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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. ....... Dr. Chris Aniedobe
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

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