The hair-splitting contentions in the press and elsewhere over the applicability scope of the Freedom of Information Act passed by the Nigerian National Assembly and signed into law by President Goodluck Jonathan on May 28, 2011 (FOIA 2011) would be amusing if a serious and weighty issue about this very significant law—the issue of compliance/enforcement—was not at stake and getting short shrift. Those who aspire to seriously engage in the debate of public interest issues and the guidance or formulation of public opinion cannot afford to be distracted by an issue so comparatively insubstantial.
Shifting focus from the inquiry of how/what the federal government is doing to enforce FOIA 2011 to the inquiry of whether the constituent states of the federation should or should not be automatically bound by the law is comparable to the proverbial “cart before the horse” spectacle. A Yoruba elder might employ a more gripping expression: “A fi ete sile pa lapalapa.” Translation: ignoring leprosy while seeking cure for a mere skin irritation. Legal prescriptions are meaningless if they do not generate compliance or sanction when breached.
Meaninglessness gets compounded when unenforced legal prescriptions metastasize, as in forcing the FOIA 2011 on reluctant states. Rather than interpreting FOIA 2011 as a willy-nilly obligation on states to “domesticate” and implement, sustained pressure should be mounted on both the executive and judicial branches of the federal government to enforce compliance with the law. As a seed that is assertively planted on federal soil, metaphorically, the law should be watered and fertilized so that it can be well-rooted and allowed to grow, spread and transplant to the states. This article seeks to neutralize the question of whether the law automatically binds the states and argues that it does not, by considering the inherent and constitutionally declared federalism of the Nigerian nation-state.
Federalism is a power-sharing constitutional arrangement, which necessarily imposes certain fundamental limitation on the power of national government to legislate for states. This limitation or restraint is embedded in what may be referred to as the status of “double citizenship” peculiar to people in a federalist country, whereby a person simultaneously exercises the rights, and discharges the duties, of citizenship of his state as well as those of the larger community; i.e., the country. A matured federal system that has experienced and largely tamed this limitation is the United States, as born out in a string of its Supreme Court decisions.
In Hodel v. Virginia Surface Mining & Reclamation Ass., Inc., 452 U.S. 264, 288 (1981), the court decided that the federal legislature may not “commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.” FERC v. Mississippi, 456 U.S. 742, 758-759 (1982) followed the Hodel decision, noting the court “never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations” at 761-762. In New York v. US, 505 U.S. 144 (1992), the court noted that the constitutional question of “discerning the proper division of authority between the federal government and the states” is “as old as the Constitution.”
The fact of New York v. U.S., essentially, is the challenge of disposing low-level radioactive waste being generated in the U.S., and the question is whether the federal government is permitted by the federal structure of the U.S. system of government and the 10th Amendment to require states to pass laws “providing for the siting and financing of a disposal facility” and, in effect, “direct or otherwise motivate the states to regulate in a particular field or a particular way.” The court found “the Constitution has never been understood to confer upon Congress the ability to require the states to govern according to Congress’ instructions.”
The 10th Amendment to the U.S. Constitution declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” It “expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the states’ integrity or their ability to function effectively in a federal system,” Fry v. United States, 421 U.S. 542, 547 n. 7 (1976). The Fry court recognized a historical fact: The original 13 colonies existed separately prior to the formation of the United States and residual powers of self-government were retained to the states to validate their individual uniqueness as political entities and to enhance local control of matters that are of local interest. This logic applies no less persuasively in Nigeria as a nation of preexisting kingdoms and distinct ethnic communities of unique cultural identities, cobbled together by the British colonialists.
So, experience persuaded the U.S. Founding Fathers to write the 10th Amendment into their constitution in acknowledgement of the uniqueness of the individual states. The Nigerian Constitution does not now have a states’ “reserved power” provision. It should, because it merits it. The history of the separate colonies formed by the early immigrants to the so-called “New World”—colonies that, within a matter of few years, evolved into sovereign states of “reserved powers” and constituent parts of a national government—is no comparison with the deep roots of the Yoruba, Benin, Igbo and Hausa Kingdoms of the peoples now known as Nigerians. Revered constitutional law expert Ben Nwabueze recently reminded us that “we all belong to an ethnic nationality. It is sociological reality.” The cultures, civilizations and uniqueness of these various Nigerian ethnic groups remain distinct and deserve 10tu Amendment-type constitutional recognition.
There is no doubt that FOIA 2011 is a major law designed to expose corruption, stop it in its tracks and advance democratic governance. If effectively deployed, and if a sincere commitment to compliance and enforcement is exercised, the law will compliment such other laws as Economic and Financial Crimes Commission (Establishment) Act and the Corrupt Practices and Other Related Offences Act, the effect of which will be exposure of corruption, prosecution of its perpetrators and restoration of selflessness and patriotism in the government-governed relationship in Nigeria. The human transition from primordial lifestyle to civilization is so that the organized system (government) can be one that is formed by the people, administered by those elected by the people and serves the people. To mature Nigerian federalism, therefore, Nigeria can, and should, benefit from the “commandeering” test applied in the U.S. Supreme Court jurisprudence.
*Political campaign strategist James Carville coined the phrase “The economy, stupid” to focus the attention of his campaign trail colleagues on the essential message in Bill Clinton’s successful campaign for the presidency of the United States in 1992.
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