Much ado about ‘true federalism’

By Mohammed Adamu

PEOPLE talk about ‘TRUE federalism’ as though there is a particular form of it that is sanctified by the gods -and to the extent of which all other forms of the system which depart from that pristine purity, are necessarily sullied and therefore ‘false’ or ‘untrue’. So much noise about Nigeria not practicing ‘true federalism’; or about Nigeria practicing a ‘unitary’ system in the disguise of a ‘federal’ one. Whatever that means! But truth is, there are three recognizable systems of power sharing, whether or not they take place under a democratic, monarchical, aristocratic or other forms of arrangement.

At the very least a system is either ‘confederal’, a loose alliance of independent states in full control of their citizens, territories and resources, but bound by a weak centre funded by them to take care of issues of common concern –usually military or commercial or both. Or at best a system is ‘federal’ allowing, at least, the sharing of ‘power’ and ‘resources’ between a much stronger centre and a constituent states which, depending on countries involved, may enjoy varying degrees of expanding or constricting autonomy or independence. Or at worst a system can be ‘unitary’, with laws giving virtually all authority to a central government which, at will, can delegate or retract duties to the constituent administrative units.

And although the fundamental attribute of a ‘federal system’ basically is that ‘power’ and ‘resources’ are shared between a strong centre and its constituent states, most ‘federal’ system, almost in a con-federal fashion, are not averse to granting substantial autonomy to states to control their citizens, their territories and their resources. But this is not to suggest that any such ‘federal system’ that does not do so is any less a ‘federation’ than those which do. A ‘federation’ is so called essentially because it allows, at the very least, the sharing of ‘power’ and ‘resources’ between two levels of governmental administration, and not necessarily because the central level allows substantial autonomy to the constituent levels to control their citizens, their territories and their resources. Nor will a ‘federal’ system suddenly become ‘unitary’ merely because it has not graduated from ‘sharing power and resources’ to granting ‘substantial autonomy’ to its constituent states to control their citizens, their territories and their resources.

Thus, theoretically-speaking or even if existentially so, a system is either ‘federal’, no matter how profoundly or superficially so, or it simply is not! And so if a system is not ‘federal’ in structure it can only either be ‘unitary’ or ‘confederal’ in its make up. It cannot be a hybrid of one or a crossbreed of the other. The history of these three forms of power sharing arrangement essentially does not admit of classification or definition by half-measures: a cup here is neither ‘half-full’ nor ‘half-empty’! It is either ‘full’ or it is simply ‘empty’.

Fundamentally therefore, Nigeria, even as it is presently constituted and administered, is not any less a ‘federation’ than virtually any of the so called democratically-advanced nations of the world that practice that system. That she opts to abide by the fundamental rudiments of ‘federalism’  –namely sharing ‘power’ and ‘resources’ between the centre and its constituent states- rather than allow ‘substantial autonomy’ to those constituent states to control their citizens, their territories and their resources, neither takes her away from the ‘federation’ that she is nor does it make her the ‘unitary’ system that she is not!

The system run by Germany for example, in spite of bearing all the semblance of ‘unitarism’ -with the states acting as agents for the central government- is equally no less a ‘federation’ than say, even the United States of America which is reputed to operate the best model of it. The sharing of governmental ‘power’ and ‘resources’ between the centre and its constituent parts essentially should be sufficient to preserve the credibility of any country as a ‘federal’ one –even as that country’s partial romance with ‘unitary’ tendencies too, should not be sufficient to make it a ‘unitary’ state.

How much less of a ‘federation’ any country can allegedly be said to be merely because it exudes partial ‘unitary’ attributes or merely because such country is unable to transit from ‘power and resource’-sharing to the granting of ‘substantial autonomy’ to its constituent parts, is a matter more for the contemplation of political science than it is for the consideration of constitutional law. And so the term ‘true federalism’ essentially is a misnomer, whether it is applied strictly in decrying a nation that ‘shares power and resources’ rather than grant ‘substantial autonomy’, or it is applied trivially in the condemnation of a ‘federation’ that still exhibit unitary attributes.

Nigeria is not any less a ‘federal system’ than any of the world renowned practitioners of it, -namely the United States, Canada, Australia, Brazil, Germany, India, Mexico, Switzerland etc. Nor are any two of these listed federations in any way practicing exactly the same form of federalism. It is fundamentally wrong to suggest that a system is not a ‘true federation’ because its two levels of governmental administration are not ‘co-ordinate and independent’ politically or economically; or that because the extent of the autonomy of the federating units over certain basic issues like resource control, tax administration, health management, security and education are not desirably profound or absolute.

Yet, what is even fundamentally ridiculous is the claim by latter day exponents of ‘federalism’ that a ‘federation’ is not to be legitimate where the ‘centre’ (namely a ‘federal government) exists first and then proceeds to create its constituent parts (namely the states); but that only pre-existing, independent states can ‘truly’ bring about the existence of a ‘central government’ before a legitimate ‘federal’ arrangement between the two levels can commence. The argument being that it is only that way that these pre-existing states can become the determiners of what power to be shared and who gets what power. This is as whimsically pedantic as it is capriciously pedagogic! Because what it means is that wherever the ‘centre’ exists before the states, there should be no attempt at ‘federalism’ unless the ‘Central government’ is willing first to self-dissolve and to surrender its fate to components yet-to-be-created.

The idea behind the universalisation of the factor of pre-existing, independent states as a necessary requirement drew inspiration from America’s almost one-off experience. And although this was the manner by which American ‘federalism’ was born by the will, first of pre-existing, independent states, who then willfully became a ‘con-federation’ and then a ‘federation’, it is practically absurd and overly doctrinaire to make this a fundamental prerequisite for the creation of a legitimate federal arrangement.  By the way, the American experience alone does not explain the true history of ‘federalism’. Switzerland’s experience for example, which was largely determined by its heterogeneous nature and the practice of which in fact predated the United States’, did not come about from the will of pre-existing independent states.

Many federal systems have in fact operated more like a unitary system with an uncommon degree of delegation of responsibility as is the case with Germany which I cited earlier -a federal republic with its states acting as agents for the central government. Concerning these three systems of power sharing –namely con-federal, federal and unitary systems, nothing is sacrosanct; nothing is caste in iron, except that which works for the democratic majority, and except that which the democratic majority is willing to accept. After all the hue and cry about marginalisation, about the threat of secession, about so called true federalism, and as the din drops into a more moderate, less Babelian request for ‘restructuring’, now the Jonathan’s ‘Conference Papers’ are seeking the rightful constitutional avenue that every grievance in a democracy, normally should seek. The Jonathan Papers are soliciting congressional attention. So now the democratic minority is about to go where it should since have; to the National Assembly, cap in hand to ask the pleasure of the democratic majority.

 

Postscript

THE United States began as a confederation with a weak central government that could not even collect taxes to operate itself. And since the confederation of states had no chief executive and no central body with the requisite power to corral states to abide by the Articles of Confederation, the existence of the infant country then was threatened. Everyone saw that for the country to survive, the central government must have more power. But the ‘centre’ could not have more power, unless the ‘federating states’ lost some more power. And so the Constitutional Convention of 1787 was convened to legitimise the grab of those necessary powers. It was a virtual no confidence vote for the efficiency of ‘confederation’ as a system of power sharing in a democracy. And in fact it also marked the inaugural of one of the earliest models of ‘federalism’ which America had to switch to, to survive the fragility of confederacy.

Yet even the experience of the United States in her practice of ‘federalism’ today still indicates that just as she had to seriously tighten the bolts around a loose, almost disintegrating, confederacy to arrive at a workable ‘federal’ system, gradually too America is now also having to tighten some more bolts around its ‘federal system’ to keep it from relapsing into ‘confederacy’. Previously Supreme Court in balancing states’ rights with the needs of the nation, had issued several rulings curtailing congressional power over the states. The courts even gave states immunity from lawsuits arising from violation of federal laws. But not anymore.

Since the American civil war which was partly a conflict over the proper role of national and state governments in a ‘federation’, the power of Congress to make laws affecting states and local issues, rather than diminish to reflect more independence for the states, has in fact grown steadily. The Supreme Court gives more and more rulings that continue to give congress more and more control over the states. Hitherto limited powers of the central government –e.g. on commerce- have come to be interpreted too broadly by the Supreme Court -allowing more and more federal interference into otherwise local issues. So many previously localised issues have been taken over by the center.

And although many Americans fear that this expansion will create an inefficient and possibly dangerous concentration of power in federal hands, yet many others who defend this expansionist growth in power of the federal government say that the public interest demands such federal control. David Robertson’s ‘Dictionary of Politics’ admits that “The precise balance of power between the central and local authorities in federal systems will vary (not only) between different federations” but that over time it can vary even “within a particular system.”

In fact, we saw that in the U.S.  where powers not originally granted to the federal government, rather than remain reserved for the federating states as the Tenth Amendment provides, were later acquired for the central government either by constitutional amendments or even by other less formal methods to alter the federal-state balance of power. And this is even as the courts have also “changed their interpretation of the proper spheres of activity of the federal and state authorities”, leading to increased “dependence of the states on the federal government for financial aid”.

The irony of it is that, the bastion of constitutional democracy herself, America, after running from ‘confederation’ to a ‘federation’, aided thereafter by the courts and by Congress, is now aping after Germany: running a federal system but toying with the elements of unitarism. Nigeria is flexing for a ‘confederation’ in the guise of ‘true federalism’.

 

 

The post Much ado about ‘true federalism’ appeared first on Vanguard News.