THE NATIONAL QUESTION AND THE NIGERIAN CONSTITUTION By Femi Aborisade1 Labour Consultant and Attorney-At-Law aborisadefemi@gmail.

com

Introduction The whole history of June 12, the pattern of geographical units of Nigeria that actively participated in the struggle for its actualization, the Boko Haram phenomenon, rotational Presidency, declaration of state of emergency, and so on, are all tensions reflecting the unsettled question of the national question. This paper examines how adequately or otherwise, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) attempts to resolve the national question in Nigeria. First, the key terms implied in the topic are explained. Next, the relevant provisions on accommodating the ethnic and religious pluralism of Nigeria are analysed. The weaknesses and strengths of such provisions are identified. The paper argues that in reality, the problem hindering development (welfare of the poor classes) in Nigeria is not caused by divisions along ethnic lines but conflictual class relations. Rather than thinking and organizing along ethnic divisions, the paper urges the unity of the oppressed against the exploiters from all ethnic nationalities around agitation for the implementation of Chapter II of the 1999 Constitution, as amended. Definition of terms: Nation, Nationality question, Minority Nation defined In the literature, it is recognised that defining the term, nation is as difficult as attempting to define time. The term nation has therefore been defined in several ways. The following definition offered by Stalin but under the guidance of Lenin appears to be comprehensive and acceptable for the purposes of this paper. A nation is a historically evolved, stable community of language, territory, economic life, and psychological make-up manifested in a community of culture ." (J.V. Stalin, Marxism on the National and Colonial Question, p. 8)2

Being paper delivered by Femi Aborisade at the June 12 Symposium organized by the Comrade Ola Oni Centre at Osogbo, The State of Osun on 15 June 2013.
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From the definition above, the following can be deduced: a nation has a common unifying language (s), a defined territory, shared history and culture, and it is united by economic ties. But a nation cannot be defined strictly in a formalistic sense as it continually evolves historically, based on a combination of factors. Thus, it is estimated that between 250 and 300 ethnic nationalities make up Nigeria. The most populous and politically influential ethnic groups3 are: Hausa and Fulani 29%, Yoruba 21%, Igbo (Ibo) 18%, Ijaw 10%, Kanuri 4%, Ibibio 3.5%, Tiv 2.5%

In terms of religious beliefs, Muslims are estimated to be 50%, Christians 40% and indigenous beliefs 10%. From the point of view of language pluralism, apart from English, which is the official language and the dominant languages of the dominant ethnic groups (Hausa, Fulani, Igbo (Ibo) and Yoruba), it is estimated that there are around an additional 500 indigenous languages.

The National question The term, the national question refers to the oppression of nations, nationalities and/or minorities within nations. What are minorities? A discussion of the term, minority will also be of benefit in explaining the national question.

Cited by A. Woods and t. Grant in http://www.marxist.com/marxism-nationalquestion250200/page-6.htm accessed on 10/6/13)

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(http://www.indexmundi.com/nigeria/ethnic_groups.html quoting Source: CIA World Factbook - Unless otherwise noted, information in this page is accurate as of February 21, 2013 accessed on 12/6/13).

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There is no single universally accepted definition of minority but the former UN Special Rapporteur, Francesco Capotorti4, has developed a definition which is considered to be the most prominent.5 According to Capotorti, a minority is a group which is numerically inferior to the rest of the population of a state, and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics, which differ from those of the rest of the population, and who if only implicitly, maintain a sense of solidarity directed towards preserving their culture, traditions, religion or language. Capotorti's definition is linked to Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which is recognized as the most prominent provision in international law concerning minorities. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) provides: In those States in which ethnic, religious or linguistic minorities exit, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. However, Capotortis definition has been criticized by scholars like Prof. Palley on the basis that it excludes political exclusion. In a multi-minority nation state like Nigeria, there may not be any particular ethnic group that has a decisive majority (in terms of numerical strength) in determining outcomes of elections but a number of ethnic groups may combine to exclude others, politically. Such politically excluded groups are also categorized as minorities. National minorities The government of the Federal Republic of Germany has set out five (5) criteria for determining national minorities6, as follows: 1. Their members are members of a nation-state (that is they are citizens), 2. They are traditionally resident in the particular nation-state,
4

See F. Capotorti (1976) The Protection of Minorities under Multinational Agreements on Human Rights, Italian YB. I.L. and F. Capotorti (1991). Study of the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. New York: United Nations
5

P. Thornberry (2011). An Unfinished Story of Minority Rights in Anna Biro and Petra Kovac (eds)Diversity in Action, Local Public Management of Multiethnic Communities in Central and Eastern Europe. Budapest
6

See M Hoffman (2005). The Right to Self Determination: The Case of Germany in E Riedel (ed). Constitutionalism- Old Concepts, New Worlds.

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3. They live in given traditional settlement areas, 4. They differ from the majority population in that they have their own identity in terms of language, culture and history (That is, they have ethnic or linguistic characteristics). 5. They wish to maintain their identity.

THE CRITICAL DIMENSIONS OF THE PROTECTION OF MINORITIES The Permanent Court of International Justice has identified the TWO CRITICAL points of minority protection, in its Advisory Opinion on minority schools in Albania: 1. Being in perfect equality (with other nationals of the State). 2. Provision of measures to ensure the PRESERVATION of the identity of the minority group(s), in terms of their: ethnic, religious, or linguistic

peculiarities or characteristics. In 1920, the Assembly of the League of Nations adopted a Recommendation, giving Albania, a condition for admission into the League: to enforce the principles of the Minority treaties. The condition, which was given to Albania had been prompted by the Greek Governments representation to the Council of the League, to the effect that there should be provisions beyond the Minorities Treaties to guarantee Christian Worship and education in the Greek language, considering the substantial Christian minority of Greek origin in Muslim dominated Albania. Article 5 of the Declaration which Albania had to sign stated that: Albania nationals who belong to racial, linguistic or religious minorities will enjoy the same treatment and security in law and in fact as other Albania nationals (i.e. legal equality, or equality of all, emphasis supplied). In particular, they shall have an equal right to maintain, manage and control at their own expense or to establish in the future, charitable, religious and social institutions, schools and other educational establishments with the right to use their own language and to exercise their religion , freely (i.e. positive discrimination to preserve the identity of the minority, emphasis supplied).

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THE CORE ISSUE IN THE PROTECTION OF MINORITIES From the Albania example given above, the core issue in the protection of Minorities lies in the principle of EQUALITY and NONDISCRIMINATION, or uniformity.

ETHNIC/MINORITY PROTECTION UNDER THE NIGERIAN CONSTITUTION The Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes provisions in recognition of the plural character of Nigeria, particularly in terms of ethnic and religious composition. THE PREAMBLE The Preamble to the Constitution draws attention to the plural reality of Nigeria. The Preamble thus proclaims a goal of indivisibility and indissolubility with a view to achieving sustaining unity in diversity as follows: We the people of the Federal Republic of Nigeria: Having firmly and solemnly resolved: To live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding: And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people: Do hereby make, enact and give to ourselves the following Constitution:(underlining supplied). STRUCTURING AND RE-STRUCTURING OF NIGERIA Nigeria was born with the amalgamation of the Northern and Southern Protectorates in 1914. Since then, it has undergone several phases of restructuring, all aimed at giving a sense of belonging to the component parts. Three regions were created in 1946: the Northern Region, Eastern Region, and

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Western Region

Demands for further Regional creations were mounted by the United Middle Belt Congress (UMBC) in the North; the Mid-Western Movement in the West; and the Calabar-Ogoja-Rivers (COR) movement in the East. The agitations led to the setting up of the Willinks Commision in 1958. The Commission opposed further regionalization in preference for constitutional guarantees against neglect in the form of fundamental rights and establishment of Development Commisions such as the Niger Delta Development Board (1959), similar to the Ministry of Niger Delta Affairs. However, the fourth region, the Mid-Western Region was created in 1963, by constitutional amendment. Sensitivity to continued pressure has brought about the creation of many more states, totaling as follows: 12 states in 1967; 19 states in 1976; 21 states in 1987; 30 states in 1991; and 36 states, 774 Local Government areas and one Federal Capital Territory, Abuja, in 1996.

The foregoing constitutes the background that informs the provision of Section 3(1) of the Constitution, which provides: 3. (1) There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara. Similarly, section 3(6) of the same Constitution provides for 774 Local Government areas, including the six Area Councils in the Federal Capital Territory, Abuja: (6) There shall be 768 Local Government Areas in Nigeria as shown in the second column of Part I of the First Schedule to this Constitution and six area councils as shown in Part II of that Schedule The Constitution does not only make provision for the existing number of states and local governments, it also makes provision, in section 8, for the procedure to be adopted to create new states and local governments.
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The procedures involve: Request supported by at least two thirds majority of elected representatives of the affected area in the legislative houses concerned, demanding creation of state or local government, as the case may be, which request is presented to the appropriate legislative house (National Assembly or State House of Assembly); Referendum: Supported by at least two-thirds majority of the people of the area where the demand for the creation of new state or local government originated, in a referendum; Approval of the result of the referendum by a simple majority of members of the State Houses of Assembly in all the states of the Federation ( in the case of state creation) ; and finally, Approval of the result of the referendum by two-thirds majority of members of the State House of Assembly (in the case of creation of a new local Government), The approval of the proposal by two thirds majority of members of each of the Houses of the National Assembly., (in the case of state creation).

Section 8 sub section (5) provides that each State House of Assembly shall make returns to the National Assembly after creating new local governments and the National Assembly shall make consequential provisions with respect to the names and headquarters of such new local governments (and new States) as may be applicable. The provision of the Constitution requiring a role for the National Assembly in the creation of new states has been questioned. However, to the extent that the states remain funded mainly by budgetary allocation from the Centre, it would be rationale for the National Assembly to have a say in the creation of new states. Section 8 sub sections (1) and (2) provides for the creation of new states and boundary adjustments of states as follows: 8. (1) An Act of the National Assembly for the purpose of creating a new State shall only be passed if(a) a request, supported by at least two-thirds majority of members (representing the area demanding the creation of the new State) in each of the following, namely (i) the Senate and the House of Representatives, (ii) the House of Assembly in respect of the area, and (iii) the local government councils in respect of the area, is received by the National Assembly;
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(b) a proposal for the creation of the State is thereafter approved in a referendum by at least two-thirds majority of the people of the area where the demand for creation of the State originated; (c) the result of the referendum is then approved by a simple majority of all the States of the Federation supported by a simple majority of members of the Houses of Assembly; and (d) the proposal is approved by a resolution passed by two-thirds majority of members of each House of the National Assembly. (2) An Act of the National Assembly for the purpose of boundary adjustment of any existing State shall only be passed if(a) a request for the boundary adjustment, supported by two-thirds majority of members (representing the area demanding and the area affected by the boundary adjustment) in each of the following, namely(i) the Senate and the House of Representatives, (ii) the House of Assembly in respect of the area, and

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(iii) the local government councils in respect of the area. is received by the National Assembly; and (b) a proposal for the boundary adjustment is approved by (i) a simple majority of members of each House of the National Assembly, and (ii) a simple majority of members of the House of Assembly in respect of the area concerned.

Section 8 sub sections (3) and (4) makes provisions for the creation of local governments and boundary adjustments as follows:

(3) A bill for a Law of a House of Assembly for the purpose of creating a new local government area shall only be passed if (a) a request supported by at least two-thirds majority of members (representing the area demanding the creation of the new local government area) in each of the following, namely (i) the House of Assembly in respect of the area, and (ii) the local government councils in respect of the area, is received by the House of Assembly; (b) a proposal for the creation of the local government area is thereafter approved in a referendum by at least two-thirds majority of the people of the local government area where the demand for the proposed local government area originated; (c) the result of the referendum is then approved by a simple majority of the members in each local government council in a majority of all the local government councils in the State; and (d) the result of the referendum is approved by a resolution passed by two-thirds majority of members of the House of Assembly. (4) A bill for a Law of House of Assembly for the purpose of boundary adjustment of any existing local government area shall only be passed if(a) a request for the boundary adjustment is supported by two-thirds majority of members (representing the area demanding and the area affected by the boundary adjustment) in each of the following, namely (i) the House of Assembly in respect of the area, and (ii) the local government council in respect of the area, is received by the House of Assembly; and (b) a proposal for the boundary adjustment is approved by a simple majority of members of the House of Assembly in respect of the area concerned.

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NATIONAL INTEGRATION The Constitution, in several provisions, promotes national integration so that loyalty to the nation shall override sectional loyalties. Section 15 is the National Integration provision. For example, S 15 sub section (2) provides: (2) Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited. The Constitution does not just promote national integration in the abstract. It sets out what should be done concretely to give effect to national integration. To this effect, Section 15 sub section (3) states that: (3) For the purpose of promoting national integration, it shall be the duty of the State to: (a) provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation. (b) secure full residence rights for every citizen in all parts of the Federation. (c) encourage inter-marriage among persons from different places of origin, or of different religious, ethnic or linguistic association or ties; and (d) promote or encourage the formation of associations that cut across ethnic, linguistic, religious and or other sectional barriers7. Indeed, (4) The State shall foster a feeling of belonging and of involvement among the various peoples of the Federation, to the end that loyalty to the nation shall override sectional loyalties.8 Section 42 of the Constitution also reinforces S. 15 in providing that: 42. (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is
7

Section 15 (3), Constitution of the Federal Republic of Nigeria, 1999, as amended. S. 15 (4), Constitution of the Federal Republic of Nigeria, 1999, as amended.

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not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions. (2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. COMPOSITION OF GOVERNMENT: FEDERAL CHARCTER The promotion of national integration is also reflected in the provisions of s. 14 (3) and (4) and section 219 (b) of the Constitution. These sections seek to promote the participation of members of all ethnic groups in the governance process, at all levels. COMPOSITION OF GOVERNMENT AT NATIONAL LEVEL With respect to composition of government and agencies of government at the national level, Section 14 (3) provides: (3) 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 State or from a few ethnic or other sectional groups in that Government or in any of its agencies.

COMPOSITION OF GOVERNMENT AT STATE AND LOCAL GOVERNMENTS LEVELS

With respect to composition of the state and local government, as well as agencies of government at those two levels, Section 14 (4) prescribes: (4) The composition of the Government of a State, a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognise the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation. However, as important as the provisions of Sections 14 and 15 (discussed above) are to ensuring federal character in the composition of governments and government agencies, they belong to Chapter II, which is generally though erroneously perceived to be nonjusticiable, by virtue of a clause embedded in S. 6 sub section (6)(c). The clause thatmakes Chapter II non-justiciable should therefore be deleted from the Constitution. COMPOSITION OF THE ARMED FORCES
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The idea of federal character is not limited to the composition of the civil arms of government; it also extends to the armed forces of the Federation. Section 217 sub section (1) establishes the Armed Forces of the Federation, as follows: 217. (1) There shall be an armed forces for the Federation which shall consist of an army, a navy, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly. Section 217 (3) provides that the composition of the armed forces of the federation shall reflect Federal Character: (3) The composition of the officer corps and other ranks of the armed forces of the Federation shall reflect the federal character of Nigeria.

COMPOSITION OF THE LEGISLATURE In this subsection, the composition of the National and State House of Assembly is examined. COMPOSITION OF THE NATIONAL ASSEMBLY S. 72 of the Constitution strives to ensure equal representation of each state of the Federation in the National Assembly, based on three (3) Senators per state. It provides that: 72. No Senatorial district or Federal constituency shall fall within more than one State, and the boundaries of each district or constituency shall be as contiguous as possible and be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable. In fulfillment of the provision of S. 72 with respect to equal representation based on population quota, S. 71 of the Constitution provides that each state shall be divided into three senatorial districts for purposes of election into the Senate. Representation in the House of Representatives is based essentially on population. The Constitution provides that the Federation is to be divided into 360 Federal Constituencies for purposes of election into the House of Representatives. As far as the House of Representatives is concerned, S. 49 of the Constitution provides that the House of Representatives shall consist of 360 members (that is, one member per constituency) , based on equal population as far as possible, provided that no constituency shall fall within more than one State COMPOSITION OF THE STATE HOUSE OF ASSEMBLY

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Sections 112 and 113 of the Constitution provide for the composition of the State House of Assembly on the principle of equal representation of the component units, based on population, as follows: 112. Subject to the provisions of sections 91 and 113 of this Constitution, the Independent National Electoral Commission shall divide every state in the federation into such number of state constituencies as is equal to three or four times the number of Federal constituencies within that state. 113. The boundaries of each State constituency shall be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable.

REVIEW OF CONSTITUENCY DELINEATION The Constitution provides for periodic review of delineation of state and federal constituencies, at intervals not less than 10 years (section 73 (1) and 114 (1) or as may be considered necessary in the event of boundary adjustment or creation of new states and local governments under Section 3 of the Constitution (Sections 73 (2) and (114 (2).9 From the foregoing constitutional provisions, there is no doubt that there is a clear, unequivocal and unambiguous demonstration of a clear intention to attain representation of constituencies into the legislature on an equal and fair basis. However, there appears to be overreliance on ethnic reality of Nigeria. Other plural realities of Nigeria have been neglected These include gender representation, youth and student representation, professional and economic category representation, including famers, traders, artisans, and so on. It is recommended that the constitution should provide for their representation in the legislature. A review of the constitution could also include questioning the bi-cameral legislature at the national level. Is it not possible to have effective representation in a single legislature ( based on the two criteria of equal representation of each state and population) so as to save costs for the provision of much needed social security schemes for the economically vulnerable and excluded groups?

LANGUAGE OF THE LEGISLATURE

Section 73 of the Constitution is devoted to the review of the division of States and of the Federation into Senatorial and Districts and Federal Constituencies while Sections 114 is on review of the division of states into constituencies for the purposes of conducting elections into the State House of Assembly.

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The Constitution seeks to partly recognize the language plurality of Nigeria. It therefore provides that: 55. The business of the National Assembly shall be conducted in English, and in Hausa, Ibo and Yoruba when adequate arrangements have been made therefor.10 However, based on the legal maxim that states expressio unius est exclusio alterius ( meaning the express mentioning of one thing is the express exclusion of the others not mentioned), the constitutional recognition of only the three dominant languages of the three dominant ethnic groups appears to mean non-recognition of the other 500 established indigenous languages. It is submitted that the constitution should not discriminate on the ground of language. Rather, the legislature could be encouraged/mandated to engage interpreters who could translate into English language. In the context of such a policy, there would be a basis and encouragement to develop all the languages of all component ethnic groups, a process that would also expand room for employment of persons who are experts in such languages. Section 97 of the Constitution is however an improvement on section 55. It provides in broad terms for the use of any other Language in a given State House of Assembly as follows: 97. The business of a House of Assembly shall be conducted in English, but the House may in addition to English conduct the business of the House in one or more other languages spoken in the State as the House may by resolution approve. STATE-STRUCTURE V. REGIONAL STRUCTURE OF GOVERNMENT The existing Constitution, as stated above, provides for a 3-level structure of government as follows: Federal Government State Government, and Local Government.

There have been calls for a return back to regional structure of government but one now based on six (6) geo-political zones. One of the justifications advanced is that the regional structure will save costs. However, in reality, the regional structure will increase rather than save costs. As the recommendations for constitutional amendment by the Ohaneze Ndigbo (2012)11 has shown, rather than having a three-level structure of government, the regional structure will imply a 4level structure of government, as follows:
10

Constitution of the Federal Republic of Nigeria, 1999, as amended, Section 55.

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http://www.nigeriamasterweb.com/OhanezeDraftSubConstitutionReview.html accessed on 13/09/2012.

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Centre (federal) level Regions (Federating Units) States (as may be determined by the Regions), and Local Governments (as may be determined by the states).

Without necessarily breaking the country along regional lines, nothing prevents collaboration among the states in the existing six geo-political zones , and indeed, nothing stops all state governments from collaborating outside the existing constitutional framework, just as any level of government or agency could collaborate with foreign governments or organizations in their mutual interests, internationally. It is recommended that the existing three-level government structure be maintained but each state could be allowed to have its constitution while another Constitution exists for the Federation. In that context, the State Constitution will be the supreme law applicable and enforceable at the state level while the Federal Constitution will be supreme and applicable on an agreed scope of issues at the national level. Thus, Section 1 of the 1960 Constitution of the Federation provided that the Constitution was applicable on certain matters to the entire Federation and the Regional Constitution was subject to it as far those matters were concerned, as follows: 1. This Constitution shall have the force of law throughout Nigeria and, subject to the provisions of section 4 of this Constitution, if any other law (including the constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.12 In the same spirit, Section 5 sub section (1) of the 1960 Constitution of the Federation proclaimed that as far as the matters covered by the Constitution of the region was concerned, the regional constitution was supreme, as follows: 5. ---(1) Subject to the provisions of this Constitution and the Nigeria Independence Act, 1960, the constitution of each Region shall have the force of law throughout that Region and if any other law is inconsistent with that constitution, the provisions of that constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.13

12

Constitution of the Federation of Nigeria 1960, S. 1. (Available online at http://www.worldstatesmen.org/nigeria_const1960.pdf, accessed on 14/6/13)
13

Constitution of the Federation of Nigeria 1960, S. 5(1). (Available online at http://www.worldstatesmen.org/nigeria_const1960.pdf, accessed on 14/6/13)

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THE NIGERIA POLICE FORCE (NPF) Sections 214, 215 and 216 of the Constitution are devoted to the establishment, powers and control of the Nigeria Police Force. It does not appear that the constitutional provisions on the Nigeria police Force give adequate sensitivity to the ethnic composition of Nigeria. The NPF is a Federal or national Force, which shall be organized and administered in accordance with the provisions of an Act of the National Assembly. No other police force shall be established for the Federation or any part thereof. The NPF may have branches forming part of the armed forces of the Federation (S. 2114). The NPF shall be under the command of the Inspector General of Police (IGP) who is appointed by the President on the advice of the Nigeria Police Council. Service. The Nigeria Police Force stationed in each State shall be under the command of the Commissioner of Police (appointed by the Police Service Commission) who is in turn under the command of the IGP (S. 215). The President or the Minister of the Government of the Federation may issue lawful directions to the IGP with regard to maintenance and securing of public safety and public order, as may be considered necessary, and the IGP shall comply with those directions or cause them to be complied with (S. 215((3). Under S. 215 (4), the Governor of a State or a Commissioner so authorized by the Governor may also give lawful directions to the Commissioner of Police in the State with respect to public safety and public order within the state, as he may consider necessary, and the Commissioner of Police shall comply or cause them to be complied with:14 Provided that before carrying out any such directions under the foregoing provisions of this subsection the Commissioner of Police may request that the matter be referred to the President or such minister of the Government of the Federation as may be authorised in that behalf by the President for his directions15. As a matter of fact, section 215 sub section (5) goes further to provide that: (5) The question whether any, and if so what, directions have been given under this section shall not be inquired into in any court. The implication of the constitutional provisions on the Nigeria Police Force is that the Governor lacks the power to give enforceable or effective directions to the Commissioner of police in the State. In that situation, State Governors, in reality, tend to have their own individual security arrangements for their personal security, which operates side by side the operatives of the Nigeria Police Force. The current Police structure cannot be appropriate under a Federal system
14

Constitution of the Federation of Nigeria, 1960, S. 5(1). S. 215 (4), Constitution of Federal Republic of Nigeria, 1999, as amended.

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of government in the face of multi-ethnic, economic and political interests and pressures. The truth is that loyalty of the police hierarchy tends to be to the Federal Government rather than to the state Governor. In this context, the call for state police formations is justifiable. In fact, in view of the unprecedented state of insecurity in Nigeria, there should not only be a National Police, there should also be police formations at local and state government levels. But in order to prevent abuse by the Executive at all levels, Federal, state or local government, as the experience of the State Independent Electoral Commission (SIEC) has shown, the suggested three-structure police formation should be subjected to the control of popular democratic Committees. The Security Committees to control the police should comprise elected representatives of mass organizations, such as trade, student, community and professional unions and associations. The rank and file of the police should not only enjoy the right to form and join trade unions, adult citizens should be licensed to carry arms. ON RELIGION In recognition of the ethnic and religious pluralities of Nigeria, Section 10 of the Constitution rightly provides for a secular state by providing that: 10. The Government of the Federation or of a State shall not adopt any religion as State Religion Section 38 of the Constitution complements section 10 in providing that: 38. (1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance. (2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian. (3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination. Unfortunately, section 10 of the Constitution has been observed in the breach by many of the governments in Northern Nigeria with their adoption of the Sharia criminal justice system. The Constitution has rightly made provisions for the application of customary law and Sharia law in civil proceedings involving matters of personal system of law relating to validity or dissolution of marriage, family relationship, guardianship of infants and/or physically or mentally infirm persons, gifts, will, succession, and so on, depending on which law (customary/ethnic law or Islamic law) the individuals/parties are subject to.16
16

See Constitution of the Fedral Republic of Nigeria, 1999, as amended, sections 262 (jurisdiction of the Sharia Court of Appeal of the Federal Capital Territory, Abuja); s. 277 (jurisdiction of the Sharia Court of Appeal of a State); S. 267 (jurisdiction of the Customary

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The Constitution vests the High Court of a State 17, the Federal High Court18, the Court of Appeal19 and the Supreme Court20 to entertain jurisdiction over civil and criminal matters. But in contravention of S. 10 of the Constitution, many of the Northern states, led by Zamfara State, have made certain laws, repealed some, and amended others to the effect of establishing Sharia courts, which are vested with not only the entirety of civil but also criminal jurisdictions 21. As Oraegbunam22 points out, punishments such as amputation, lapidation, stoning to death, crucifixion and so on, still attach to Sharia offences in the North. Although only Muslims have been subjected to the jurisdiction of Sharia courts so far, yet experiences in Islamic countries show that there are potentials for extending the judicial practice and coverage to adherents of other religions. The violation of S. 10 with respect to the establishment of Sharia Courts vested with criminal jurisdiction is therefore a threat to maintaining an indivisible and indissoluble country, contrary to the values espoused in the Preamble to the Constitution. Femi Falana23 also expresses that whereas harsh sentences prescribed by Sharia are being enforced against ordinary people, members of the ruling class who commit worst crimes do not suffer the same harsh penalties. He gave examples of a man in Zamfara State who had his arm amputated for stealing a cow valued at N15,000 whereas one of the governors who politicized Sharia Law has been charged by the Economic and Financial Crimes Commission with the alleged theft of N30bn. ON JOINT STATE AND LOCAL GOVERNMENT ACCOUNT Section 162 (5) -(8) of the Constitution provide that:
Court of Appeal of the Federal Capital Territory); S. 282 (jurisdiction of the Customary Court of Appeal of a State.
17

See Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 272 (jurisdiction of the High Court of a State).
18

See Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 251 (3).

19

See Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 242(2) and 243 (1).
20

See Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 233 (2).

21

See I.K.E. Oraegbunam SHARIA CRIMINAL LAW, ISLAM AND DEMOCRACY in Nigeria today (available online at http://dx.doi.org/10.4314/og.v8i1.10 , accessed 13/6/13) and F. Falana (2013) religion and
Security in The Nation, 21 May 2013, p. 37.
22

I.K.E. Oraegbunam, id. F. Falana, op.cit.

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(5) The amount standing to the credit of local government councils in the Federation Account shall also be allocated to the State for the benefit of their local government councils on such terms and in such manner as may be prescribed by the National Assembly. (6) Each State shall maintain a special account to be called "State Joint Local Government Account" into which shall be paid all allocations to the local government councils of the State from the Federation Account and from the Government of the State. (7) Each State shall pay to local government councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.

(8) The amount standing to the credit of local government councils of a State shall be distributed among the local government councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State..24 The implication of the above constitutional provisions is that the local governments are not in control of allocations from the Federation account. Indeed, what they receive is often at the discretion of the State Governments. The Association of Local Governments of Nigeria (ALGON)25 has, based on its experiences, made a case for the amendment of the Constitution to the effect that allocation of funds to the local governments from the federation account should be made directly to the accounts of the local governments. The ALGON position appears to be shared by the National Association of Local Government Employees (NULGE). According to them, the state governments tend to stifle local governments of funds. It is only rationale that we support ALGON and NULGEs call for an amendment of the Constitution, which would mean giving full recognition to the local government as a separate tier of government. Constitutions should evolve and be amended in the light of practical experiences.

ON REVENUE ALLOCTION There is a relationship between possibility for development measured in terms of the welfare of the populace and the revenue allocation formula in a federal system of government.

24

Constitution of the Federal Republic of Nigeria, 1999, as amended, S. 162 (6).

See http://www.brimtime.com/2012/10/constitutional-review-ohanezendigbo.html accessed on 14/6/13).

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Section 162(2) of the Constitution provides a guiding framework for the Revenue Mobilisation Allocation and Fiscal Commission in making proposals to the National Assembly. It provides that the allocation formula shall take into consideration the following principles, especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density; Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources.26 On the basis of the Proviso to S. 162(2), the regions or states, as the case may be, had retained the following percentage of revenue generated by them from natural resources, over the years: 1953, 100% 1960, 50% 1970, 45% 1975, 20% 1982, 2% 1984, 1.5% 1992, 3%, and 1995, 13% (which is also the prevailing rate in accordance with the 1999 Constitution cited above).

The critical question is how effective are the above criteria in terms of engendering the wellbeing of the people in the concrete terms? It is suggested that allocation formula should primarily consider government responsibilities to all citizens, regardless of the state of location of citizens, on account of the socio-economic rights contained in Chapter II of the Constitution, including education, health care, water, housing, food, employment, basic income guarantees, pension, electricity, roads, and so on. These provisions should take priority over the privileges of the ruling class, particularly the disproportionate wastages by the executive and legislative arms of government. THE CONSTITUTIONAL POLICY ON NATIONAL PARTIES
26

Constitution of the Federal Republic of Nigeria, 1999, as amended, s. 162(2).

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In the bid to avoid parties being formed exclusively along ethnic or religious lines, the Constitution prescribes provision aimed at the establishment of political parties in the image of national institutions such as the NPF and the Nigerian armed forces. The import of the constitutional requirements, which a party must fulfil to qualify for registration as a political party is that it must be a national party. S. 222(e) provides that a political party shall not be confined to only one geographical area of Nigeria. S. 222(f) prescribes that the headquarters office of the party must be in Abuja. S. 223(1)(b) stipulates that the national Executive Committee (NEC) of the Party shall reflect Federal Character. The party structure is thus conceived in the image of a Nigerian institution. What all the conditions imply is that it requires a lot of money to organise parties. Parties are not perceived as organisations of people who share similar ideas, programmes and perspectives as to the kind of society they want to build if they win. In the interest of building a society which makes the welfare of the people as the central essence of governance, it is advocated that parties be made to conform with the provision of S. 224 of the Constitution, regardless of their numerical size and geographical spead. This means deletion of all sections that suggest political arties must be built as national institutions. Section 224 provides pungently: 224. The programme as well as the aims and objects of a political party shall conform with the provisions of Chapter II of this Constitution. POLICY ON SPONSORSHIP OF CANDIDATES Also, along the concern that only national institutions should govern Nigeria, the Constitution of the Federal Republic of Nigeria (CFRN) 27 provides that only a registered political party can sponsor candidates for election. The constitutional provision in this regard violates the political rights of the individual. After all, even ethnic groups are made of individuals who possess individual rights, apart from collective rights. The constitutional bar to the right of independent candidacy to contest elections could be one of the reasons why many Nigerians tend not to be involved in partisan electoral politics. The result is that only a tiny minority determines who rules. In the recent Governorship election in Ondo State, for example, Governor Mimiko won the election by having 260, 199 votes out of a population of about 3.4million. Total registered voters were about 1.6m; only about 646000 were accredited to vote; only about 594000 were valid votes. The constitution should therefore encourage building unity in diversity by allowing the diverse talents/inputs of the individual to thrive within the political space. Independent candidature should be constitutionally allowed so that those who are disenchanted with the major ruling political parties can be meaningfully involved. ELECTION OF JUDGES AND ELECTORAL COMMISSIONERS

27

S. 22, CFRN, 1999.

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The Constitution provides for the appointment of judges and electoral commissioners, either at the national or state level28. Some judges and electoral commissioners tend to be compromised by virtue of the fact that they feel responsible only to the political forces that play some role in their appointment. It is suggested that subjecting positions of judges and electoral commissioners to election just as other political offices could generate greater confidence in the system and motivate others who feel disinterested to get involved. In the USA, for example, in most of the 50 States and the District of Columbia, voters elect judges for a stated term. Subjecting the position of judges and electoral commissioners to election would reduce (or eliminate in certain cases),the possibility of their being susceptible to political pressures of politicians. ETHNIC NATIONALISM OR UNITED CLASS WAR FOR IMPROVED WELFARE? The persistent bloodshed associated with the Boko Haram phenomenon (among other factors) has accentuated apprehension for a break-up of the country along ethnic lines. But the critical question to pose is: what is the fundamental cause of lack of development (measured in terms of the welfare of ordinary people)? Is it ethnic division or division along class lines? The fundamental cause of poverty and degeneration in the society is not division between nations and nationalities but conflicting interests between the rich and the poor, the ruled and the rulers. The interests of the poor classes in all ethnic nationalities are the same, just as the interests of members of the ruling class of all nationalities are equally the same. As Lenin29 once explained: On the hoards of joint stock companies we find capitalists of different nations sitting together in complete harmony. At factories, workers of different nations work side by side. In any really serious and profound political issue, sides are taken according to classes, not nations.30

28

See CFRN, 1999, as amended, Section 154 (in respect of the INEC) and Ss. 231, 238, 250, 256,261, 266, 271, 276, 281 and 288, for the appointment of Chief Justice of Nigeria and Justices of the Supreme Court, appointment of President and justices of the court of the Court of Appeal, appointment of Chief Judge and Judges of the Federal High Court, appointment of Chief Judge and Judges of the High Court of the Federal capital Territory, Abuja, appointment of Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal capital territory, Abuja, appointment of the President and judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja, appointment of chief judge and judges of the High court of a State, appointment of the Grand kadi and kadis of the Sharia Court of Appeal of a State, and appointment of the President and judges of the Customary Court of Appeal of a State, respectively).
29

V.I. Lenin, Critical Remarks on the National Question, in Collected Works, Vol. 20.

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Numerous examples could be cited to drive home the point made by Lenin: the January 2012 unprecedented mass action against perennial increases in the prices of petroleum products; nonpayment of national minimum wage; non-payment of 27.5% increase in the salaries of teachers; the plight of pensioners; and so on. On each of these issues, positions are taken, not on the basis of ethnic affiliation but on the basis of class status. The poor, including workers, the unemployed, farmers, artisans, traders, and so on, should therefore not be hoodwinked by the deceptive bellicose nationalism of the bourgeoisie or aspiring bourgeoisie.
The Boko Haram phenomenon is an index of the socio- economic crisis of poverty, unemployment, etc, in the same way in which kidnapping for ransom and armed robbery experiences in other parts of the country have turned life into a nightmare for majority. Boko Haram insurgency, kidnapping for ransom and other criminalities (committed by those who have chosen such means to survive) cannot be solved on an enduring basis by the application of physical force without addressing the root cause. In this respect, pressure must be brought to bear on the State to invest in the establishment of social security schemes. In this regard, rather than adopting ethnic nationalism, pressures should be brought to bear on the ruling class for the implementation of Chapter II of the Constitution on the basis of the following provisions of the same constitution, which make chapter II justiciable:

1. S. 6(6)(c), CFRN, 1999 2. S. 1(1), CFRN, 1999. 3. Section 13, CFRN, 1999. 4. section 224, CFRN, 1999, and 5. Item 60(a) of the Exclusive Legislative List. The above listed provisions are discussed below. S.6(6)(C) Does Not Completely Foreclose Justiciability of Chapter II

Unlike the constitution of many other countries, including India, which directly declares that similar provisions shall not be enforceable, S.6(6)(c) of the 1999 constitution does not absolutely foreclose justiciability of chapter II and allows its enforcement if it is so provided in any other section of the Constitution. The court, in Federal Republic of Nigeria v. Anache (2004), has upheld this position, stating that since S. 6(6)(c) is qualified by the phrase, save as otherwise provided by this Constitution, the justiciability of Chapter II is not entirely foreclosed Also, in Olafisoye v. Federal Republic of Nigeria (2005), the court was asked to determine whether or not the National Assembly is competent to make laws for the peace, order and good governance of Nigeria, pertaining to abolishing corrupt practices and abuse of power under S. 15(5)31 a section under Chapter II; combined with other provisions of the Constitution. In this
30

V.I. Lenin,id.

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particular case, the Supreme Court upheld the likelihood of justiciability of Chapter II, if the Constitution makes a section(s) of Chapter II justiciable, as follows: The non-justiciability of (sic!) section 6(6)(c) of the Constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words, except as otherwise provided by this Constitution. This means that if the Constitution otherwise provides in another section, which makes a section or sections of Chapter II justiciable, it will be so interpreted by the Courts ( Olafisoye v. Federal Republic of Nigeria, cited in Anyebe, 2010:379). Other provisions, which make the Constitution, including Chapter II binding, include: S. 1(1) proclaims the supremacy and bindingness of the constitution, as follows: 1. (1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria. Section 13 provides that all authorities and persons exercising legislative, executive or judicial powers shall observe and apply Chapter II, as follows: 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 [i.e. Chapter II] of this Constitution (S. 13, CFRN, 1999). Section 224 provides: The programme as well as the aims and objects of a political party shall conform with the provisions of Chapter II of this Constitution (S. 224, CFRN, 1999). Finally, Item 60(a) of the Exclusive Legislative List places responsibility on the Federal Government to establish and regulate authorities for the Federation or any part thereof (a) To promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution

STATUTORY PRO-JUSTICIABILITY PROVISIONS: THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS ACT, CAP10, LFN, 1990 The African Charter equally contains socio-economic rights, which include: Note however that in Adebiyi Olafisoye v. Federal Republic of Nigeria (2004) The Supreme Court adopted the literal rule in statutory interpretation and held that the provisions of S. 6(6)(c) of the CFRN are clear that S. 15(5), (one of the sections under chapter 2) is not justiciable.
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Article 15: Right to work Article 16: Right to health Article 17(1): right to education Article 17(2): Right to participate in the cultural life of ones community Article 17 (3): Duty of state to promote & protect the moral and traditional values recognized by the community Article 18(1): Recognition of family as the natural unit & basis of a society Article 18(2): Right of the family to be assisted as the custodian of morals and traditional values Article 18(3): Protection of the rights of women and children, and Article 18(4): Rights of the aged and disabled. The Supreme Court has held in Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 600) 228 that: the African Charter which is incorporated into our municipal law becomes binding and our courts must give effect to it like all other laws falling within the judicial powers of the courts. The implication of the above holding of the Supreme Court is that the socio-economic rights in Chapter II are enforceable under the African Charter. SUPPORT FOR SELF DETERMINATION AS A LAST RESORT However, where voluntary union of the component ethnic groups making up Nigeria is not possible for lack of respect for basic democratic rights such as senseless genocide committed by those who have been so dehumanized to the extent of not having regard for the sacredness of the life of others, then socialists would have no choice but to support the right to self determination. But this would be on the basis of promoting united struggles by the oppressed classes against exploiters of all ethnic nationalities. Under the Nigerian Constitution and under international human rights law, there is recognition of the right to the protection, promotion of the existence of national, ethnic, cultural, religious, and linguistic identities in individual geographic units. It is trite to state categorically that international law recognizes the right to self determination of peoples. What needs to be clarified is that there are two aspects of self-determination, namely: external and internal selfdetermination. External form of self determination relates to the colonized fighting to shake off the chains of colonialism or secession from a nation-state. Internal form of self determination has to do with autonomous self-government within a nation-state. It is the internal form of selfdetermination that international law unequivocally recognizes. The States of the Nigerian Federation that have adopted their own flags, anthems, etc, are exercising aspects of internal
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form of self determination. a form of community or collective self-expression within the Federal Republic of Nigeria. Articles 1 and 55 of the UN Charter (that is UN Constitution) expressly recognize the rights of peoples to self-determination. The self-determination here is to be understood as internal selfdetermination. For the avoidance of any doubt, the UN Charter defines 'peoples' as a group of human beings, who may or may not comprise States or nations. The verbatim provisions of the UN Charter and the African Union are reproduced below. Article 1 sub (2) of the UN Charter provides: The purposes of the United Nations are: (2). To develop friendly relations among nations based on respect for the principle of equal rights and SELF-DETERMINATION of peoples, and to take other appropriate measures to strengthen universal peace. Also Article 20(1) of the African Charter, which has been domesticated, provides: All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

CONCLUSION This paper has examined the adequacy or otherwise of constitutional provisions on containing the national question in Nigeria. The paper has argued that the root cause of poverty is class politics not division along ethnic lines. The paper urges the alliance of the oppressed classes of all ethnic groups against exploiters in all ethnic groups who stand on the same of the barricade in all serious issues relating to who gets what, where and when. However, as a last resort, where voluntary union of all component ethnic groups is not possible on the basis of respect for fundamental rights, the struggle for self determination may be inevitable. Each state should recognize the right of national minorities to secede, as was the case with the Bolshevik government immediately after the successful socialist revolution of 1917. This may put pressure on national governments to recognize and respect minority rights in order to avoid such minorities exercising their right to independence.
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