FEDERALISM

CONTENTS

1.0      Introduction

2.0      Objectives

• Main Content
• Definition of Federalism
• Constitutional Forms
• Basis and Justification of Federalism

4.0      Conclusion

5.0      Summary

6.0      Tutor-Marked Assignment

7.0      References/Further Readings

INTRODUCTION

In the proceeding Unit (i.e. unit 1) you learnt generally about the meaning of constitution. You will acquaint yourself further with the knowledge of this important area of constitutional law by keeping yourself abreast with how various ideas and themes have shaped the  term federalism

OBJECTIVES

At the end of the unit, you should be able to understand: the definition of federalism; and

the evolution of the idea termed federalism.

MAIN CONTENT

The Definition of Federalism

LEGAL UNDERPININGS OF FEDERALISM

The definitions of Federalism are often fraught with pitfalls because of their inability to encompass all forms of the particular concept or idea sought to be defined. Generally, the concept of federalism relates to the division of power between national government, and other regional or state governments and sometimes local governments. Such powers may however be shared in various ways, sometimes with a stronger center or with weaker center which is often referred to as co-federalism.

Meaning: Ben Nwabueze defines federalism as an arrangement whereby powers of government within a country are shared between a national country-wide government and a number of regionalized (i.e. territorially localized) governments in such a way that each exists as a government separately and independently from the 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, and with an authority in some matters exclusive of all others.

Five (5) different principles and issues are involved in this definition.

1. Government rather than geographical entities or people as the basis of the federal
2. Separateness and independence of each
3. Equality between regional
4. Number of    regional    governments    between    whom    a    federal arrangement can meaningfully
5. Techniques for the division of powers underlying objective of the federal arrangements

Constitutional Forms

Lord Haldane in Attorney General for Commonwealth of Australia V Colonial Sugar Refinery Co. was of the view that:

“………..the natural and literal interpretations of the word ‘federal’ confines its appellation to cases in which states while agreeing in a measure of delegation of powers to a common government yet in the main continue to preserve their regional constitution. The word could only be used loosely, to describe states which agree to delegate their powers with a view to entirely new constitution even of the states themselves”. This definition presupposes a voluntary act on the part of the federating states in keeping with the theory of the social contract  and perhaps does not contemplate a situation of federal state coming about as a result of coercion or the mechanical drawing of borders, which was the case in Nigeria.

To Carl Fredrich

Federalism is the process of federating as well as the particular pattern or design which the inter-group relation exhibits at the particular time…..not only unification (Germany, USA), but also proliferation (Russia, India) are examples of federating and the two processes may be going on at the same time.

According to Prof. Ojo 

Federalism is capable of different meaning and conceptions, depending on the perspective and the background of the perceiver. There are  writers whose emphasis has been on the form of the constitution and certain institutions and as far as they are concerned the absence of  these makes any discussion on federalism futile. Another school holds that federalism is the product of social forces and that the ultimate political structure is dependent on those forces; still is another school that the party system is a crucial federal variable while another is that inter-governmental institutions and arrangements are critical for structuring political and social interaction. However, with the nebulous and uncertain form and content of federalism, we are in agreement that it is better to avoid argument about definition until theory and practice could be harmonized satisfactorily. This is most important in the developing countries which are presently laboratories of political and constitutional activities.

There is no doubt that it is still necessary to be in agreement as to the theory of the concepts before there can be any harmonization.

Williams Living Stone believes that:

The essential nature of federalism is to be sought not in the shading of legal and constitutional terminology, but in the forces-economic, social, political, cultural – that have made the outward forms of federalism necessary …………… The essence of federalism is not in the constitutional or institutional structure, but in the society itself. Federal Government is a device by which the federal qualities of the society are articulated and proffered. In otherwords, it is factors that impel the formation of a federation that determine its essence or nature. The only conclusion that can be reached from this is that since various factors necessitate the forming of federalism in various states, their nature,  form and scope necessarily differ. There is no Universal agreement as to what federalism is. A federal government means what the constitution says it means.

SELF-ASSESSMENT EXERCISE 1

Discuss with particular reference to Nigeria the meaning of the term federalism.

Basis and Justification of Federalism

Federalism evolves in various nations for different reasons, but is mostly seen in nations with vast expanse of land and multi-ethnic peoples; or diverse religions, historical, political, or other backgrounds.

In the United States of America for example, it was part of the fervour of the war of independence, which led to the articles of co-federation  that gave powers to the confederate states and the federation. This was later to be translated into a constitution which gave more powers to the federal government. In Nigeria, it came about as a result of the multi- ethnic nature of the country. Agitation of the minorities for a system of government which would ensure continuity and give them a sense of belonging and most importantly the existence side by side of the three major religions-Christianity, Islam and Traditional mode of worship, in such a way as to divide the nation into two major entities.

As was noted by Awa

“The Moslem group believing themselves to be superior on accounts of their religion disowned the other people initially. The southerners despised the Moslem for their lack of education, and assured that in view of their own better educational background and general experience, they would be the rightful people to take over the mantle of rulership from Britain. But they feared that the British officials who maintained a somewhat protective attitude towards the Northern Moslem might impose the Moslems on the country, particularly in view of the fact that the northerners were assured to be superior numerically than the other groups put together. It was realized that the most effective way of allaying the fears of the group was to evolve a federal government in which these major groups would be given autonomy over their local affairs.”

Authentication for this fact can perhaps be seen in the continuous agitation for creation of more states within borders that tend to include more and more people of a particular ethnic origin or language.

Whatever the prerequisites for the formation of a federal union, there is no doubt that there are certain minimum requirements which are the main focus of the federal concept and which must be in place before a nation can be said to be truly federal.

CONCLUSION

In this unit, we have attempted to examine the various definitions of the concept federalism. The relationship between the different tiers of government rather than different geographical entities comprising different people. Hence, from the legal perspective the federal state with its territory and people is one and indivisible going by the relationship created by arrangement which are with government and not the people.

SUMMARY

We have been able to establish how the various definitions of federalism evolved. We concluded with the view of Prof. Awa on the concept of federalism who believes in the evolvement of a federal government where major groups would be given autonomy over their local affairs.

TUTOR-MARKED ASSIGNMENT

1. Discuss the term
2. The minority tribes in Nigeria are clamouring for autonomy over their local affairs. Is this in consonance with federalism?
3. Is the 1999 Nigeria Constitution a federal constitution?

REFERENCES/FURTHER READINGS

1. O. Nwabueze. (1982). The Presidential Constitution of Nigeria
2. M. Mowoe (2005). Constitutional Law in Nigeria.

Magistrate      Association      of      Nigeria      Ogun       State      Chapter: Constitutionalism and Compliance in Nigeria.