Hon Femi Gbajabiamila And The Federal Character Principle By Kenneth Okonkwo
The attention of the legal community has been drawn to statements credited to HON FEMI GBAJABIAMILA on the subject of the federal character principle in his points of discussion with President Muhammadu Buhari on July1, 2015. Among other things, he stated as follows:
1) That the federal character principle as embedded in chapter 2 of the 1999 Constitution (as amended) is NOT JUSTICIABLE AND OF NO LEGAL CONSEQUENCE
2) That section 14 of the constitution is only applicable to appointments in Federal Ministries and Agencies
3) That the House of Representatives is not an agency of the Federal Government and the Principal Officers positions are elective and not by appointment.
One can understand the mindset of an ambitious Politician fighting for his political life in making bogus political promises to win the hearts and minds of his gullible audience but to foray into the arena of law to destabilise the Constitution and a laudable principle like the federal character principle, which has ensured the stability of our polity since 1999, all in a bid to win a political argument, is to say the least, taking the joke too far.
Just to refresh our memory. Nigeria is a federation, made up of federating units. Ordinarily, the 36 states are the federating units. But since the 1996 constitutional conference, which recommended six Geo-Political zones as federating units for Nigeria in order to make each zone economically viable and because of the need to operate a leaner government at the centre, offices and posts in the country, except where the constitution expressly provides otherwise, like in the case of appointment of ministers(see sec147 (3)) are shared on the basis of the six Geo-Political Zones. Indeed most parties’ constitutions recognise the zones and share their posts along this line. The zones are North Central, North East, North West, South East, South South and South West.
Incidentally, the first federal political elective posts are six in number. They are the posts of the President, Vice President, Senate President, Speaker of the House of Representatives, Deputy Senate President and Deputy Speaker of the House of Representatives. Since 1999, efforts have been made to share these six posts among the six Geo-Political Zones. For instance, President Olusegun Obasanjo was from the South West, Vice President Atiku Abubakar from the North East, Senate President Evan Enwerem from the South East, Speaker Salisu Buhari from the North West, Deputy Senate President Haruna Abubakar from the North Central and Deputy Speaker Chibudum Nwuche from the South South.
Within each house of the National Assembly, the Principal offices of the ruling Party are also six, shared among the six Geo-Political zones. In the Senate, for instance, they are the Senate President, Deputy Senate President, Majority Leader, Deputy Majority Leader, Chief Whip and Deputy Chief Whip.
The framers of the constitution were even magnanimous to state the benefits of sharing these political offices among the federating units. They said the practice will promote national unity, command national loyalty and ensure that no section, state, ethnic or religious group dominates the others. For the avoidance of doubt, section 14 (3) provides that “the composition of the Government of the Federation or any of its agencies and the conduct of its affairs, shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty,thereby ensuring that there shall be no predominance of persons from a few ethnic or other sectional groups in that Government or in any of its agencies”.
With the benefit of the foregoing, let us analyse Hon Femi Gbajabiamila’s submissions and see how they agree or disagree with the provisions of the constitution.
Firstly, Femi said that the federal character principle as embedded in chapter 2 of the 1999 constitution (as amended) is NOT JUSTICIABLE AND OF NO LEGAL CONSEQUENCE.
As regards this issue, we note preliminarily that the mere fact that a section of the constitution is not justiciable does not make it legally insignificant. Every section of the constitution is binding on all authorities and persons throughout the Federal Republic of Nigeria. Section 1(1) states “this constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”. A section, not being justiciable, simply means that any person who disagrees with the section cannot seek redress in a court of law. It does not mean that it is not legally binding. As a matter of fact, section 13 specifically provides that “it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this chapter of this constitution”. This means that any other legitimate means used to enforce the sections of chapter 2 is acceptable to the constitution.
It is submitted, therefore, with due respect, that Femi’s statement that the provisions of chapter 2 is of no legal significance is false.
Let us at this juncture examine the issue of whether the federal character principle is justiciable. As regards this issue, we recognise that Hon Femi may have relied on the blanket provision of section 6(6)(c) of the 1999 constitution ( as amended ) to make his assertion that section 14 of the constitution is not justiciable. Section 6(6)(c) states that “the judicial powers vested in accordance with the foregoing provisions of this section shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in chapter 2 of this constitution”.
However, we observe that Hon Femi did not take particular notice of the exception to this general rule. The section states “…except as otherwise provided by this constitution…”
We make bold to say that by the combined effects of section 153(1)(c), paragraphs 7, 8, 9 of part 1 of the third schedule of the 1999 constitution ( as amended ) the federal character principle as stated in section 14 is justiciable and offenders of this section are even liable to be prosecuted.
Section 153(1)(c) established the Federal Character Commission to ensure the compliance of all organs and bodies of government with the provisions of sections 14(3), (4). Paragraph 8(1)(b) states as follows: “in giving effect to the provisions of section 14 (3) and (4) of this constitution, the commission shall have the power to promote, monitor and enforce compliance with the principles of proportional sharing of all bureaucratic, economic, media and political posts at all levels of government”. It went further in paragraph 8(1)(c) to provide that the commission should “take such legal measures, including the prosecution of the head or staff of any ministry or government body or agency which fails to comply with any federal character principle or formula prescribed or adopted by the commission”.
Furthermore, the constitution in item 60(a) of the exclusive legislative list in part 1 of the second schedule of the 1999 constitution ( as amended ) empowered the National Assembly to establish and regulate authorities for the Federation or any part thereof “to promote and enforce the observance of the fundamental objectives and directive principles contained in this constitution”. And whenever the National Assembly exercises this right, the Supreme Court has held that such action has made such section of chapter 2 for which a body has been established justiciable. For instance, the National Assembly exercised this power in establishing the Corrupt Practices and Other Related Offences Act, 2000, to enforce the provisions of section 15(5) of chapter 2 of the 1999 constitution ( as amended ) and the Supreme Court held that this action by the National Assembly has made section 15(5) justiciable. In the case of OLAFISOYE V FRN (2004) 4 NWLR (Pt.864) 580, the Supreme Court held that “it is clear that although section 15(5) of the 1999 constitution is in general not justiciable, as soon as the National Assembly exercises its power under section 4 of the constitution with respect to item 60(a) of the Exclusive Legislative List, the provisions of section 15(5) of the constitution become justiciable”. Also see A.G. Ondo State V A.G. Federation (2002) 9 NWLR (Pt.772) 222.
With respect to sections 14(3) and (4), in addition to establishing the Federal Character Commission to enforce its provisions, which has made it justiciable, the constitution even commanded the President and Commander in Chief of the armed forces to conform to the provisions of section 14(3) (please see section 147(3) of the 1999 constitution (as amended).
It is, therefore, submitted that by the combined effects of section 153(1)(c) and paragraphs 7, 8, 9 of part 1 of the third schedule of the 1999 constitution ( as amended ) the provisions of sections 14(3) and (4) are justiciable.
The second issue Hon Femi raised is to the effect that section 14 of the constitution is only applicable to appointments in Federal Ministries and Agencies. A look at the relevant sections will tend to contradict this position.
Section 14(3) started with this sentence – “The composition of the Government of the Federation or any of its agencies…” The composition of the Government refers to the different political posts that constitutes the government. Paragraph 8(1)(b) of part 1 of the third schedule clearly included political posts at all levels of government as part of the positions of government the Federal Character Commission is required to ensure their proportional distribution. Section 13 was even more emphatic when it states that “it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this chapter of this constitution”. This section used the word “ALL” to include ALL in government, whether elected or appointed, and directed ALL in government to conform to the principles of sections 14(3) and (4).
It is, therefore, submitted that sections 14(3) and (4) refer to all positions, elected and appointed, of all arms of government and of all levels of government.
On the third issue, Hon Femi stated that the House of Representatives is not an agency of the Federal Government and the Principal Officers positions are elective and not by appointment.
With due respect, here lies the greatest contradiction in Hon Femi’s presentation. The main reason of the meeting between the loyalists of Femi and President Muhammadu Buhari is the insistence of the Femi’s group that the four Principal Officers as appointed (not elected) by the All Progressives Congress party (APC) and imposed on the House of Representatives shall remain sacrosanct. Yet, on the other hand, and just in a bid to remove the positions of the four Principal Officers from the operations of the provisions of section 14(3), Hon Femi again is insisting they are elective offices.
It is, therefore, respectfully submitted that it is either Femi’s group agrees that the four Principal Officers positions are elective posts and allow them emerge through elections or they agree that the four Principal Officers positions are by appointment and allow the principle of federal character to prevail.
This is the crux of the confusion plaguing the All Progressives Congress. The Majority Leader of the Senate, Senator Ali Ndume, puts it succinctly when he said in Focus Nigeria, AIT, that “the problem in APC is that the positions are personalised and privatised”. For us, Party supremacy does not mean a naked imposition of persons on the members and institutions of the Country by some elements in the Party. It means a leadership which ensures that its members conform to the constitution of the Federal Republic of Nigeria and the rules of the Party that do not contradict the provisions of the constitution with a view to ensuring that their manifesto is achieved in order to realise the desired dividends of democracy. APC is not commanding the loyalty of its members because it has refused to give every section of the Country a sense of belonging in accordance with the provisions of section 14(3).
It is important to note that ceding certain positions to some sections of the Country in the interest of peace does not depend on the level of support of that section to the Party’s success. Nigeria as a Country ceded the post of the President to the South West in 1999 just to ensure that the South West was reintegrated back to Nigeria as a panacea to the fallout of June 12 where a Yoruba man won an election and was denied his victory. It worked like magic.
We conclude by saying that if APC becomes fair enough to share all its posts equitably among all the federating zones of the Country, whether the zone supported it or not, this may work like magic to bring peace to the party. Mark Twain defined patriotism as loyalty to the Country always but loyalty to the government when it deserves it. The members of APC can only be loyal to the leadership of APC when it deserves it.
Barrister Kenneth Okonkwo wrote from Abuja.