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This is the crime that DPR commited because they refuse to release letters to successful applicants
duly approved by FCC.
"Enforcement Power: The major task of the Commission is the convenience of exercising
its enforcement power. The Commission is vested with power to take such legal
measures including the prosecution of the head of any ministry or government body or
agency which fails to comply with any federal character principle or formula prescribed
or adopted by the Commission....."
Madam MPR should be cautioned not to wage war against Allah SWT because she definitely loose beyond expectations.Let her release the list of the successful DPR candidates now. No way for her to cancel or tamper with the list. Allahu Ma'ana!
She should know that the seat was not hers yesterday and will not be hers tomorrow. Do it or someone else will do it.
Madam MPR karya kike, ba yanda za kiyi damu. Allah ya fiki. weather she likes it or not, God have already chosen our names to be there. we are just waiting for time! soon we will get there insha Allah.
I wonder where some peeps get thier info from. I have said this before now that the substaintial list was approved by the minister even before it got into Fcc. Now the problem isnt with the appointment letters but the list.
I was told of the situation immediatly the tussle started brewing around 11am yesterday afternoon even before the media was briefed, that was the reason i called for count down.
DPR I WAS TOLD IS READY TO ISSUE APPOINTMENT LETTERS TO THOSE THEY DEEM FIT TO BUT THE ISSUE ON GROUND SEEMS SACROSANCT TO BOTH PARTY TO REACH COMMON GROUNDS ON THE LIST.
I HAVE SOURCES EVERYWHERE, BUT I DONT BEAT DRUMS LIKE MOST PEEPS DO.. IT'S EITHER YOU TAKE IT OR WONDER IN CONFUSSION.
Meanwhile the start date is still imperial.. Legal or no legal action... ABCDEFGHIJ1234567...
@ All please this wind of prosecution blowing from the federal character commission against the DPR and other two MDAs after their failed attempt to cancel the 2010 DPR recruitment process, is it actually going to work in our favour? I urge us all to pray more to our almighty GOD please.
My source from mpr has told me dat madam has since sign. As he said d problem is not from her(i dont know what to believe).
@abc123 joke aside pls can u tell me what is d bottle neck in clear terms bcos the Nass members are visiting dpr next week.so dat i can tell them.
You dey fear.. Oboy if u want sabi the kind bottle neck wey dey 4d stuff, just check giraffe neck carry compare.
But anyway, jokes aside as u've said.. I think the recrutment will soon be completed from what i've been told so far. As you know, there's nothng one can do and succeed without God, so just pray 4 favour in this direction.
That list may not come out clean afterall.
Ok thanx abc123 the born again lol.
u guys are so confusing wat are we to believe?
the lord is good all the time
For FCC to have decided to take legal proceedings,then i think of a problem we are not aware of.What are the sections 4,5 and 14 of the guiding principles that have been violated?Are the FCC really for us and the integrity of the list?Is the problem that it has take a long time?Why is it now that the director has said the letters will be released in a couple of weeks that they have decided to take legal proceedings?
@abcd 123....What has been the FCC's stand on this recruitment throughout the course of this process?I plead with you to be in your best behaviour while you respond!lol.
This one na biology note.Quote:
Originally Posted by SAKABU
FEDERAL CHARACTER COMMISSION:
AN EVALUATION
T A Babawale, LL.M; BL
Lecturer, Dept of Jurisprudence & Private Law
Obafemi Awolowo University, Ile Ife
Introduction
The history of Nigeria shows that the country comprised of independent kingdoms prior
to independence.
1
These kingdoms were brought together to form a federation by a
colonial fait. These features make Nigerians incompatible and compel citizens to be
ethnic conscious, giving their loyalty to their regions rather than the nation.
The sectional polarization has in recent times manifested itself in what is now
known as “ethnic militias.” Thus we have such militant groups like ‘Oduduwa Peoples
Congress’, ‘Bakassi Boys’, ‘Movement for the Actualization of State of Biafra’, ‘Egbesu
Boys’, ‘Oduduwa Liberation Movement’, ‘Arewa Vanguards’ and a host of others.
2
At the
higher level are the cultural groups such as Afenifere for the Yorubas, Ohaneze Ndigbo
for the Igbos, Arewa Consultative Forum for the Northerners, just to mention but a few.
These groups emerged to protect their collective ethnic or regional interests.
3
The reasons for these fierce agitations are not unconnected with the sharing of
the so-called “national cake”.
4
This must however be understood in the light of the
reasons for the amalgamation of the northern and southern protectorates made by Sir
Lord Frederick Luggard in 1914 when he wrote to the Secretary of State for the Colonies
as follows:
For sometime it has been realized that the total isolation of the North from the
South cannot continue indefinitely. The North has no access to the sea except
through the South. Its revenue is insufficient to maintain its administration and
deficits has to be met by annual grants from the South and the imperial treasury.
It is expected that the unification of the North and South would relieve the
imperial treasury of the necessity of making such yearly contributions. Also it is
desirable that transport and communication should be under some central
authority to avoid competition and clash of … interests.”
5
This agitation for even and fair distribution of national resources transformed into
political solution muted in 1978 by the Constitution Drafting Committee (CDC) as Federal
Character concept was first entrenched in the Constitution of the Federal Republic of
Nigeria 1979. The flagrant violation of the provisions led to the promulgation of the
Federal Character Commission Act 1995. The Act was later adopted into the 1999
Constitution.
6
The focus of this paper is not on the federal character as a concept under the
Nigerian Constitution. Rather it sets out to examine:
(i) the establishment of Federal Character Commission;
(ii) its composition and structure; and
1
Odumosu, O A, Nigerian Constitution History and Development, London, Sweet & Maxwell, 1963, 5.
2
These groups are association of young men and women who operate a guerilla warfare posture in protecting their
ethnic interests.
3
Instead of regions now we now have six zones – North-West Zone, North-East Zone, North Central Zone, SouthWest Zone, South-East Zone and South-South Zone. The geopolitical arrangement is not recognized by the 1999
Constitution but was entrenched in the Federal Character Commission Act 1995. See s.19 of the Act.
4
National cake in Nigeria means allowing the national resources to go round.
5
Odumosu op. cit., at p. 10. You may wish to see the full report of the amalgamation 1912-1919 by F.D. Luggard 192
Cmnd. 468.
6
Section 153 of the 1999 Constitution. (iii) its relevance and workability.
Recommendation for possible constitutional amendment would be made at the end.
Due to the fact that unlike the Federal Character as a concept on itself, the
introduction of Federal Character Commission is novel in Nigerian political history, the
paper will focus on things that are of practical value. Academic arguments are excluded
so as not to complicate the issues. The primary intention of the author is to set out
issues that may enhance the functionality of the Commission to let it attain its main
objectives of promoting national unity and creating a sense of belonging to all groups in
the country.
The Federal Character Concept
By virtue of the provisions of the Third Schedule Part I-C paragraph 8(1) of the 1999
Constitution, the Federal Character Commission is to give effect to section 14 (3) and (4)
of the Constitution. Section 14(3) provides:
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.
Subsection (4) makes similar provision as applicable to states.
It is necessary to reproduce here the following extract from a book published on
the subject:
A new comer to the Nigerian political scene is most likely to understand the
phrase ‘Federal Character’ as applied to Nigeria, to mean the legal and
constitutional structure of the Nigerian Federation. He would think it refers
specifically to the number of the constituent members of the Federation, their
relationship, the division of powers and functions amongst them and such other
tangible matters which are usually carefully spelt out in legal terms in a
constitution and on which designated courts of the land can pronounce binding
opinions whenever these becomes matters of disputes between members
states.
7
The phrase “federal character” entered into Nigerian political vocabulary for the
first time in 1978 when the idea to incorporate it into the Constitution the federal
character concept was muted by the Constitution Drafting Committee as submitted to it
by its subcommittee on the executive and legislature. The subcommittee based its
reason on how to promote “national loyalty in a multi-ethnic society.”
In its reports submitted to the defunct Supreme Military Council (SMC) in 1979,
the CDC defined the term as “the distinctive desire of the people of Nigeria to promote
national unity, foster national loyalty and every citizen of Nigeria a sense of belonging to
the nation notwithstanding the diversities of ethnic origin, culture, language or religion.”
8
This definition was incorporated into the Constitution as an amendment. It is described
as a mere description.
9
Efforts to define the concept lacks practical value as what is
important now is that an average Nigerian has come to understand what the concept
7
Ekeh, P P and Osaghae, E E (eds.) Federal Character and Federalism in Nigeria Ibadan, Heinemann, 1989, 1
(hereafter Ekeh and Osaghae, Federal Character). Report of the Constitution Drafting Committee Vol. 1 Lagos,
1977 at p. x. the definition was adapted under s. 27(1) Constitution of the Federal Republic of Nigeria 1979, s.329 of
the 1989 Constitution. See also s.318(1) of the 1999 Constitution.
8
P. P. Ekeh & E. E. Osaghae supra at p. 5.
9
Oluyede, P A O, Constitutional Law in Nigeria, Ibadan, Evans, 1992, 170. For further reading on the concept of
Federal Character in Nigeria, see Nwabueze, B O, Federalism in Nigeria under the Presidential Constitution, London,
Sweet & Maxwell, 1983, 32 – 324. means within Nigerian political-socio context. It can further be simply defined as a
mechanism where every member of the Federation of Nigeria has equal access to the
state’s resources and opportunities. Despite the entrenchment of the provision of the
concept in the Constitution, it has been said to have been misused and continued to be
abused.
The common argument against the introduction of the concept into the Nigerian
political life is that the concept provides mediocrity at the expense of merit. The clear
manifestations of these problems associated with the practice of Federal Character led
to the establishment of the Federal Character Commission to ensure its enforcement.
Establishment of Federal Character Commission
The Commission was first introduced in 1995 under the military regime led by General
Sanni Abacha. By section 1(1) of the Act the Commission was established and by virtue
of subsection (2) the Commission has the following features:
(a) shall be a body corporate with perpetual succession;
(b) sue and be sued in its corporate merit;
(c) shall have its headquarters in the Federal Capital Territory, Abuja and
(d) shall establish an office in each state of the Federation.
The Commission is one of the Federal bodies established under section 153(1) of the
1999 Constitution.
Composition and Powers of the Commission
The composition of the Commission and its powers are spelt out the Third Schedule,
Part 1(c) of the 1999 Constitution. Paragraph 7(1) provides:
The Federal Character Commission shall comprise the following members,
(a) a chairman; and
(b) one person to represent each of the states of the Federation and the Federal
Capital Territory, Abuja.
In essence, the Commission has 37 ordinary members besides the chairman and
the secretary. In general term the chairman is a member of the Commission. The
equitable representation by each state of the Federation as envisaged by the provisions
is undermined by the fact that the chairman and the secretary would come from any
state which would have been represented by virtue of paragraph 7(1) (b) of the provision
under reference. This problem would have been eliminated if there has been no
duplication of membership from the chairman/secretary’s states. More important is the
reality of the fact that the chairman has inherent power to cast votes where members are
equally divided on an issue that requires voting. Moreover, there are many states in
Nigeria with multiple ethnic and religious groups;
10
this was not taken into consideration.
It appears the focus of the provision is on the states. Whereas the provision on federal
character in the Constitution center on balancing interests among the states, ethnic and
other sectional groups.
11
Playing down such important issues like ethnic group influence
in Nigeria’s political scenario may not augur well for the effectiveness and efficient
operation of a body of such nature.
Examination of Powers of the Commission
By virtue of section 5 of the Federal Character Commission Act1995, the Commission
shall have power to:
10
Some states have more than two ethnic groups e.g. Delta, Edo, Rivers, Plateau, and Ogun States. Lately, there
have been communal clashes among Ijaw, Itsekiri and Irhobo groups of Delta States. In fact the ethnic group clashes
led to the imposition of state of emergency on Plateau State for six months in 2004.
11
See again s.14(3) of the 1999 Constitution. (a) formulate and provide guidelines for Government agencies and other employers
and providers of services and socio-economic amenities;
(b) monitor compliance with the guidelines and formulae at Federal, State, Local
Government and zonal levels in the employment and provision of socio-economic
amenities;
(c) enforce compliance with its guidelines and formulae in areas of the provisions of
employment opportunities, distribution of infrastructural facilities, socio-economic
amenities and other indices;
(d) 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;
(e) demand and receive returns on employment and socio-economic indices from
any enterprise or body corporate and penalize any enterprise which does not comply
with a request from the commission;
(f) undertake the recruitment and training of staff of government agencies or
departments where desirable;
(g) institute investigation into any matter relating to any institution or organization
where the institution or organization concerned fails to comply with the commission,
the institution or organization shall be required to bear the cost of such
investigations; and
(h) do anything which in the opinion of the Commission is incidental to its functions
under this Act.
As a follow-up to the provisions of the Act which enables the Commission to
formulate and provide guidelines for Government agencies and other employers and
providers of services and socio-economic amenities,
12
the Commission in 1996
published the “Guiding Principles and Formulae for the Distribution of Posts in the Public
Service” (hereafter Guiding Principles).
The Guiding Principles provide for general principles under column A as follows:
(a) that each state of the federation is to be equitably represented in all national
institutions and in public enterprises and organizations.
(b) that the best and most competent persons are recruited from each state of the
federation to fill positions reserved for the indigenes of that state.
(c) that once a candidate has attained the necessary minimum requirement for
appointment to a position, he/she should qualify to fill a relevant vacancy reserved
for the indigenes of his/her state.
(d) that where the number of positions available cannot go round the states, then
sharing should be on zonal basis but that in the case where two items only are
available, they should be shared between northern zones and the southern zones
(e) that if the indigenes of a state are not able to take up all the vacancies meant for
them the indigenes of other state(s) within the same zone should be given
preference in filling such vacancies.
(f) that in an ideal situation, posts to be distributed among the indigenes of the states
and Abuja on the formula of equality would be 2.75% for the indigenes of each state
after reserving 1% for the indigenes of Abuja. However, in the spirit of give and take,
the Commission has decided to adopt a range so that the indigenes of any state
should not constitute less than the lower limit or more than the upper limit of the
range.
(h) that the six zones and the states they comprise are:
12
See s.5(1)(a) of the Act. (i) North Central: Benue, FCT, Kogi, Kwara, Nassarawa, Niger, and Plateau
States.
(ii) North-East: Adamawa, Bauchi, Borno, Gombe, Taraba, and Yobe States.
(iii) South-West: Jigawa, Kaduna, Kano, Katsina, Kebbi, Sokoto, and Zamfara
States.
(iv) South East: Abia, Anambra, Ebonyi, Enugu, and Imo States.
(v) South South: Akwa Ibom, Bayelsa, Cross River, Delta, Edo, and Rivers
States.
(vi) South West: Ekiti, Lagos, Ogun, Ondo, Osun, and Oyo States.
(i) That for the zones, depending on the number of states within each zone, the
Commission has adopted three ranges such that the indigenes of any state within a
zone should not constitute less than the lower limit or more than the upper limit of the
range applicable to the zone.
Column B of the Guiding Principles entitled “Definition of Indigene Adopted by
the Commission” states:
(a) An indigene of a Local Government: An indigene of a local government is a person:
(i) either of whose parents or any of whose grand parents was or is an indigene
of the local government concerned; or
(ii) who is accepted as an indigene by the local government concerned provided
that no one can lay claim to more than one local government.
(b) An indigene of a State: An indigene of a state is a person who is an indigene of one
of the local governments in the state that is to say, an indigene of a state is a person
either of whose parents or grand parents belong or belonged to a community indigenous
to the state or a person who is accepted as such by a local government in the state. No
person should be allowed to lay claim to more than one state in the application of the
federal character principle.
(c) An Indigene of the Federal Capital Territory: An indigene of the Federal Capital
Territory is a Nigerian citizen, other than by naturalization, who cannot lay claim to any
state of the federation in other words, the indigenes of the territory are those Nigerians
(and their descendants) who lived in the area now constituted as the capital territory
before 26
th
February, 1976, and decided to continue to reside in the territory after that
date.
(d) Indigenous Status of a Married Woman: A married woman should continue to lay
claim to her own state of origin for the purpose of implementation of federal formulae at
the national level.
Powers and Functions of Commission under 1999 Constitution
By virtue of paragraph 8(1) of the Third Schedule Part I-C of the 1999 Constitution the
Commission has responsibility to give effect to section 14(3)(4) of the Constitution. In
effect, it has a duty to enforce compliance with provisions relating to the concept of
Federal Character enshrined in the Constitution.
In the light of the enormous responsibility placed on the Commission by the
Constitution, it is necessary to carefully examine the power of the Commission with a
view to weighing it with the Commission’s objectives so as to bring into light the reality of
the power granted in contemporary Nigeria.
13
The socio-political structure of Nigeria
13
As a student of Sociological School of Jurisprudence, this writer believes that it is not germane to provide for power
that would be rendered less potent by the society. shows that the Commission would operate under the pressure of powerful group
interests
14
most especially as regards sensitive and influential posts.
The inclusion of section 14(4) of the Constitution gives the Commission
jurisdiction over the states of the Federation. Unlike the provision of the Act, the
provision in the Constitution omitted local governments. This is understood in the light of
the fact that local governments are not recognized in the Constitution as part of the
federating units of Nigeria.
15
This might mean that the Commission’s power does not
cover local governments. However, local governments may be read into state as
integral part of states of the Federation. The Commission would need to seek for judicial
clarification on the issue to avoid the pitfall of ultra vires.
Appraisal of Commission’s Power as Granted by Constitution and Act
It appears that Nigerian courts would be liberal in giving effect to Constitutional
provisions. In Nafiu Rabiu v The State,
16
Udo Udoma JSC stated that on the
interpretation of the Constitution the question whether the constitution used an
expression in a wider or narrower sense, the courts should whenever possible learn to
the broader interpretation which will best carry out the object and purposes of the
Constitution. To this end issues relating to power vested in the Commission shall be
discussed on liberal terms.
Paragraph 8(1) of the Third Schedule, Part I–C of the 1999 Constitution provides:
In giving effect to the provisions of section 14(3) and (4) of this Constitution, the
Commission shall have power to –
(a) work out in an equitable formula subject to the approval of the National
Assembly for the distribution of all cadres of posts in the public service of the
Federation and of the States, the armed forces of the Federation, the Nigeria
Police Force and other government security agencies, government owned
companies and parastatals of the states.
Commentary on the Powers of the Commission
Enforcement Power: The major task of the Commission is the convenience of exercising
its enforcement power. The Commission is vested with power to take such legal
measures including the prosecution of the head of any ministry or government body or
agency which fails to comply with any federal character principle or formula prescribed
or adopted by the Commission.
17
The power vested on the Commission to prosecute its offender is enormous
considering those who are to be the object of the prosecution. The provision should
have been limited to legal measures as Federal Character is a social phenomenon being
encouraged to develop in our polity. In most advance countries social character are
allowed to evolve through regular convention.
18
With its power to take any legal measure, the Commission’s operation could be
unfettered but the workability of prosecuting the violations of its guiding principles for
formula is doubtful. Those who will be subject of the Commission’s jurisdiction as
14
See Amuwo, Agbaje, Subaru, Hesian’t (eds) Federalism and Political Restructure in Nigeria, Ibadan, Spectrum,
1990, at 101-106 for a discussion on the full nature of conflicting interests in Nigeria.
15
Section 2(2) of the 1999 Constitution.
16
(1981) 2 NCLR at 399.
17
Paragraph 8(1)(c) of the Third Schedule Part I C of the 1999 Constitution.
18
The practice in Britain is conventional, yet her system is well conserved even though she operates an unwritten
constitution. See Oluyede, P, Constitutional Law in Nigeria, Ibadan, Evans, 1992, 54. detailed in the Constitution as earlier listed may not be easily come by in terms of
successful prosecution.
19
Some of the important positions that should enjoy Federal Character flavour are
to be made by the President or the State Governor, as the case may be and subject to
the confirmation of either the senate or the appropriate State House of Assembly.
20
In a
situation of this nature, who would be prosecuted, the appointing authority or the
confirming authority?
Moreover, the Constitution makes it impossible for the President or the State
Governors who are vested with power to make the important appointment or the chief
executive authorizing the appointment to be immediately prosecuted.
21
The Commission
would be appropriately advised to engage in those legal measures that can invalidate
the appointment so made. Declaratory judgment
22
can be a potent weapon in the hands
of the Commission.
Further examination of the point being raised here may be made clear by the
examination of section 171(5) of the 1999 Constitution which provides:
In exercising his powers of appointment under this section, the president shall
have regard to the Federal Character of Nigeria and the need to promote national
unity.
By this provision the President is brought under the jurisdiction of the power of the
Commission. This is because paragraph 8(1)(a) of the Third Schedule Part 1C of the
1999 Constitution is wide enough to include the appointments required to be made
under section 171(1)–(4) of the Constitution. Would it be convenient for the Commission
whose members are appointed by the President to prosecute him even after he might
have left office when his immunity would have ceased? Would it not be more
appropriate if the Commission is empowered to report the President or the State
Governor who violates the principle of Federal Character to the National Assembly or the
relevant State of Assembly for impeachment or caution?
It is pertinent to note that the Constitution is federal in nature. The provision on
Federal Character Commission violates the principle of Federation in that it is difficult to
comprehend a situation where the president who heads the government which forms a
unit of the Federation should be saddled with a responsibility to put in place a
Commission that would control appointments made by other component units. The
functions of the Commission should have been limited to the federal level. The present
situation may promote intergovernmental disaffection. This on its own will negate the
goal of the Commission which tends towards promotion of national unit and loyalty.
Where the Commission exercises its power over a state, it may be seen as Federal
government deliberately meddling in the affairs of the state government.
In order to sustain the Federal nature of the constitution, and to avoid possible
clash between the government at federal level and those of the states, it is necessary
that a state commission like other state bodies established under the Constitution be set
up.
The general notion of Federation is the power structure arrangement that allows
each unit draw its strength without the interference of the other. Thus it is anomalous for
the central government to control the affairs of the federating units.
19
Recently matters of serious constitutional and criminal nature were made subject of political solution: the current
Anambra State political crisis is apposite.
20
See for example s.197(7); 154(1) of the 1999 Constitution.
21
Sections 143 and 188 of the 1999 Constitution where provisions are made for immunity.
22
For details on declaratory judgment, see Iluyomade and Eka, Cases and Materials on Administrative Law in Nigeria,
Ile Ife, Obafemi Awolowo University Press, 1992. The issue of the power vested by paragraph 8(1)(c) of the Third Schedule Part II
C of the 1999 Constitution deserves critical appraisal. Prosecution entails putting a legal
personality on trial with a possibility to obtain conviction and sentencing.
23
In the light of
this there is a need for a detailed legislation that must deal with the substantive offences
and the procedure for the trial of offenders.
Section 14 of the 1995 Act provides for some offences that might be committed
in respect of the functions of the Commission. The section provides as follows:
(1) Information supplied by the Commission shall not be made public by any
person except it is duly authorized by the executive chairman of the Commission.
(2) Any person who contravenes the provisions of subsection (1) of this section is
guilty of an offence under this Decree.
(3) Any person, body corporate or unincorporated who:
(a) required to furnish any information to the Commission under the Decree but
fails to do so or in purported compliance with such requirements to furnish information
knowingly or recklessly make necessary statement which is false in any material
particular or is incomplete or inaccurate; or
(b) willfully obstruct, interfere with, assault or resists any member of the
Commission or any other officer or servant of the Commission in the performance of his
duty under this Act; or
(e) aids, invites, induces or abets any person to obstruct, interfere with, assault or
resist any such member of the Commission, officer or servant of the Commission in the
discharge of his lawful activity under the Act; or
(f) fails to produce 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.
(4) Any person who is found guilty of abuse of office in the observance of any
matter under this Act is guilty of an offence.
Section 15 of Decree imposes terms of fine ranging from N50,000 to N100,000 or
term of imprisonment for six months or both.
Critical appraisal of the provisions of this section shows some inelegance in the
drafting of the law. The Act includes unincorporated body as those could be prosecuted.
This in terms of jurisprudence beats imaginations as to know how an unincorporated
body which lacks legal personality in law could be prosecuted. It is a trite law anybody
that lacks personal legal personality cannot sue or be sued.
Also the Act extends the offences to cover services, foods, and socio-economic
amenities in Nigeria.
24
The power granted the Commission under paragraph 8(1)(c) of
the Third Schedule Part II C of the 1999 Constitution does not extend beyond
appointment. We submit that the Commission lacks power to prosecute anyone on this
matter. Although paragraph 8(1)(c)(l) of the Schedule confers on the National Assembly
power to extend the functions of the Commission by Act, the provision of services and
socio-economic amenities are provided for under Chapter II of the 1999 Constitution
which deals with Fundamental Objectives and Directive Principles of State Policy. The
provisions of this chapter are not justiceable by section 6(6)(c) of the same Constitution.
Except the provision 8(1)(c)(l) referred to could be regarded as exception mentioned in
section 6(6)(c) of the Constitution, any such Act made would be unconstitutional.
Section 14(4) of the Act is simply an evidence of poor drafting work. The
provision on abuse of office appears to be too wide. It lacks exactitude required of a
criminal legislation. The Act should have defined what “abuses of office” means. Again,
23
For further reading, see Okonkwo and Naish, Criminal Law in Nigeria, London, Sweet & Maxwell, 1980 at 25, 26.
24
Section 14(3)(8) of the Act. the Act imposes sentences for infraction of the provisions but fails to state what
becomes of the appointment made by the person who violates the principle of Federal
character.
35a
However, the power conferred on the Commission under paragraph 8(1)(c)
of Part II C of the Third Schedule of the Constitution confers on the Commission to take
appropriate legal measures against any public officer who fails to comply with any
federal character principle or formula prescribed or adopted by the Commission.
Brief Examination of the Controlling Power of the Commission
Paragraph 8(1)(g) of Part II C of the Third Schedule to the 1999 Constitution empowers
the Commission to work out an equitable formula subject to the approval of the national
Assembly for the distribution of all cadres of posts in the public service of the Federation
and the states and a host of others.
The Commission is yet to work out a formula. However, the Commission
published a “Guiding Principles and Formulae.”
25
The Guiding Principles, subject to
bringing it to conformity with the provisions of the Constitution can operate with the Act
as existing law.
26
The Guiding Principles can operate as transitional provision. It is
however hereby submitted that in order to avoid conflicts and confusion the Commission
should prepare a new formula that would be approved by the National Assembly. The
existing Guiding Principles were approved by the Military Head of State. It will be absurd
to argue that National Assembly is the successor to the Military Head of State. The
rightful successor to that office is the President. The Constitution does not say the
formula should be made subject to the approval of the President. The legitimacy of the
existing formula is doubtful.
The Guiding Principles define indigenes with an application that is general from
national to local government levels. As noted earlier, the jurisdiction of the Commission
over local governments is doubtful. The Constitution clearly restricts itself to federal and
state governments; if the Constitution intends to include local governments it would have
so stated. As they now stand, the Guiding Principles need to be brought into conformity
with the Constitution. For instance, the formula prohibits claims of dual indigeneship.
This may be difficult to support
The Commission needs to draw a formula that would take ethnicity into
consideration rather than placing emphasis on states of origin. It is inequitable to allow a
few powerful groups from a state to dominate the affairs of the state while sharing
appointment. It is possible in Nigeria for people to come from different states and still
enjoy common ethnic bond.
27
It is erroneous therefore for the existing Guiding Principles to place emphasis on
state of origin. The original source of federal character is the fear of minority groups who
feel they would be dominated by the majority groups in the federation. The essence of
federation lies not in the Constitution o institutional structures but in the society itself.
Federal government is a device by which the federal qualities of the society are
articulated and protected.
The essence of the Commission is to ensure fair distribution of employment
opportunities and functional posts in the public service of the federation of Nigeria and
35a
We suggest that the appointment made in that circumstance should be voidable at the instance of the Commission
or any interested party.
25
This has been discussed supra.
26
Section 315 of the 1999 Constitution.
27
The majority people of the states of the Southwest, Nigeria are Yorubas, while a large number of people of the states
in the South East are Ibos. The same goes with Northwest whose majority are Hausa-Fulanis. These three groups in
Nigeria are normally referred to as the major groups, yet there are numbers of minority ethnic groups across the
divides of the country. See for instance fn. 14. This argument must be extended to religion. For more on the issue
see Ekeh and Osaghae, Federalism and Restructuring in Nigeria.. the component states. The Commission must therefore evolve an impeachable formula
that is capable of eliminating the fear of marginalization in any group no matter how
insignificant. Tenure of Office and Independence of the Commission
The Commission has no ex-officio members. Members and chairman of the Commission
are appointed on merit
28
subject however to the condition that each member must
represent each state of the federation and the Federal Capital Territory, Abuja.
29
The tenure of office of each member and the chairman is five years.
30
No
member of the Commission shall be removed before the five years tenure except by the
resolution supported by 2/3 majority of Senate.
31
By section 157 of the Constitution the
President cannot on his own initiative remove any member; the removal can only be on
the initiative of the Senate.
To a large extent the provision guarantees security of tenure for members of the
Commission. This arrangement is understood in the light of its effect of the functions of
the Commission on the President himself. By virtue of Section 171 (5) of the 1999
Constitution, the President could be dealt with by the legal measures adopted by the
Commission by virtue of the provisions of paragraph 8(1)(c)of the Part II C of the third
Schedule to the Constitution. How much better if the Constitution had provided that
members of the Commission should not belong to any political party?
Section 158(1) provides for the independence of the Commission. While
exercising its power of appointment or disciplinary control over any person, the
Commission shall not be subject to the direction or control of any other authority or
person. The disciplinary power of the Commission includes the power to prosecute any
person or body as prescribed by the Constitution and the Act.
This provision does not fully guarantee the independence of the Commission. By
restricting the provisions to when the body is making appointment and while exercising
disciplinary power, its independence is qualified. For instance the Commission is not
financially autonomous from the executive organs of the government that may normally
come under the exercise of the power of the Commission. It is necessary for the
efficiency and effectiveness of the Commission that its independence be fully
guaranteed.
The Relevance of the Commission
By and large, the history of Nigeria shows that it has been a country built on mistrust and
suspicion. Ekeh and Osaghae state:
Students of Nigeria’s political history would have no difficulty in agreeing that our
public life has been dominated by conflicts and division between opposing sides
in politics. Where agreement would seem to be less certain is the
characterization of the issues of this conflict. Ethnicity has of course been widely
recognized, in the long view at least, as a central factor in Nigeria’s political
problems.
32
The introduction of the Federal Character clause into the Constitution, first in 1979 and
later in 1999 was as a result of the experience garnered from the failure of 1963
Republican Constitution to sustain the nascent nation. The period normally referred to
as the “First Republic” was marked by political power play of all sorts dominated by
ethnic and regional loyalty.
33
This problem translated into political crises and later
28
Merit here means without restriction to either political affiliation or to official capacity.
29
See 3
rd
Sch. Pt 1-7-(i) b of the Constitution, this translates to 38 members, including the chairman, and obviously
there must be a Secretary.
30
Section 155(2) of the 1999 Constitution.
31
Section 57 of the 1999 Constitution.
32
Federalism and Political Restructuring in Nigeria, 102.
33
Ibid at 103. culminated into a civil war between 1967 and 1970. The country came under military rule
for the first time in 1966.
34
The problem associated with ethnic suspicions, regional loyalty and religious
bigotry that dominated Nigerian political life necessitated the mergence of the principle of
federal character entrenched, for the first time, in the 1979 Constitution. The principle
was attempting to establish itself as a constitutional phenomenon when the life of the
democratic government was terminated by a military coup d’etat on 31
st
December,
1983.
The Military Government that was put in place on 1
st
of January 1984 suffered a
setback when in 1985 it was removed by a palace coup within the military top brass.
This brought into power the first Military President, General Ibrahim Badamosi
Babangida.
The new military regime after a protracted political debate put in place an
elongated democratization process which culminated into a presidential election on 12
th
June 1993. The election was annulled on 23
rd
June 1993 by the then Armed Forces
Ruling Council. This annulment rekindled the age-long ethnic suspicion because it was
believed the Military Government headed by a person of northern origin did not want
power to shift to the south.
The crisis was so volatile that it nearly led to another civil war. It was an attempt
to remove tension from the entire polity that the Military Government led by General
Sanni Abacha promulgated the Federal Character Decree 1995 (now Act). For the first
time the Act set up the Commission.
In effect, the need to establish the Commission was necessitated by the
country’s quest to remain as one entity. In the scheme of things, considering the
existence of mutual suspicion, fear of domination and anxiety for marginalization of all
the groups in Nigeria, the existence of the Commission is relevant and needed. Its
existence would however, be relevant and meaningful if only it can ensure the
observance of the Federal Character principle as enshrined in the Constitution with a
paramount objective of giving every Nigerian a sense of belonging, no matter how minor
his group.
The Commission must work relentlessly to eliminate the age long impression of
regional dominance, ethnic rivalry, nepotism, the North/South dichotomy in the area of
appointment into key positions in the public services of the federation as enumerated in
paragraph 8 Part IIC of the Third Schedule to the 1999 Constitution.
Recommendations
In view of the foregoing evaluation of the power of the Federal Character Commission,
we recommend:
(i) that there is a need for Constitutional amendments to review the power
granted the Commission to make it practicable. It will be difficult for the Commission to
be able to prosecute anyone for violating its formula.
(ii) the 1995 Act should be repealed and be replaced with a more comprehensive
Act of the National Assembly which must reflect the substantive law and the procedural
rules that would guide the Commission to enforce the law.
(iii) Nigeria operates federalism which discourages any level of government to
have overbearing influence on another. In this wise, each state should have a separate
Commission. This should be taken into consideration in the proposed amendment to the
Constitution.
34
See Walter Schwarz, Nigeria, London, Pall Mall Press, 1968, 168 referred to in Kasumu, A B (ed), The Supreme
Court of Nigeria, Ibadan, Heinemann , 1977 (iv) the Commission needs to take the issue of ethnic and other groups’ interests
into consideration while reviewing its existing formula. This is necessary to prevent the
domination of few groups in the state quota.
(v) The Commission should be fully independent of any government its membership
should be made devoid party politics.
Conclusion
Considering our own peculiar circumstances and history, the Commission is needed to
promote national unity and cohesion. However, in order to ensure its efficiency and
effectiveness of the Commission there is a need to enact a comprehensive Act of the
National Assembly which will reflect the spirit of the 1999 Constitution. To this end the
Act would be repealed along with its formula and guiding principles.
Membership of the Commission should be reduced to a manageable proportion.
Membership may be on zonal basis while states should be given seat on the
Commission on rotational basis.
How u wan make we take read this?
This sakabu sef.. Wetin make you post this kind bulky essay, you no know say e dey congest both ntw rate and space? Wetin be the info in it? I hope say you no go talk say you give person make e post am... No repeat this kind tin again..o
New facts emerges from the little tussle bw fcc and dpr, though seems it doesnt really have that much to do with us. The issue from my little undrstandng seems a cummalative and long standing one.. Particularly, as regards "Interest"
debrown, d.bkm.. i know say una no dey go church.. So make una show face abi stroke don finnaly succeed?.?