commission- the Willinsk Commission-recommended that there should be a Bill of Rights in the constitution to protect the rights of the minorities. This recommendation is in opposition to a possible confederal state. A Bill of Right would constitute the legal cum moral basis for common and citizenship. The commission also recommended that the minorities should be afforded special representation in the new Nigerian legislature. The commission also recommended the establishment of a special development agency for the Niger Delta to deal with its peculiar environment conditions as a resource trove. The recommendation on a bill of right was the most important recommendation and became the origin of the Fundamental Human Rights provisions in Nigerian constitutions ever since. Therefore, Nigeria’s early resort to the protection of the rights of its citizens derived from the management of political distrust amongst its constituting ethnic and religious parts.
At the 1959 Conference in London to prepare for an independence constitution, a year after the commission report, the management of political distrust amongst the constituting parts of Nigeria took central stage. Leaders from different ethnic and religious groups in Nigeria met to fashion out a constitution for independent Nigeria. they faced a few knotty issues. The knottiest was the place of religion in Nigerian politics. Before the British came to Nigeria Islam dominated the northern part of Nigeria and enhanced the power and authority of the Fulani oligarchy. Islam was applied to the entire private and public life of Moslems in northern Nigeria. Sharia, the Islamic law, was applied to criminal and civil procedures in the alkali courts and other courts of the region. But the British reversed the situation. They allowed Sharia to apply limited by the English law in the region. Sharia was a customary law, and like any customary law must conform with the principles and values of English law through the repugnancy test before application. The ‘repugnancy’ rule in Nigerian law required that before any principle of sharia or other customary law will apply it had to pass the test of equity, natural justice and good conscience.
So, it was in this context that the conferees at the London conference tried to provide a context for the relationship between religion and state in Nigeria. They ended up with a proposal to restrict Sharia to the personal matters of a Moslem. Sharia will not apply to criminal matters of a Moslem or a non-Moslem. This consensus became part of Section 37 of the 1999 Constitution that prohibits criminal liability for an offence not defined in writing. There was also ancillary consensus on the management of religious differences. First, the conferees agreed to entrench in a Bill of Right the full complement of freedom of religion. Every Nigerian would be guaranteed freedom of religion. Nigeria would become a secular state. So, Nigeria achieved the first constitutional consensus on the management of religious difference by entrenching the right to freedom of religion and proclaiming Nigeria a secular state.
But, of course, not everyone agreed with the constitutional bargain. In the language of moral philosophy, it was a strategic bargain not a principled decision. Some Moslem leaders were completely dissatisfied with the restriction of sharia to the personal law of the Moslem. Some of them felt that they have been wronged by this bargain. They felt that the new Nigerian state has started on the basis of violating the right of the Moslems. The new Nigerian state also adopted the principles and institutional practices of federalism based on central and co-equal independent regions as the structure of government.
The current clamor for a national conference to address the national question is nothing new. This is similar to previous dissatisfaction with the result of unworkable federalism. Between 1954 and1960, Nigerian leaders struggled to hammer out consensus on broad national issues in order to secure strong foundations for the emerging nation-state. Those efforts culminated in the 1959 London Conference. Before then, there were agitations by many of the minority ethnic groups on what will become their fate after independence. They wanted assurance that the new Nigerian nation will not become a terrain for political dominance by the majority ethnic and religious groups. The British colonial authority responded to their concern by instituting an independent commission, The Willinsk Commission, to review the fears of the minorities and propose options to address their concerns. The commission recommended the entrenchment of a Bill of Rights in a written constitution to protect the rights of the minorities against the danger of majoritarian politics. Also, the Commission recommended that a special representation in the Nigerian legislature be reserved for minorities.
The conference established consensus on some critical issues. First, they agreed that the Sharia law should be restricted to the personal matter of Moslems. Therefore, there would be no criminal Sharia. This consensus did not come easy. There was protracted debate on the status of Sharia in Nigeria’s legal pluralism. Notable northern leaders to the conference argued strongly that since Sharia regulates the life of the Moslem it has to become part of Nigeria’s public law, including its criminal law. Notable southern leaders argued against recognizing criminal sharia as it would amount to making Nigeria a religious state. They urged Nigeria to follow the path of other religiously plural Commonwealth countries that have guaranteed religious freedom and state neutrality. At the end, the conferees agreed that Sharia should be made a private religious law operating on matters of marriage and custody of a Moslem. Criminal sharia was proscribed with a constitutional provision against criminal prosecution for any crime not stated in a written law.
The 2014 Jonathan Conference came at the time when Nigerians were lamenting killings by Fulani herdsmen and Boko Haram terrorists. We should not forget that in 2014 terrorists stormed a secondary school in the northern state of Borno and abducted more than 200 young girls preparing for secondary school certificate examination. Within that period bombs exploded at a bus-stop in an outskirt of Abuja killing about 300 people. The resurgence of terrorism and increased herdsmen killing cast Nigeria as a miserable country. There was clear loss of confidence in the quality of Nigerian state institution and the quality of public leadership. The scathing editorials from reputable newspapers abroad on the crisis of governance in Nigeria underlined the need to reexamine the character and quality of public leadership in the country.
Nigeria is today at a very difficult time. The nation is witnessing the most severe crisis of a multidimensional nature. Terrorism has made life not worth living. Many could argue that there seems to be no difference anymore between living in Nigeria today and living in Afghanistan in the days of Osama Bin Ladin as no one is safe anywhere. No one easily travels through Nigerian states, and everyone is forced to travel by airport even as they cannot afford the exorbitant airfares. Nigerians believe that their country is much more corrupt than the Transparency International Index may suggest. Corruption is now the mode of public and social interactions. The words of a Time Magazine writer who said that Nigeria’s leaders are not distinguishable from its criminals and that corruption is not an aberration, but a normal mode of governance are not totally off-the-mark. Waste in government has led to more poverty and the politics is trapped in stasis.
It might then be that this dark moment in our history provides a convenient opportunity to break with the past and reestablish the Nigerian state on the new concept of democratic citizenship and its ancillary ideas of functional federalism. Sadly, Nigeria is trapped in yesterday. A yesterday that is defined by undue focus on ethnicity and religious identity. A yesterday defined by ceremonial rather than functional leadership. Leadership in Nigeria has always been plagued by the commitment of Nigerian leaders to expropriate the commonwealth for their personal interest. Leadership in Nigeria has always been largely about contest for opportunity to appropriate the resources of the state. This characteristic is underwritten by both the values that defined the conception and establishment of the Nigerian state and its institutional adaptation.
The crisis of leadership in Nigeria is worsened by the scourge of religious fundamentalism that is fostered by the lack of the culture and practice of rule of law and the absence of commitment to protect the rights of citizenship. The effect of these social and political pathologies is that the Nigerian state now faces severe crisis of collapse. The political auguries about Nigeria look dismal. The political parties are yet to rise up to the challenge of clear and decisive departure from the politics of the past. The political parties look more like platforms for aggregating resources to attack the Nigerian state and loot its resources rather than ideological movements to save Nigeria from destructive crises. None of the political parties are thinking outside the box to create a Nigeria that will not be amenable to raping and plundering of its resources. These parties are always reluctant to move away from their unprofitable focus of seeing Nigeria as a loose amalgamation of ethnic and religious groups rather than as a modern democratic state defined by inviolable commitment to cater for the social, economic and political wellbeing of every citizen. The Future Nigeria must be rooted in a social framework that enables the nation to solve its social and economic problems and remain stable. It must be rooted in a set of values, rules and institutions that enable the country to compete with the rest of the world in a fast-changing global economy. We must be a nation that survives in the future because we have built ourselves to last.
Understanding Nigeria’s Leadership Failure:
How do we understand the fact that a country blessed with abundant human and natural resources like Nigeria still has majority of its citizens trapped in the most vicious poverty? How do we understand that a country that generated 25 megawatts of electricity from coal in 1896 and has abundant gas reserves, hydro resources, solar and other renewable cannot generate reliably 5,000mws for its over 200 million people while South Africa with no gas reserves generates and supplies to its citizens more than 40,000mws for a quarter of Nigeria’s population? How do we understand that a country that went through a civil war arising from the failure to use the law to protect the life and liberty of some of its citizens is always verging at the threshold of violent conflicts because it fails to enforce the rule of law? These questions show that something is remarkably wrong about the character and nature of Nigerian state and the development of its institutions.
My view is that the problem with Nigeria is that the basic logic and structure of its governance is neo-feudal, theocratic and aristocratic instead of being democratic, secular, and egalitarian, and its salvation requires a radical reinvention and institutionalization as a modern democratic state based on an enriched and lived concept of citizenship. Such lived citizenship would need some kind of institutional design and policy thrusts to redefine Nigeria from its ill-defined structure during the transition from colonial rule to independence. The country’s institutions created in that period were of such character as does not make it a democratic modern state. The political development in Nigeria, whether conceived as development of state institutions or the practices of public leadership, has reinforced those pathologies that arise from this ill-definition and malformation. The wrong concept at the heart of the failure of leadership in Nigeria is neo-feudal in character. It is the insistence on building the Nigerian nation on the basis of privileges and exemptions from the universal requirements of civil democratic nation-state.
Nigeria developed as an amalgamation of ethnic and religious groups with asymmetrical powers and privileges and not as a modern democratic state based on the protection and promotion of the rights of citizenship. The founders of the Nigerian state failed in this singular but all-important point: they did not insist on a country that offers every citizen equal protection of the law. They did not insist on the transformation of the ethnic and religious ideologies and interests wielded together by colonial interests. They crafted a legal regime that panders to these differences and even exaggerated them.
Let me illustrate the problem of wrong definition in the formation of Nigeria with the case of legal system. It is clear that the basis of a modern democratic state is a rule of law institution characterized by formal legal regimes that apply equally to everyone. Multicultural or multireligious societies are challenged to find a legal regime that guarantees stability and happiness for every composite of the society. There are many options. During the discussion leading to independence Nigerian leaders confronted the challenge of how to engraft the Sharia law to the structure of liberal law. Nigeria chose the option of compromise which resulted in two separate legal frameworks that lie uneasily.
The colonial authorities had done a better job of subjecting all forms of customary and religious norms to the values and ideals of liberal legality. This meant that no such religious or customary law would be enforced if it violated the English man’s view of justice and morality. We may rightly deplore their overbearing snobbery of thinking low of customary norms and laws. But they wisely recognized that their version of the state must erect a sentry to screen different values and laws before admittance to formal application. What the postcolonial founders should have done is to erect a similar high wall to ensure that no idea or principle is admitted into the corpus of political and constitutional though that would have the effect of reintroducing feudalism or its concomitant aristocracy.
Today, the Nigerian constitution continues to contradict itself by eroding all the protections around the central idea of democratic citizenship. For instance, having described who is a Nigerian citizen and how a person could obtain Nigerian citizenship the constitution should make no reference to indigenes and non-indigenes. For the purposes of administration of the public space the constitution should be totally agnostic of a Nigerian ethnic or religious identity. No benefit, legitimized by the state, should flow from ethnic or religious identity. State laws should define citizenship of states based on rational coordinates like reasonable length of continuous stay, payment of taxes and other forms of social good behavior.
Citizenship based definition of the state is radical and have far-reaching implications for governance. First, it has legal implication in the form of equal standing and protection of the law. This is the basis of a well secured rule of law state. Nigeria has continued to struggle with being a rule of law state because at the citizenship is not at the heart of its self-definition. The ubiquity of impunity in Nigeria is understandable considering that the idea of public leadership has incorporated the dangerous notion of cultural and religious exceptionalism. This means that the instrument of rule of law does not act swiftly and consistently. Similar cases are not treated similarly, as they must undergo further reviews based on religious or cultural sensibility.
The implication of the lack of strict and consistent application of the rule of law is the culture of impunity that makes Nigerian one of the most lawless and corrupt countries. Our diagnosis of corruption is incomplete and unhelpful if it does include an understanding of how our much-cherished privilege-based and neo-feudal state encourages the exemption of individuals from the full rigor of law. Our laws are religious, cultural and social class sensitive. We have built a country for the privileged. That privilege may come in the form of religious or ethnicity or wealth.
The economic implication of the weakness of the controlling idea of citizenship in the administration of Nigeria is seen in the widespread poverty and high inequality. The management of the national economic has not been guided by the idea of citizenship. A modern democratic state is fundamentally focused in promoting the wealth and happiness of the citizens. Fiscal policies should reflect commitment to deal with the material conditions that affect the people. Therefore, money follows the people. Money goes to solve real problems that affect the welfare of the people. For instances, consider the northeast of Nigeria which is described as one of the poorest part of the world. Economic management derived from this concept of public leadership will put money to improve the material welfare of the people. Money will not be poured to northeast because it cultural or religious leaders needs to be placated or bought over. The same with the Niger Delta. The huge financial allocation to that region will be warranted and focused on redressing the huge environment and human crises in the region and not to settle noisy militant and ethnic warlords.
Just imagine that this principle determined economic development in Nigeria since 1960s. We will not be such a hugely underdeveloped economy. We will not be running a rent-seeking economy as we do now. Our huge natural resources would have translated into enormous infrastructural and human development. Power plants would have been sited where gas and transmission facilities are available but not where political exceptionalism dictated.
The political implication of the concept of protection of citizenship as the definition of democratic state is democratization. Where the state is focused on protection the enjoyment of the right of citizenship the institutions of the state will promote openness, accountability and voice. Free and fair election and responsive and responsible governance will be guaranteed because these are inherent in treating citizens as citizens.
One of the key factors for growth and development is competent public sector management. The civil service has been the driver of transformation through leadership in value orientation and competence. Most developed society emphasis merit and productivity in their public affairs. The Nigerian state has been defined more by privilege and conservatism such that it has not allowed merit and productivity to determine access to positions in the public service. This has created a mediocrity that destroys both democratization and
The National Question and the Three Fundamental Crises of the Nigerian State:
Nigeria is presently a failed federal state. It is also an incoherent federal state. The failure relates to not achieving the strategic objective of choosing federalism as a governance device to solve Nigeria’s problem. The incoherence relates to the misalignment of the institutional expression of Nigeria’s federalism. Now that we are at the verge of another efforts at restructuring the Nigerian federation, it is important to reconsider the logic and structure of the Nigerian federal system. The recent Supreme Court decision on the fiscal autonomy of Local Government Councils has sparked interest in how to make the Nigerian federal system to work for economic and political development. The truth is that we have an unworkable federal system. Our federal system is incoherent and inconsistent. For example, instead of two co-equal centres, the Nigerian constitution provides for three levels of government. It is difficult to say whether political power is shared between federal and state or between federal, state and local. In other federal system, whether in the United States, Canada, or Switzerland, it is usually between federal and state or federal and regions or federal and cantons.
The structure of constitutional share of power undermines effective governance. For example, the constitution distributes legislative competence between the federal and state levels of government. There is no legislative power for local government except as state houses of assembly grants the local council. But the constitution creates the local government as the third tier of government and even delineates the boundaries of local government councils and specify their names and capitals. The federal Local Government Act of 1976 provides for the function of the local government. In one sense, the constitution creates the local government as a tier of government. In another sense, the constitution makes the local government a creation of the state legislature.
This inconsistence and incoherence make it difficult to have a local government that can contribute to economic and social development. This is one of the reasons we have a high rate of multidimensional poverty. Although we have a large and growing urban poverty in Nigeria, poverty is mostly a rural phenomenon. The elements of multidimensional poverty are best addressed by a working local government that fulfills the obligations laid on it by Local Government Act of 1976. The euphoria over the Supree Court case may be misdirected as the presidency and the government are trying to negotiate a settlement on the issue of fiscal independence of the local councils. The Governors are responding to the case by arranging flawed elections in local councils. In all the seven states where local government elections have been held, the ruling parties in those states win 100% of the contested seats. The Governors manipulate their state electoral commissions to post 100% wins. Many analysts believe that this incredible and rigged elections do not promote democracy and development. It is argued that it is better for states to clear control local councils so that this incoherence is removed.
Fiscal federalism is another important component of the federalism saga in Nigeria. The legislative lists in the constitution give the federal government exclusive legislative competence over many subject matters that should be the responsibilities of state governments. The overconcentration of power with the centre to the detriment of states is one of the institutional devices that frustrated economic development in the country. We need to have a federation that works according to the principle of subsidiarity. That principle sourced from Catholic Social Teaching has become institutionalized in public governance in the Europe. It requires that problems should be solved at the close level where it manifests. Local problem should be solved at the local where the sensibilities, incentives and local knowledge to solve it exists. In this sense, we should couple local ownership of problems with the resources-financial and technical- to solve it. That is the rationale for fiscal federalism. States and local government should have control of their resources and responsibility to solve their problems.
Conclusion:
The practice of Nigerian federalism should be situate within the universe of the struggle for a nation-state that is fair and justice and able to provide for the economic and social needs of Nigerian citizens. There is a connection between federalism and citizenship. The connection is that they are both constitutional devices to respond to the problem of distrusts and fears amongst Nigeria’s minorities ethnic groups about the prospect of victimization and oppression in a Nigerian nation-state. Federalism as a mode of organizing political power in a manner that enable local self-determination helped to reduce fear of marginalization. Citizenship rights in the form of fundamental human rights helped to assure minorities of equal treatment.
These two devices need to be reviewed and instrumentalized in a manner that will guarantee national unity and development through coherent institutional design and policy choices. The yardsticks for making such policy choices are efficiency, equity and justice.