IS MINISTER AGABI A NIGERIAN?

By

Mike Ikhariale

It would certainly sound funny to be asking about the genuineness of the nationality of a person as august as the minister of justice of the federation. It is public knowledge that the minister of justice is Mr. Kanu Godwin Agabi, SAN. But when you hear of a theory of the Nigerian federation recently credited to the same honorable minister, you would have no choice but begin to doubt if the man is indeed a Nigerian or simply a "JJC" from mars or even from a farther planet. Given the seriousness of the heresy associated with his views about the Nigerian federation, until the contrary is proved, this writer would have no choice but to continue to hold Mr. Agabi’s claim to being a Nigerian with some reservation.

For the avoidance of doubt, our curiosity about the nationality of Minister Agabi is hinged on the revelation that suggests that he does not know that as a federation, the federal government of Nigeria is conceptually not the source of the states of the union and that instead, the federal government owes its existence to the states and the constituent nationalities. That should be a well-settled fact for a first year student of constitutional law. But here, we are not talking about a law student but a very experienced lawyer, a senior advocate, for that matter! Could it be that the standard of legal education fell so long ago that Agabi’s constitutional law could not grasp the fundamentals of the principles of federalism? I want to beleive that if Agabi was not pretending, he was simply parroting a higher but idiotic authority for political reasons. Even at that, he has done considerable damage to constitutional jurisprudence by his arcane views than anything else, more so, as the chief law officer of the federation.

Any lawyer who has studied the exciting subject of constitutional law would certainly hold Mr. Agabi in utter intellectual contempt because of the misperceptions that were abundantly embedded in the speech in which he blamed the states for the problems of the Nigerian federation. If Mr. Agabi was not privileged to have read federalist authorities like Wheare, Tribe, Gunter and Hahlo, he should have, at the very least, read our national authorities like Nwabueze, Aguda and others on the same subject. Politics is politics, but law is law. There is a minimum level of jurisprudential clarity that anyone who occupies the high office of the Attorney General, being the keeper of the sovereign conscience of the nation, must possess. But what Agabi told us at the Conference on "Ethnic Question" under the auspices of the Nigerian Institute of the Advanced Legal Studies, at Abuja recently, only confirms the old saying that the office of the Attorney-General is too important to the commonwealth to be handed over to just any person for political reasons. By saying that the states and local government are drains on the federal government, the lawyer in Agabi gave way to the political masquerade in him and that made the discipline of law a lot poorer.

Let’s hear him again: "the nation was far more united in those days when we had three regions than now when we have 36 states. The nation was far more efficient and less corrupt in those days than now." (Emphasis mine). From the above ministerial pontification, it is obvious that the man has forgotten his constitutional law history or as someone has rightly insinuated, he only perceives of Nigeria from the narrow prism of the three major ethnic groups, namely, Ibos, Hausas and Yorubas. What a shame for a federal minister! Except for Mr. Agabi, every other person, including children in elementary schools, know that, before the military started to ameobically share the national territory of Nigeria into states that we had FOUR units, the fourth one being the defunct Mid-west region!

I am not in a position to argue with him whether the center is more corrupt than the states and local government but all I can safely say here is that a thief can only steal what is available to him and under the present reality, there is more to steal at the federal level than the other levels combined.

Not done, Agabi cruised on and threw the verbal bomb that: "they are (the states) at the moment free from all control and subject to no supervision. Because of the great harm, this is doing to the nation, it is necessary to remind the states that they were not originally nations, which came into the union, each with its own rights. To say, therefore, that they owe no allegiance to the Federal Government is an abomination." From the above it is clear that the Minister has the old headmaster mentality of inter-governmental relationship within a federation. It must be noted straight away that the federal government, for all intents and purposes, is only a government of necessity and whenever a society thinks it is no longer relevant to it, the union is promptly liquidated. We have seen that in the cases of the federations of the Soviet and Yugoslavia. The real enduring government of the people is that of the federating units, which possesses the critical attribute of the unity of the ‘state’ and ‘nation’. While it is conceded that states in Nigeria are not necessarily created along nationality lines, they still provide the only level of governance with which the various ethnic nationalities of the Nigerian states find their true legitimacy in the political market place of Nigeria.

The states or whatever name they bear are the building blocks for the federal entity and this point is textually demonstrated by section 2(2) of the current constitution which proclaims that: "Nigeria is a Federation CONSISTING of states and a Federal Capital Territory", and not the other way round, as minister Agabi erroneously propounded. No matter how you look at the inter-governmental relationship that exists in a federal state, properly so-called, one thing is certain and is the fact that it actualizes that constitutional device based on a theory of government that uses "power to check power amid opposite and rival interests" (Ostrom, 1991). In other words, federalism is explicitly a two-tiered system with area of autonomy for each level of government and, according to William Riker, "and explicit guarantee of that autonomy" and the political significance of that explicitness of the federal arrangement can be seen in the Latin derivation of the term itself: foedus – a covenant or an agreement. That is why constitutional architects have always situated federalism within the operational context of a supreme written constitution which contains the terms of the "covenant" that authoritatively regulates the relationship between the two levels of government. So I am unable to fathom where Agabi got his idea of a federal government ‘supervising’ and ‘monitoring’ the states as a polygamist would do over his harem.

Whether you are analyzing the US federal system or the Canadian, Indian and Australian systems of federalism, one point is constant and that is that federalism is a constitutional contrivance designed to reconcile national unity and power with the maintenance of states rights. In its simplest terms, it is a government in which the sovereignty of the two tiers are preserved with respects to well enumerated spheres. There are many areas in which, for example, the Lagos state government has the final say (an attribute of sovereignty) and there are areas where the federal government has the final say (yet another attribute of sovereignty) and because this two sovereigns would occasionally overlap, the conflict resolution rule is that in all such cases of concurrence, the federal should prevail. And to make it abundantly clear that no one is in doubt as to where the ultimate sovereign power lies, the principle is that whatever that is not specifically allocated to the center or to the states or made concurrent to both tier is RESERVED to the states (the people) as residual powers.

Agabi probably studied and practiced his law under the military, which characteristically treated the states of the federation with disdain and characterized the "governors" as being on "military postings". But now that we are no more in a military government he should begin to democratize his legal reasoning, otherwise he will land president Obasanjo in very big constitutional ditches someday, judging by his dubious in pater familias interpretation of otherwise simple constitutional issues in federalism. Such a domineering mentality as had just been demonstrated by the justice minister towards the states would only exacerbate the already frosty relationship that exists between the president/center and the various governors/federating units right now. There is no doubt that in most federal systems the center always tend to be bossy but that is why the constitution comes in as a ready moderator of the "expansionist" tendency of the center. This reality, for example, was a major incentive for enactment of the 10^th Amendment to the US Constitution that specifically reserved the residual (ultimate) power of the Union to the states in their interaction with the center in a well-defined constitutional contour.

How does the minister hope to be taken serious when, in one breadth he berated the states and local governments as not being subject to the "supervision" and "monitor" of the center and at another paragraph, hold up the American system up as a good example of a federal system without realizing that the US constitution holds states as the ultimate sovereign power within the Union. Of greater importance here in the American system is the respect given to the principle of diversity and there is no better way to do that than the fact that the US federal government does not interfere with the way states do their things. For example, the states and local government system and mayoralties are so diverse in their structure, management and constitutions that virtually no two are the same. That is diversity in action.

So when the learned minister went on to say that "what makes America the great nation that she is, is her diversity and what makes our own country rank above other African countries is our diversity ... ", it became clear that the guy is simply speaking from both sides of his mouth. If he cannot stand the antics of the states and local governments, then, he is not fit to be a federal minister because there is a federal government only because there are states holding it aloft: remove the states, the federal system would vanish and the ministership would go with it!

It is a sad part of our military hang-over that whoever finds himself at the federal level begins to see himself as the Brigade Commander of the Nigerian union or what one creative essayist once referred to as "federal power powerism" which in practical terms translates into a militarized understanding of federalism – unitarist in disguise. That Abuja has become an empire-building project is the outcome of midnight theorists like the honorable minister of justice. When Nigeria practiced true federalism, there was no special attraction at the center because real political power was located at the regions where the people are. That was why the Sardauna of Sokoto would rather remained in the region where true power was then than go to the center in Lagos to serve in a government without any territorial relevance even when he won the right to do so.

That the military has forcibly changed the revenue distribution formula to make the states now seem to be begging the center for survival does not give the minister the right to take an aberrational practice as the law. If the states were to have back their rights over their resources, no one would be talking of states as a burden on the federal government. And, in fact, there would have been no practical incentive to create so many seemly non-viable states just to enjoy the arithmetic of the power relation in the polity.

Rather than stay in Abuja and be insulting the various states and local governments, the minister should be working hard to restore true federalism back to Nigeria under which the people control their resources through their state governments and then help to sustain the national government by way of contribution and taxes and not the other way round as we have it now.

What is not right, and should never be tolerated, is for federal functionaries to be talking down on the states and their officials with some condescension, because they are not constitutionally superior to them. Constitutionally speaking, they are co-equals while operating within their respective spheres just as it is in an Esan maxim: "to be united is not synonymous with forfeiting ones individuality". Abuja, like what President Truman once said of Washington, DC, is ‘a very easy city for you to forget where you came from and why you got there in the first place." And if Agabi is truly a Nigerian, he would one day find himself out of office and the only place he would find real solace will be the same state and local government he is presently messing up and as I have always reminded our militarist constitutionalists, no one is a native of the federal government even he if chooses to embroider his social parachute, agbada, in green-white-green. So, Mr. Agabi, watch it!

August 2002