Federal Characterism Through the Eye of the Federal Character Commission Act

Federal Characterism Through the Eye of the Federal Character Commission Act

By: Oluwakemi S. Adeyemi[1]

1.0. ABSTRACT

And the saying pleased me well: and I took twelve men of you, one of a tribe: Deuteronomy 1:23 KJV

This excerpt from the record of Moses, the charismatic leader and prophetic representative of God showed in practical form what the world has come to canonise as Federal Character. The Israelites at this time were 12 twelve children of the same patriarch, Jacob or Israel. They were Reuben Simeon, Levi, Judah, Zebulun, Issachar, Dan, Gad, Asher, Naphtali, Joseph and Benjamin[2]. For reasons outside the scope of this write-up, Levi ceased to be considered a member of the tribe of Israel and became priest to his brothers. Joseph’s two sons i.e. Ephraim and Manasseh became tribes in Israel as Jacob, Joseph’s father considered them his sons[3]. If a nation that was as closely knitted as Israel needed an entrenched principle and practice of Federal Character, how much more a nation like Nigeria that has no similar heritage in its over 100 years of existence? This write-up is meant to consider the ideal of Federal Character through the provision of the Federal Character Commission Act.

1.1. INTRODUCTION AND DEFINITION OF TERMS

The Federal Character Commission[4] (hereinafter simply called The Commission) was established pursuant to the provisions of the Constitution[5] and the Federal Character Commission Act as one of the exclusive group of seven commissions that are not subject to the direction or control of any other authority or person.

Section 153 (1) (c) provides that: There shall be established for the Federaion the following bodies, namely – Federal Character Commission. Section 1 (1) of the Federal Character Commission Act (hereinafter simply called The Act) provides that: There is hereby established a body to be known as the Federal Character Commission.

Subsection 2 of the same section, provides that

The commission –

  1. shall be a body corporate with perpetual succession;
  2. may sue and be sued in its corporate name;
  3. shall have its headquarters in the Federal Capital Territory, Abuja; and
  4. shall establish an office in each state of the Federation

Subsection 3 of Section 1 adumbrated the provisions of Section 158 of the Constitution (as amended) (hereinafter called The Constitution) by providing that: The Commission shall not be subject to the direction, control or supervision of any other authority or person in the performance of its functions under this Act other than the President.

What at this point is Federal Character? The Act provides no clue as to what may be considered Federal Character. However, Nigeria’s grundnorm, the 1999 Constitution did provide a clue in Section 14 (3) when it provided in part that: 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 States or from a few ethnic or other sectional groups in that Government or in any of its agencies[6]. Section 318 of the Constitution defines the “”federal character of Nigeria” as the distinctive desire of the peoples of Nigeria to promote national unity, foster national loyalty and give every citizen of Nigeria a sense of belonging to the nation as expressed in Section 14 (3) and (4) of this Constitution.

How have Nigerians traditionally expressed their distinctive desire to promote national unity, foster national loyalty and give every Nigerian a sense of belonging to the nation? One of such ways is through elections and appointments into senior political and civil service positions. Thus, Nigeria has top political positions being shared amongst her six geo-political zones[7]. Whenever the North presents the President, the South normally presents his vice and vice-versa. Today, the President is from the North-West, his Vice from the South-West. The Senate-President is from the North-Central, his deputy from the South-East. The Speaker is from the North-East, his deputy from the South-West. Another way, Nigeria has expressed this desire is through the distribution of governmental projects through the length and breadth of the Federation.

Federal Character principle in itself is not bad and is necessary in order to protect the interest of the units that make up the federation of Nigeria.

Nigeria is a federation of about a hundred ethnic groups (that is trying to be humble). These groups have history that is mutually exclusive of the other groups. These groups have lived in suspicion of each other over the years. A constitutional and statutory guarantee of an arrangement that ensures this suspicion is reduced to its barest minimum should definitely be lauded and not be vilified.

Contrary to popular beliefs, Federal Characterism on its own does not promote nepotism or mediocrity. It promotes a sense of belonging. Federal Characterism is just a policy that preaches togetherness and not nepotism or mediocrity, it preaches distributive justice. Nothing in Federal Characterism says nepotism and mediocrity should be the driving principle and objective of appointments into leadership positions or sharing of National Cake. For example, Section 147 (3) of the Constitution provides that: Any appointment under Subsection (2) of this section by the President shall be in conformity with the provisions of Section 14 (3) of this Constitution: provided that in giving effect to the provisions aforesaid, the President shall appoint at least one Minister from each State, who shall be an indigene of such State[8]. Also, Section 43 of the Constitution also guarantees that: Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.

The paragraphs that will follow will consider the Federal Character Commission Act vis-à-vis Federal Characterism. First, we consider membership of the Commission.

1.2. MEMBERSHIP OF THE COMMISSION

Section 2 (1) of the Act provides that: The Commission shall consist of –

  1. a chairman who shall be the chief executive of the Commission
  2. a representative each of the States of the Federation
  3. a representative of the Federal Capital Territory, Abuja.

The expressed intention of this Section is to ensure each State and the Federal Capital Territory, Abuja are represented equally in the Commission. However, it stopped short of this as the office of the chairman of the Commission is exclusive of that of the members of the Commission. Thus, a State or the Federal Capital Territory, Abuja, may be represented in effect by two members namely its representative and the chairman. Unless and this is almost impossible if the chairman is a foreigner.

Section 9 (1) of the Act provides that: “There shall be a secretary to the Commission…” here again, is a section that is potentially problematic if we want to have a strict adherence to Federal Character. The secretary is the administrative head of the Commission’s secretariat at Abuja[9] and its offices in each State of the Federation. His appointment by the President[10] means a State may be represented by at least two people namely its representative and the secretary or even three i.e. the chairman, its representative and the secretary.

However, for the sake of administrative and professional flow of work, this difficulty in a water-tight application of the Federal Character principle may be over looked.

The chairman and members of the Commission are entitled to a period of five years in office. This is renewable for a further period of five years[11]. A member may only be removed from office by the President upon an address supported by two-thirds majority of the Senate praying his removal for inability to discharge the functions of the office[12]. They may resign their membership[13], are entitled to such allowances as the Federal Government may direct[14], cannot hold any office of emolument[15], and cannot seek election into any elective office[16]. By Section 19 of the Act, a member is defined to include the chairman. Thus, all the provisions highlighted above in relation to members of the Commission applies also with similar effects to the chairman. What is sauce for the goose is thus sauce for the gander.

1.3. FUNCTIONS AND POWERS OF THE COMMISSION

We have in Nigeria, a Federal Character Commission which is established or better put deemed established by an Act of the National Assembly but whose responsibilities or functions affect not just the Federal Government or its agencies but also State governments and their agencies. Section 4 (1) of the Act sets out in rather clear terms the functions of the Commission. They are:

  1. to work out an equitable formula, subject to the approval of the President for the distribution of all cadres of posts in the civil and the public services of the Federation and of the States, the armed forces, the Nigeria Police Force and other security agencies, bodies corporate owned by the Federal or State Government and Extra-Ministerial Departments and parastatals of the Federation and States;
  2. to promote, monitor and enforce compliance with the principles of proportional sharing of all bureaucratic, economic, media and political posts at all levels of government;
  3. to take such legal measures including the prosecution of the heads of any Ministry, Extra-Ministerial Department or agency which fails to comply with ay federal character principle or formula prescribed or adopted by the Commission;
  4. to work out:
    1. an equitable formula, subject to the approval of the President, for distribution of socio-economic services, amenities and infrastructural facilities;
    2. modalities and schemes, subject to the approval of the President addressing the problems of inbalances and reducing the fear of relative deprivation and marginalisation in the Nigerian system of federalism as obtains in the public and private sectors;
  5. to advise the Federal, State, and Local governments to intervene and influence providers of services, goods and socio-economic amenities to extend their services, goods and socio economic amenities to deprived areas of the country;
  6. to ensure that all Ministries and Extra-Ministerial Departments, agencies and other bodies affected by this Act have a clear criteria indicating conditions to be fulfilled and comprehensive guidelines on the procedure for-
    1. determining eligibility and procedure for employment in the public and private sectors of the economy;
    2. the provision of social services, goods and socio-economic amenities in Nigeria;
  7. to ensure that public officers shall, in the performance of their functions adhere strictly to rules and regulations made pursuant to this Act;
  8. to advise the Federal Government of Nigeria on the structure and rationalisation of any Ministry, Extra-Ministerial Department or agency; and
  9. carry out such other functions as the President shall, from time to time assign to it.

The responsibility of complying with Federal Characterism does not just lie with governmental institutions but also with Public Companies as Section 4 (4) of the Act provides that: Notwithstanding any provision in any other law or enactment, the Commission shall ensure that every public company or corporation reflects the federal character in the appointments of its directors and senior management staff. Public company is as defined under Section 24 of the Companies and Allied Matters Act[17].

In furtherance of its functions, the Commission has to carry out, the Commission has powers conferred on it in Section 5 (1) to:

  1. formulate and provide guidelines for Government agencies and other employers and providers of services and socio-economic amenities;
  2. monitor compliance with the guidelines and formulae at Federal, State, local governments and zonal levels in the employment and provision of socio-economic amenities;
  3. enforce compliance with its guidelines and formulae in areas of the provision of employment opportunities, distribution of infrastructural facilities, socio-economic amenities and other indicies;
  4. compel boards of directors of Government-owned companies and other enterprises, which are subject to the provisions of this Act, to comply with the guidelines and formulae on ownership structure, employment and distribution of their products;
  5. demand and receive returns on employment and socio-economic indices from any enterprises or body corporate and penalise any enterprise which does not comply with a request from the Commission;
  6. undertake the recruitment and training of staff of government agencies and departments where desirable;
  7. institute investigation into any matter relating to any institution or organisation which is subject to the provisions of this Act and if the institution or organisation concerned fails to cooperate with the Commission, the institution, organisation shall be required to bear the cost of such investigation and;
  8. do anything which in the opinion of the Commission is incidental to its functions under this Act.

1.4. OFFENCES, PENALTIES AND THE SUPREMACY OF THE ACT

Section 14 of the Act creates a number of offences whose punishments are as prescribed under Section 15 of the Act.

It is an offence for any person to make public information supplied by the Commission except with due authorisation of the Chairman. It is similarly an offence for any person, body corporate or unincorporated to fail to furnish any information he is required to furnish to the Commission or to in purported compliance with any requirement to furnish information knowingly or recklessly furnish any statement which is false in any material particular or is incomplete or inaccurate.

It is an offence for a person, body corporate or unincorporated to fail, refuse or neglect to comply with any directive given by the Commission pursuant to any provision of this Act.

It is offensive to the provisions of the Act for a person, body corporate or unincorporated to fail, refuse or neglect to apply the principle of federal character in any area or activity within the time frame set by the Commission though they are subject to the provisions of the Act.

The Act considers it an offence for a person, body corporate, unincorporated to wilfully obstruct, interfere with, assault or resist any member of the Commission or any other officer or servant of the Commission in the performance of his duty under this Act.

Similarly, it is an offence for a person, body corporate, unincorporated to aid, invite, induce or abet any other person to obstruct, interfere with, assault or resist any such member of the Commission in the discharge of his lawful activity under The Act.

It is also an offence for a person, body corporate, unincorporated to fail to provide a clear criteria and comprehensive guidelines on the procedure for determining eligibility for employment and the provisions of services, goods and socio-economic amenities in Nigeria is guilty of an offence under this Act.

Any person who is found guilty of abuse of office in the observance of any matter under this Act, is guilty of an offence[18].

Penalties on conviction, vary with whether the offender is an individual (in which case he will be fined N50,000 or imprisoned for a term of six months or both) or corporate organisation (which will be fined N100,000) or in relation to the continuity of the offence (where the continuous offender is an individual or a member of staff of a body corporate, a term of two years without an option of fine and in any other case #10,000 for every day of breach).The Federal High Court has jurisdiction to try offences under the Act[19].

The Act also established its hegemony over every other Act of the National Assembly save the Constitution when it provided in Section 16 that: Subject to the Constitution, where any provision of this Act is inconsistent with the provisions of any other law or enactment, the provisions of this Act shall to the extent of that inconsistency prevail. The Act is not one of the four Acts that the Constitution makes part of the Constitution Section 315(5) of the Constitution provides that: Nothing in this Constitution shall invalidate the following enactments, that is to say –

  1. the National Youth Service Corps Decree 1993;
  2. the Public Complaints Commission Act;
  3. the National Security Agencies Act;
  4. the Land Use Act,

and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9 (2) of this Constitution.

The real effect of Section 16 of the Act may still need judicial review. However, it remains without doubt that the Constitution is the Supreme Law of the land and that no Act of the National Assembly can restrict the operation of future National Assembly[20].

1.5. CONCLUSION

Federal Character is definitely a principle that is worth defending in Nigeria in order to give all Nigerians a sense of belonging. If God had requested Moses to pick leaders from each of the 12 major divisions of Israel[21], and if in a close-knit nation like Israel there was suspicion of ethnic domination[22], and if a religious body linked to one supreme God also faced this challenge[23], how much more a multi-ethnic, multi-religious and diverse country like Nigeria.

Nigeria for it to truly attain needs to pay attention to the counsel of Akaahs JCA `when the Learned Justice said: I wish to observe in passing that the virus of ethnicity and tribalism is a general malaise everywhere in the country and it is incumbent on us all to recognise the evil in such a practice and make a firm resolve to condemn it in all its ramifications and consciously strive to shun it in our interactions and utterances. One sure way to resolve the malaise is by practising federal character through a Commission that will carry out its responsibilities without any fear or favour. The fore going would have shown that Federal Characterism cannot be followed strictly.

[1] Oluwakemi S. Adeyemi is a graduate of the Faculty of Law, Lagos State University and a student of the Nigeria Law School, Yola Campus. He may be reached on aolulaw17@gmail.com

[2] See generally Genesis 49

[3] See Genesis 48:5

[4] It may be visited on www.federalcharacter.gov.ng/ last visited on 22/10/2015 at 09:05pm

[5] Section 158 (1) of the 1999 Constitution (as amended)

[6] Section 14 (4) makes a similar provision in relation to States and Local governments.

[7] See Section 8 of the Guiding Principles and Formulae for the Distribution of All Cadres of Posts established under Section 4 (1) of the Act.

[8] See in relation to States, Section 192 (2) of the 1999 Constitution.

[9] Sections 9 (2) and 1 (2) (d) of the Act

[10] Ibid Section 9 (1) (b)

[11] Ibid Section 3 (1)

[12] Ibid Section 3 (2)

[13] Ibid Section 3 (3)

[14] Ibid Section 3 (4)

[15] Ibid Section 3 (5)

[16] Ibid Section 6 (1)

[17] Cap C20, LFN 2004.

[18] See generally Section 15 of the Act. It is however unclear if the Commission is empowered to prosecute or not.

[19] Ibid Section 18

[20] The Eighth Nigerian National Assembly just recently resumed parliamentary functions.

[21] See Numbers 13.

[22] See for example Judges 8: 1-3; 1 Kings 12:16

[23] Acts 6:1-3

Advertisements

Leave a comment!

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s