Straight Talk (In Plain English) - By Alex Aidaghese: The Search for True Federalism: Balancing Feudal I...

Straight Talk (In Plain English) - By Alex Aidaghese: The Search for True Federalism: Balancing Feudal I...: “The federal character principle enshrined in the 1979 Constitution is predicated upon the view of Nigeria as a house on four pillars, t...



Laying the Foundation for the demands for Restructuring and True Federalism: It all began here - on this Blog in 2012.

The Defeat of Devolution of Power at the Senate and the Mechanics of Legislative Integrity. A Lesson in Legislative Activism from Northern Political Leaders

That the demand for Devolution of powers spearheaded by social activists and some influential political leaders, predominantly of southern extraction, was defeated in the Senate a few days ago didn't come to me as a huge surprise. Simply put, it was a de javu all over again. Be that as it, and given the enormity of the support that the demand has garnered over the years, the vote to kill it is but the beginning of a dangerous trend in the call for change and restructuring. What is most disturbing though, is the massive disconnect between the agitators of Devolution of Powers in the social media and the voting patterns of their elected representatives in the Nigerian Senate.

So, based on the outcome of the vote counts on the amendment, I hold the following declarations listed below to be self-evident that (one), until Decentralization Activists come to the realization that majority of Southern Senators are celebrated local champions and opportunists, and, who, history has told us, do not have the wherewithal to match the oratorical skills and legislative acumen of their Northern colleagues, the better for the actualization of your dream of True Federalism or Restructuring through the legislative process. 

And two, until all of you Restructuring Advocates come to the realization that when push comes to shove, your much loved and respected Middle-Belt nationalists and political leaders will always consider the name "Middle-Belt" as a badge of sacrilege to be discarded, and will willingly and unperturbably align their votes along side those of their Northern bredrens, the better for the realization of your dreams.

If you are in doubt, of my characterization of Middle-Belt Political leaders as unreliable allies, consider for a second the voting pattern during the National Conference organized by the Jonathan's Administration a few years ago. It is a replica of the show of shame that took place on the Senate Floor a few days ago. 

When it comes to Restructuring, True Federalism or Decentralization of power DO NOT count on the votes of Middle-Belt Legislators. Do not count on the support of their Traditional Rulers. That's a bitter pill that you must learn to swallow. Don't be deceived by the copiously documented atrocities of Herdsmen in the region over the years. They have more to gain maintaining the status quo ante because they benefit immensely from the windfalls accompanying Hundreds of unproductive local government councils created for them by the Abacha's Administration. Don't also forget that they are a major beneficiary in the application of Federal Character and Quota System - the set-aside and favoritism that defined the constitutional anomalies are too tempting for them to ignore. 

Indeed, there were reports of aggressive lobbying and schmoozing during the vote at the behest of the much aggressive Northern Senators who were working tandem with their traditional rulers. And at the end of the day, they won. There is nothing wrong with that at all. That is how the game is played all over the World. 

Lobbying indeed is a part of the game. And Northern Legislators, like them or hate them, know how to play the game fantastically well, and with outstanding results to boot. Most often, they defer to consultants on standby for guidance. Our guys, on the other hand, just watch in defeat. They are too obsessed with their new found fame to come low and seek the opinion of experts in their various constituencies to position them fruitfully for aggressive and intelligible contributions during debates.

Consider for a second, the now renamed PIB - Petroleum Industry Bill - when it came for a hearing about a few years ago, Governor Babangida Aliu of Niger State, told Nigerians that, Legislators of Northern extraction will not take action on the Bill until they seek the opinion of experts. They did and the Bill died. Thank God the Bill miraculously resurrected earlier this years through some vigorous rebranding. As at the time that Governor Babangida Aliu made that declaration, was there any challenge or a rebuttal or a strategic maneuvering by Southern Governors or Southern members of the National Assembly on the same subject? The answer is a capital NO. Governor Amaechi of Rivers State was the Chairman of the Governors Forum at the time. 

Why is the preceding paragraph necessary? Simple; he didn't know how to take advantage of his vintage position as the Chairman of the forum and as a Governor of the number one Oil Producing State to sway Governor Aliu on his position on the Host Community Funds section of the Bill. Governor Amaechi was more interested in how to dilute the power and prestige of his clan's man, President Jonathan. 

Noticing the disturbing silence on the part of all the Governors from the Niger Delta, this author wrote a long essay, rebutting line by line and point by point the reasons given by Mr. Anthony Sanni and Governor Babangida Aliu for opposing the Bill. The essay was also published by the Niger Village Square. 

As one from Edo State, and being part of the oil producing states, my goal of writing the essay and sending it to Nigeria Village Square for publication - which they did - was to provide ready talking points for the Niger Delta Governors, their Advisers and members of the National Assembly from the region. That effort turned out to be a futile exercise. The absence of a rebuttal from them was not in any shape or form connected with lack of materials or talking points to use in the defense of the Bill. The truth is the legislative awareness or sophistication necessary to see the Bill through the legislative process wasn't there. Only Senator Enang was alive to the process. He published the names of the individuals that own oil fields in the Niger Delta. 

Another example was the deliberations on the Renunciation of Citizenship Bill that came up on the floor of the Senate a few years ago. As originally written, the law stipulates 18 years benchmark for renunciation. Later, Senator Yerima from Zamfara State unilaterally injected a clause into the Bill, amending the requirements to include "marital status." In other words, if you are married, whether or not you are nine years or ten years or eighteen years old, you can renounce your citizenship. And they all voted overwhelmingly to affirm. 

A few days later, an interest group came out, condemning the inclusion of marital status. That was when most Southern Senators, including my own Mr. Odion Ugbesia (representing Edo Central Senatorial District then), realized that one smart Senator single-handedly made a fool of them. Later they came out in the open, telling Nigerians that they were not even aware of the amendments or its implications until the revelations appeared in the news media.

If they are not absent-minded during debates and deliberations on a given issue, they resort to stupid laughter and giggling when faced with serious challenges from their Northern colleagues. Northern political leaders and their representatives at the National Assembly speak with supreme confidence, and with one voice whenever issues bordering on True Federalism, Decentralization of Powers, and Restructuring are on the table. Unfortunately, you cannot reach the same conclusion about Senators from down South.

The Importance of Lobbying and the Use of Expert Consultants

There was no effort put in place to convince Senators from Taraba State, Benue State, Kogi or Plateau State and their traditional rulers that they have more to gain via Restructuring if they have total control of their fertile land? 

There was no consultation with the influential Afenifere and N'digbo Cultural/Political leaders to Abuja to assist them in discrediting some interloper Middle-Belters like Paul Unogo and Jeremiah Useni - who like to be more Northerners than the real Northerners. It is not about winning an election. It is more about making fruitful use of your time as legislators. Consult with Consultants, If you don't have a full grasp of the essence and implications of what is at stake.

That again is a huge problem impeding our cohesion and emancipation in the South - every Southern Political leader believes he is an expert in every field. The unwarranted conciliatory tone of Southern legislators during serious debates is nauseating. It is on record that none of them want to be recorded or reputed as the Legislator who opposes or advocates a contrary view or point of law that the Northern Legislators as a group proposes. They crave acceptance from their Northern colleagues for no apparent reason.

The truth is that, if you Southern Political leaders were not susceptible to playing second fiddle because of our greed and love for crumbs falling down from the table, the term "born to rule" would not have evolved or gained the notoriety it is enjoying presently. It's your willing conciliatory voting pattern and persecution complex that catalyzes the notion of born to rule. They didn't invent it. Our actions and inactions gave the concept underserved synergy.  And that is the main reason that all the militant groups are experiencing massive followership every day. No credible leader or legislator with his integrity intact, willing and ready to make a good representation of his constituency at Abuja.

APC and Disturbing Denial in the Face of Disturbing Reality in our Federal System.

If you must remember, the clash between Chief Tinubu when he was the Governor of Lagos State and President Obasanjo when he was the President of Nigeria was the creation of Local Government Council that the Governor unilaterally executed in his State. Today, Chief Tinubu, if at all he is singing any tone on Restructure or Decentralization of Powers, it is a different tone. APC, the Political Party he incubated, won the last Presidential Election. And Restructuring of the political system and the economy was its major manifesto. 

That APC is pushing a convoluted narrative on Restructuring - feigning ignorance on what the concept connotes - cast doubt on its image as a party ready and willing to make a change. That Kano State has 44 Local Government Councils, and Lagos State with almost the same population has half of that is a forbidden topic in the mouth of Lagos members of the National Assembly. 

Take a count of the number of Local Government Councils in the Old Eastern Region and the number of Local Government Councils in the old one Kano State that is now divided into Kano, Jigawa, and Katsina. I am not even talking of the other States in the North. Are these not enough talking points for all you self-appointed public affairs analysts and commentators who cannot make a coherent case for Restructuring and couldn't make a plausible case for Sovereign National Conference? 

The Futility of a Yes Vote from a Hostile Partner 

Why would you embrace a vote on the issue of Restructuring knowing full well the numerical strength the Northern Region enjoys over the Southern Region in the House of Representative and the Senate as a result of the Abacha's wonder? Simply put, you don't have the vote. 

First, make a vigorous case for why you want Restructuring - citing the ills in the political system. But the trouble is, you are not willing to delve into the forbidden areas, because you are not comfortable provoking your honorable colleagues from the North or create the impression that you are hostile towards their interests. That one section of the country was openly favored in the distribution of new states and local government councils is a national issue. 

Come on, guys! Northern political elites speak truth to power - they don't equivocate on what they want out of this union. Copy them and do what they do, and Nigeria will turn out to be the better for it. 

Do you think I hate northerners or the much maligned Hausa/Fulani? Or that I want Nigeria divided? Absolutely, no. Nevertheless, on True Federalism, I stand. And on Decentralization of power, I stand. And I will continue to use this platform to refute the lies and misinformation, most often peddled by Northern political elites, about the true state of our union, the underdevelopment of the talakawa, and how the successive Military Administrations headed by Generals from the region perverted a true federal system through the creation of states and local government councils to waste our resources. 

Where, for instance, did the Sokoto State Government receive the N700 Million Naira that it paid into the account of the Sultan of Sokoto for the acquisition of a house at Abuja? And how is it possible for State Governors in the Northern Region to have on their payrolls Thousands of Political Aids and Assistants who have no title, no job, no responsibilities and no office?

Civil Servants Without Service

Answering those questions above is very simple. What is the population of students at both Elementary and Grammar Schools in Sokoto State? How many Teachers or Lecturers on the parole of Sokoto State? Finally, what is the number of local government councils in Sokoto State? Don't forget; the more local governments councils you have, the higher your allocations from the Federal Government and not the number of students, lecturers or schools that you have in your state. 

Compare and contrast, the number of local governments councils in, for instance, Imo State and Ogun State on the one hand, and Bornu State and Sokoto State on the other, vis-a-vis the number of Schools and Students population in the four states. That would enlighten you about the sources of the surpluses and wastages in our Federal System. 

As I stated earlier, APC, the government in power, that, in fact, made Restructuring of the economy and political system its major campaign slogans, now feign ignorance deciphering the term "Restructuring." So, to help them overcome their state of denial, they went ahead to set up a Panel headed by a guy who I admire so much for his administrative skills, and one, who has given series of convoluted explanations on his position on Restructuring to assist them in reaching an understanding on the meaning of Restructuring. (By the way, I have records of all his pronouncements on Restructuring on my Facebook Timeline). In other words, the definition of Restructuring is now in the hands of the very smart El'Rufai whose definition of Restructuring is time sensitive. 

Searching for Voice of Wisdom on the South

On a final note, have you ever asked yourself why an Agbokaba (SAN) or a Falana (SAN) cannot be recommended for a post at the national level, or why the late Gani (SAN) or the late Professor Awojobi and the late Professor Festus Iyayi couldn't secure a position at the national level given their credibility and patriotism. Simply put, no greedy politician from the South would willingly recommend a rebel Southerner for a national office. The fear of the unknown - he won't listen to us once he gets there.

Consider another example. This time, my own State. In the past two years, Edo State Central Senatorial District has been cut off from the rest of Nigeria. Driving from Auchi, Ekpoma to Benin City takes hours. Also, it is now practically impossible to drive from Agbor to Uromi or from Agbor to Ewohimi. The Journey from Benin City to Esan that used to be one hour is now more than three hours. And we have a Senator at Abuja representing our interests. Just a few weeks ago, he was reported to have visited some of the areas for assessment. He was a no show all these years. And many lives have been lost in the process and business ruined.

It shouldn't just be about the money, but it is much more about sustainable development. Is it not a shame that Ewohimi has a dam over River Odu that is capable of supplying the entire Esan region pipe borne water every day, but our Senator cannot make a case for the inclusion of that project on the National Budget. Every year, construction of new Dams are always part of the new Budget. But the one on the Odu River is intact, the engine is intact. What they need is the laying of new pipes and diesel to power the engine. That's it. Governor Oshiomhole did do it. Our Senator couldn't make a case for it. Where is your integrity, brother?

Is it not a shame that a Tribe that produced the gentleman, Chief Anthony Enahoro, who tabled the motion of self-rule at the Western House in 1953 has been in political slumber at the National Assembly in the last 55 years. Where is the Esan imprint in our legislative process? Indeed, it is a shame.

Conclusion

To my friends and family members, the term Devolution of Powers is another term for True Federalism, Restructuring, Decentralization or the transfer of powers to the regions and Local Government Councils of some of the Centralized power at Abuja. The Senate voted a few days ago to retain that power at Abuja, contrary to the wishes and demands of most progressive Nigerians. So, I write this essay arguing that those agitating for True Federalism should bridge the gap in the discussion - that's, between the agitators and their representatives at Abuja. That the need to speak with one voice between the activists, electorates, traditional rulers and members of the National Assembly from the region cannot be overemphasized. And that's how it is done in the Northern region of Nigeria and all over the civilized world. In sum, if True Federalism is an aberration, if Devolution of power is forbidden, and if Restructuring is a no go area based on the outcome of the vote in the Senate, then, every community in the South must be prepared to send candidates in the manner, audacity, integrity, image, and credibility of the Falana, Agbakoa, and all the intellectual rebels around to represent their interests at Abuja. This is no longer the time to clap along in a conciliatory tone. No clan and no tribe are born to rule or to dictate the terms and modalities for engagement or disengagement. This is not about PDP or APC. It is about our future and how to overcome disintegration. 

And to you my friends and colleague who called me on the phone and those of you who participated in the debate on this essay on my Facebook Wall, and were not comfortable with my ill-characterization of our Senators, arguing that they didn't have the vote to overcome the defeat, I want to say: that's not a sound argument. Taraba State, Plateau State, Benue State, and Kogi State, have more to benefit exercising control over their fertile land and natural resources than the handouts they are receiving from Abuja monthly. You just have to make the pitch and push for their votes. Unfortunately, as a stated in the essay, Southern Legislators, from time immemorial in the Nigerian National Assembly, are disappointingly too naive, and unwilling to learn and grasp the mechanics of lobbying and legislation in general. 

Femi Falana (SAN), EFCC, Mr. Magu and the Question of Conflict Between Section 171 of the 1999 Constitution and Section 3 of the EFCC Act of 2002

INTRODUCTION

Is EFCC an Extra-Ministerial Department or a Civil Service pursuant to Section 171 (2) (b) and (d) of the 1999 Constitution of the Federal Republic of Nigeria as amended, therefore, vitiating the confirmation of its Chairman by the Senate as specified under Part 1 Section 3 of the EFCC (Establishment) Act of 2002?

According to Mr. Femi Falan (SAN) and JS Okutepa (SAN), EFCC Chairman is protected by Section 171 (6) of the 1999 Federal Constitution, which reads "Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office." Therefore, and going by their interpretation, if the appointment is at "the pleasure of the President" he or she (that's the candidate) is not subject to a confirmation hearing by the Senate as specified under Section 3 of the EFCC Act of 2002. Acting on that premise and point of law, the Presidency has remained intransigent, daring the Senate to a fight, insisting that Chairman Magu is the Chairman of EFCC. The Acting President, Professor Osinbajo, even at a public event, remains unyielding in his position that indeed, Mr. Magu doesn't need the confirmation of the Senate, citing the opinion of Mr. Femi Falana SAN to buttress his arguments.  But I disagree with my two learned Senior Advocates and the Acting President. There is a disconnect between Section 171 of the 1999 Constitution and Section 3 of the EFCC Act of 2002 regarding the appointment and confirmation of the EFCC Chairman as to time and intent. I strongly believe that Section 3 of the EFCC Act can be interpreted and applied in isolation of Section 171 of the 1999 Constitution. There is no conflict or inconsistency requiring an override, as you would see in the Analysis Section of this essay coming up shortly. In sum, I respectfully disagree with Mr. Falana (SAN) and JS Okutepa SAN. It is my humble opinion that my learned Senior Advocates are misleading the Presidency, and specifically, the Acting President. Chairman Magu or any Chairman of EFCC is subject to a hearing and confirmation of the Senate.

WHAT THE LAW SAYS

For ease of analysis, I reproduce verbatim the relevant sections from the EFCC enabling laws of 2002 and from the 1999 Constitution of the Federal Republic of Nigeria as amended.

ONE – 
THE EFCC ACT

Part 1. Establishment of the Economic and Financial Crimes Commission, Etc.

1. There is established a body to be known as the Economic and Financial Crimes Commission (in this Act referred to as "the Commission") which shall be constituted in accordance with and shall have such functions as are conferred on it by this Act.

2. (1) The Commission shall consist of the following members

(a) a chairman, who shall be

(i) the Chief Executive and Accounting Officer of the Commission,'

3) The Chairman and members of the Commission other than ex-officio members shall be appointed by the President subject to the confirmation of the Senate.

TWO – 

THE CONSTITUTION

Section 171 of the 1999 Constitution of the Federal Republic of Nigeria. 

(1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President. 

(2) The offices to which this section applies are, namely – 

(a) Secretary to the Government of the Federation; 

(b) Head of the Civil Service of the Federation; 

(c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad; 

(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and 

(e) any office on the personal staff of the President. 

(6) Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office.

MY ANALYSIS IN PLAIN ENGLISH

The Law is very clear regarding the appointment of the Chairman of the EFCC. According to Section 3 of the Act, The Chairman and members of the Commission other than ex-officio members shall be appointed by the President subject to the confirmation of the Senate. What is ambiguous in that? Nothing really, except that Mr. Femi Falana (SAN) and all the lawyers advocating for Chairman Magu argued that Section 3 of the EFCC Act of 2002 should not be interpreted in isolation of Section 171 (1) (a-e) and (6) of the 1999 Constitution of the Federal Republic of Nigeria. Now, pause for a moment and go back to re-read the entire Section 171 above and search for EFCC or inference to EFCC. The closest you can find is Section 2 (b) Head of Civil Service of the FederationSection and Section (2) (d) that reads: “Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated.” That’s it. Mr. Falana and the Presidency were able to discover conflict by construing EFCC as a Civil Service or incorporating EFCC into the vague “Extra-Ministerial Department of the Government” category.

The urgent questions remain: Is EFCC a Civil Service or Extra-Ministerial Department pursuant to Section 171 (2) of the 1999 Constitution of the Federal Republic of Nigeria thereby freeing its Chairman from Confirmation Hearings by the Senate pursuant to Part 1, Section 3 of the Economic and Financial Crime Commission (Establishment) Act 2002?

EFCC is not a Civil Service. It is not a subsidiary or an affiliate of any Ministry or Department. By the way, is the 1999 Constitution of the Federal Republic of Nigeria that elastic to the extent that we have to integrate an Institution as Structurally Distinct as EFCC into the unenumerated list called Extra-Ministerial departments? EFCC is an independent Institution duly regulated by the Economic And Financial Crime Commission (Establishment) Act of 2002, but nevertheless, still subject to a nullity to the extent of its inconsistency with the provisions of the 1999 Constitution as amended. And in the absence of any such inconsistency, the EFCC Section 3 prevails. Here, there is no inconsistency or conflict. Besides, at the enactment of the 1999 Constitution of the Federal Republic of Nigeria, EFCC was not in existence. And I boldly submit that Section 3 of the EFCC Act of 2002 is not an Extra-Ministerial Departments contemplated by Section 171 (d) of the 1999 Federal Constitution when the Section was drafted. My position is public policy-driven. Constitutionalism aside, I do believe that it would amount to an obscene concentration of power in the Executive arm of government if a position as sensitive and influential as the appointment of the Chairman of EFCC is left at the discretion of the President. That's not good enough for multiparty democracy. Therefore, Section 3 of the EFCC Act of 2002 requiring Senate Confirmation hearing can be construed and applied without regard to Section 171 of the 1999 Constitution. By so holding, Chairman Magu or any Chairman of EFCC for that matter is subject to the confirmation hearing of the Senate. And given the fact that the Senate has "rest its case" on Officer Magu, culminating in a vote of rejection, keeping him in office by the Presidency, exemplifies dictatorial tendencies and a blatant violation of the universally recognized principles of Separation of Powers and Checks and Balances.

CONCLUSION. 

I want to thank every one of you who contributed to the debate on this issue on my Facebook Timeline. Your insights and perspective were most valuable. With all due respect to my learned colleagues as well as those who cast themselves as laymen during the debate, I want to respectfully add that the issue is more than the existence or otherwise of a conflict between Section 171 of the 1999 Constitution of the Federal Republic of Nigeria and Section 3 of the EFCC Act of 2002. I consider it morally repugnant and legally incomprehensible to leave at the discretion of one person or grant that one person the power to exercise such a right in the Constitution coined as "howsoever" in Section 171 (2) (d). That clause is not only vague, but it is also patently overbroad. To allow it to stand is to permit the President to have unfettered discretion - fully unrestricted and without any modicum of constraint - in the exercise of the provisions set forth under Section 171 of the 1999 Constitution as amended. And it is my judgment that the nature of the appointment/confirmation inherent or defined under Section 3 of the EFCC Act of 2002, is not within those class of unenumerated titles (Extra-Ministerial Departments) that are susceptible to Executive overreach contemplated by the drafters of Section 171 of the 1999 Constitution as amended. At the end of the debate on my Facebook, most of the lawyers involved advised the Presidency to proceed to the Supreme Court of Nigeria for a final answer. But I and another lawyer disagreed. We suggested that given the explosive nature of the situation we are in presently politically, dragging the National Assembly to the apex court by the Acting President is a most undesirable channel of resolution of the crisis. We ask for compromise and understanding between the two arms of government.  And with that, I rest my case.