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Nigeria is the most populous country in Africa with a population of about 170 million persons. It is a federation made up of 36 states and the FCT as the federating units. However, since the 1996 constitutional conference, which recommended six geo-political zones as federating units for Nigeria and because of the need to operate a leaner government at the centre, offices and posts in the country are also shared on the basis of the six geo-political zones. Indeed, most parties’ constitutions recognise the zones and share their posts along this line.
As noted in last week’s edition of this column, Nigeria is a diverse nation and the practice of ensuring that appointments in public service institutions fairly reflect the linguistic, ethnic, religious, and geographic diversity of the country is called the Federal Character Principle which was exported from the 1979 Constitution into Section 14(3)(4) of the 1999 Constitution at the advent of the Fourth Republic and has ensured our stability despite the imperfections in our electoral system. Unfortunately, this principle has come under criticisms by some persons. To some, it is legally insignificant since the provisions of Section 14(3)(4) are enshrined in Chapter 2 of the Constitution which is not justiciable. To some, it promotes mediocrity over merit and should be abandoned. Yet to some others, it is concerned only with appointive not elective posts.
As regards this issue of the legality or legal significance of the federal character principle and its justiciability, we note preliminarily, that the mere fact that a section of the constitution is not justiciable does not mean that it is not binding. Every section of the constitution is binding. Section 1(1) states “this constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”. A section, not being justiciable, simply means that any person who is aggrieved by any violation of the section cannot seek redress in a court of law. For instance, the mere fact that Section 14(2)(b) of the 1999 Constitution which states that “the security and welfare of the people shall be the primary purpose of government” is located in Chapter 2 of the Constitution does not make it less binding on the government to protect lives and property. Indeed, it makes it more binding when one considers the importance of security of life and property of the people. The fact that somebody cannot sue the government because his brother was killed by thieves along the road does not make this provision less binding on the government.
Having said that, let us at this juncture examine the issue of whether the federal character principle is justiciable. As regards this issue, we recognise that many people may have relied on the blanket provision of Section 6(6)(c) of the 1999 constitution (as amended) to make the assertion that Section 14 of the constitution is not justiciable. Section 6(6)(c) states that “the judicial powers vested in accordance with the foregoing provisions of this section shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in Chapter 2 of this constitution”.
However, we observe that they did not take particular notice of the exception to this general rule. The section states “…except as otherwise provided by this constitution…” We make bold to say that by the combined effects of Section 153(1)(c), paragraphs 7, 8, 9 of part 1 of the third schedule of the 1999 Constitution (as amended) the federal character principle as stated in Section 14 is justiciable and offenders of this section are even liable to be prosecuted. Section 153(1)(c) established the Federal Character Commission to ensure the compliance of all organs and bodies of government with the provisions of Sections 14(3)(4). Paragraph 8(1)(b) states that “in giving effect to the provisions of Section 14 (3) and (4) of this constitution, the commission shall have the power 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”. It went further in paragraph 8(1)(c) to provide that the commission should “take such legal measures, including the prosecution of the head or staff 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”.
Furthermore, the constitution in item 60(a) of the exclusive legislative list in part 1 of the second schedule of the 1999 Constitution (as amended) empowered the National Assembly to establish and regulate authorities for the Federation or any part thereof “to promote and enforce the observance of the fundamental objectives and directive principles contained in this constitution”. And whenever the National Assembly exercises this right, the Supreme Court has held that such action has made such section of Chapter 2 for which a body has been established justiciable. In the case of Olafisoye v. FRN (2004) 4 NWLR (Pt.864) 580, the Supreme Court held that “it is clear that although Section 15(5) of the 1999 Constitution is in general not justiciable, as soon as the National Assembly exercises its power under Section 4 of the constitution with respect to item 60(a) of the Exclusive Legislative List, the provisions of Section 15(5) of the constitution become justiciable”. See also A.G. Ondo State v. A.G. Federation (2002) 9 NWLR (Pt.772) 222.
The National Assembly exercised this power by enacting Act No 34 of 1996, which was consolidated in Sections 14 and 153 of the 1999 Constitution, to establish the Federal Character Commission saddled with the responsibility to implement and enforce the federal character principle of fairness and equity by working out an equitable formula for the distribution of public posts and socio-economic infrastructure among the various federating units of Nigeria. The Federal Character Commission, pursuant to this Act, has approved 2.75% of public offices for each state and 1% for the FCT and with due respect this is justiciable for any state that is shortchanged and any officer who fails to comply liable to be prosecuted. Please see Sections 4, 5 of the Federal Character Commission (Establishment, etc) Act; Paragraphs 1, 6 of the Subsidiary Legislation, Guiding Principles and Formulae for the Distribution of all Cadres of Posts under Section 4(1)(a) of the Federal Character Commission (Establishment, etc) Act
With regard to the issue of promoting mediocrity over merit, let us recall that with a population of 170m persons, we have average of 4.5m persons in each state and the FCT. It is preposterous to argue that we cannot get 2.75% of competent persons of the workforce of the federation, which may not be up to 300, 000 personnel from each state. It is even illegal to employ a non-competent person in the public service of the country. Paragraph 2 of the Guiding Principles and Formulae for the Distribution of all Cadres of Posts under Section 4(1)(a) of the FCC Act states that the best and most competent persons shall be recruited from each state of the Federation to fill positions reserved for the indigenes of that state or the FCT.
On the argument that Section 14 deals with only appointive posts, recall that Section 14(3) started with this statement – “The composition of the Government of the Federation or any of its agencies…” The composition of the Government refers to the different political posts that constitutes the government. Paragraph 8(1)(b) of part 1 of the third schedule clearly included political posts at all levels of government as part of the positions of government the Federal Character Commission is required to ensure their proportional distribution. Section 13 was even more emphatic when it states that it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of the Federal Character Principle. This section used the word “ALL” to include ALL in government, whether elected or appointed, and directed ALL in government to conform to the principles of Sections 14(3) and (4). It is, therefore, submitted that sections 14(3) and (4) refer to all positions, elected and appointed, of all arms of government and of all levels of government.
