The clamour for resource control and state police by the Southern Governors’ Forum seems to have suffered a setback going by the details of the 68 amendments proposed by the Joint Senate and House of Representatives’ Special Ad Hoc Committee on the Review of the 1999 Constitution.
Also, the gains brought by the Federal High Court judgment giving powers to the states to collect Value Added Tax, now risk being reversed as the National Assembly will vote on whether VAT should remain on the concurrent legislative list or be moved to the exclusive list.
Members of the National Assembly are billed to vote on the recommendations on Tuesday and Wednesday after which the proposal would be sent to the states for concurrence. At least 24 Houses of Assembly must concur for any provision to scale through.
Both state police and restructuring are not included in the 68 proposals,
There were demands for restructuring and return to the regional system of government, with some Nigerians specifically seeking conversion of the six geopolitical zones or states to federating units.
The National Assembly is only considering devolution of powers from the Federal Government to the state and local governments by moving some items from the exclusive legislative list to the concurrent list.
For instance, the Southern Caucus in the House had on May 12, 2021, adopted the resolutions of the Southern Governors’ Forum on the demand for true federalism and restructuring as well as
Members of the House from the 17 southern states of the country, made this known in a statement signed by the Minority Leader, Ndudi Elumelu; Deputy Majority Leader, Peter Akpatason; Deputy Majority Whip, Nkeiruka Onyejeocha; Deputy Minority Leader, Toby Okechukwu; Deputy Minority Whip Adesegun Adekoya; Dolapo Badaru, Jimoh Ojugbele and Femi Fakeye.
The lawmakers expressed their support for the governors’ demand for true federalism “through restructuring that will lead to the devolution of power, creation of state police, review of resource control and revenue allocation formula as well as strict adherence to federal character principle in federal appointments in the shared interests of the federating states.”
Also, governors in the South-West had proposed conversion of the present six geopolitical zones into federating units, which is part of a series of proposals to weaken the central government and allocate more powers to the federating units and states.
The South-West Governors’ Forum, in their memo to the National Assembly after a meeting with the South-West Caucus, titled ‘Proposals for the Review of the Constitution of the Federal Republic of Nigeria 1999 (As Amended): Presentation by South West Governors’ Forum’ and dated July 5, 2021, proposed an amendment to Section 3(1) and (3) of the Constitution.
The present Section 3(1) reads, ‘There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.’
However, the governors said, “We propose that Section 3(1) be amended as a federation consisting of six geopolitical zones constituted from the states. The federating units or regions are divided into the following geopolitical zones: North-West Zone, North-Eastern Zone, Middle – Belt Zone, South-East Zone, South-South Zone, South-West Zone and the Federal Capital Territory.
Citing the reason for the proposed amendment, the forum said, “The geopolitical zones have been recognised and accepted by Nigeria’s political class.”
The governors added, “Section 3(6) be amended to provide for a number of local governments or such autonomous administrative units to be created by the respective federating units or states, the criteria of which shall include population, taxable capacity, ethno-religious or other cultural and social affinities.”
Similarly, the House passed for second reading, a bill seeking to amend the 1999 Constitution to allow the creation of state police and legalise regional security outfits on July 6, 2021.
The current police system was to be decentralised by moving police from the exclusive legislative list to the concurrent list, as the bill proposed.
Chairman of the House Committee on Judiciary, Onofiok Luke, who sponsored the bill, said in the explanatory note that the bill seeks to alter the constitution “to provide for state police and other state government security services to enhance security and preservation of lives and properties in Nigeria.”
The bill especially proposed amendment to Section 197(1) by inserting new Paragraphs ‘e’ and ‘f’ to provide for ‘State Police Council’ and ‘State Police Service Commission,’ respectively.
The second schedule to the constitution was to be altered in Part I by deleting Item 45 from the exclusive legislative list; and in Part II by inserting after Item 30 on the concurrent legislative list, new items 31 and 32.
However, the House’ Special Ad Hoc Committee on the Review of the 1999 Constitution chaired by the Deputy Speaker, Ahmed Wase, voted against and dropped the proposal for state police.
The National Assembly also received memos to create no fewer than 20 states but the proposals are not part of the recommendations made by the committee.
States should control VAT
Some senior advocates who spoke to The PUNCH, however, argued that VAT should not be placed on the exclusive legislative list.
Adegoke Rasheed (SAN), said while the National Assembly could not be stopped from performing its constitutional duties, the process would not be successful, adding that two-thirds of states would not support the decision to put VAT on the exclusive list.
Adegoke said, “I would consider the mentality of our legislators to be unitary and not federal in nature. I don’t think there is any sense in it to include the collection of VAT in the exclusive list. To achieve what? To make more money available at the centre? It was the military intervention that made the government at the centre to be collecting VAT.
“Under the 1979 constitution, VAT was not different from the sales tax. It is better if we are going to assist the states to develop at their own pace and have the capacity to generate more IGR. It is better to designate the collection of VAT as residual matter rather than making it an item on the exclusive list. They should reject it. They should realise that they are from various states that are struggling to survive.”
He stated that the decision to bring the matter on the exclusive list was against the federalism we practise in the country, calling on the legislators to reject the bill.
Another Senior Advocate of Nigeria, Ebun-Olu Adegboruwa said the state governments who took the matter to court should notify the court if it would affect the matter, saying that the court cannot stop the legislators from making law.
He said, “The case pending is in court. There is nothing stopping them from discharging their legislative duties. Within the court generally, our understanding is that the court would not stop the legislature from performing constitutional responsibilities of lawmaking but if after they make the law and then parties that are in court feel that the law would overreach the case that is pending in court, they can bring the amendment before the supreme court to decide on it, but the court would not stop the assembly from performing its duties.”
Adegboruwa stressed that the purpose of devolution of power would be defeated if VAT was placed on the exclusive list.
Adegboruwa added, “My position is that VAT is a matter for the states. You cannot be approbating and reprobating. The purpose of this amendment is to achieve devolution of power by giving more powers to the state and shedding the federal government of its weight.
“Then moving VAT to the exclusive list would be drawing us back to the unitary system of government. There is an inconsistency on the part of the National Assembly if, on the one hand, it is seeking to remove matters such as electricity from the Federal Government and taking VAT to the Federal Government. VAT should be for the state generating the tax for itself. There’s no basis for voting VAT to be on the exclusive list.
“If they vote it to be on the exclusive list, it would be a matter for the Supreme Court to decide as to the effect of that, because the suit had commenced before the amendment took place. If the amendment succeeds, the matter would become more or less academic.”
Also speaking with The PUNCH, a human rights lawyer, Femi Falana (SAN), said states would not vote in support of the amendment. He advised the National Assembly to await the outcome of the matter at the Supreme Court rather than amend the constitution.
He said, “The matter is pending before the Supreme Court, the National Assembly should wait. I would advise them to await the judgment of the court. Assuming the Supreme Court says the Federal High Court was wrong, so what would be the basis of amending the constitution?”
Falana said he was confident that the states would not concur with the National Assembly if VAT is placed on the exclusive list.
States should control VAT – Lagos
The Lagos State Government, which is one of the parties to the suit before the Supreme Court, also stated that VAT should be left for the states to collect.
The Commissioner for Information, Mr Gbenga Omotoso, disclosed this on Sunday during a phone interview with The PUNCH. He, however, has said the state government would abide by any decision made by the National Assembly.
He said, “I cannot dictate to the National Assembly, because we belong to the executive and the legislature has their own rules and regulations and their own powers. It is all about the separation of powers and democracy.
“But what we are after concerning VAT is that the states should be the ones to collect it, and any decision that the legislature or the judiciary makes about this, we will abide by it, so long as it has to do with equity, justice and fairness, so long as it is a matter of what is good for our democracy, and fiscal federalism.
“So I know that the National Assembly, being the home of lawmakers and lawmaking, will do the right thing – anything that will further the interest of democracy and true federalism, and in the interest of justice – and I think that is what they will do.”
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