Barely
two days have elapsed since the declared hunger strike by
Abia State Legislators and a member is already slumping.
On Wednesday, August 21, 2003, Chief Leonard Onyekwere reportedly
slumped on the floor of the House. The nation should find
it almost as comical as it is interesting, for indeed, all
state legislators, serving in good faith, should have slumped
and died long before now, considering the strain of the
constitutional anomaly under which they labor in vain.
The issue that the nation should reflect upon is the constitutional
incongruity that grants these lawmakers the power to make
laws that is not matched by the necessary and proper powers
to have other state branches of government execute those
laws and prosecute violations of state laws so promulgated.
It is an issue that touches and concerns Nigeria’s
aberrant scheme of federalism and our notion of ordered
liberty. It is also an issue that creates serious impediment
to the rule of law and by implication, poses grave danger
to our democracy.
The power to make laws, to execute the laws so made and
to have an independent judiciary charged with judicial review
and interpretation of those laws are all incidents of sovereignty
that confers upon the several states, parallel, not necessarily
co-equal, sovereignty with the Federal Government. And being
so closely modeled after the United States Government, our
constitution envisages a Federal Government of limited and
specifically enumerated powers with residual powers belonging
to the States. And by and large, the reason why the United
States system works is their scheme of federalism that recognizes
the sovereignty of state governments and reserves for them
the rights to self-determine upon the welfare, health and
security of their residents. These rights are so important
to their scheme of federalism that the Federal Government
is expressly prohibited from abridging those rights. The
rights of the state legislators, the full faith and credit
given to these lawmakers, derive from this inviolate scheme
of dual sovereignty.
When the constitution recognizes rights of dual sovereignty,
and yet those rights are completely vitiated in effect,
by operation and exertion of Federal police powers, our
lawmakers are relegated to an exercise in futility and should
all be slumping under the weight of this constitutional
anomaly. At the height of the Anambra State imbroglio, following
the abduction of the State Chief Executive Officer, the
President reportedly promised to “restore the Governor
to power.” Such statements, if true, cast significant
doubt that the President indeed understands the concept
of federalism. The centralization of police power in the
Federal government, with all the problems it poses to efficient
and effective administration of justice, is anathema to
the proper functioning of the states as sovereigns and state
legislators do well to be slumping for all the wasted energies
they seem to be exerting.
I recognize the color of progress in Abia State, and commend
the Abia State Legislators for their hunger strike and willingness
to personally do the yeoman’s work – to fold
their trousers and shirts, pick their shovels and wheel
barrows, and go to work on the Federal roads to make them
less of the death trap they currently pose to the citizens,
licensees and invitees of Abia State. We could certainly
use men in politics that have scruples, capacity for compunction
and above all, generally good hearts. And if they are state
legislators – heart directed to public welfare. They
are certainly head and shoulders above their Anambra State
counterparts who having neither heart nor head, have become
irredeemably compromised. The question is – do these
honorable legislators of Abia State have as good a head
as they have hearts? It is doubtful.
An analogy is apropos. A man whose toilet is leaking that
folds his trousers and starts scooping off the water commingled
with specs of feces and other alimentary artifacts, has
a good heart. But he has a good head, if he first shuts
off the water supply to the toilet and scoops off the run
off, and repairs the leak. And they have a good point. The
Federal Roads in the South East have been disproportionately
neglected in spite of the proportionately greater commercial
traffic which they shoulder.
The point being that a man with a good head, like our toilet
water scooper above, with good heart and all, does not do
useless things. I am not saying that road repair is a useless
thing. It is just as useful as the useless act of scooping
off water from a leaking toilet without first shutting off
the water supply. If all the reward one gets is the sense
that one doing something, - fine – but the doing of
a useless thing does not appeal to a man with a good head.
Frankly, the state legislators should call off their hunger
strikes to retain what little is left of their grey matters
or they should proceed with it to death – so that
we can raise monuments to them as the first true martyrs
of Nigerian ‘democrazy’.
The point further being that there is no right without a
remedy – a maxim of law. The same body that creates
rights is the same body that should create enforceable remedies.
A right without a remedy is completely vitiated and is no
less so when, a proper remedy, if it exists, is unenforceable.
Abia State legislators, like their counterparts in other
states, continue to labor as constitutional ragamuffins
– and not being apprised of their constitutional roles
or properly empowered, are gathered to breed laws, hollow,
lifeless, without good effects - the doing of a useless
thing. The country should be slumping with them.
The right of the several states to make laws – a necessary
and proper incidence of sovereignty, should be matched by
the power to delegate the enforcement of those laws. When
the constitution of the Federal Republic of Nigeria grants
the states, through their legislatures, the right to make
laws, there is an implied, if not express, reservation or
grant of power to enforce those laws by means consistent
with constitutional due process of law and fundamental rights
of Nigerian citizenships under the law. And the Federal
Government may not abridge those powers. It is anomalous
for the constitution to grant the power to make laws to
the states and reserve the policing of state laws to the
Federal Government.
Historically, and by operation of systemic constraints,
the centralization of police powers has done more harm than
good. National interest is compelled not only by efficiency
but effectiveness of the enforcement of our laws. Whereas
administration of federal laws should be left to the Federal
courts and the federal police, the state courts, aided by
the state police are the proper and best administrators
of state laws and the power to institute state police is
at least implied by the sovereignty of state governments.
Today, the Federal Police have been relegated to a bunch
of do-nothing, gun-totting, bribe-collecting, coup-supporting,
highest giver goes free force, that is awkward, clumsy,
non-responsive, with perhaps the weakest chain of accountability
of any other mammoth bureaucracy in the Federal Government.
The dictates of substantial justice mean that the police
– those at the vanguard of the judicial system –
know the law and the people. Federal police forces know
neither state laws nor state citizens, at least, not to
the sufficiency required for effective and efficient administration
of justice. The locality of health, welfare and security
laws, designed to operate within the crevices and reaches
of a state government, demands on first and most elementary
principles, that the policing of those laws lie with local
police people reasonably apprised of the nuances of both
the law and persons for whom it operates.
Most manifestly, the administration of justice runs with
the sovereign. The current scheme of centralized police
force is an affront to the sovereignty of the states and
the enforcement of state laws by Federal policemen is, by
definition, unconstitutional. When the state legislators
gather to breed laws that they have no power to see enforced,
through the agency of their Executive and Legislative branches,
in conjunction with their State police – there is
the doing of a useless thing. Slump, legislators, slump.
The states should bring suit against the Federal Government
in a court of appropriate jurisdiction, and petition that
the Federal government relinquishes the power to police
state laws. Let federal police in conjunction with federal
courts, police federal laws. And in reality, Federal substantive
laws, when ever they exist, should touch and concern only
those rights arising out of the constitution in respect
of national cohesion, interstate commerce, Nigerian sovereignty,
foreign relations, and federally guaranteed fundamental
rights of citizenship. In respect of state laws, it is,
of course, right and necessary for the Federal government
to reserve appellate rights in Federal courts to review
state police actions where such actions are inconsistent
with said federally guaranteed fundamental rights of citizenship.
But, the Federal government should not arrogate the power
to enforce state laws – the dissymmetry in logic,
substance and administration, wreaks havoc on the welfare,
health and security of our citizens and relegates our state
legislators to doers of useless things. . The centralization
of police force is the neo-fascist tool by which Aso rock
reserves for itself, the right to preside upon, control
and determine local and state issues and it is constitutionally
impermissible. A glaring example is how the federal government
has deftly controlled the operation of law against the treasonable
felons of Anambra State. Slump, legislators, slump.
Only when they have been empowered to act, aided by a State
Executive Branch that recognizes the scope of its constitutional
powers and by a judicial branch that operates with due caution
and circumspection, can the state legislators now make effective
laws.
One important constitutional rule, in respect of national
and interstate commerce, is that the state legislators should
not make laws impairing the obligations of contracts. In
effect, state legislators have the power to make laws recognizing
and enforcing the obligation of contracts. State and Federal
rules of contract administration are so riddled with loopholes
that it has always been an invitation to bandits to come
and play, provided they agree to tithe over to the ten percenters
in Government who hold those loopholes open.
With respect to Federal and state roads, they stink, especially
in the South East. This notwithstanding, appropriate maintenance
contracts may or may not be in effect, because the State
legislators’ inability to enact appropriate laws is
only matched by the judicial diffidence of the state courts
to subjugate all persons to the rule of law. And this is
compounded by Federal police, purporting to enforce state
laws, and yet are beholden to their masters in Aso rock,
who are not compelled by the exigencies of the social harm
for which state legislators enacted their laws in the first
place. The principal contractors took the money, black-washed
the roads and ran. The maintenance contractors took the
money, poured sand on the potholes and absconded. The legislators
are going on hunger strike and their heads are hungry. And
the people are trapped in a vicious cycle of waste and corruption,
nurtured by the force of the constitutional anomaly of federal
police, policing state laws – mocking the very tenets
of federalism.
In respect of contracts, this is what a properly empowered
state legislature might do. This presupposes, first of all,
that the State governments have the powers to police state
laws and that the state legislators have enacted appropriate
laws segregating the power to authorize the use of state
funds (state legislators), from the use and reporting of
those funds (the Executive) and from the custody of state
funds (an independent treasury –jointly and equally
controlled by the legislature and Executive). This fundamental
maxim of modern financial management have first of all got
to be in place to ensure that an Executive Governor, possessed
of Barkin Zuwo mentality (the mentality that government’s
money belongs under the Governor’s bed), does not
have signatory access to state funds. The only state funds
that a governor should have access to is none – zip
– just his paycheck. The direct control of State Treasury
by State Governments is a profound affront and a clear abuse
of Executive powers.
When this basic framework is in place, the State legislators
should look into waste management legislations. One such
legislation is to create a Contract Oversight Board (perhaps,
a Federally insured private entity) and insist that bidding
contractors be first certified by this oversight board.
Conditions of certification may mean that up to 50% of the
value of a contract be remitted directly to the Contract
Oversight Board on behalf of the contractors. Either that,
or the Contract Oversight Board shall be a bond holding
entity to indemnify the State government against absconding
contractors. Before contract is awarded, appropriate milestones
are clearly set out in a written engagement agreement. Payments
are to be made as at the times those milestones have been
certifiably attained. When a contractor absconds, the State
Government goes to the Contract Oversight Board for immediate
indemnification. Disputes are to be resolved by an Arbitration
Panel. Upon indemnifying the State Government, the Contract
Oversight Board will now be subrogated to the rights of
the State Government and shall be entitled to proceed against
the absconding contractor in any lawful manner.
If this contract oversight board concept sounds like a good
idea to you – then know it that it is one of the many
good ideas out there that will not see the light of day
– because a nasty Federal Government hovers like a
colossus, stripping men of good conscience the power to
do good deeds. And nothing but a hunger strike by all state
legislators may be necessary to call the attention of the
Federal government to the evil visited upon our states –
the power to make laws that are without life because they
are not attended by appropriate enforcement means. Slump,
legislators, slump.
Dr. Aniedobe is a US based Attorney and
is a frequent commentator on Nigerian Constitutional Issues.
He may be reached at chrisaniedobe@yahoo.com
|
