DEVOLUTION OF POWERS THROUGH JUDICIAL AND LEGISLATIVE ACTIVISM IN NIGERIA
Keywords:
Restructuring, devolution of power, federalism, controlAbstract
Demands for the restructuring of the federal system of government in Nigeria have been constant among scholars and activists for years, recurring from one conference to another, with differing arguments as it suits various political interests. Interwoven in the clamour for restructuring the federation are such concepts as devolution of powers, resource control, review of revenue sharing formula, state and regional security autonomy, among others. Noticeable friction appears between the federal and state governments as each level seeks to firmly hold unto its constitutionally ascribed powers in the legislative lists of the Constitution, even if common sense and political exigencies dictate otherwise, contending, rightly, that until an amendment of the relevant sections of the Constitution is carried out the status quo must remain. However, some state governments have found ways around these constitutional hurdles by approaching courts for judicial interpretations of extant provisions of the Constitution in a way that enhances the letters and spirit of true federalism. This paper looks at the success stories of such endeavours with a view of using them to lay the foundation for greater judicial activism as key tools towards achieving robust restructuring of the federation and enhancing good governance in Nigeria. The paper gives other insights and recommendations to uphold greater devolution of powers to the federating units.
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References
1. See Constitution of the Federal Republic of Nigeria (Promulgation) Decree No 24 of
1999.
2. The then Military Government under General Abdulsalami Alhaji Abubakar had on
11th November, 1998 inaugurated a ‘Constitutional Debate Co-ordinating Committee’.
3. Ibid
4. ‘Nigeria must discard 1999 Constitution to make progress- Oyebode’, Punch
Newspaper, 31st October, 2018, online resource at https://punchng.com/nigeria-mustdiscard-1999-constitution-to-make-progress-oyebode/, accessed on 25th August, 2021.
5. Section 4 of the 1999 Constitution, under part II provides for Legislative powers spelt
out in the Second Schedule under the Exclusive Legislative List in Part I and
Concurrent Legislative List in Part II.
6. Section 4 (2) of the 1999 Constitution of the Federal Republic of Nigeria.
7. Part II on Concurrent Legislative List under the 1999 Constitution containing 30
provisions only as compared with 68 provisions under the Exclusive Legislative List.
8. https://www.nigerianstat.gov.ng/pdfuploads/Federation_Account_Allocation_Commit
tee_(FAAC)_FEB_2019_Disbursement.pdf; online source accessed on the 25th day of
August, 2021.
9. Ibid.
10. https://dailytrust.com/new-revenue-sharing-formula; online resource accessed on the
25th day of August, 2021
11. The Revenue Mobilization Allocation and Fiscal Commission (RMAFC) was
established under Decree No. 49 of 1989 as then National Revenue Mobilization
Allocation and Fiscal Commission (NRMAFC), and later amended by Decree No.98 of
1993, and listed in the 1999 Constitution of the Federal Republic of Nigeria (as
amended) under Section 153 (1) as one of the 14 federal executive bodies; see
https://rmafc.gov.ng/establishing-law/; online source accessed on 26th August, 2021.
12. Section 9 (1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria (as
amended) contains provisions for amendment of the provisions of the Constitution and
requires the proposal for amendment to be supported by the votes of not less than twothirds majority of all the members of the National Assembly and approved by resolution
of the Houses of Assembly of not less than two-thirds of all the States of the federation.
13. Second Schedule, Legislative Powers, part 1 under Exclusive Legislative List of the
1999 Constitution of the Federal Republic of Nigeria (as amended) contains provisions
under item 58 (Stamp Duties), and item 59 (Taxation of incomes, profits and capital
gains, except as otherwise prescribed by this Constitution).
14. ‘Court declares RSG, not FIRS, entitled to collect VAT related taxes in Rivers State’,
Guardian Newspapers online report of 10th August, 2021 by Ann Godwin, at
https://guardian.ng/news/court-declares-rsg-not-firs-entitled-to-collect-vat-relatedtaxes-in-rivers/, accessed on 26th August, 2021.
15. Ibid.
16. ‘Wike Signs Bill on VAT Collection into Law’, Nigerian Tribune newspaper report of
Thursday, August 26, 2021, obtained online at https://tribuneonlineng.com/wike-signsbill-on-vat-collection-into-law/; accessed on 26th August, 2021.
17. The National Assembly purporting to act under the powers conferred to the Federal
Government of Nigeria under Section 4 (2) & (3) Item 60 (d) Part I of the Second
Schedule of the Constitution of the Federal Republic of Nigeria, 1999, (as amended)
enacted the Nigerian Tourism Development Corporation Act, 1992.
18. See Hotel Licencing (Amendment) Law; Lagos State of Nigeria Official Gazette dated
20th July, 2010.
19. See SC. 340/2010 of 19th July, 2013
20. Section 5 (2) (a) & (b) of the 1999 Constitution (as amended) of the Federal Republic
of Nigeria.
21. Section 1 of the Land Use Act, 1978, vests all land comprised in the territory of each
state of the federation in the governor of the state, to hold in trust for the use and
common benefit of all Nigerians in accordance with the provisions of the Act. By virtue
of Section 315 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
the Land Use Act is regarding as an ‘Existing Law’ accommodated under the
Constitution.
22. Item 45 of the Exclusive Legislative list on exclusive powers of the federal government
of Nigeria lists ‘Police and other government security services established by law’ as
an item states are excluded from encroaching upon.
23. ‘South-west States Pass Amotekun Bill into Law’, ThisDay Newspapers report of
March 4, 2020 by James Sowole & Yinka Kolawole, online at
https://www.thisdaylive.com/index.php/2020/03/04/south-west-states-pass-amotekunbill-into-law/, accessed on 30th August, 2021. See also: Kano State Hisbah Board Law
No. 4 of 2003 and Kano State Hisbah Board (Amendment) Law No. 6 of 2005.
24. Section 214 of the 1999 Constitution (As amended).
25. Chapter II of the 1999 Constitution (as amended) comprises sections 13, 14, 15, 16, 17,
18, 19, 20, 21, 22, 23 & 24 of non-justiciable provisions, which the government, and
all authorities and persons, exercising legislative, executive and judicial powers are
enjoined , as a duty and responsibility, to observe.
26. See the case of Olafisoye V. Federal Republic of Nigeria (2004) NWLR, Pt 864
27. Section 1 of the Land Use Act, which vests all land comprised in the territory of each
State (except land vested in the Federal Government or its agencies) solely in the
Governor of the State, who would hold such land in trust for the people.
28. One example is the Open Rearing and Grazing Prohibition Law, No 5, 2021, Laws of
Rivers State of Nigeria.
29. ‘September 1 Anti-open Grazing Deadline: Where Southern States Stand.’ Nigerian
Tribune online report by Olayinka Olukoya, Hakeem Gbadamosi, et al; August 31,
2021, published on https://tribuneonlineng.com/september-1-anti-open-grazingdeadline-where-southern-states-stand/, accessed on the 31st August, 2021.
30. Section 1 of the 1999 Constitution (as amended) states that “This Constitution is
supreme and its provisions shall have binding force on the authorities and persons
throughout the Federal Republic of Nigeria.”
31. ‘Amid VAT uproar, states sue FG over sharing of Stamp duties’, the Guardian
Newspapers news article dated 10th September, 2021, written by Kehinde Olatunji
(Lagos), Ameh Ochojila (Abuja) et al; published online on
https://guardian.ng/news/amid-vat-uproar-states-sue-fg-over-sharing-of-stamp-duties/,
accessed on 11th September, 2021.
32. Section 13 of the 1999 Constitution (as amended) states that “It shall be the duty and
responsibility of all organs of government, and of all authorities and persons, exercising
legislative, executive or judicial powers, to conform to, observe and apply the
provisions of chapter II .
33. Ibid 32
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