Nd'Igbo's quest for presidency

By

Prof. Ben Nwabueze

 "“As soon as I saw him play against the French in the first game we made our move,’’ said Bruce. “The one thing about him is he has got a physical presence and we are short in that area,’’ he added. Birmingham won promotion to England’s top flight after beating Norwich in the first division playoff final."  

THE election of an Igbo man or woman as President of Nigeria in 2003 is a project to which Ndigbo are irrevocably committed. As far as Ohanaeze is concerned, there is no going back on it, whatever the prospects for success or failure may be. If it succeeds, fine but if it fails, we will nonetheless have forced our demand upon the attention of the nation and the international community.

The project needs to be viewed from two standpoints - its legitimacy and feasibility. No Igbo man or woman and hardly any right thinking other Nigerians would dispute the legitimacy of the project in terms of the size of the Igbo population in Nigeria, the contribution or Ndigbo to the political, economic and social development of the country.

The Igbos, the Yorubas and the Hausa/Fulanis are the three major ethnic groups in Nigeria, but I venture to say that, upon an authentic population census, the Igbos will emerge the largest single ethnic group. The Arewa group has held the office for roughly 34 years out of Nigeria’s 42 years life as an independent country. The Yorubas would have held it for roughly 8 years by May 29, 2003, and the Igbos for barely six months, the ill-fated six months tenure of General Aguiyi Ironsi.

The ethnic groups in the South-South geo-political zone have not held it at all, but between the South-East and the South-South, to which the office should, in justice and good conscience, go in 2003, the South-East seems to me to have a legitimate claim to priority by reason of its overwhelming numerical superiority. It must be borne in mind that there is a large Igbo population indigenous to the South-South zone - in Delta and Rivers states. The Igbo presidency project does not differentiate between Igbos in the South-East and those in the South-South zones. Both are acceptable to us. If the other ethnic groups in the South-South zone will support a candidate of Igbo extraction from the zone, that may well provide a compromise solution to the rival claims of the two zones. While we are trying to cultivate and nurture a partnership between the two zones, we would not accept that the Igbos in the South-South zone should simply be relegated as an appendage of the other ethnic groups in that zone to be used merely to bolster their claim.

The legitimacy of the Igbo presidency project must be considered from the standpoint of the degrading effect inflicted on the personality and psyche of Ndigbo by their exclusion from the office for so long. The degradation cannot be made good by the provision of more roads and other social amenities in Igboland. The matter lies far deeper than that. It involves issues of psychology and the perception of Ndigbo that they really belong in the Nigerian nation, that they are not mere on-lookers. A President of Igbo extraction may well not be able to do much to redress the years of neglect and marginalisation of Ndigbo, yet his presence in that office will go a long way to lift up the degraded and depressed personality, psyche and morale of Ndigbo in Nigeria, especially their youth and coming generations.

Viewed in terms of Igbo contribution to the political, economic and social development of Nigeria, the legitimacy of the Igbo presidency project can scarcely be denied. The Igbos were in the vanguard of the struggle against colonial rule; the names of Zik, Mbonu Ojike, K. O. Mbadiwe, M. I. Okpara, among others, stand out prominently as among the great architects of Nigerian independence. There can be no moral justification for their exclusion from sharing in the fruits of their joint labour with other compatriots.

More than any other ethnic group, the Igbos are spread in incomparably larger numbers across the length and breadth of Nigeria outside Igboland, and have contributed immeasurably in the economic and social development of their adopted places of residence. In the heights of the Mambila Plateau in the Middle Belt, the Sahel Regions in the North West and North Central zones, the low lands of the Yoruba country, and everywhere else in Nigeria outside their home land, the Igbos have settled in large numbers confronting the harsh conditions of lire in their undaunted efforts to earn a living and to contribute to the economic and social development of the areas, but inevitably exciting in the process the jealousy and hostility of the indigenous communities. It is grossly unfair that they should be excluded from sharing in the highest office in the land, notwithstanding their attempt to secede from the Federation and the resulting civil war which were forced upon them by wanton destruction of lives and property and their manifold atrocities.

It is to be expected that Ndigbo should entertain differing ideas on the feasibility of a project whose success or failure depends upon so many variables - political party interest and affiliation, adequate funding, mercenary tendencies on the part of some Igbos, the support or flack of it by other ethnic groups, etc. Divisions may well be more intensified among the Igbos but they are not peculiar to them; the other groups too experience them in varying degrees. The excessive lust for money among the Igbos is, I believe, largely a legacy from their defeat in the civil war, which has instilled in them the culture of self-survival even at the expense of the survival of the group itself.

I am of course aware of the pamphlets on the matter by Senator Arthur Nzeribe, entitled Ndigbo and Obasanjo: Matters Arising (one.) The Senator has in these pamphlets argued, quite ably as usual, a point of view, and he is entitled to it. I do not intend to personalise the issue. Whilst Senator Nzeribe sometimes takes a position different from that of most of us in Ohanaeze, he remains an Igboman to the core. This is not generally realised. With us in Ohanaeze, the issue is not really whether or not the project is feasible, realistic or realisable; we are staking what we believe to be a legitimate claim, and we are committed to go on with it whatever the outcome. We are not deterred by the possible risk of failure; success in life is often the resulted of risk-taking. Ohanaeze is working hard to ensure the success of the project. If it fails in spite of our efforts, we would at least have succeeded in compelling the nation and the international community to take cognisance of the legitimacy of our demand and the injustice of our exclusion form the office.

As you are aware, both the Executive Committee of the Ohanaeze Youth Council and the entire council itself have been disbanded for their visit to President Obasanjo, and their individual members who took part in the visit are prohibited from participating in any Ohanaeze activities for a period of one year. In addition, its leaders, Nnamdi Nwakocha, Chairman, and Chuks Ibegbu, Secretary, are forbidden to present or parade themselves as such, and the public is warned that anyone dealing with the two of them in any matter connected with Ohanaeze does so at their own risk.

There are three main reasons for Ohanaeze taking these obviously severe disciplinary sanctions against the Ohanaeze Youth Council and its erring individual members, viz.

First, the visit was entirely unauthorised by the parent body. Speaking for myself as Secretary-General of Ohanaeze, I had not the faintest inkling of the visit, which took place on 25 June, 2002, until three days after, ie. 28 June. It is a mark of utter indiscipline that the Youth Wing of an organisation like Ohanaeze Ndigbo should go on a delegation to the President of the country on any matter whatsoever without clearance from the parent body. It depicts Ohanaeze as a body entirely incompetent to maintain its authority even over its own Youth Wing.

Secondly, the obsequiousness and servility of the address read during the visit is too demeaning as well as foreign to the character of Ndigbo. Every Igbo man or woman is demeaned and his or her personality is diminished by the obsequious language of the address which leaves one wondering how such an address could have been written by a group of true Igbo youths. But we were told that the authorship was not theirs; it was written by someone else and simply handed down to them. Still, as adults, their offence is scarcely less grievous for allowing themselves to be used in that way.

Thirdly, the address contradicts in several parts of it the position and pronouncements of Ohanaeze on the issues raised, for example, the issue of marginalisation. The issue of an Igbo presidency is reduced to a secondary position, secondary, that is, to that of a National Conference which, though supremely important to us, is posited as overriding the Igbo presidency project.

I leave out of consideration for the moment the mercenary motive for the visit. The actual amount given to them is disputed, but it is not in dispute that some amount of money was given. How it was shared may have been grossly unfair, but that makes no difference to the mercenary motive.

In responding to the address presented to him by the visiting Ohanaeze Youth Council, President Obasanjo was reported in the national press to have said that he was no longer opposed to a National Conference, as he was at the early stages of his administration. One of his aides, the respected Dr. Stanley Macebuh, has come out with a correction, saying the president had not at any time been opposed to the idea of a National Conference as such, only to the brand of it called a Sovereign National Conference.

President Obasanjo’s opposition to a National Conference of any type, Sovereign or Non-Sovereign, has never been in doubt. No doubt, double-talk is part of the game of politics, but none seems to me more unworthy of belief that Dr Macebuh’s affirmation of the president’s consistent support for a Non-Sovereign National Conference. There are some of us who have interacted with the president closely on the matter and who know his position on it much better than Stanley Macebuh.

The president’s opposition to a National Conference, Sovereign or Non-Sovereign, has been persistently manifested in the way he uncompromisely spurned and derided the letter and other approaches to him on the matter by the Patriots, the resolution on it by the leaders of thought from all the geo-political zones held in Abuja in May 2001 through the good offices of the most revered Traditional Rulers in the country )both the Patriots and the leaders of thought emphatically repudiated the Sovereign National conference) and more recently the National Conference and referendum Bill prepared and sent to him and the National Assembly by the patriots. All those demanding a National conference of any type were denounced as people wanting to dismember the country and endanger its peace and stability. The reasons and motives for his opposition are varied, and not always clearly stated.

Can it also be suggested that the federal government’s new statement on the sharia controversy, as recently announced by the Attorney-General of the Federation and Minister of Justice, is "a re-affirmation of long-held position of the president." All this equivocation, reprobating and, when circumstances make it expedient, approbating, shows a lack of consistency and decisiveness in leadership call it "an effort to shore up his political fortunes," if you will. It is part of the techniques of power manipulation by a leader not committed to democratic governance, part of the thing that has left the country prostrate on the ground and writhing in death pangs.

More instances of President Obasanjo’s opposition to a National conference, Sovereign or non-sovereign, may be cited. But this is unnecessary. There is an Igbo saying that people should not argue and dispute about their skill and agility in wrestling when the ground is there to settle the matter. If President Obasanjo now genuinely supports a National Conference, he should demonstrate his sincerity by sending a Bill on it to the National Assembly. that is the challenge thrown to him by Ohanaeze in its resolution adopted at Asaba, Delta State, on 30th June, 2002.

Senator Pius Anyim may not be the best Senate President. He certainly has earned the scorn of many Igbos and other Nigerians for making himself so subservient to President Obasanjo, thereby compromising the independence of the Senate and the National Assembly, which is among the pillars of the presidential system.

But Ohanaeze is totally against any attempt to remove him. His removal will be a terrible reflection on the entire Igbo people, coming after the earlier removals of Senator Evan Enwerem and Senator Chuba Okadigbo.

At the same time, Ohanaeze would not want to be misunderstood as condoning any wrong-doing, like the mess over the Electoral Act 2001. In a civilised democracy, that outrageous mess would have brought down the entire government. Ohanaeze’s position in the matter is that if there is to be any sanction for the mess, as there should have been, all those actively involved in it must be made to face the music. Pius Anyim must not be singled out and sacrificed as a scapegoat.

Whilst I do not want to meddle in the internal affairs of the PDP, yet, being the ruling party, its affairs were a matter of public interest. The affairs of the party have not been run on the basis of principles of democratic governance. There has been too much manipulation by President Obasanjo, for example, manipulation in the election or rather selection of National Chairman and National Secretary. This manipulation, which is a carry-over from Chief Obasanjo’s autocratic past as former Head of an autocratic federal Military Government, lies at the root of the problem in the PDP. A ruling party in a democratic polity should not be run along such autocratic lines.

We are supposed to have transited to constitutional democracy on 29 May, 1999 but we are not practising it yet, for the simple reason that President Obasanjo is not a true democrat. He has been ruling this country, not as a true democrat, but in the fashion of a military autocrat.

I think we Nigerians have not taken human nature fully into account to expect him to be other than a military autocratic. Here is a man who, until 1979, had been a military officer, a military commander, the supreme commander of the Nigerian armed forces and Head of an autocratic Federal Military Government, and who, in all these capacities, had been used to giving orders and receiving obedience without question.

It is not in the nature of the human being that he should over-night abandon habits and styles acquired over a life-time.

As I said in 1999, after 28 years of military rule, Nigeria needed and deserved a fresh start on a clean slate. We denied ourselves such a start. We are in part to blame for what we are getting. But all former Heads of the Federal Military Government should please allow Nigerians time and the opportunity to make this fresh start on a clean slate in 2003. They are ill-fitted to practise constitutional democracy, even assuming that they are able to understand it in all its complexity.

There can be no true constitutional democracy unless the administration of government is based on:

i) equity and justice

ii) objective principles governing the exercise of political power, instead of sheer manipulation of power;

iii) respect for constitutional limitations on power.

These three things are lamentably lacking in Nigeria since May 1999. The lack may be illustrated by a few concrete instance. The denial of the right of the eight littoral states to a special compensatory allocation of a percentage of revenue from off-shore oil by the decision of Supreme Court in a suit instituted by the President Obasanjo Federal Government is an act of grave injustice. The Supreme Court held that the territorial sea and its subsoil, defined by the state law of Nigeria as extending to thirty nautical miles from low-water, is not part of the territory of the littoral states so as to entitle them to special allocation of a percentage of the revenue derived from oil located therein under section 162(2) of the constitution. What is even more difficult to understand or justify, the apex court also held that the territorial sea and its subsoil is not part of the territory of Nigeria either, and that its seaward boundary as well as seaward boundary of the littoral states stops at low-water mark.

This decision flies in face of the UN law of the sea convention 1987 (replacing the Geneva Territorial sea Convention 1958) - recognised and applied in Nigeria by its local statute law - which extends the sovereignty of a country in its land territory to the territorial sea and its subsoil adjacent to the country. It also flies in the face of the decisions of the apex courts in the United states, Canada and Australia - cited with approval by our Supreme Court - which in explicit terms declared the territorial sea and its subsoil as part of the territory of the countries concerned.

The Nigerian Supreme court did not follow and apply the decisions of these other courts, in spite of citing them with approval, because the inescapable logic of applying them would, by the operation of sections 2 and 3 of the 1999 constitution, compel it to accept that the territorial sea and its subsoil is part of the territory of the littoral states. For, since under these sections of the constitution, Nigeria consists of 36 named states and the Federal capital Territory, Abuja, the country could have no other territory outside the territories named in sections 2 and 3 of the constitution. To be part of the territory of Nigeria, as it unquestionably is, the territorial sea and subsoil has to be part of the territory of the littoral states exactly like their land territory. That must not be accepted in order that the littoral states should not get the special allocation of a percentage of revenue from off-shore oil.

The erroneousness of the judgment as a matter of law is compounded by the inequity and injustice of denying the littoral state the special allocation of percentage of revenue from off-shore. According to the Okigbo Presidential Commission on Revenue Allocation, "the production of minerals creates hazards to life and property in the areas concerned and causes a general degradation of the environment and of the ecology of the producing areas" which creates for the state governments concerned "the additional responsibility for the increased cost of the welfare, and the rehabilitation (and in some cases resettlement) of the people and areas concerned." It is for these same reasons that, whilst in international law "the sea is res nullius, and is, therefore, available for the enjoyment of all nations of the world, land-locked nations inclusive," and no state may validly purport to subject any part of it to its sovereignty, international law nevertheless recognised, "that by the vulnerability of their proximity to the sea, maritime nations are entitled to some privileges not available to others to protect their security" p.14 of the Judgment. It recognises in, and accords to, them sovereignty over their territorial sea and its subsoil, and exclusive right of exploration and exploitation of natural resources over their continental shelf or exclusive economic zone.

If international law accords these special rights to coastal states because of the "vulnerability of their proximity to the sea," it smacks of meanness, insensitivity, injustice, unconscionableness and oppression for the federal government of Nigeria, as a beneficiary of the kind, indulgent concessions of international law, to deny to the country’s littoral states a paltry 13 per cent of revenue derived from mineral resources located in the territorial sea, continental shelf or exclusive economic zone contiguous to their territory. It might have been thought that their claim to such special compensatory allocation is so obvious and compelling as cannot be denied by any fair-minded person, least of all by a Federal Government whose right to the whole of the revenue in question arises by the generosity and concessions of intentional law. The whole thing seems so utterly unconscionable as to be unbelievable in a world where conscience, equity and fairness still have a place.

Manipulation of power, instead of actions based on principles of democratic governance, is exemplified most starkly in the process of the registration of political parties. The 1999 Constitution, in a provision incorporated from the 1979 Constitution, guarantees to every person freedom to "associate with other persons and in particular .... (to) form or belong to any political party, trade union or any other association for the protection of his interests" (section 40, 1999).

A proviso, slipped in at the last minute by Gen. Obasanjo’s supreme military council to take account of its 1977 Decree (see below), purports to qualify the freedom by the provision that the guarantee "shall not derogate from the powers conferred by this constitution on the Independent National Electoral Commission (INEC) with respect to political parties to which that commission does not accord recognition" (s. 40). It is to be noted that only pours conferred by the constitution for the recognition of political parties are relevant, powers conferred by any other law are irrelevant; furthermore the proviso itself grants no power to accord or not to accord recognition. The power has to be looked for in other provisions of the constitution. Part of the Third Schedule to the constitution provides that INEC "shall have power," among other things, to "register political parties in accordance with the provisions of this constitution and an Act of the National Assembly." Like section 40 proviso this provision grants no power to INEC to register or not to register a political association as a political party. The commission can only assume such power "in accordance with the provisions of this constitution."

The only provision relevant for this purpose is that (s. 222) which states that "no association by whatever name called shall function as a political party, unless:

(a) the names and addresses of its national officers are registered with the Independent National Electoral Commission;

(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, sex, religion or ethnic grouping;

(c), a copy of its constitution is registered in the principal office of the commission in such form as may be prescribed by the commission;

(d) any alteration in its registered constitution is also registered in the principal office of the commission within 30 days of the making of such alteration;

(e) the name of the association, its emblem or motto does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria; and

(f) the headquarters of the association is situated in the capital of the federation."

Three comments may be made on this provision. First, it does not prohibit the formation of a political association in the first instance. The conditions which it prescribes relate, not to the initial formation of a political association or to its formal or nominal existence thereafter, but to its operation as a political party. The distinction between incorporation of a company and commencement of business is familiar enough. Under the provision therefore the formation of a political association is a purely private act, but before it can begin to function as a political party and in particular to canvass for votes for any candidate at an election, it must satisfy the six conditions stipulated in the constitutional provision in section 222.

Secondly, and more important, the provision gives no power to INEC to register or not to register, to recognise or not to recognise an association as a political party. Apart from the power granted to the commission to prescribe the form of the party constitution, e.g. whether it should be typed or printed and whether it should be in bound form, the provision grants no power at all to the electoral commission. Its concern is to impose obligations on an association regarding the conditions it must satisfy before beginning to function as a political party. Only three of such obligations have any relation to the commission (the other three make no reference at all to it), but they relate to it in the sense, not of conferring power, but rather of requiring identification particulars to be furnished to it. The requirement that the constitution of an association (and any amendments of it) as well as the names and addresses of its national officers should be "registered’ with the commission merely casts an obligation on the association not furnish the prescribed information and document to the commission for identification purposes; no power is thereby created in favour of the commission to grant or withhold recognition or registration. The commission’s role in the matter is the purely formal or ministerial one of taking the party constitution into its custody and recording the names and addresses of the party officers in its books. Of course the commission can refuse to accept a party’s constitution for filing or registration, but that confers no real discretion on its to grant or refuse recognition or registration.

The powers conferred on the commission under sections 223-226 of the 1999 constitution relates and apply only to a political party, not to a political association that has not yet become a political party by complying with the requirements of section 222 as set out above. According, until it has become a political party, a political association is not obliged to comply with section 223 which provides that "the constitution and rules of a political party shall provide (a) for the periodical election on a democratic basis of the principal offices and members of the executive committee or other governing body of the political party; and (b) ensure that the members of the executive committee or other governing body of the political party reflect the federal character of Nigeria." (emphasis supplied). This conclusion flows from the clear distinction drawn by the constitution between a political party and a political association.

The third comment concerns the question of how to ensure that an association complies with the constitutional requirements and how to enforce them should it begin to function as a political party without complying with them. Although the provisions is couched in the form of a prohibition, no criminal offence is thereby created. At worst, the acts done in contravention of the prohibition may be unconstitutional and void. It is significant, however, that, even given the unconstitutionality of such acts, the electoral commission is granted no power directly by the constitution to ensure compliance -for example, by withholding recognition - or to enforce contraventions. Significantly too, the prohibition is not among the provisions for the contravention of which the national assembly is empowered to prescribe punishment. The powers conferred on the National Assembly by section 228 of the 1999 Constitution in and item 56 of the exclusive legislative list also relate and apply only to a political party, not to a political association that has not become a political party by complying with the requirements of section 222. These requirements cannot be added to by the National Assembly by virtue of its power to regulate political parties.

It follows that the National Assembly cannot, in the exercise of its general power to regulate political parties, authorise the denial of recognition to any political association to function as a political party on grounds other than those stipulated in section 222 above. That would amount to licensing which is unconstitutional. The unconstitutionality of a power of licensing in relation to the exercise or enjoyment of a guaranteed right is well stated by the US Supreme Court as follows:

‘It is settled by a long line of recent decisions of this court that an ordinance which, like this one, makes the peaceful enjoyment of freedom which the constitution guarantees contingent upon the uncontrolled will of an official as by requiring a permit or licence which maybe granted or withheld in the discretion of such official - is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." (Staub v. Baxley 355 U.S. 313 (1958).

A political party, trade union, religious or other association may, however, justifiably be required to file certain information about itself which will enable it to be identified, provided that the information required is not more than is reasonably necessary for identification purposes. Thus, an order of a state court, issued in pursuance of a statute, compelling the National Association for the Advancement of Coloured People to produce a list of its members in the state was held unconstitutional and void, on the association showing that on past occasions revelation of the identity of its rank-and-file members had exposed those members to economic reprisals, loss of employment, the calling-in or denial of bank loans, foreclosure of mortgages, threat of physical coercion, and other manifestations of public hostility.

(National Association for the Advancement of Coloured People v. Alabama 357 US 449 (1958); re-affirmed in Bates v. Little Rock 361 US 516 (1960). The court affirmed that disclosure in the circumstances would abridge the right of the members to engage in lawful association in support of their common beliefs, that effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, and that inviolability of privacy in group association may in many circumstances by indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. It is not decisive therefore, that no action had been taken by the state directly to restrict the ability of members of the association to associate freely; indirect governmental actions such as that involved here could also have a highly restrictive effect on membership. The character of the association as a lawful organisation engaged in the promotion of constitutional rights for all races on the basis of equality is of course an underlying premise of the decision. This decision was subsequently re-affirmed even against a city ordinance which required any organisation operating within the city to give certain information, including the names of all who paid dues, assessment or contributions. In the view of the court there is no "relevant correlation" between the city’s power to impose occupation licence taxes and the compulsory disclosure and publication of membership lists. (Bates v. Little Rock, ibid).

Compulsory disclosure of membership maybe constitutionally justified in the case of an association which is formed for criminal purposes of engages in criminal conduct or which is a secret oath-bound society. (Viereck v. United States (1943) 318 U.S. 236; Communist Party v. Subversive Activities Control Board 351 U.S. 115 (1956); 361 U.S. 1 (1961); Konigsberg v. State bar of California 366 U.S. 36 (1961); New York ex rel Bryant v. Zimmerman 278 U.S. 63 (1928).

On the authority of these decisions, therefore, any law, whether an existing or future one, which purports to authorise INEC to grant or refuse registration or recognition to a political association to function as a political party on grounds other than those stipulated in section 222 above is unconstitutional and void. Thus, the power conferred on the electoral commission by a Decree in 1977 to "register political parties and determine their eligibility to sponsor candidates for elections" is unconstitutional and void. Happily the Decree expired by its own terms on October 1, 1979. Equally the Guidelines for the registration of political parties issued by INEC in May 2002 and which purport to prescribe conditions and requirements outside those stipulated in Section 222 of the 1999 Constitution are unconstitutional and void.

The most glaring instance of lack of respect for constitutional limitations upon power is perhaps the Corrupt Practices and Related Offences Act 2000. "Of all checks on democracy," writes Professor John Delberg-Acton, better known as Lord Acton, "federalism is the most congenial and efficacious." The hallmarks of true federalisms are the principles of equality and autonomy of the constituent governments as governments and the doctrine of non-interference by one government in the management of the affairs of another government, e.g. the management of its finances, the appointment and control of its staff, the award of contracts for the provision of services and other projects.

A discussion of the principles of equality and autonomy and the doctrine of mutual non-interference will take us too far afield, but it needs to be explained and stressed that that doctrine rests on the pre-supposition that an act done by one government, e.g. a law passed by it, is within the powers granted to it by the Constitution. The concern of the doctrine is with the manner in which the power so granted is exercised. It is concerned with the practical effect which the exercise of the power has on another governments management of its affairs or with its continued meaningful functioning as a government. If the practical effect of the exercise of the power is to impede, stultify, frustrate or otherwise unduly interfere with another government’s management of its affairs or its continued meaningful functioning as a government, then, the interfering act, though unquestionably within the power granted by the constitution, is nonetheless invalid, because the stultification, frustration or interference with another government’s management of its affairs would result in the federal system itself being abolished in all but name.

As the High Court of Australia puts it in R. v. Commonwealth Court of Conciliation and Arbitration, Ex Parte Victoria (1942) 66 C.L.R. 488 the exercises by the federal government of its undoubted power over labour so as to regulate or control the pay, hours and duties of all state public servants would have the practical effect of enabling it (the federal government) "to take complete control of all government administration within the country," thereby "abolishing in all but name, the federal system of government which it is the object of the Constitution to establish." The preservation and maintenance of the federal system of government is something far more important, fundamental and therefore, overriding than the grant to the federal government of a plenary power to legislate with respect to labour.

In the same vein, the U.S. Supreme Court has held that "a general non-discriminatory real estate tax .... or an income tax laid upon citizens and states alike could not be constitutionally applied to the state’s capital, its state house, its public school houses, public parks: in exercise of the federal government’s plenary power over taxation - see New York v. United States (1946) 326 U.S. 572. The point may be further illustrated by a hypothetical, if more striking, example. Suppose that a federal government, invested with plenary power over taxation, levies, by law, a tax of, say, N1 billion on every law made by a state house of assembly and another N1 billion on every executive action taken under such law. Surely, the practical effect of the tax would be to cripple the state governments, to put them out of action or meaningful existence as governments, and thereby "destroy, in all but name, the federal system which it is the object of the constitution to establish."

When fully implemented, the Corrupt Practices and Related Offences Act 2000 will involve such enormous interference with a state government’s management of its affairs as would, in its practical effect, result in the abolition of the federal system in all but name. Public functionaries in the service of a state government (other than the governor) are subjected by the Act to investigation, prosecution and punishment for corruption, fraud and related offences committed by them in the discharge of their official duties in relation to the money, property or affairs of the state government arising from the award of contracts, issuance of licences or permits, employment of staff or any other business or transaction - see sections 8, 9, 10, 11 and 12 of the Act. The governor himself may be investigated for corruption, fraud or related offences involving the money or property of the state government by an independent counsel authorised in that behalf by a national functionary, the Chief Justice of Nigeria (section 51(1) of the Act). The practical effect of these provisions of the Act is that the management of nearly all aspects of the affairs of a state government is subject to control and interference by the commission, its officials and other authorities of the federal government. Little, if anything, is left of the autonomy of the state governments; the federal system would have ceased to exist in all but name, and would, for all practical purposes, have been converted to a unitary system.

The Act will be like the Sword of Damocles which the President can hold over the heads of the state governors to coerce them to fall in line with his wishes and schemes. The governors will have lost their independence as the heads of autonomous governments as the names of those opposed to his wishes and designs will be sent, one after another, to the commission to be investigated ostensibly for alleged corruption under section 52(1) of the Act. This is the evil use to which the Act is susceptible, and for which it is being used.

The inequality flowing from a situation where the head of the federal government can submit to the commission for investigation for alleged corruption, the name of the head of a state government, but the later cannot do the same to him is too glaring and blatant to be compatible with true federalism. And a federal system which permits the removal, for corruption or for any other reason, of the head of a state government at the instance of the head of the federal government, or even vice-versa, is no true federal system at all. No interference could be worse than that. And it is no less an interference because the removal is for corruption, our abhorrence of corruption notwithstanding.

The autonomy of a state government is also clearly interfered with by the duty imposed on the Chief judge of a state to "designate, by order under his hand, a court or judge or such number of courts or judges as he deem appropriate to hear and determine all cases of bribery, corruption, fraud or related offences arising under the act or under any other law - a court or judge so designated shall not, while the designating order subsists, hear any other cases (section 61(3) of the Act). This provision is clearly unconstitutional and void by the decision of the Supreme Court in Att-Gen of Ogun State & Others v. Att-Gen of the Federation & Others (1982) 3 NCLR 583.

In the hands of President Obasanjo if elected for a second term, the Act seems well calculated and designed to destroy the federal system in Nigeria, and convert it to a unitary and to suit the autocratic mould in which his personality and character have been cast by his military background. Whilst indisputably corruption is a pernicious evil which should be fought relentlessly, the fight against it should not be at the price of the destruction of the federal system, which is perhaps our best guarantee of the unity and stability of the country. We have lived with the evil of corruption almost from inception, but can we live in peace and harmony without a federal system, truly so-called? The choice is between the evil of corruption (for which other solutions can be devised) and the danger of a possible disintegration of the country.

In the past two years or so, the supreme object and motive for all the manipulations, perversions and abuses of power, all the confounding shifts in position, all the de-stabilising realignment of forces, all the dividend-rule tactics employed to foster trouble and unrest in some states or area of the country, and all the sponsored or inspired crises in various institutions and organisations has been the consuming passion and ambition for a second term. If our experience e of Obasanjo’s rule during this period teaches anything it is that, in the circumstances of Nigeria, a second term is a positive evil, which must therefore be excised from the constitution - for the president as well as for the state governors.

Dec 2002