‘Where We Stand On Constitution Review’

On behalf of the Government and people of Rivers State, we welcome the Senate Committee on the Review of the 1999 Constitution of the Federal Republic of Nigeria, to the South-South Zonal hearing in the famous Garden City of Port Harcourt. The people of Rivers State see this constitution review exercise as a welcome development as it gives us a unique opportunity, to once again, present our views before such an eminent body on issues that are of paramount importance to us. We recognise that several views have been canvassed and will be canvassed here by other state governments, NGO’s, interest groups and individuals. In making our presentation therefore, we will as much as possible concentrate on those issues that will enable our dear country Nigeria to function as a True Federation. By the provision of the 1999 Constitution, Nigeria is a Federal Republic. Nigeria has thus chosen to run a Federal System of Government in which power is shared between the Federal Government and the Federating states. True Federation as defined by Professor Itsay Sagay (SAN) is, “an arrangement whereby powers within a multinational country are shared between a federal or central authority, and a number of regionalised governments in such a way that each unit, including the central authority, exists as a government separately and independently from the others, operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of affairs and with an authority in some matters exclusive of all others. In a federation, each government enjoys autonomy, a separate existence and independence of the control of any other government. Each government exists, not as an appendage of another government (e.g the federal or central government) but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from direction by any government. Thus, the Central Government on the one hand and the State Government on the other hand are autonomous in their respective spheres.” (Itsay Sagay, Nigeria : Federalism, Constitution and Resource Control) In practice however, Nigeria’s system of governance is largely “unitary”, as enormous powers are concentrated at the Federal level, to the detriment of the states. We find that this paradox exists, because of the contradictory provisions of the 1999 Constitution, several of which violate the very essence of true Federalism. In this presentation, we shall highlight some of these areas by drawing attention to relevant provisions of the constitution that deal with: (i) Fiscal Federalism (ii) Land use Act (iii) Local Government Reforms (iv) Policing (v) Devolution of powers. Fiscal Federalism: In every true Federation, each federating unit controls its resources and contributes an agreed percentage to the central government by way of tax. The practice by the Federal Government of revenue allocation to states is an anomaly and to make matters worse, the principle of derivation is entrenched in the 1999 Constitution as an integral part of the revenue sharing formula. For us to be able to achieve True Federalism, Rivers State Government urges that Section 44(3) and the proviso to 162(3) to be amended. Section 44(3) provides as follows “Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the exclusive economic zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly”. Section 44(3) which divests the states of their ownership and control of all minerals, mineral oils and natural gas on their land should be amended so as to vest all proprietary rights in all natural resources in the states, in which they are found. The states will in turn, pay an agreed percentage as tax to the Federal Government. “Notwithstanding the foregoing provisions of this section, the entire property in and control of all natural resources in, under or upon any land within a state in the Federation of Nigeria, or in, under or upon the territorial waters shall vest in the government in that state. The proviso to Section 162 (2) provides that. “The principle of derivation shall be constantly reflected in any approved formula as being not less than 13 per cent of the revenue accruing to the Federation account directly from any natural resources”. In view of our proposed amendment to Section 44(3), we propose a consequential amendment to Section 162(2) by deleting the proviso to Section 162 (2) herein before quoted. Consequential amendments will have to be made to all provisions of the Constitution relating to revenue derivation, allocation and distribution. Land Use Act We are well aware that the National Assembly is in the process of amending the Land Use Act. We appreciate that; however the Land Use Act, by every standard, is a controversial piece of legislation and may ordinarily require amendment of its provisions from time to time as the need arises. The current provision in the 1999 Constitution, gives the Land Use Act a higher status than that ordinarily enjoyed by other Acts of the National Assembly. Indeed, Section 315(5) of the constitution puts the Land Use Act as well as the other laws mentioned therein, on the same level as the constitution, and they can only be amended in accordance with the provisions of Section 9(2) of the constitution, which is a very tedious process. Section 315 (5) provides thus: ‘“Nothing in this constitution shall invalidate the following enactments. and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming parts of this constitution and shall not be altered or repealed except in accordance with the provisions of Section 9(2) of this constitution”. We, therefore, propose that the saving provisions of Section 315(5) as it relates to the Land Use Act, should be amended by deleting Section 315 (5) (d) Local Government Reforms: Local Government Areas (LGAs) fall within the territory and control of their respective states. The states should therefore have powers to create LGAs as they deem fit without recourse to the National Assembly as is presently provided for in the 1999 Constitution. Accordingly, we propose that the constitution should be amended to provide that local government funds should be routed through state governments and only the federal and state governments be entitled to allocation of funds directly from the Federation Account. We further propose that the states should maintain a State/Local Government Joint Account where not less than ¼ of the monies accruing to the states from the Federation Account shall be paid into and utilised for funding the local governments. Our proposition is not an entirely new concept because it is indeed envisaged by the 1999 Constitution, which provides essentially in Section 162(5) that, amounts standing to the credit of local government councils should be paid to the states for the benefit of their local government councils. In the light of the foregoing, we recommend that the following sections of the Constitution be deleted/ amended as follows: Section 3 (6) which provides that, “There shall be seven hundred and sixty-eight local government areas in Nigeria as shown in the second column of Part 1 of the First Schedule to this Constitution and six area councils as shown in Part II of that Schedule,” should be deleted. Section 162 (3) which provides that, “Any amount standing to the credit of the Federation Account shall be distributed among the federal and state governments and the local government councils in each State on such terms and in such manner as may be prescribed by the National Assembly,” Should be amended by deleting “local government councils.” We propose that, in order to guarantee funding of local government councils, a specific provision for this should be enshrined in the Constitution by a proviso to Section 162 (3) as follows, “Provided always that not less than ¼ of the monies accruing to the state from the Federation Account shall be utilised for funding the local government Continue on 24. Continue from 21. We propose that Section 162 (5) which provides that, “The amount standing to the credit of local government councils in the Federation Account shall also be allocated to the states for the benefit of their local government councils on such terms and in such manner as may be prescribed by the National Assembly,” should be deleted. Furthermore, Section 162 (7) which provides that “Each state shall pay to local government councils in its areas of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly,” should be deleted. Section 7 (1) which provides that, “The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the government of every state shall, subject to section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils,” should be amended by deleting the words “subject to Section 8 of this Constitution.” 1st schedule, part I should be amended by deleting the words, “Local Government” in the second column. Part 2 of the 1st schedule should reflect only the FCT, the word “Council” should be deleted and the column titled, “Headquarters” should also be deleted. Section 7(2) provides that, “The person authorised by law to prescribe the area over which a local government council may execise authority shall: Define such area as clearly as practicable; and ensure to the extent to which it may be reasonably justifiable, that in defining such area regard is paid to- “The common interest of the community in the area, Traditional association of the community, and Administrative convenience.” This section should be amended by including the words “in the State” after the person authorised by Law. Section 162 (6) which provides that, “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 government councils of the state from the Federation Account and from the government of the state”, should be amended to read as follows: “Each state shall maintain a special account to be called State Joint Local Government Account into which shall be paid ¼ of all revenue accruing to the state from the Federation Account for the benefit of the local government council on such terms and in such manner as may be prescribed by the House Assembly of the respective state. Section 8(5) which provides that, “An Act of the National Assembly passed in accordance with this section shall make consequential provisions with respect to the names and headquarters of states or local government areas as provided in Section 3 of this Constitution and in Parts I and II of the First Schedule to this Constitution”, should be deleted. Section 8 (6) which provides that, “For the purpose of enabling the National Assembly to exercise the powers conferred upon it by subsection (5) of this section, each House of Assembly shall, after the creation of more local government areas pursuant to subsection (3) of this section, make adequate returns to each House of the National Assembly” should be deleted. Accordingly, there should be a consequential amendment to Section 313 of the Constiution, by deleting the words, “between the states and local government councils and among the local government councils in the states.” If the foregoing amendments are effected, It is our view that local government administration will be enhanced and streamlined. More importantly, the desire of many states in Nigeria to create local governments for ease of administration and even spread of development, will finally have been met. Policing: By the provision of the 1999 Constitution, the Police is under the exclusive responsibility of the Federal Government. However, the size, complexity and challenges of present day Nigeria, have made the present Police structure and operations inadequate. This has led to a situation where the state governments have been compelled to undertake financial responsibilities with respect to the Police without the corresponding authority, due to the limitations imposed on their authority by virtue of the provision of section 215(4) of the 1999 Constitution. Remove items 45 (Police) from exclusive legislative list to concurrent list. Delete proviso to Section 215(4). Amend Section 214 (1) to delete the last line i.e, “no other Police Force shall be established for the Federation in any part thereof.” Devolution of Power (Power Sharing between the Federal and State Governments) In line with other amendments canvassed in this presentation, we recommend that the Legislative lists i.e the exclusive as well as the concurrent, contained in the second schedule to the constitution should be amended to the following extent: Item 22 on the exclusive list, which reads, “Election to the offices of President and Vice-President or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution, excluding election to a local government council,” should be amended by putting a full stop after the word. “Constitution” and deleting the words following it – “excluding election to a local government council or any office in such Council.” Item 39, which lists mines and minerals including oil fields, oil mining, geological surveys and natural gas, on the exclusive lists should be deleted there from and put on the concurrent lists. Item 45 of the exclusive list, which is on the police and other security services established by law, should be deleted from the exclusive lists and taken to the concurrent list. Item 55 of the exclusive list on railways, should be deleted and taken to the concurrent list. Other Proposed Amendments One important error we observed in the 1999 Constitution is section 162 (9). This Section 162(9) provides that. “Any amount standing to the credit of the Judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of courts established for the Federation and the states under Section 6 of this Constitution,” is in conflict with Section 162(3).” This section is obviously in conflict with Section 80 which provides for the establishment of the consolidated revenue fund of the federation and Section 84 which provides for payment of salaries of judicial officers by the Federal Government. Our observation is further buttressed by the provisions of Section 162(3) which provides that: “Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the local government councils in each state on such terms and in such manner as may be prescribed by the National Assembly”. It is therefore clear that Section 162(9) is clearly contradictory because it is only the Federal, State and Local Governments that are entitled to statutory funds from the Federation Account. We, therefore, propose that Section 162(9) of the 1999 Constitution should be deleted, as it is obviously an error. Interim Action Pending Constitutional Amendment We are not unmindful of the time the constitutional amendments we have proposed will take, especially those that pertain to fiscal federalism. As an interim measure therefore, the Government and people of Rivers State request an immediate upward review to 50 per cent derivation from the 13 per cent as is currently provided for in the 1999 Constitution. Conclusion: The government and people of Rivers State make these proposals for amendments to the 1999 Constitution with a deep sense of responsibility. We wish to observe that the interim action that is being sought for the upward review to 50 per cent derivation, is within the purview of the National Assembly. We are convinced that if our recommendations are accepted and enshrined in the Constitution, they will enthrone peace, justice, fair play, equity and enhance prosperity among the peoples of the federating units of the Federal Republic of Nigeria. Being the position of the government and people of Rivers State presented by Governor Chibuike Rotimi Amaechi during the South South zonal hearing of the Senate Committee on the Review of the 1999 Constitution.