The Exclusive Legislative List and the Concurrent Legislative List – a case for restructuring or Constitutional defect?
Federalism in simple terms is the division of law-making powers and functions between two levels of government, so that general and regional governments are each within a sphere co-ordinate and independent.
This was confirmed by the Supreme Court in A.G. Federation v. A.G. Lagos State where it was held that:
“Federalism is an arrangement whereby powers of government within a country are shared between a national, countrywide government and a number of regionalised (i.e., territorially localized) governments in such a way that each exists as a government separately and independently from others, operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of its affairs. Federalism is thus essentially an arrangement between government, a constitutional device by which powers within a country are shared among two tiers of government”.
In Nigeria, legislative lists provide for the division of powers – the exclusive legislative list, the concurrent legislative list and the residual legislative list.
Section 4(1) of the Constitution provides that the legislative powers of the Federal Republic of Nigeria are vested in the National Assembly for the Federation and section 4(6) vests the legislative powers of a state in the House of Assembly of that State.
The National Assembly is a bicameral legislative body which consists of a Senate and a House of Representatives.
The 1999 Constitution of the Federal Republic of Nigeria contains 68 items in the exclusive legislative on which only the Federal Government of Nigeria can legislate.
These include: accounts of the government of the federation; arms, ammunition, and explosives; aviation (including airports); awards of honours and decoration; bankruptcy and insolvency; banks, banking, bills of exchange, and promissory notes; borrowing monies inside and outside Nigeria for the purposes of the federation or any state; census; citizenship, naturalization, and aliens; commercial and industrial monopolies; construction and maintenance of federal trunk roads; control of capital issues; copyrights; creation of states; currency, coinage, and legal tender; customs and excise duties; defence; diplomatic, consular, and trade representation; drugs and poisons; election to offices of president and vice-president, governor, or deputy governor; evidence; exchange control; export duties; external affairs; extradition; immigration and emigration; implementation of treaties; insurance; incorporation, regulation, and winding up of corporate bodies other than those established by a law enacted by the state Houses of Assembly; labour; maritime shipping and navigation; meteorology; military (army, navy, and air force); mines and minerals; national parks; nuclear energy; passports and visas; patents; trademarks, trade, or business names; pensions and gratuities payable out of the public funds of the federation; police and other government security services established by law; posts, telegraphs and telephones; powers of the federal National Assembly and the privileges and immunities of its members; prisons; public debts; public holidays; public service of the federation; quarantine; railways; regulation of political parties; service and execution in civil and criminal processes, judgments, decrees, and other decisions of any court of law inside or outside Nigeria, except for laws made by the state; stamp duties; taxation of incomes; profits and capital gains, as provided by the Constitution; trade and commerce; traffic on federal trunk roads; water from sources declared by the National Assembly to affect more than one state; weights and measures; wireless, broadcasting, and television other than those owned by states; any matter with respect to which the National Assembly has power to make laws under this Constitution; and any “matter incidental or supplementary to any matter mentioned elsewhere in this list.
The Concurrent legislative list provides for items which the federal and state governments can legislate on. Items on this list include: The concurrent legislative list includes allocation of revenue; antiquities and monuments; archives; collection of taxes; electoral law; electric power; exhibition of cinematography films; industrial, commercial, or agricultural development; scientific and technological research; statistics; trigonometrical, cadastral, and topographical surveys; universities; technological and post primary education.
Powers not expressly listed in the constitution are under a residual legislative list.
The exclusive legislative list gives the federal government exclusive legislative powers over 68 items, but it also gives the federal government jurisdiction over the remaining items. The Constitution confirms this – enactments of the National assembly prevail over any law enacted by the House of Assembly of a State where there is an inconsistency.
It has been submitted that the Concurrent legislative list is somewhat innovative in its approach because the Constitution carefully defines the scope of the federal and state powers in respect of the
12 items and these specifications and limitation s grant exclusive powers respectively to both Federal and state governments.
The aim of distribution of powers in Nigeria is the desire to strengthen the federal government and provide an overarching umbrella under which all groups can be accommodated. Division of powers between organs of government leads to checks and balances, dispels the fears of domination of minorities and caters for local differences. It also encourages independence within respective spheres of government.
Over the years however, Nigeria has had to make certain adjustments especially as the federal pendulum tends to alternate between two extremes.
Division of powers between the federation and states is a complicated problem which has not been resolved either theoretically or practically. In practice, the separation of powers does not achieve desired results because many issues cut across regional, national, and international interests.
There have been certain areas of friction between the federal and state governments. Inter-state tensions may arise from fear or threat of domination by another state, and this can escalate to inter-tribal conflict and consequently political unity becomes threatened.
One of such examples is where the Sokoto State government was taken to court by fifteen local government councils, and the court prohibited the State from acting on the Law passed by the State House of Assembly which would allow deduction of 3 percent of the state’s statutory allocation to fund the Sokoto Emirate Council.
The federal government may have trouble in taking quick decisions because section 8 and section 9 of the Constitution provide that a consensus of the States is necessary before certain decisions can be made. Some of these decisions include creation of new states, local governments, or boundary adjustments.
The Supreme Court in A.G. Bendel State v A.G. Federation reaffirmed the doctrine of division of governmental powers as the legislative power in a true federation, stating that it is implicit in the character of a federal constitution that neither the Federation nor the States can make laws imposing extra burden on each other.
Even with the affirmation of the Court, conflicts still arise on the issue of autonomy between tiers of government. In 2003, the Supreme Court had to consider whether the National Assembly had jurisdictional competence to legislate on urban and regional planning for the whole country. This consideration was to be on the basis of section 20 of the Constitution which provides that the State shall protect and improve the environment.
The court in this instance, held that each State House of Assembly has the exclusive function to make planning laws and regulations for the state under its residual power. Furthermore, the National Assembly cannot enact any law, in contravention of the Constitution, imposing any responsibility on a State and expect obedience to such a law. However, the National Assembly can make planning laws for the Federal Capital Territory, Abuja on the basis of its residual powers.
Another issue the Court has had to interpret is the question of who has the power to make laws in regard to Local Government Areas. This was considered by the court in A.G. Abia State v A.G. Federation, where it was held that State governments have jurisdiction over Local Government Areas due to section 7(1), section 197 and item 22 of the Second Schedule part 1 of the Constitution.
The exception to this is item 11 of the Concurrent legislative list where power is given to the National Assembly in relation to registration of voters and the procedure regulating elections to a local government council.
In considering which tier of government (federal or state) has the power to make laws in respect to local government elections, the court held that any laws made by the State house of assembly, regarding election to a local government council, must not be inconsistent with any law made by the National Assembly. This is supported by item 12 of the concurrent Legislative List.
Furthermore, Local Government chairs often argue that State governors use audit powers of the State to remove them from office, (especially when the local government official is the member of another political party) and run the local governments through caretaker committees. The Supreme Court in the case of Gov Ekiti State v Olubunmo unanimously voided laws which enable governors sack elected local government chairs. The practice was described as “executive recklessness” which must not be allowed to persist.
The plaintiff relied on section 23(b) of the Ekiti State Local Government Administration (Amendment) Law, 2001, which empowered the governor to dissolve local government councils, even when their tenure was yet to expire. Justice Nweze in the judgement stated that this provision was in conflict with section 7(1) of the Constitution, which guarantees a sacrosanctity on the elections of democratically elected local government councils.
Despite this judgement of the Supreme Court, the State governments of Oyo, Borno and Yobe have been in defiance.
Also, in the case of A.G. Federation v A.G. Lagos state the court had to consider the scope of the powers of the National Assembly and the State House of Assembly concerning matters on the concurrent legislative list over which they both exercise jurisdiction. In this case, the Lagos State government sought to promulgate a law on the regulation, regulation. Licensing and classification of hotels and other tourism related establishments.
It was submitted by the plaintiff that this was an attempt of Lagos State to undermine the statutory mandate of the Nigerian Tourism Development Corporation. The court held that the matter was within the residual legislative list and hence not within the legislative competence of the Federal government.
Consequently, it is submitted that the courts have affirmed the principle of federalism and through judicial interpretation have ensured that the federal and state governments respectively know their place, don’t interfere with each other’s exclusive reserve, and understand areas where cooperation between the two tiers is required.
Other areas of conflict between the federation and states includes revenue sharing, minimum wage matters and the Nigeria Police Force.
As a result of the conflicts created by division, it has been submitted by Nwabueze that:
“Having only one list of matters exclusive to either the national or regional governments and leaving the residue to the other has the advantage of simplicity and eliminates the uncertainty and conflict which necessarily result from a second (i.e., concurrent) list; a third list inevitably adds to such uncertainty and conflict”.
This submission suggests that one legislative list will reduce the number of conflicts between the two tiers of government. However, it should be noted that although exclusive legislative authority strengthens the independence of the tiers of government, it is practically unavoidable to compartmentalise jurisdictional matters. There will almost always be some interaction between the tiers of government.
The doctrine of Concurrency in legislation is known to have advantages. Some of these include – it allows for flexible distribution of powers which encourages individual legislatures act on their own initiates until federal action is required, It also allows for the intervention of the federal government in backward regions; and another advantage of concurrency is “cooperative federalism” i.e., it encourages cooperation among the different levels of government thus aiding unity in diversity.
Concurrency also provides a means for the federal government to uniformly provide essential social services and guide regional legislation, which the state governments can adapt to the local circumstances.
Residual legislative powers provide an avenue for a balanced system of shared powers by promoting interaction between the different tiers of government.
It is submitted that the division of legislative powers is influenced by political bargaining and compromise from different groups as a result of the different ethnicities, histories, and socio-cultural experiences of people in the federation.
A major factor is in the mode by which the federation itself is established. It has been submitted that Nigerian federalism was birthed under the influence of dictatorship and was intended to forcibly unite different nationalities. The aftermath of Britain’s colonial legacy was division, suspicion and chaos among the different ethnicities which were then amalgamated into a single unit called Nigeria. There have been several changes made to the legislative lists over the years and these have largely arisen through a new constitution (there have been 9 – 1960, 1963, 1979, 1999.
Conferences in London also produced 3 other constitutions between 1946 and 1959) or changes such as the military coups. Federalisation was formally recognised by the 1954 Constitution where regional executives and legislatures began to operate in the Nigerian Marketing Board after it was regionalised.
However, it provided for a weak federal government because regions could legislate on matters not covered by the exclusive and concurrent lists. It also disregarded the multi ethnic nature of the country. The subsequent military rule saw a total collapse of federal structure with acts of over centralisation such
as complete insubordination of state governments, placing relatively junior officers as state governors,near-total dependence of states on central funding etc.
The current constitution is the 1999 Constitution which was designed under the guidance of the military and because of this, there are calls for its amendment to reflect the wishes of the people.
There is no universal standard for amending a constitution however section 9 of the Constitution sets out a procedure for amending the Nigerian constitution. It provides that for an amendment, there must be support from two-thirds majority of the national assembly and approval from not less than twenty-four State Houses of Assembly. This process is rigid, and it has been submitted that this process fosters majority domination in a pluralistic federal society.
Federalism is intended to hold different socio-political groups or nations together in a State while allowing each a degree of autonomy in certain legislative matters. The reality is that the meaning of the word itself has negative connotations and is often interpreted as a concentration of force in one tier of government.
This misunderstanding creates tension between the Federal and State Governments. The military rule era weakened the federal institutions, and these weakened institutions have been inherited by the present-day Nigeria.
The creation of new states since Nigeria’s independence has increased dependence on the Central government for resources. This dependence means that division of powers is not being practised and with recent agitations for secession from ethnic groups will likely create more problems by placing additional demands on resources from the federal government.
68 items on the exclusive legislative list are numerous and the list contains matters which the state governments can legislate on independently. Also, the federal government still has an overriding power over the state governments under the concurrent legislative list.
It is therefore submitted that the legislative lists are Constitutional defects and there is a need to amend the Constitution to cure the defect.
BIBLIOGRAPHY
Constitution of the Federal Republic of Nigeria, 1999
A.G. Federation v. A.G. Lagos State (2013) LPELR-20974(SC)
A.G. Bendel State v A.G. Federation (1983) LPELR-3153(SC) P.23, paras D-F
A.G. Abia State v A.G. Federation (2002) 6 NWLR (763) 264
Gov Ekiti State v Olubunmo (2017) 3 NWLR (Pt 1551) 1
A.G. Federation v A.G. Lagos state (2012) LPELR-7886(CA)
B Nwabueze, Ideas and Facts in Constitution Making (Ibadan: Spectrum Books Limited, 1993)
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Watts, New Federations: Experiments in the Commonwealth (1966)
Tribunals of inquiry as a residual matter under the Nigerian Constitution: resolving the Nigerian conundrum, A.J.I.C.L. 2014
Despite Supreme Court Judgement, Oyo, 12 others Run LGs with Caretakers, 27 January 2020. https://www.thisdaylive.com/index.php/2020/01/27/despite-supreme-court-judgment-oyo-12-others-run-lgs-with-caretakers/
Federalism, Nigerian Federal Constitution and the practice of Federalism: An Appraisal by Emmanuel Ibiam Amah. Published by Beijing Law Review, Vol 8, No 3, 2017
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Nigeria: Nine constitutions in 24 years of democracy https://newafricanmagazine.com/4073/
The Federal Republic of Nigeria, J Isawa Elaigwu http://www.forumfed.org/libdocs/Global_Dialogue/Book_2/BK2-C08-ng-Elaigwu-en.htm
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Vanguard, Lagos, 23 August 1999
