This subject has gestated in my in-tray of column ideas for some time. It first caught my attention during the inauguration of Professor Charles Soludo as governor of Anambra State in March 2022. As he recited the oath of office, I was struck by how many times he mentioned “Federal Republic of Nigeria”, “President of the Federal Republic of Nigeria” and “Federal Government of Nigeria”, while he only directly mentioned “Anambra State” once. Yes, once!
Later, I read the governor’s oath of office in the Seventh Schedule of the 1999 Constitution, as amended. Alas, all the words quoted above, bar Anambra State, are set out in the Constitution. For instance, the oath says a governor must exercise the authority vested in him “so as not to impede or prejudice the authority lawfully vested in the President of the Federal Republic of Nigeria,” and “so as not to endanger the continuance of the Federal Government in Nigeria.” It goes on: a governor must “devote” himself “to the service and well-being of the people of Nigeria.” Really? And why?
Surely, a governor is elected by the people of his state, not by “the people of Nigeria”. Of course, a governor owes a duty to every Nigerian living in his state, but he can’t “devote” himself to “the service and wellbeing of the people of Nigeria”. That’s the job of the president. Furthermore, it’s meaningless to oblige a governor not to “impede or prejudice” the authority of the president and not to “endanger the continuance of the Federal Government in Nigeria”. What exactly were the drafters thinking?
Of course, this is about the nature of Nigeria’s federalism. In genuine republican and federal systems, governors only swear allegiance to the constitution, not specifically to the president or to the central government. Nigeria is probably the only exception to that rule, which makes it a pseudo-federation, as widely acknowledged!
In their fascinating book titled ‘Nigeria: What Everyone Needs to Know’, John Campbell, a former US Ambassador to Nigeria, and Matthew Page, an Associate Fellow at Chatham House, described Nigeria’s “federalism” as “a weak form of federalism”, stating: “Nigeria’s federalism is quite flawed and more aspirational than real in many ways.” They said that although Nigeria’s Constitution is modelled on the American one, it is, in fact, “only reminiscent of that of the US”. Put simply, it’s a poor imitation of the US Constitution!
Yet, the Nigerian Constitution repeatedly describes Nigeria as a “Federal Republic” when it is not a proper federation at all, based on its structure. For instance, in America, the states created the federal government, and thus enjoy significant autonomy and retain considerable residual powers. In a sense, one could argue that under Nigeria’s 1960 and 1963 Constitutions, the regions created the Federal Government because both Constitutions were negotiated by leaders of the regions, resulting in significant regional autonomies. But after the military seized power in 1966, they created centrally and by fiat multiple states, and concentrated power in the presidency and the Federal Government.
In genuine republican and federal systems, governors only swear allegiance to the constitution, not specifically to the president or to the central government
Recently, I stated in this column that the Nigerian president is more powerful than the American president. Well, Campbell and Page confirm that in their book, saying: “The Nigerian president is freer of constraints than any American president could ever be.” Dr Segun Aganga, a minister under President Goodluck Jonathan, made the same point in his recent book, Reclaiming the Jewel of Africa. Aganga said that after winning the 2011 presidential election, Jonathan remarked that “the Nigerian president was vested with so much power and it was best to check oneself in the exercise of those powers.”
Now, how can anyone describe a country with an all-powerful president, an all-powerful central government, as operating real federalism? What kind of a federal constitution vests so much power in a president such that one has to rely on the president to constrain himself in the exercise of his enormous powers? Federalism is incompatible with centralisation.
Truth be told, the drafters of Nigeria’s illegitimate 1979 and 1999 Constitutions – illegitimate because they were imposed by the military without any process of popular ratification – committed a grave error of misunderstanding federalism. For instance, the Constitution creates an Exclusive List of 68 essential items, including police, which are reserved for the Federal Government. Although it also creates a Concurrent List of items on which both the federal and state governments can legislate, it says that if there’s a conflict between federal laws and state laws on any matter on the Concurrent List, the federal laws prevail.
Under the Tenth Amendment of the US Constitution, the powers of the federal government are limited and specified, and all powers not specifically delegated to the federal government are reserved to the states. But the Nigerian Constitution gives the federal government the power to do virtually everything, stripping the states of meaningful autonomy or residual powers. Yet, the oath requires a governor to swear allegiance to the President and the Federal Government, “in accordance with the Constitution of the Federal Republic of Nigeria.” It’s akin to making the states mere vassals of the Federal Government!
But the drafters of the Constitution also committed another error: periphrasis. They’re guilty of using many words where fewer would do. For instance, according to analysis, the Nigerian Constitution is 47,200 words long, while the US Constitution is only 7,400. Furthermore, the US president’s oath of office is 40 words long; that of the Nigerian president is 254. The American governor’s oath is under 40 words, and only includes affirmation of allegiance to the US Constitution and the State’s Constitution. But the Nigerian governor’s oath is 295 words long: notice that the governor uses more words than the president! Ridiculous!
I asked earlier: what were the drafters thinking? Well, one can only imagine that they were inspired by a historical event in which a military governor, Emeka Odumegwu-Ojukwu, challenged the authority of then head of state, General Yakubu Gowon, presaging the Civil War. Otherwise, why is a state governor asked not to “impede or prejudice” the authority of the president “so as not to endanger the continuance of Federal Government in Nigeria”? After the American civil war, the US had a stringent oath of office to “ensnare traitors”, but later changed it to the current affirmation of constitutional allegiance.
But whatever the intention behind Nigeria’s governor’s oath, it’s utterly misguided and meaningless. First, it leads to perverse interpretation. For instance, last year, some people, citing the Constitution, bizarrely accused Nazir El-Rufai, then Kaduna State governor, of treason when he used a state broadcast to counter President Buhari’s national broadcast on the currency redesign. But American governors often counter the president. Second, the oath says a governor must “devote” himself “to the service and well-being of the people of Nigeria”, yet many states even deny certain legal rights and privileges to “non-indigenes”, showing that all Nigerians are not created equal before the law. Third, jihadists, terrorists etc, endanger “the continuance of Federal Government in Nigeria” more than a state governor who doesn’t even control the police. Lastly, a Constitution that allows someone with a minority share of the popular vote, someone rejected by majority of voters, to become president cannot engender loyalty and national cohesion.
What’s clear from the above is that Nigeria needs political restructuring and a new Constitution. But Tinubu lacks the political bandwidth to restructure Nigeria, even if the Supreme Court validates his presidency. His weak mandate, tenuous legitimacy, cliquey politics, and capricious use of presidential powers are real obstacles to genuine allegiance that induces national consensus, notwithstanding the governors’ meaningless oath not to “impede or prejudice” his authority!