The National Question and the Nigerian Constitution

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THE NATIONAL QUESTION AND THE NIGERIAN CONSTITUTION

By

Femi Aborisade1

Labour Consultant and Attorney-At-Law

[email protected]

Introduction

The whole history of June 12, the pattern of geographical units of Nigeria that actively

participated in the struggle for its actualization, the Boko Haram phenomenon, rotational

Presidency, declaration of state of emergency, and so on, are all tensions reflecting the unsettled

question of the national question.

This paper examines how adequately or otherwise, the Constitution of the Federal Republic of

Nigeria, 1999 (as amended) attempts to resolve the national question in Nigeria. First, the key

terms implied in the topic are explained. Next, the relevant provisions on accommodating the

ethnic and religious pluralism of Nigeria are analysed. The weaknesses and strengths of such

provisions are identified. The paper argues that in reality, the problem hindering development

(welfare of the poor classes) in Nigeria is not caused by divisions along ethnic lines but

conflictual class relations. Rather than thinking and organizing along ethnic divisions, the paper

urges the unity of the oppressed against the exploiters from all ethnic nationalities around

agitation for the implementation of Chapter II of the 1999 Constitution, as amended.

Definition of terms: Nation, Nationality question, Minority

Nation defined

In the literature, it is recognised that defining the term, nation is as difficult as attempting to

define time. The term nation has therefore been defined in several ways. The following

definition offered by Stalin but under the guidance of Lenin appears to be comprehensive and

acceptable for the purposes of this paper.

A nation is a historically evolved, stable community of language, territory, economic life,and psychological make-up manifested in a community of culture." (J.V. Stalin,Marxism

on the National and Colonial Question, p. 8)2

1Being paper delivered by Femi Aborisade at the June 12 Symposium organized by the

Comrade Ola Oni Centre at Osogbo, The State of Osun on 15 June 2013.

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From the definition above, the following can be deduced: a nation has a common unifying

language (s), a defined territory, shared history and culture, and it is united by economic ties.

But a nation cannot be defined strictly in a formalistic sense as it continually evolves historically,

based on a combination of factors. Thus, it is estimated that between 250 and 300 ethnic

nationalities make up Nigeria. The most populous and politically influential ethnic groups3 are:

Hausa and Fulani 29%,

Yoruba 21%,

Igbo (Ibo) 18%,

Ijaw 10%,

Kanuri 4%,

Ibibio 3.5%,

Tiv 2.5%

In terms of religious beliefs, Muslims are estimated to be 50%, Christians 40% and indigenous

beliefs 10%. From the point of view of language pluralism, apart from English, which is the

official language and the dominant languages of the dominant ethnic groups (Hausa, Fulani, Igbo

(Ibo) and Yoruba), it is estimated that there are around an additional 500 indigenous languages.

The National question

The term, the national question refers to the oppression of nations, nationalities and/or

minorities within nations.

What are minorities?

A discussion of the term, minority will also be of benefit in explaining the national question.

2 Cited by A. Woods and t. Grant in http://www.marxist.com/marxism-national-

question250200/page-6.htm accessed on 10/6/13)

3(http://www.indexmundi.com/nigeria/ethnic_groups.html quoting Source:CIA World Factbook- Unless

otherwise noted, information in this page is accurate as of February 21, 2013 accessed on 12/6/13).

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There is no single universally accepted definition of minority but the former UN Special

Rapporteur, Francesco Capotorti4, has developed a definition which is considered to be the most

prominent.5

According to Capotorti, a minority is a group which is numerically inferior to the rest of the

population of a state, and in a non-dominant position, whose members possess ethnic, religiousor linguistic characteristics, which differ from those of the rest of the population, and who if only

implicitly, maintain a sense of solidarity directed towards preserving their culture, traditions,

religion or language.

Capotorti's definition is linked to Article 27 of the International Covenant on Civil and Political

Rights (ICCPR), which is recognized as the most prominent provision in international law

concerning minorities.

Article 27 of the International Covenant on Civil and Political Rights (ICCPR) provides:

In those States in which ethnic, religious or linguistic minorities exit, persons belonging

to such minorities shall not be denied the right, in community with the other members of

their group, to enjoy their own culture, to profess and practice their own religion, or to

use their own language.

However, Capotortis definition has been criticized by scholars like Prof. Palley on the basis that

it excludes political exclusion. In a multi-minority nation state like Nigeria, there may not be

any particular ethnic group that has a decisive majority (in terms of numerical strength) in

determining outcomes of elections but a number of ethnic groups may combine to exclude

others, politically. Such politically excluded groups are also categorized as minorities.

National minorities

The government of the Federal Republic of Germany has set out five (5) criteria for determining

national minorities6, as follows:

1. Their members are members of a nation-state (that is they are citizens),

2. They are traditionally resident in the particular nation-state,

4 See F. Capotorti (1976) The Protection of Minorities under Multinational

Agreements on Human Rights, Italian YB. I.L. and F. Capotorti (1991). Study of theRights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. New York:United Nations5 P. Thornberry (2011). An Unfinished Story of Minority Rights in Anna Biro and Petra Kovac

(eds)Diversity in Action, Local Public Management of Multiethnic Communities in Central and

Eastern Europe. Budapest

6 See M Hoffman (2005). The Right to Self Determination: The Case of Germany in E

Riedel (ed). Constitutionalism- Old Concepts, New Worlds.

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3. They live in given traditional settlement areas,

4. They differ from the majority population in that they have their own identity in terms of

language, culture and history (That is, they have ethnic or linguistic characteristics).

5. They wish to maintain their identity.

THE CRITICAL DIMENSIONS OF THE PROTECTION OF MINORITIES

The Permanent Court of International Justice has identified the TWO CRITICAL points of

minority protection, in its Advisory Opinion on minority schools in Albania:

1. Being in perfect equality (with other nationals of the State).

2. Provision of measures to ensure the PRESERVATION of the identity of the minority group(s),

in terms of their:

ethnic,

religious, or

linguistic

peculiarities or characteristics.

In 1920, the Assembly of the League of Nations adopted a Recommendation, giving Albania, a

condition for admission into the League: to enforce the principles of the Minority treaties. Thecondition, which was given to Albania had been prompted by the Greek Governments

representation to the Council of the League, to the effect that there should be provisions beyond

the Minorities Treaties to guarantee Christian Worship and education in the Greek language,

considering the substantial Christian minority of Greek origin in Muslim dominated Albania.

Article 5 of the Declaration which Albania had to sign stated that:

Albania nationals who belong to racial, linguistic or religious minorities will enjoy the

same treatment and security in law and in fact as other Albania nationals (i.e. legal

equality, or equality of all, emphasis supplied). In particular, they shall have an equalright to maintain, manage and control at their own expense or to establish in the future,

charitable, religious and social institutions, schools and other educational establishments

with the right to use their own language and to exercise their religion , freely (i.e.

positive discrimination to preserve the identity of the minority, emphasis supplied).

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THE CORE ISSUE IN THE PROTECTION OF MINORITIES

From the Albania example given above, the core issue in the protection of Minorities lies in the

principle ofEQUALITY and NONDISCRIMINATION, or uniformity.

ETHNIC/MINORITY PROTECTION UNDER THE NIGERIAN CONSTITUTION

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes provisions in

recognition of the plural character of Nigeria, particularly in terms of ethnic and religious

composition.

THE PREAMBLE

The Preamble to the Constitution draws attention to the plural reality of Nigeria. The Preamblethus proclaims a goal of indivisibility and indissolubility with a view to achieving sustaining

unity in diversity as follows:

We the people of the Federal Republic of Nigeria:

Having firmly and solemnly resolved:

To live in unity and harmony as one indivisible and indissoluble sovereign nation

under God, dedicated to the promotion of inter-African solidarity, world peace,

international co-operation and understanding:

And to provide for a Constitution for the purpose of promoting the good

government and welfare of all persons in our country, on the principles of freedom,

equality and justice, and for the purpose of consolidating the unity of our people:

Do hereby make, enact and give to ourselves the following Constitution:-

(underlining supplied).

STRUCTURING AND RE-STRUCTURING OF NIGERIA

Nigeria was born with the amalgamation of the Northern and Southern Protectorates in 1914.

Since then, it has undergone several phases of restructuring, all aimed at giving a sense of

belonging to the component parts. Three regions were created in 1946:

the Northern Region,

Eastern Region, and

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Western Region

Demands for further Regional creations were mounted by the United Middle Belt Congress

(UMBC) in the North; the Mid-Western Movement in the West; and the Calabar-Ogoja-Rivers

(COR) movement in the East. The agitations led to the setting up of the Willinks Commision in

1958. The Commission opposed further regionalization in preference for constitutionalguarantees against neglect in the form of fundamental rights and establishment of Development

Commisions such as the Niger Delta Development Board (1959), similar to the Ministry of Niger

Delta Affairs. However, the fourth region, the Mid-Western Region was created in 1963, by

constitutional amendment.

Sensitivity to continued pressure has brought about the creation of many more states, totaling as

follows:

12 states in 1967;

19 states in 1976;

21 states in 1987;

30 states in 1991; and

36 states, 774 Local Government areas and one Federal Capital Territory, Abuja, in

1996.

The foregoing constitutes the background that informs the provision of Section 3(1) of the

Constitution, which provides:

3. (1) There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom,

Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu,

Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa,

Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.

Similarly, section 3(6) of the same Constitution provides for 774 Local Government areas,

including the six Area Councils in the Federal Capital Territory, Abuja:

(6) There shall be 768 Local Government Areas in Nigeria as shown in the second

column of Part I of the First Schedule to this Constitution and six area councils as shown

in Part II of that Schedule

The Constitution does not only make provision for the existing number of states and local

governments, it also makes provision, in section 8, for the procedure to be adopted to create new

states and local governments.

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The procedures involve:

Request supported by at least two thirds majority of elected representatives of the

affected area in the legislative houses concerned, demanding creation of state or local

government, as the case may be, which request is presented to the appropriate legislative

house (National Assembly or State House of Assembly);

Referendum: Supported by at least two-thirds majority of the people of the area

where the demand for the creation of new state or local government originated, in a

referendum;

Approval of the result of the referendum by a simple majority of members of the State

Houses of Assembly in all the states of the Federation (in the case of state creation) ;

and finally,

Approval of the result of the referendum by two-thirds majority of members of theState House of Assembly (in the case of creation of a new local Government),

The approval of the proposal by two thirds majority of members of each of the Houses

of the National Assembly., (in the case of state creation).

Section 8 sub section (5) provides that each State House of Assembly shall make returns to the

National Assembly after creating new local governments and the National Assembly shall make

consequential provisions with respect to the names and headquarters of such new local

governments (and new States) as may be applicable.

The provision of the Constitution requiring a role for the National Assembly in the creation ofnew states has been questioned. However, to the extent that the states remain funded mainly by

budgetary allocation from the Centre, it would be rationale for the National Assembly to have a

say in the creation of new states.

Section 8 sub sections (1) and (2) provides for the creation of new states and boundary

adjustments of states as follows:

8. (1) An Act of the National Assembly for the purpose of creating a new State shall onlybe passed if-

(a) a request, supported by at least two-thirds majority of members (representing the areademanding the creation of the new State) in each of the following, namely -

(i) the Senate and the House of Representatives,

(ii) the House of Assembly in respect of the area, and

(iii) the local government councils in respect of the area,

is received by the National Assembly;

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(b) a proposal for the creation of the State is thereafter approved in a referendum by at

least two-thirds majority of the people of the area where the demand for creation of the

State originated;

(c) the result of the referendum is then approved by a simple majority of all the States of

the Federation supported by a simple majority of members of the Houses of Assembly;

and

(d) the proposal is approved by a resolution passed by two-thirds majority of members of

each House of the National Assembly.

(2) An Act of the National Assembly for the purpose of boundary adjustment of any

existing State shall only be passed if-

(a) a request for the boundary adjustment, supported by two-thirds majority of members(representing the area demanding and the area affected by the boundary adjustment) in

each of the following, namely-

(i) the Senate and the House of Representatives,

(ii) the House of Assembly in respect of the area, and

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(iii) the local government councils in respect of the area.

is received by the National Assembly; and

(b) a proposal for the boundary adjustment is approved by -

(i) a simple majority of members of each House of the National Assembly, and

(ii) a simple majority of members of the House of Assembly in respect of the area

concerned.

Section 8 sub sections (3) and (4) makes provisions for the creation of local governments and

boundary adjustments as follows:

(3) A bill for a Law of a House of Assembly for the purpose of creating a new local

government area shall only be passed if -

(a) a request supported by at least two-thirds majority of members (representing the area

demanding the creation of the new local government area) in each of the following, namely -

(i) the House of Assembly in respect of the area, and

(ii) the local government councils in respect of the area,

is received by the House of Assembly;

(b) a proposal for the creation of the local government area is thereafter approved in a

referendum by at least two-thirds majority of the people of the local government area wherethe demand for the proposed local government area originated;

(c) the result of the referendum is then approved by a simple majority of the members in eachlocal government council in a majority of all the local government councils in the State; and

(d) the result of the referendum is approved by a resolution passed by two-thirds majority of

members of the House of Assembly.

(4) A bill for a Law of House of Assembly for the purpose of boundary adjustment of any

existing local government area shall only be passed if-

(a) a request for the boundary adjustment is supported by two-thirds majority of members(representing the area demanding and the area affected by the boundary adjustment) in each

of the following, namely -

(i) the House of Assembly in respect of the area, and(ii) the local government council in respect of the area,

is received by the House of Assembly; and

(b) a proposal for the boundary adjustment is approved by a simple majority of members of

the House of Assembly in respect of the area concerned.

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NATIONAL INTEGRATION

The Constitution, in several provisions, promotes national integration so that loyalty to the nation

shall override sectional loyalties.

Section 15 is the National Integration provision. For example, S 15 sub section (2) provides:

(2) Accordingly, national integration shall be actively encouraged, whilst discrimination

on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or

ties shall be prohibited.

The Constitution does not just promote national integration in the abstract. It sets out what

should be done concretely to give effect to national integration. To this effect, Section 15 sub

section (3) states that:

(3) For the purpose of promoting national integration, it shall be the duty of the State to:

(a) provide adequate facilities for and encourage free mobility of people, goods andservices throughout the Federation.

(b) secure full residence rights for every citizen in all parts of the Federation.

(c) encourage inter-marriage among persons from different places of origin, or of

different religious, ethnic or linguistic association or ties; and

(d) promote or encourage the formation of associations that cut across ethnic, linguistic,

religious and or other sectional barriers7.

Indeed,

(4) The State shall foster a feeling of belonging and of involvement among the various

peoples of the Federation, to the end that loyalty to the nation shall override sectional

loyalties.8

Section 42 of the Constitution also reinforces S. 15 in providing that:

42. (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex,

religion or political opinion shall not, by reason only that he is such a person:-

(a) be subjected either expressly by, or in the practical application of, any law in force in

Nigeria or any executive or administrative action of the government, to disabilities or

restrictions to which citizens of Nigeria of other communities, ethnic groups, places oforigin, sex, religions or political opinions are not made subject; or

(b) be accorded either expressly by, or in the practical application of, any law in force in

Nigeria or any such executive or administrative action, any privilege or advantage that is

7 Section 15 (3), Constitution of the Federal Republic of Nigeria, 1999, as amended.

8 S. 15 (4), Constitution of the Federal Republic of Nigeria, 1999, as amended.

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not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin,

sex, religions or political opinions.

(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by

reason of the circumstances of his birth.

COMPOSITION OF GOVERNMENT: FEDERAL CHARCTER

The promotion of national integration is also reflected in the provisions of s. 14 (3) and (4) and

section 219 (b) of the Constitution. These sections seek to promote the participation of members

of all ethnic groups in the governance process, at all levels.

COMPOSITION OF GOVERNMENT AT NATIONAL LEVEL

With respect to composition of government and agencies of government at the national level,

Section 14 (3) provides:

(3) The composition of the Government of the Federation or any of its agencies andthe conduct of its affairs shall be carried out in such a manner as to reflect the

federal character of Nigeria and the need to promote national unity, and also to

command national loyalty, thereby ensuring that there shall be no predominance of

persons from a few State or from a few ethnic or other sectional groups in that

Government or in any of its agencies.

COMPOSITION OF GOVERNMENT AT STATE AND LOCAL GOVERNMENTS

LEVELS

With respect to composition of the state and local government, as well as agencies of

government at those two levels, Section 14 (4) prescribes:

(4) The composition of the Government of a State, a local government council, or any of

the agencies of such Government or council, and the conduct of the affairs of the

Government or council or such agencies shall be carried out in such manner as to

recognise the diversity of the people within its area of authority and the need to

promote a sense of belonging and loyalty among all the people of the Federation.

However, as important as the provisions of Sections 14 and 15 (discussed above) are to

ensuring federal character in the composition of governments and government agencies,

they belong to Chapter II, which is generally though erroneously perceived to be non-

justiciable, by virtue of a clause embedded in S. 6 sub section (6)(c). The clause thatmakes

Chapter II non-justiciable should therefore be deleted from the Constitution.

COMPOSITION OF THE ARMED FORCES

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The idea of federal character is not limited to the composition of the civil arms of government; it

also extends to the armed forces of the Federation.

Section 217 sub section (1) establishes the Armed Forces of the Federation, as follows:

217. (1) There shall be an armed forces for the Federation which shall consist of an army, anavy, an Air Force and such other branches of the armed forces of the Federation as may be

established by an Act of the National Assembly.

Section 217 (3) provides that the composition of the armed forces of the federation shall

reflect Federal Character:

(3) The composition of the officer corps and other ranks of the armed forces of the

Federation shall reflect the federal character of Nigeria.

COMPOSITION OF THE LEGISLATURE

In this subsection, the composition of the National and State House of Assembly is examined.

COMPOSITION OF THE NATIONAL ASSEMBLY

S. 72 of the Constitution strives to ensure equal representation of each state of the Federation in

the National Assembly, based on three (3) Senators per state. It provides that:

72.No Senatorial district or Federal constituency shall fall within more than one State, and

the boundaries of each district or constituency shall be as contiguous as possible and be

such that the number of inhabitants thereof is as nearly equal to the population quota

as is reasonably practicable.

In fulfillment of the provision of S. 72 with respect to equal representation based on

population quota,S. 71 of the Constitution provides that each state shall be divided into three

senatorial districts for purposes of election into the Senate.

Representation in the House of Representatives is based essentially on population. The

Constitution provides that the Federation is to be divided into 360 Federal Constituencies for

purposes of election into the House of Representatives. As far as the House of Representatives

is concerned, S. 49 of the Constitution provides that the House of Representatives shall consistof 360 members (that is, one member per constituency) , based on equal population as far

as possible, provided that no constituency shall fall within more than one State

COMPOSITION OF THE STATE HOUSE OF ASSEMBLY

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Sections 112 and 113 of the Constitution provide for the composition of the State House of

Assembly on the principle of equal representation of the component units, based on population,

as follows:

112. Subject to the provisions of sections 91 and 113 of this Constitution, the

Independent National Electoral Commission shall divide every state in the federation intosuch number of state constituencies as is equal to three or four times the number of

Federal constituencies within that state.

113. The boundaries of each State constituency shall be such that the number of

inhabitants thereof is as nearly equal to the population quota as is reasonably

practicable.

REVIEW OF CONSTITUENCY DELINEATION

The Constitution provides for periodic review of delineation of state and federal constituencies,

at intervals not less than 10 years (section 73 (1) and 114 (1) or as may be considered

necessary in the event of boundary adjustment or creation of new states and local

governments under Section 3 of the Constitution (Sections 73 (2) and (114 (2).9

From the foregoing constitutional provisions, there is no doubt that there is a clear, unequivocal

and unambiguous demonstration of a clear intention to attain representation of constituencies

into the legislature on an equal and fair basis. However, there appears to be overreliance on

ethnic reality of Nigeria. Other plural realities of Nigeria have been neglected These include

gender representation, youth and student representation, professional and economic category

representation, including famers, traders, artisans, and so on. It is recommended that the

constitution should provide for their representation in the legislature.

A review of the constitution could also include questioning the bi-cameral legislature at the

national level. Is it not possible to have effective representation in a single legislature ( based on

the two criteria of equal representation of each state and population) so as to save costs for

the provision of much needed social security schemes for the economically vulnerable and

excluded groups?

LANGUAGE OF THE LEGISLATURE

9 Section 73 of the Constitution is devoted to the review of the division of States and of the

Federation into Senatorial and Districts and Federal Constituencies while Sections 114 is on

review of the division of states into constituencies for the purposes of conducting elections

into the State House of Assembly.

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The Constitution seeks to partly recognize the language plurality of Nigeria. It therefore provides

that:

55. The business of the National Assembly shall be conducted in English, and in Hausa,

Ibo and Yoruba when adequate arrangements have been made therefor.10

However, based on the legal maxim that states expressio unius est exclusio alterius (meaning

the express mentioning of one thing is the express exclusion of the others not mentioned), the

constitutional recognition of only the three dominant languages of the three dominant

ethnic groups appears to mean non-recognition of the other 500 established indigenous

languages. It is submitted that the constitution should not discriminate on the ground of

language. Rather, the legislature could be encouraged/mandated to engage interpreters who could

translate into English language. In the context of such a policy, there would be a basis and

encouragement to develop all the languages of all component ethnic groups, a process that would

also expand room for employment of persons who are experts in such languages.

Section 97 of the Constitution is however an improvement on section 55. It provides in broad

terms for the use of any other Language in a given State House of Assembly as follows:

97. The business of a House of Assembly shall be conducted in English, but the House may

in addition to English conduct the business of the House in one or more other languages

spoken in the State as the House may by resolution approve.

STATE-STRUCTURE V. REGIONAL STRUCTURE OF GOVERNMENT

The existing Constitution, as stated above, provides for a 3-level structure of government as

follows:

Federal Government

State Government, and

Local Government.

There have been calls for a return back to regional structure of government but one now based on

six (6) geo-political zones. One of the justifications advanced is that the regional structure will

save costs. However, in reality, the regional structure will increase rather than save costs. As the

recommendations for constitutional amendment by the Ohaneze Ndigbo (2012)11 has shown,rather than having a three-level structure of government, the regional structure will imply a 4-

level structure of government, as follows:

10 Constitution of the Federal Republic of Nigeria, 1999, as amended, Section 55.

11http://www.nigeriamasterweb.com/OhanezeDraftSubConstitutionReview.html accessed on

13/09/2012.

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Centre (federal) level

Regions (Federating Units)

States (as may be determined by the Regions), and

Local Governments (as may be determined by the states).

Without necessarily breaking the country along regional lines, nothing prevents collaboration

among the states in the existing six geo-political zones , and indeed, nothing stops all state

governments from collaborating outside the existing constitutional framework, just as any level

of government or agency could collaborate with foreign governments or organizations in their

mutual interests, internationally.

It is recommended that the existing three-level government structure be maintained but each state

could be allowed to have its constitution while another Constitution exists for the Federation. In

that context, the State Constitution will be the supreme law applicable and enforceable at the

state level while the Federal Constitution will be supreme and applicable on an agreed scope of

issues at the national level.

Thus, Section 1 of the 1960 Constitution of the Federation provided that the Constitution was

applicable on certain matters to the entire Federation and the Regional Constitution was subject

to it as far those matters were concerned, as follows:

1. This Constitution shall have the force of law throughout Nigeria and, subject to

the provisions of section 4 of this Constitution, if any other law (including the

constitution of a Region) is inconsistent with this Constitution, this Constitutionshall prevail and the other law shall, to the extent of the inconsistency, be void. 12

In the same spirit, Section 5 sub section (1) of the 1960 Constitution of the Federation

proclaimed that as far as the matters covered by the Constitution of the region was concerned,

the regional constitution was supreme, as follows:

5. ---(1) Subject to the provisions of this Constitution and the Nigeria Independence

Act, 1960, the constitution of each Region shall have the force of law throughout

that Region and if any other law is inconsistent with that constitution, the provisions

of that constitution shall prevail and the other law shall, to the extent of theinconsistency, be void.13

12 Constitution of the Federation of Nigeria 1960, S. 1. (Available online at

http://www.worldstatesmen.org/nigeria_const1960.pdf, accessed on 14/6/13)

13 Constitution of the Federation of Nigeria 1960, S. 5(1). (Available online at

http://www.worldstatesmen.org/nigeria_const1960.pdf, accessed on 14/6/13)

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THE NIGERIA POLICE FORCE (NPF)

Sections 214, 215 and 216 of the Constitution are devoted to the establishment, powers and

control of the Nigeria Police Force.

It does not appear that the constitutional provisions on the Nigeria police Force give adequatesensitivity to the ethnic composition of Nigeria.

The NPF is a Federal or national Force, which shall be organized and administered in accordance

with the provisions of an Act of the National Assembly. No other police force shall be

established for the Federation or any part thereof. The NPF may have branches forming part of

the armed forces of the Federation (S. 2114).

The NPF shall be under the command of the Inspector General of Police (IGP) who is appointed

by the President on the advice of the Nigeria Police Council. Service. The Nigeria Police Forcestationed in each State shall be under the command of the Commissioner of Police (appointed by

the Police Service Commission) who is in turn under the command of the IGP (S. 215).

The President or the Minister of the Government of the Federation may issue lawful directions to

the IGP with regard to maintenance and securing of public safety and public order, as may be

considered necessary, and the IGP shall comply with those directions or cause them to becomplied with (S. 215((3).

Under S. 215 (4), the Governor of a State or a Commissioner so authorized by the Governor

may also give lawful directions to the Commissioner of Police in the Statewith respect to public safety and public order within the state, as he may consider

necessary, and the Commissioner of Police shall comply or cause them to be complied

with:14

Provided that before carrying out any such directions under the foregoing provisions of

this subsection the Commissioner of Police may request that the matter be referred to thePresident or such minister of the Government of the Federation as may be authorised in

that behalf by the President for his directions15.

As a matter of fact, section 215 sub section (5) goes further to provide that:

(5) The question whether any, and if so what, directions have been given under thissection shall not be inquired into in any court.

The implication of the constitutional provisions on the Nigeria Police Force is that the Governorlacks the power to give enforceable or effective directions to the Commissioner of police in the

State. In that situation, State Governors, in reality, tend to have their own individual security

arrangements for their personal security, which operates side by side the operatives of the

Nigeria Police Force. The current Police structure cannot be appropriate under a Federal system

14 Constitution of the Federation of Nigeria, 1960, S. 5(1).

15 S. 215 (4), Constitution of Federal Republic of Nigeria, 1999, as amended.

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of government in the face of multi-ethnic, economic and political interests and pressures. The

truth is that loyalty of the police hierarchy tends to be to the Federal Government rather than to

the state Governor. In this context, the call for state police formations is justifiable. In fact, inview of the unprecedented state of insecurity in Nigeria, there should not only be a National

Police, there should also be police formations at local and state government levels. But in order

to prevent abuse by the Executive at all levels, Federal, state or local government, as theexperience of the State Independent Electoral Commission (SIEC) has shown, the suggested

three-structure police formation should be subjected to the control of popular democratic

Committees. The Security Committees to control the police should comprise electedrepresentatives of mass organizations, such as trade, student, community and professional unions

and associations. The rank and file of the police should not only enjoy the right to form and join

trade unions, adult citizens should be licensed to carry arms.

ON RELIGION

In recognition of the ethnic and religious pluralities of Nigeria, Section 10 of the Constitutionrightly provides for a secular state by providing that:

10. The Government of the Federation or of a State shall not adopt any religion as

State Religion

Section 38 of the Constitution complements section 10 in providing that:

38. (1) Every person shall be entitled to freedom of thought, conscience and religion,

including freedom to change his religion or belief, and freedom (either alone or incommunity with others, and in public or in private) to manifest and propagate his religion

or belief in worship, teaching, practice and observance.

(2) No person attending any place of education shall be required to receive religiousinstruction or to take part in or attend any religious ceremony or observance if such

instruction ceremony or observance relates to a religion other than his own, or religion

not approved by his parent or guardian.

(3) No religious community or denomination shall be prevented from providing religious

instruction for pupils of that community or denomination in any place of education

maintained wholly by that community or denomination.

Unfortunately, section 10 of the Constitution has been observed in the breach by many of the

governments in Northern Nigeria with their adoption of the Sharia criminal justice system. The

Constitution has rightly made provisions for the application of customary law and Sharia law incivil proceedings involving matters of personal system of law relating to validity or dissolution

of marriage, family relationship, guardianship of infants and/or physically or mentally infirmpersons, gifts, will, succession, and so on, depending on which law (customary/ethnic law or

Islamic law) the individuals/parties are subject to.16

16 See Constitution of the Fedral Republic of Nigeria, 1999, as amended, sections 262

(jurisdiction of the Sharia Court of Appeal of the Federal Capital Territory, Abuja); s. 277

(jurisdiction of the Sharia Court of Appeal of a State); S. 267 (jurisdiction of the Customary

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The Constitution vests the High Court of a State 17, the Federal High Court18, the Court of

Appeal19 and the Supreme Court20 to entertain jurisdiction over civil and criminal matters.

But in contravention of S. 10 of the Constitution, many of the Northern states, led by Zamfara

State, have made certain laws, repealed some, and amended others to the effect of establishing

Sharia courts, which are vested with not only the entirety of civil but also criminal jurisdictions21

.As Oraegbunam22points out,

punishments such as amputation, lapidation, stoning to death, crucifixion and so on, stillattach to Sharia offences in the North. Although only Muslims have been subjected to the

jurisdiction of Sharia courts so far, yet experiences in Islamic countries show that there

are potentials for extending the judicial practice and coverage to adherents of other

religions.

The violation of S. 10 with respect to the establishment of Sharia Courts vested with criminal

jurisdiction is therefore a threat to maintaining an indivisible and indissoluble country, contrary

to the values espoused in the Preamble to the Constitution.

Femi Falana23 also expresses that whereas harsh sentences prescribed by Sharia are beingenforced against ordinary people, members of the ruling class who commit worst crimes do not

suffer the same harsh penalties. He gave examples of a man in Zamfara State who had his arm

amputated for stealing a cow valued at N15,000 whereas one of the governors who politicizedSharia Law has been charged by the Economic and Financial Crimes Commission with the

alleged theft of N30bn.

ON JOINT STATE AND LOCAL GOVERNMENT ACCOUNT

Section 162 (5) -(8) of the Constitution provide that:

Court of Appeal of the Federal Capital Territory); S. 282 (jurisdiction of the Customary Court

of Appeal of a State.

17 See Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 272 (jurisdiction

of the High Court of a State).

18 See Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 251 (3).

19 See Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 242(2) and 243

(1).

20 See Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 233 (2).

21 See I.K.E. Oraegbunam SHARIA CRIMINAL LAW, ISLAM AND DEMOCRACY in Nigeria

today (available online at http://dx.doi.org/10.4314/og.v8i1.10 , accessed 13/6/13) and F. Falana (2013) religion andSecurity in The Nation, 21 May 2013, p. 37.

22 I.K.E. Oraegbunam, id.

23 F. Falana, op.cit.

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(5) The amount standing to the credit of local government councils in the Federation

Account shall also be allocated to the State for the benefit of their local government

councils on such terms and in such manner as may be prescribed by the NationalAssembly.

(6) Each State shall maintain a special account to be called "State Joint Local

Government Account" into which shall be paid all allocations to the local governmentcouncils of the State from the Federation Account and from the Government of the State.

(7) Each State shall pay to local government councils in its area of jurisdiction suchproportion of its total revenue on such terms and in such manner as may be prescribed by

the National Assembly.

(8) The amount standing to the credit of local government councils of a State shall be

distributed among the local government councils of that State on such terms and in such

manner as may be prescribed by the House of Assembly of the State..24

The implication of the above constitutional provisions is that the local governments are not in

control of allocations from the Federation account. Indeed, what they receive is often at the

discretion of the State Governments. The Association of Local Governments of Nigeria(ALGON)25 has, based on its experiences, made a case for the amendment of the Constitution to

the effect that allocation of funds to the local governments from the federation account should be

made directly to the accounts of the local governments.

The ALGON position appears to be shared by the National Association of Local Government

Employees (NULGE). According to them, the state governments tend to stifle local governments

of funds. It is only rationale that we support ALGON and NULGEs call for an amendment of

the Constitution, which would mean giving full recognition to the local government as a separatetier of government. Constitutions should evolve and be amended in the light of practical

experiences.

ON REVENUE ALLOCTION

There is a relationship between possibility for development measured in terms of the welfare of

the populace and the revenue allocation formula in a federal system of government.

24 Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 162 (6).

25 See http://www.brimtime.com/2012/10/constitutional-review-ohaneze-ndigbo.html accessed on 14/6/13).

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Section 162(2) of the Constitution provides a guiding framework for the Revenue

Mobilisation Allocation and Fiscal Commission in making proposals to the National

Assembly. It provides that the allocation formula shall take into consideration the following

principles,

especially those of population, equality of States, internal revenue generation, land mass,terrain as well as population density;

Provided that the principle of derivation shall be constantly reflected in any approved

formula as being not less than thirteen per cent of the revenue accruing to the Federation

Account directly from any natural resources.26

On the basis of the Proviso to S. 162(2), the regions or states, as the case may be, had

retained the following percentage of revenue generated by them from natural resources,

over the years:

1953, 100%

1960, 50%

1970, 45%

1975, 20%

1982, 2%

1984, 1.5%

1992, 3%, and

1995, 13% (which is also the prevailing rate in accordance with the 1999

Constitution cited above).

The critical question is how effective are the above criteria in terms of engendering the wellbeing

of the people in the concrete terms?

It is suggested that allocation formula should primarily consider government responsibilities to

all citizens, regardless of the state of location of citizens, on account of the socio-economic rights

contained in Chapter II of the Constitution, including education, health care, water, housing,food, employment, basic income guarantees, pension, electricity, roads, and so on. These

provisions should take priority over the privileges of the ruling class, particularly the

disproportionate wastages by the executive and legislative arms of government.

THE CONSTITUTIONAL POLICY ON NATIONAL PARTIES

26 Constitution of the Federal Republic of Nigeria, 1999, as amended, s. 162(2).

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In the bid to avoid parties being formed exclusively along ethnic or religious lines, the

Constitution prescribes provision aimed at the establishment of political parties in the image of

national institutions such as the NPF and the Nigerian armed forces. The import of theconstitutional requirements, which a party must fulfil to qualify for registration as a political

party is that it must be a national party. S. 222(e) provides that a political party shall not be

confined to only one geographical area of Nigeria. S. 222(f) prescribes that the headquartersoffice of the party must be in Abuja. S. 223(1)(b) stipulates that the national Executive

Committee (NEC) of the Party shall reflect Federal Character. The party structure is thus

conceived in the image of a Nigerian institution. What all the conditions imply is that itrequires a lot of money to organise parties. Parties are not perceived as organisations of people

who share similar ideas, programmes and perspectives as to the kind of society they want to

build if they win. In the interest of building a society which makes the welfare of the people as

the central essence of governance, it is advocated that parties be made to conform with theprovision of S. 224 of the Constitution, regardless of their numerical size and geographical

spead. This means deletion of all sections that suggest political arties must be built as national

institutions.

Section 224 provides pungently:

224. The programme as well as the aims and objects of a political party shall

conform with the provisions of Chapter II of this Constitution.

POLICY ON SPONSORSHIP OF CANDIDATES

Also, along the concern that only national institutions should govern Nigeria, the Constitution

of the Federal Republic of Nigeria (CFRN)27 provides that only a registered political party can

sponsor candidates for election. The constitutional provision in this regard violates the political

rights of the individual. After all, even ethnic groups are made of individuals who possess

individual rights, apart from collective rights. The constitutional bar to the right of independentcandidacy to contest elections could be one of the reasons why many Nigerians tend not to be

involved in partisan electoral politics. The result is that only a tiny minority determines who

rules. In the recent Governorship election in Ondo State, for example, Governor Mimiko won the

election by having 260, 199 votes out of a population of about 3.4million. Total registered voters

were about 1.6m; only about 646000 were accredited to vote; only about 594000 were valid

votes.

The constitution should therefore encourage building unity in diversity by allowing the diversetalents/inputs of the individual to thrive within the political space. Independent candidature

should be constitutionally allowed so that those who are disenchanted with the major rulingpolitical parties can be meaningfully involved.

ELECTION OF JUDGES AND ELECTORAL COMMISSIONERS

27 S. 22, CFRN, 1999.

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The Constitution provides for the appointment of judges and electoral commissioners, either at

the national or state level28.

Some judges and electoral commissioners tend to be compromised by virtue of the fact that they

feel responsible only to the political forces that play some role in their appointment. It is

suggested that subjecting positions of judges and electoral commissioners to election just asother political offices could generate greater confidence in the system and motivate others who

feel disinterested to get involved. In the USA, for example, in most of the 50 States and the

District of Columbia, voters elect judges for a stated term. Subjecting the position of judges andelectoral commissioners to election would reduce (or eliminate in certain cases),the possibility of

their being susceptible to political pressures of politicians.

ETHNIC NATIONALISM OR UNITED CLASS WAR FOR IMPROVED WELFARE?

The persistent bloodshed associated with the Boko Haram phenomenon (among other factors)

has accentuated apprehension for a break-up of the country along ethnic lines.

But the critical question to pose is: what is the fundamental cause of lack of development(measured in terms of the welfare of ordinary people)? Is it ethnic division or division

along class lines?

The fundamental cause of poverty and degeneration in the society is not division between nations

and nationalities but conflicting interests between the rich and the poor, the ruled and the rulers.

The interests of the poor classes in all ethnic nationalities are the same, just as the interests of

members of the ruling class of all nationalities are equally the same.

As Lenin29once explained:

On the hoards of joint stock companies we find capitalists of different nations sitting

together in complete harmony. At factories, workers of different nations work side

by side. In any really serious and profound political issue, sides are taken according

to classes, not nations.30

28 See CFRN, 1999, as amended, Section 154 (in respect of the INEC) and Ss. 231, 238, 250,

256,261, 266, 271, 276, 281 and 288, for the appointment of Chief Justice of Nigeria and

Justices of the Supreme Court, appointment of President and justices of the court of the

Court of Appeal, appointment of Chief Judge and Judges of the Federal High Court,

appointment of Chief Judge and Judges of the High Court of the Federal capital Territory,Abuja, appointment of Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal

capital territory, Abuja, appointment of the President and judges of the Customary Court of

Appeal of the Federal Capital Territory, Abuja, appointment of chief judge and judges of the

High court of a State, appointment of the Grand kadi and kadis of the Sharia Court of Appeal

of a State, and appointment of the President and judges of the Customary Court of Appeal of

a State, respectively).

29V.I. Lenin, Critical Remarks on the National Question, in Collected Works, Vol. 20.

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Numerous examples could be cited to drive home the point made by Lenin: the January 2012

unprecedented mass action against perennial increases in the prices of petroleum products; non-

payment of national minimum wage; non-payment of 27.5% increase in the salaries of teachers;

the plight of pensioners; and so on. On each of these issues, positions are taken, not on the basis

of ethnic affiliation but on the basis of class status. The poor, including workers, the

unemployed, farmers, artisans, traders, and so on, should therefore not be hoodwinked by the

deceptive bellicose nationalism of the bourgeoisie or aspiring bourgeoisie.

The Boko Haram phenomenon is an index of the socio- economic crisis of poverty,

unemployment, etc, in the same way in which kidnapping for ransom and armed

robbery experiences in other parts of the country have turned life into a nightmare

for majority. Boko Haram insurgency, kidnapping for ransom and other criminalities

(committed by those who have chosen such means to survive) cannot be solved on

an enduring basis by the application of physical force without addressing the root

cause. In this respect, pressure must be brought to bear on the State to invest in

the establishment of social security schemes. In this regard, rather than adoptingethnic nationalism, pressures should be brought to bear on the ruling class for the

implementation of Chapter II of the Constitution on the basis of the following

provisions of the same constitution, which make chapter II justiciable:

1. S. 6(6)(c), CFRN, 1999

2. S. 1(1), CFRN, 1999.

3. Section 13, CFRN, 1999.

4. section 224, CFRN, 1999, and

5. Item 60(a) of the Exclusive Legislative List.

The above listed provisions are discussed below.

S.6(6)(C) Does Not Completely Foreclose Justiciability of Chapter II

Unlike the constitution of many other countries, including India, which directly declares that

similar provisions shall not be enforceable, S.6(6)(c) of the 1999 constitution does not absolutely

foreclose justiciability of chapter II and allows its enforcement if it is so provided in any othersection of the Constitution. The court, in Federal Republic of Nigeria v. Anache (2004), has

upheld this position, stating that since S. 6(6)(c) is qualified by the phrase, save as otherwise

provided by this Constitution, the justiciability of Chapter II is not entirely foreclosed

Also, in Olafisoye v. Federal Republic of Nigeria (2005), the court was asked to determine

whether or not the National Assembly is competent to make laws for the peace, order and goodgovernance of Nigeria, pertaining to abolishing corrupt practices and abuse of power under S.

15(5)31 a section under Chapter II; combined with other provisions of the Constitution. In this

30V.I. Lenin,id.

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particular case, the Supreme Court upheld the likelihood of justiciability of Chapter II, if the

Constitution makes a section(s) of Chapter II justiciable, as follows:

The non-justiciability of (sic!) section 6(6)(c) of the Constitution is neither total nor

sacrosanct as the subsection provides a leeway by the use of the words, except as

otherwise provided by this Constitution. This means that if the Constitution otherwiseprovides in another section, which makes a section or sections of Chapter II justiciable, it

will be so interpreted by the Courts (Olafisoye v. Federal Republic of Nigeria, cited in

Anyebe, 2010:379).

Other provisions, which make the Constitution, including Chapter II binding, include:

S. 1(1) proclaims the supremacy and bindingness of the constitution, as follows:

1. (1) This Constitution is supreme and its provisions shall have binding force on the

authorities and persons throughout the Federal Republic of Nigeria.

Section 13 provides that all authorities and persons exercising legislative, executive

or judicial powers shall observe and apply Chapter II, as follows:

It shall be the duty and responsibility of all organs of government, and of all authorities

and persons, exercising legislative, executive or judicial powers, to conform to, observe

and apply the provisions of this Chapter [i.e. Chapter II] of this Constitution (S. 13,CFRN, 1999).

Section 224 provides:

The programme as well as the aims and objects of a political party shall conform with

the provisions of Chapter II of this Constitution (S. 224, CFRN, 1999).

Finally, Item 60(a) of the Exclusive Legislative List places responsibility on the

Federal Government to establish and regulate authorities for the Federation or any

part thereof -

(a) To promote and enforce the observance of the Fundamental Objectives and

Directive Principles contained in this Constitution

STATUTORY PRO-JUSTICIABILITY PROVISIONS: THE AFRICAN CHARTER ON

HUMAN AND PEOPLES RIGHTS ACT, CAP10, LFN, 1990

The African Charter equally contains socio-economic rights, which include:

31 Note however that in Adebiyi Olafisoye v. Federal Republic of Nigeria (2004) The Supreme

Court adopted the literal rule in statutory interpretation and held that the provisions of S. 6(6)(c)of the CFRN are clear that S. 15(5), (one of the sections under chapter 2) is not justiciable.

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Article 15: Right to work

Article 16: Right to health

Article 17(1): right to education

Article 17(2): Right to participate in the cultural life of ones community

Article 17 (3): Duty of state to promote & protect the moral and traditional values recognizedby the community

Article 18(1): Recognition of family as the natural unit & basis of a society

Article 18(2): Right of the family to be assisted as the custodian of morals and traditional

values

Article 18(3): Protection of the rights of women and children, and

Article 18(4): Rights of the aged and disabled.

The Supreme Court has held in Abacha v. Fawehinmi (2000)6 NWLR (Pt. 600) 228 that:

the African Charter which is incorporated into our municipal law becomes binding and our

courts must give effect to it like all other laws falling within the judicial powers of the courts.

The implication of the above holding of the Supreme Court is that the socio-economic rights inChapter II are enforceable under the African Charter.

SUPPORT FOR SELF DETERMINATION AS A LAST RESORT

However, where voluntary union of the component ethnic groups making up Nigeria is not

possible for lack of respect for basic democratic rights such as senseless genocide committed by

those who have been so dehumanized to the extent of not having regard for the sacredness of the

life of others, then socialists would have no choice but to support the right to self determination.

But this would be on the basis of promoting united struggles by the oppressed classes against

exploiters of all ethnic nationalities.

Under the Nigerian Constitution and under international human rights law, there is recognition of

the right to the protection, promotion of the existence of national, ethnic, cultural, religious, and

linguistic identities in individual geographic units. It is trite to state categorically that

international law recognizes the right to self determination of peoples. What needs to be clarified

is that there are two aspects of self-determination, namely: external and internal self-

determination. External form of self determination relates to the colonized fighting to shake off

the chains of colonialism or secession from a nation-state. Internal form of self determination has

to do with autonomous self-government within a nation-state. It is the internal form of self-

determination that international law unequivocally recognizes. The States of the Nigerian

Federation that have adopted their own flags, anthems, etc, are exercising aspects of internal

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form of self determination. a form of community or collective self-expression within the

Federal Republic of Nigeria.

Articles 1 and 55 of the UN Charter (that is UN Constitution) expressly recognize the rights of

peoples to self-determination. The self-determination here is to be understood as internal self-

determination. For the avoidance of any doubt, the UN Charter defines 'peoples' as a group ofhuman beings, who may or may not comprise States or nations.

The verbatim provisions of the UN Charter and the African Union are reproduced below.

Article 1 sub (2) of the UN Charter provides:

The purposes of the United Nations are:

(2). To develop friendly relations among nations based on respect for the

principle of equal rights and SELF-DETERMINATION of peoples, and to

take other appropriate measures to strengthen universal peace.

Also Article 20(1) of the African Charter, which has been domesticated, provides:

All peoples shall have the right to existence. They shall have the unquestionable and

inalienable right to self-determination. They shall freely determine their political

status and shall pursue their economic and social development according to the

policy they have freely chosen.

CONCLUSION

This paper has examined the adequacy or otherwise of constitutional provisions on containing

the national question in Nigeria. The paper has argued that the root cause of poverty is class

politics not division along ethnic lines. The paper urges the alliance of the oppressed classes of

all ethnic groups against exploiters in all ethnic groups who stand on the same of the barricade in

all serious issues relating to who gets what, where and when. However, as a last resort, where

voluntary union of all component ethnic groups is not possible on the basis of respect forfundamental rights, the struggle for self determination may be inevitable.

Each state should recognize the right of national minorities to secede, as was the case with the

Bolshevik government immediately after the successful socialist revolution of 1917. This may

put pressure on national governments to recognize and respect minority rights in order to avoid

such minorities exercising their right to independence.

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The National Question and the Nigerian Constitution

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