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The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Definition of Federalism 

On the face of it, it appears that Nigeria is operating a Federal State/Federalism. Federalism is a system of government where power isn’t concentrated solely at the centre, that is, in the hands of a National/Federal Government, but shared between the National and Sub-National Governments, which in Nigeria, is the Federal, State and Local Governments. In AGF v AG Lagos (2013) LPELR-20974(SC) per Aloma Mariam Mukhtar, JSC (later CJN) the Supreme Court held thus: “The purport of Federalism is succinctly put by the former constitutional Lawyer and scholar, Professor Ben Nwabueze, in his book ‘Federalism in Nigeria Under the Presidential Constitution’ thus:- “Federalism is an arrangement whereby powers of Government within a country are shared between a national, country-wide Government and a number of regionalised (i.e. territorially localised) Governments, in such a way that each exists as a Government separately and independently from 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 its affairs. Federalism is thus, essentially an arrangement between Governments, a constitutional device by which powers within a country are shared among two tiers of Government”.

Appearances of Federalism in Nigeria 

Some of the elements of Federalism are present here – Nigeria is known as the Federal Republic of Nigeria; she has a written constitution that is supreme – see Section 1(1) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) and AG Lagos v AGF & Ors (2003) LPELR-620(SC) per Umaru Atu Kalgo, JSC, where the Supreme Court stated thus: “Nigeria is no doubt a Federal Republic with a Federal Constitution….”. Powers appear to be distributed, whether between the Legislature, Executive and Judiciary (Federal and State) (see Section 4-6 of the Constitution) or between the Federal, State and Local Government (see Sections 5 & 7 of the Constitution); and there is the supremacy of Acts of the National Assembly (NASS) over State laws. Nigeria has a Bicameral Legislature – the House of Representatives representing the population, the Senate representing the States equally. There’s also the rigidity of the process of amendment of the Constitution, requiring the input of the State Houses of Assembly, that is, most of the nation (see Section 9 of the Constitution). 

Nigerian Reality: Quasi-Federalism/Centra-lisation/Unitary System 

1)Bloated Exclusive Legislative List

In reality, Nigeria operates at best, quasi-Federalism or some even argue, a Unitary system of governance, because hitherto, some key elements of Federalism glaringly missing from the structure, make it impossible to call it Federalism. Power is centralised in the Federal Government, with a bloated Exclusive Legislative list, not even Concurrent or the Residual Legislative List, which should be the case if true Federalism is being practised – that is, most things would be in the hands of the State and Local Government, with only items such as defence, currency, immigration, foreign affairs, perhaps some health and education, being in the hands of the Federal Government. The federating units – the States, would be the owners of all the resources within their own territories, as opposed to the strange arrangement that obtains where Section 1 of the Land Use Act 1978 (LUA) vests all land (albeit only the surface of the land) within the States in the Governors to hold in trust for the people, while Section 44(3) of the Constitution puts all the minerals underneath the land or therein, in the hands of the Federal Government. 

2)Lack of Fiscal Autonomy 

In short, Federalism envisages fiscal autonomy for the federating units, a situation in which the States have an independent source of revenue generation stemming from the control/management of their own resources, and from there, making contributions to the Centre, and not the opposite which currently obtains, where the Federal Government controls all the sources of revenue generation in all the States, and rather inefficiently too, while giving the States percentages from their own resources, and making them dependent on the Centre for monthly allocations. In AG Lagos v AGF & Ors (Supra) the Supreme Court stated thus: “Nigeria is…a Federal Republic with a Federal Constitution, in which the Legislative powers of the Federal Government through the National Assembly, and the legislative powers of the State Governments through the State Assemblies, were clearly defined. These consist of the Exclusive Legislative list on which only the National Assembly can legislate; the Concurrent Legislative List which is shared between the National Assembly and the State Assemblies, and the remaining which is called the Residual list not included in the Exclusive or Concurrent List, which only the State Assemblies can legislate on”. In AG Lagos v AGF & Ors (2024) LPELR-80160(SC) per Mohammed Lawal Garba, JSC, the Supreme Court held thus: “In the case of Attorney-General, Abia State v Attorney-General of the Federation (2006) All FWLR (Pt. 338) 604 at 674-675, Niki Tobi, JSC…said:- “The Constitution of the Federal Republic of Nigeria, 1999, like most Constitutions, does not provide for a residual list…..Etymologically, residual merely means that which remains. In legislative or parliamentary language, residual matters are those that are neither in the Exclusive or Concurrent Legislative Lists; that is what remains, or is not covered by the Exclusive and Concurrent Legislative Lists”.

The fact that Nigerian States don’t enjoy any meaningful fiscal autonomy, depending largely on monthly Federal allocations, and many of their resources have been left to lie fallow and dormant, has given a foothold to local and foreign illegal miners/prospectors to plunder these resources for their own benefit, such as some Chinese who were arrested in Kwara State for illegal mining running through all the local governments of the State, charged to court and convicted for their unlawful activities, Of course, some argue that it may be better to put the mineral resources of Nigeria in one questionable Federal Government, than in the hands of many State Governments, of whom concerns have been raised about capacity and accountability. 

For example, there is a former Governor of one of the Northern States, who is reported to have become fabulously wealthy from illegal gold mining done for his own personal benefit instead of that of the State, leaving his people to suffer in penury, illiteracy and insecurity. Furthermore, if you compare the areas where there are the most violent attacks, displacing residents who have fled to IDP camps for refuge, one will discover that they may very well be the areas most richly endowed with gold and rare earth minerals. This issue however, is a story for another day.

3)Neutrality of the Judiciary 

Additionally, a neutral Judiciary is another element of Federalism; but, quite regularly, the independence of the Nigerian Judiciary is called into question, whether at the Federal or State level. A recent case in view is that of the political parties’ deregistration case, in which Justice Lifu of theFederal High Court, Abuja, disobeyed the order of the Court of Appeal staying proceedings in the case pending the determination of an appeal in the matter scheduled for October 2026, and still went ahead to purport to deregister the parties, as if playing a script of those seeking to muster all opposition. 

Again, Justice Isha Dashen of the Federal High Court, Lokoja, who had given judgement compelling INEC to register another opposition party, NDC, set aside the judgement on the application of an allegedly unregistered political party that claimed that their logo was being used. while they weren’t joined in the initial suit. It is trite law that when a court delivers a ruling or judgement, it becomes functus officio on that application or in that case, that is, generally it lacks the power to revisit that ruling or judgement, and the only option left for parties is to appeal the decision. However, in Refuge Home Savings & Loans Ltd v Garkuwa & Ors (2023) LPELR-59982 (SC) per Adamu Jauro, JSC, the Supreme Court stated circumstances in which a court can set aside its judgement/decision/order thus: “The power to do so may be conferred by Statute or Rules of Court, or may be exercised by the Court under its inherent jurisdiction. This power or jurisdiction may be exercised, where for instance, the judgement, ruling, order or decision sought to be set aside is null and void ab initio, or there was a fundamental defect in the proceedings which vitiates and renders the same incompetent and invalid”. The question is whether the party is unregistered, and if so, whether it can be entertained; and whether either of the two aforementioned conditions was present in the NDC case, necessitating the setting aside of the initial order. If not, a Judge blatantly abusing court process, would certainly raise questions about judicial neutrality, the lack of which undermines the rule of law, a strong pillar on which Federalism rests upon.

State Police Executive Bill 2026

To accommodate State Police, by virtue of Section 9(1) & (2) of the Constitution, Section 214 of the Constitution which provides for only one Nigeria Police Force (NPF), can be amended by two-thirds majority of the Senate and House, approved by resolutions at least 24 State Houses of Assembly, before going for Presidential assent.

The hitherto centralised Nigerian policing architecture established by Section 214, has been another factor evincing the fact that Nigeria isn’t really practising Federalism in the true sense of the word. While issues such as those arising from the creation of non-viable units (States) heavily dependent on the Federal Government for funding thereby weakening Nigeria’s Federalism, resource control and devolution of powers from the Exclusive Legislative List are yet to be addressed, one area where decentralisation has finally gained legislative traction, is policing. 

The detailed Constitution of the Federal Republic of Nigeria, 1999 (Sixth Alteration) Bill, 2026 (SB. 1055) aka State Police Executive Bill 2026 (SPEB) has cleared NASS, and is awaiting approval by at least 24 State Houses of Assembly under Section 9(2) of the Constitution. The SPEB seeks to restructure Nigeria’s unitary policing architecture, starting from the amendment of Section 214 of the Constitution to create a dual Police system, Federal Police Service (FPS) and State Police Services (SPS).

The SPEB clearly divides the functions of the FPS and SPS. The FPS is responsible for FCT policing, enforcement of Federal laws, protection of Federal institutions/assets, and handling of inter-State, organised crime, terrorism, cybercrime, arms trafficking, border security, and other national-security matters. The duties of the SPS include enforcement of State laws, maintenance of public safety and order, prevention/detection of local offences, and protection of life and property within the State. The SPS assumes traditional internal security and local law enforcement duties set out in Section 4 (a)-(c) of the Police Act 2020,  previously carried out by the old NPF.

The SPEB provides for procedural safeguards where no State can begin operational policing by its SPS, until such SPS has been certified to have met the minimum standards set by an Act of NASS. And, until a State meets these requirements, the FPS continues to play the policing role there. 

The SPEB doesn’t appear to alter the internal organisational structure of the FPS; however, the highest rank of a Police Officer in the SPS, will be the Commissioner of Police of the State (see the new Section 215(4) of the Constitution). The State Police Commission is to appoint, promote, transfer, dismiss and exercise disciplinary control over persons holding offices in the SPS, other than the office of Commissioner of Police of the State, who is recommended by the National Police Council (NPC) to the State Governor for appointment subject to confirmation of the State House of Assembly. The process of appointment of the SPS State Commissioner, while it raises questions about the extent of State security autonomy, appears to be designed to act as a moderating national filter that provides some national oversight and standards, to prevent Gubernatorial capture of the SPS, as the NPC is to include all State Attorneys-General, Zonal Retired Commissioners and Civil Society Representatives. 

The SPS is expected to be primarily funded by respective State resources, but the SPEB allows the Federal Government to provide grants and financial assistance to support the SPS.

Conclusion 

The passage of the SPEB, marks a significant constitutional advance in decentralising security. Yet, true Federalism demands more than Police reform. It requires fiscal autonomy, resource control, and genuine devolution of powers. Until these deeper structural issues are addressed and State institutions demonstrate the capacity and will to govern responsibly, Nigeria will remain a quasi-Federal State in practice. 

State Police is a necessary step, but it is not a magic-wand cure for insecurity that has lasted for decades. Its effectiveness will ultimately be determined by implementation, funding, oversight, and political restraint at both Federal and State levels. 

SPEB is a welcome beginning, in the security sector. Whether it becomes a model for deeper Federal restructuring or merely another half-measure, will depend on how the implementing legislation is crafted and, more importantly, on whether political actors at both Federal and State levels, are prepared to relinquish control in pursuit of a more balanced Federation.