Daily Archives: May 20, 2021

Late last year, we started a serial on federalism. We were convinced that a federal state structure was imperative. We remain convinced that constitution that is federal is the only basis for a united Nigeria from its plural demographic. The Nigerian state has not functioned, rather, it has been tottering in a state of underdevelopment and lurched into total anomie by the actions and omissions of the conceited elite from a section of the country that see Nigeria as their colonial possession and have governed the country from a feudal mindset. We are proud of the awakening that this serial on federalism has engendered. If the country must be saved from the tipping point of disintegration, it is the option open to us.

On a balance sheet, the country on all indicators is prostrate. Not too long ago, it earned the unenviable position of the world capital of poverty; the economy is on a free fall without productivity while the government is mopping loans from wherever it is available. The dire nature of the economy has now led recently to quantitative easing, i.e., the printing of paper money not backed by productivity. Upon this, through complex contrivances, the country has been taken over by new militarism, i.e., armed non-state actors with consequent impact on the free movement of law-abiding citizens and the crippling of farming activities across the country. The overall impact has engendered a situation in which the component nationalities, in other words, the peoples of this country agitating for separation. To the blunt, the country is collapsing under a rudderless leadership that is part of the problem.

It is against the foregoing background that the 17 Governors of the Southern States of Nigeria met in Asaba, Delta State on Tuesday, May 11, 2021, to discuss the deteriorating national crisis and to proffer solutions. The high-profile meeting was attended by Ifeanyi Okowa of Delta, Okezie Ikpeazu of Abia, Willi Obiano of Anambra, Douye Diri of Bayelsa, Godwin Obaseki of Edo, and David Umahi of Ebonyi. Others are Ifeanyi Ugwuanyi of Enugu, Kayode Fayemi of Ekiti, Babajide Sanwo-Olu of Lagos, Dapo Abiodun of Ogun, Rotimi Akeredolu of Ondo, Seyi Makinde of Oyo, Nyesom Wike of Rivers. While Hope Uzodimma of Imo and Udom Emmanuel of Akwa-Ibom were represented by their deputies, namely, Prof. Placid Njoku and Mr. Moses Ekpo respectively. Governors Gboyega Oyetola of Osun and Ben Ayade of Cross River states were absent.

However, the meeting x-rayed issues such as the structure of the Nigerian state, the skewed appointments into federal institutions in the country, open crazing, the Apapa port congestion, and the general insecurity in the country among others. Accordingly, they proffered some measures to address them. They called for urgent and bold steps be taken to restructure the Nigerian Federation leading to the evolution of state police, review of revenue allocation formula in favour of the sub-national governments and creation of other institutions, which legitimately advance our commitment to and practice of true federalism. They called for inclusivity in extant governance arrangements including security agencies in ways that meet the federal character principle enshrined in the 1999 Constitution as amended. They affirmed their resolve to enforce the ban on open grazing in the South (including cattle movement to the South by foot). They also recommended that the Federal Government should support willing states to develop alternative and modern livestock management systems.

Besides, the governors recommended the activation and establishment of ports in other states of the federation to create new jobs and promote socio-economic activities in the country. Above all, they urged the Federal Government to convoke a national dialogue as a matter of urgency.

It has also been a fitting denouement to a meeting of the PDP governors that barely a week after the Asaba Declaration of the 17 governors, the chief executives of the opposition states also reiterated demand of the people: commitment to restructuring of the federation, which should culminate in practice of true federalism we lost to the militarys unitary system in 1966. The clouds have therefore been gathering on restructuring and what else should the people expect apart from that rain called federalism?

Surprisingly, the meeting of the southern governors drew flakes from the standpatters insisting on the continuity of the status in ways that are provocative. The Miyetti Allah Cattle Breeders Association of Nigeria (MACBAN) says the meeting of the Southern Governors is a call for secession and that the Southern Governors are confused and mischievous. Northern Leaders such as Tanko Yakassai, Professor Usman Yusuf, Senator Ali Ndume, and the Senate President, Senator Ahmad Lawan have also faulted the position of the Southern Governors. In a laughable manner, the southern governors have even been accused of not consulting the Fulani (nation). While the Senate President abandoned his umpire status and said that: But I believe that when somebody calls for improving the structure that we have, it is a genuine callBut I want to advise here, I believe that as leaders those of us who were elected must not be at the forefront of calling for this kind of thing because even if you are a governor, you are supposed to be working hard in your state to ensure that this restructuring you are calling for at the federal level you have done it in your state as well.

Be that as it may, beneficiaries of the present decadent system would perhaps never desire a change. Without a doubt, the call for re-federalising Nigeria is not to be ignored if we desire to keep the country together.

The issues the southern governors raised are the issues that we have canvassed variously in this medium for several years, namely, fiscal and institutional restructuring of the Nigerian state in ways that devolve power in the component units of the Nigerian state. We support the actions of the governors. It is a right step in the right direction. This newspaper insists that it should not be discarded in deference to blackmail from the perpetrators of the backward state of affairs in the country who are incurable loafers who contribute nothing to the national coffers. Here is the conclusion of the whole matter: Nigerias unity is only feasible on the basis of justice, fairness, and equity. And only federalism can guarantee that as we have been reiterating here in the last 30 weeks.

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Federalism is the answer, after all - Part 30 - Guardian

After infecting more than 2.3 crore Indians and killing more than 2.5 lakh of them, the novel coronavirus is eating away the innards of our federalism. Heres how.

Last week, Tamil Nadu made a forceful case of discrimination in distribution of vaccines. As on May 11, when Rajasthan, with a population of 7.9 crore, was allotted close to 1.5 crore doses of vaccines, Tamil Nadu with 7.6 crore people and almost double the number of infections in Rajasthan, was given a little more than 76 lakh doses. Gujarat, with a lesser population and half the number of infections than Tamil Nadus got close to 1.5 crore doses. Perhaps the skew is solely because of a formula which gives weightage to utilisation of existing stock, but if there is a perception of bias then it needs to be addressed for the fight to be successful.

A more bitter fight between states has been over medical oxygen. Tamil Nadu last week complained that it was allotted only 220 tonnes of oxygen against its requirement of 470 tonnes, while it was sending oxygen produced in Chennai to Andhra Pradesh. The virus respects no borders and Tamil Nadu has no right to stop supply of oxygen produced in the state to another. The tussle for the live-saving gas raises questions about Centres allocation of crucial resources, underscoring the need for it to act in a transparent and unbiased manner and for the states to behave as partners in the fight rather than rivals.

As per the central committee on oxygen pool, Tamil Nadu has been getting 40 tonnes from the Inox Air Products plant in Keralas border district of Palakkad. On May 10, Kerala chief minister defied the Centre and said it would not allow movement of oxygen out of the state. Karnataka blocked roads to prevent movement of people from the Kerala side. Telangana sealed its borders with its just-separated sister Andhra Pradesh, preventing ambulances from carrying Covid-19 patients in distress to hospitals in Telangana. Odisha closed its borders with Telangana and Andhra Pradesh.

Matters arent better in the northern states. The Uttar Pradesh government said that it would not vaccinate people who did not have a proof of residence in the state (it later rescinded the order), and that included a large number of people from the National Capital Region. For his part, Delhi chief minister Arvind Kejriwal had asked hospitals not to take in patients from outside NCR. After testing the resilience of Indias healthcare delivery system, the pandemic is now challenging the robustness of the relationship between the states and that between the Centre and the states. And an allegedly partisan Centre dealing with states that are at war with each other during a pandemic can be a recipe for a bigger disaster.

As a result, the judiciary in many states had to step in. Hearing a public interest litigation on the Covid-19 situation on May 11, the Uttarakhand high court asked why Uttarakhand was being forced by the Union government to procure oxygen from other states when it has three oxygen production units.

We have called for an explanation from the central government. The state government has submitted that it is helpless and its hands are tied as the control is with the central government, said the division bench of Chief Justice RS Chauhan and Justice Alok Kumar Verma.

Its not that we dont have laws and guidelines to prevent this anarchy. The Epidemic Diseases Act, enacted in 1897 to deal with the bubonic plague in Bombay, gives special powers to the states and the Centre, but the veto lies with Parliament. Ironically, states threaten to invoke the state rules under the Act to deny medical supplies to others. This is where the Disaster Management Act of 2005 should take precedence, and the National Disaster Management Authority (NDMA) should play the role of a strict and fair referee, which, at present, it is not.

Article 256, which deals with obligation of states and the Union, is unambiguous: The executive power of every state shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that state, and the executive power of the Union shall extend to the giving of such directions to a state as may appear to the Government of India to be necessary for that purpose. Article 257 makes it clear that the states can exercise their executive power only in a way that will not impede or prejudice the power of the Union.

And then, the Centre has to be unbiased while exercising its powers. Article 39 directs the state that ownership and control of material resources of the community should be distributed as best to subserve the common good. This is where the Centre has faltered. To ensure optimal and judicious distribution of resources during such a pandemic, the Centre should be immune to political considerations and pressure groups.

While NDMA, headed by the prime minister, should continue to play a pivotal role in formulating national plans and strategies, micromanagement should be left to the states and the district authorities. Allocation of oxygen, antiviral drugs, steroids, testing kits and vaccines should be based on a scientific algorithm that takes as inputs daily cases, test positivity rate, case fatality rate and doubling period. The Centre has to invoke all the powers it can to ensure states play ball. And the Centre has to be seen to play fair.

Views expressed above are the author's own.

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The virus gnaws at federalism: This pandemic is testing the robustness of the relationship between the Centre - The Times of India Blog

As millions of Indians struggle to breathe under his watch, Prime Minister Narendra Modi is building himself a palatial new residence, part of a two-billion-dollar BJP government project to redevelop the Central Vista of the British-built capital New Delhi. This is an assertion of the power of the Central government in line with efforts to undercut states access to vaccines and oxygen, and is in clear defiance of questioning by the Supreme Court.But it comes at a time when the country has never strained more at the edges, with assertions of local power and autonomy across border states.

Kerala, on the southwestern coast, remains a stronghold of Left-leaning parties and has eluded BJPs control. The BJP also has little appeal in the southern state of Tamil Nadu. In elections in Bengal where the party held massive, virus-spreading rallies, the party was handily defeated by the All-India Trinamool Congress.

For months now, Punjabs farmers have led the worlds biggest protest, challenging laws that threaten their livelihoods. Meanwhile, the Punjab state government is asking for an oxygen corridor to neighbouring Pakistani Punjab. The Centre has been trying hard to assert its dominance of an intransigent Kashmir since 2019, resorting to brutal methods of suppression. It is no coincidence that these are all states with complex religious demographics in which the BJPs Hindutva ideology struggles for traction.

The centrifugal energy at Indias margins terrifies the Centre more even than its failure to protect its people, driving it now to monumental lengths to assert an unquestioned dominance that it does not possess. It also, however, speaks to the potential for alternative South Asian futures. Many despair at the lack of a strong, viable alternative to the BJP on the national stage, lamenting, in particular, the failures of the Congress party, which let dynastic priorities tarnish the legitimacy it acquired as the nations founding party.

Also read:True Federalism Is the Counter-Narrative India Needs Right Now

But the strength of diverse local forms of resistance is a reminder of the importance of local autonomy in a vast country with rich local political and cultural traditions. They offer an opportunity to recover, even in the midst of rage, death, and hopelessness, the anticolonial visions of earlier generations whose resistance to British rule was also resistance to the imperious Central government in a region long accustomed to more layered notions of sovereignty.

Those thinkers dreamt of a range of federal alternatives, many of which were seriously on the table all the way up to 1946 a year before Indias formal independence. The Congress leader and first prime minister Jawaharlal Nehru famously dreamt of a single unified India, rejecting federal structures with a weak Centre as susceptible to neocolonialism. But his was just one of many dreams of a free India; its passing does not mean the end of the Indian idea, but of just one version of that idea an idea deeply contested even in its own time.

Farmers protest against the farm bills at Singhu border near Delhi, India, December 4, 2020. Photo: Reuters/Anushree Fadnavis.

Mahatma Gandhi, for instance, pressed for an India made up of independent yet interdependent village republics, seeing strength in connected coexistence and partnership. When Nehrus vision prevailed, those who found their grander ambitions for a broader transformation of Indian society eclipsed even then told us that Vo intizar tha jis ka ye vo sahar to nahin, in the words of the poet Faiz Ahmed Faiz, who was also an activist with Punjabs farmers. This is not the dawn we were waiting for.

Evolution of Indian union

From the early 20th century, Pan-Asian, Pan-Islamic, global communist, and other visions animated many Indian freedom fighters, who saw in the world wars proof of the dangers of nationalism as much as imperialism. The Russian Revolution, followed by the emergence of a new kind of polity the Union of Soviet Socialist Republics in which nationhood was (theoretically) subordinated, fed this imaginative effort, not least because colonial India was a patchwork of areas administered directly by the British and hundreds of princely states with varying degrees of autonomy that needed to be incorporated into a new decolonised formation.

The president of the Indian National Congress in 1923, Mohamed Ali Jauhar, dreamt of a federation, grander, nobler and infinitely more spiritual than the United States of America,(a) dream of United Faiths of India. Young revolutionaries of the Hindustan Socialist Republican Association tried to create a federated republic of the United States of India through organised armed revolution.

Many of these visions arose out of an effort to accommodate the growing demand for political autonomy for Indias Muslims once the British created separate electorates based on religion. The very idea of partition emerged from this swirl of federal visions. The British favoured the idea of partition for the continued mediating role it would give them, but Indian thinkers were trying to imagine a new postcolonial world order, one with stronger ethical foundations than the irreligious nation-state order that continually produced destructive wars.

The radical journalist, poet, and politician Hasrat Mohani talked of separate Muslim states in India, united with Hindu states under a National Federal government. In 1930, the poet and philosopher Mohamed Iqbal alighted on the idea of a Muslim India within India, while searching for a way to make India a country without a nation, in the words of the historian Faisal Devji. Gandhi too conceived of the Indian as an international category. In 1946, Rajendra Prasad, future president of independent India, pressed for an unnational India.

Even when partition turned into a plan for separate nation-states in 1947, prompting the biggest human migration in history and the loss of millions of lives, many continued to believe it did not mean separation but partnership.

Gandhi declared, I do not consider Pakistan and India as two different countries. The situation was hardly settled at that point: Pakistans currency was printed in India. Indian accountants served the Pakistani government. The Reserve Bank of India was the state bank for both countries till July 1948. The border remained relatively open, and people moved back and forth with relative ease (until the 1960s).

Also read:COVID-19 as a Test of Narendra Modis Promise of Cooperative Federalism

Kashmirs fate remained a question; in the very heart of India, the massive princely state of Hyderabad held out against joining the union until 1948 and an independent village republic of Paritala lasted over a year; a communist revolution followed in neighbouring China in 1949. Pakistans initial shape as a country made up of two wings divided by a thousand miles of Indian territory itself seemed to testify to the possibility of creatively exceeding the limits of the nation-state paradigm.

Taking on the imperious Centre

But the 1940s had incubated other visions, too. The paramilitary groups that drove partitions violence, including the RSS, shared an imprint of the fascist movements of that time. Federal hopes yielded eventually to a fortress-like, centralised nation-state sustained by continual demonisation of enemies within and without. But no futures are foreclosed. At that very moment, Europe, the ruined birthplace of fascism itself, began to take steps towards forming a political and economic community the European Union of today.

Women protesters at Jamia Millia Islamia during the anti-CAA and NRC protests. Photo: IsmatAra

India is a subcontinent, like Europe. Since 1947, it has coped with repeated threats of secession, from the north, northwest, the northeast, the south well before the era of Modi. Modis intense and violent bid to homogenise and govern autocratically this vast and stubbornly diverse subcontinent like Napoleons and Hitlers attempts in Europe cannot but fail. The Centre cannot hold.

Also read:In a Post-COVID-19 World, the Only Way Ahead for India Is Economic Federalism

Perhaps it is time to dream again outside the box of the nation-state: a political and economic union that preserves local autonomy, akin to Europes. Rather than wait in vain for an opposition on the national stage to save India from the BJP, Indians must use the power already there on local stages to push back against both the BJP and autocratic Central government, drawing strength from earlier struggles for a federated, truly postcolonial India one that may enable unity in the more urgently important environmental sense by allowing not only oxygen but rivers to flow undammed once again.

Border state struggles are struggles against an imperious Centre in the hands of brown sahibs wielding laws of repression created by their colonial predecessors. They are a reminder that the Indian freedom struggle was anticolonial before it was nationalist.

As a virus reveals the rottenness still at the Centre, it is time to revive that original dream. Sahir Ludhianvi, another poet and activist of that time, reminded us of the importance of weaving fresh dreams in the darkest times:

Aao ki koi khwab bunen kal ke vaste,varna ye raat aaj ke sangeen daur kidas legi jaan o dil ko kucch aaise ki jaan o dilta-umr phir na koi haseen khwab bun saken.

(Come, lets weave a dream for tomorrow, else this night of todays grave times will sting the soul in such a way that the soul may not again all its life be able to weave a beautiful dream.)

Priya Satia is the Raymond A. Spruance Professor of International History at Stanford University and author of two award-winning books:Spies in Arabia(OUP, 2008) andEmpire of Guns (Penguin, 2018). Her new book isTimes Monster: History, Conscience and Britains Empire (Allen Lane, 2020).

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As BJP Aims to Homogenise India, Localised Resistance Can Restore Federalism - The Wire

The Maratha reservation case also shows that divesting States of the power to determine backwardness hits federalism

On May 5, the Supreme Court of India declared as unconstitutional a Maharashtra law which provided for reservation to the Maratha community in education and public employment in the State. Four judges of the five-judge Bench wrote separate opinions, from which three primary findings emanated.

First, the Court held that the Maratha community did not constitute a socially and educationally backward class. Second, the judges discovered that the law was in breach of a rule previously set by the Court disallowing reservations made in excess of 50% of the total available positions. Third and on this finding, two judges on the Bench dissented the Court held that State governments had no independent power to declare a group as a backward class. The latter two findings run sharply athwart values of equality and federalism, which the Court has long regarded in rhetoric if nothing else as integral to Indias democracy.

The idea that reservations ought to be restricted to 50% does not stem from the Constitution. The text of Articles 16(4) and 15(4) which confer power on the government to make reservations contains no such limitation. Originally, however, these clauses were seen by the Supreme Court as exceptions to a broad rule of formal equality that was thought to be envisioned by the Constitution. To that end, the Court held that to allow reservation in excess of 50% would lead to an exception overriding a rule.

But a seven-judge Bench, in State of Kerala vs N.M. Thomas (1975), laid this theory to rest. There, the Court held that a programme of reservation was inherent in the Constitutions basic guarantee of equal treatment, and that affirmative action by the state was compelled by an objective of attaining substantive equality. With that, the rule requiring that reservations stay under 50% ought to have been deemed incongruous. But when the Court sat as a nine-judge Bench in Indra Sawhney vs Union of India (1992) it sustained a paradox. The majority on the Bench ruled, on the one hand, that N.M. Thomas was correct in seeing reservations as embedded in a constitutional vision of substantive equality, and, on the other hand, that reservation made in excess of 50%, barring exceptional circumstances, was harmful to that very vision. As the lawyer Gautam Bhatia has pointed out, this is an incompatible position. Yet, efforts to have the verdict in Indra Sawhney reconsidered have failed. The upshot: a mathematical formula with no basis in the Constitutions text is retained, even as the Court pays symbolic obeisance to the ideals of substantive equality.

These limitations are made worse by the Courts present ruling on the power of State governments to declare groups as backward. Until now, the central government and each of the State governments produced separate lists declaring communities as socially and educationally backward. Following the Supreme Courts judgment in Indra Sawhney, the determination of backward classes was made by the National Commission for the Backward Classes, at the level of the Centre, and by regional commissions at the level of the State governments. As a result, backward communities that were kept out of the central list were entitled to reservation at least for those posts and seats under the control of the State government. For example, 25 different groups categorised as backward in Tamil Nadu do not find place in the central list.

This division in power, which gave States autonomy to classify groups as backward, stood in contrast to the lists of Scheduled Castes and Scheduled Tribes. In the case of those lists, right from the Constitutions inception, the power to prepare them vested solely with the Union government. But the Supreme Court has now held that this distinction no longer holds good.

The 102nd Amendment (2018), which forms the basis for the Courts ruling, granted constitutional status to the National Commission for Backward Classes. In addition, it introduced Article 342A, through which it stipulated that the President of India may, after consultation with the State government, notify groups of persons within such a State who are deemed to be socially and educationally backward. Any such Central List, the clause clarified, could only be altered by Parliament. Article 366(26C) was also added, and socially and educationally backward classes was defined as such backward classes as are so deemed under Article 342A for the purposes of this Constitution.

In interpreting these changes, a majority on the Bench concluded that the Constitution had now created a structure for determination of other backward classes identical to that in place for the preparation of the lists of Scheduled Castes and Scheduled Tribes. The verdict, which was controlled predominantly by Justice S. Ravindra Bhats opinion, relied on the plain meaning of Articles 342A and 366(26C). But it overlooked, at least, two essential factors: first, the term Central List which is used in Article 342A has always been understood in contradistinction to the term state list, in that it refers to the categorisation of groups as backward for the purposes of reservation to posts and seats under the Union governments control. Second, when State governments objected to the 102nd Amendment on the ground that their power was being divested, the Union Minister of Social Justice and Empowerment, Thaawarchand Gehlot, assuaged their concerns and pointed out that the proposed changes did no such thing. The right to include or remove in the States Listwill remain as it is and it will not be violated in any manner, he said in Parliament.

It is an acceptable proposition of constitutional interpretation to hold that external aids, such as parliamentary debates, are useful only when the plain meaning of a provision is unclear. However, here, the term Central List in Article 342A (unlike Articles 341 and 342, which concern the preparation of a list of Scheduled Castes and Scheduled Tribes respectively) shows that, if anything, the Constitution recognises the power of State government to frame lists of their own. Any other interpretation of the term Central List would only impinge on the plain meaning of the term. On the other hand, if one were to concede that two interpretations to the amendments were plausible, then one would have thought that the Court would have adopted the interpretation that allows for a more equitable division of power between the central and State governments.

If the majoritys interpretation of the 102nd Amendment is correct, then the changes altogether dispossess States from exercising a time-honoured authority. But yet the amendment, in the Courts belief, did not violate the Constitutions basic structure. This was because, according to the majority, the alterations neither took away the very essence of federalism nor denuded the States of their effective power to legislate. But it is hard to see how divesting states of a power this critical, to classify groups as backward, entitling many communities to protection under Articles 15(4) and 16(4), can be seen as anything but offensive to the essence of federalism. The changes, as interpreted by the Court, are by no means superficial; they directly impede the ability of States to secure a just social order.

The Union government has already filed a petition to review the judgment insofar as it limits the power of State governments. Should the Court refuse the plea, it is imperative that Parliament amends the Constitution and grants to States an express power to determine backwardness. Any other result will offend the delicate balance at the heart of Indian federalism.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

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Interpretations which impede a just social order - The Hindu

Meeting of Southern States Governors in Delta State [PHOTO CREDIT: @seyiamakinde]

The governors also stated that the Federal Government should take urgent and bold steps to restructure the Nigerian federation. This restructuring should lead to the evolution of state police, a review of the revenue allocation formula in favour of the sub-national governments and creation of other institutions, which legitimately advance our commitment to and practice of true federalism.

The amalgamation of the Southern and Northern protectorates in 1914 to form the Nigerian state seems unfinished. Since this union, there has been constant and continuous agitation for a national debate, under different names, to discuss the existence and future of the country. During periods of crisis, these divergent protectorates, although done away with on paper, approach national issues and challenges through the prism of the self-interest of these dichotomous areas.

Last week, governors of 17 Southern states of the country met in Asaba, Delta State and, amongst other things, brought to the forefront of national discourse the need to convene a national dialogue to tackle the multidimensional challenges facing the country. The governors also acknowledged the countrys peculiar security challenges and called on the president to address the nation.

Part of their communique read: Governors observed that the incursion of armed herders, criminals and bandits into the Southern part of the country had presented a severe security challenge such that citizens are not able to live their everyday lives, including pursuing various productive activities, leading to a threat to food supply and general security. Consequently, the meeting resolved to ban open grazing of cattle across Southern Nigeria.

Governors noted that development and population growth has put pressure on available land and increased the prospects of conflict between migrating herders and local populations in the South. Given this scenario, it becomes imperative to enforce the ban on open grazing in the South (including cattle movement to the South by foot); recommended that the Federal Government should support willing states to develop alternative and modern livestock management systems.

This time may not be the first set of governors to ban open grazing in Nigeria. The Northern Governors Forum hosted a virtual forum on February 9, where they first banned open grazing. It was followed by a similar decision by all 36 governors under the banner of Nigeria Governors Forum (NGF). Therefore, the Southern governors are merely re-echoing what all governors under the NGF had earlier agreed on. It is also not an anathema for the Southern governors to deliberate on common issues they face because the Northern governors have been doing the same. This show of courage by Southern governors means we are deepening democracy and our federal system. States are not mere appendages of the centre but rather constituent units of the federation.

The governors have come to the point where they are responding to location specific realities. In this case, they have realised that the Boko Haram insurgency and banditry are the challenges in Northern Nigeria. The Northern governors have been meeting to figure out a uniform response. Conversely, the governors down South must have dimensioned the most significant challenges in their region: the farmers-herders crisis, kidnapping, ethnic agitation, and the many socio-cultural disruptions.

This resolution would suggest a more encompassing ownership that should carry more weight than a few states coming together to fashion a solution to a region-wide problem. That is the reason why the Southern Governors Forum meeting is generating this considerable attention.

The governors also stated that the Federal Government should take urgent and bold steps to restructure the Nigerian federation. This restructuring should lead to the evolution of state police, a review of the revenue allocation formula in favour of the sub-national governments and creation of other institutions, which legitimately advance our commitment to and practice of true federalism. They recommended that in deference to the sensitivities of our various peoples, there is need to review appointments into Federal Government agencies (including security agencies) to reflect the federal character, as Nigerias overall population is heterogeneous and plural.

The resolutions of the Southern governors and the divergent reactions from members of the National Assembly from different sections of the country, reveal the deep-rooted conflict of perception and approach to the countrys problems from different sections of the country. It also brings to manifestation the primary North-South divide of our fault lines.

The meeting of the governors has elicited some reactions. Senate President Ahmed Lawan allegedly accused the governors of retreating to regionalism to address national issues that deserve collective decision. He stated that as elected leaders, the governors should not be at the forefront of making such kinds of calls because they should carry out restructuring in their states first before calling for restructuring at the federal level.

Former Nasarawa State governor, Abdulahi Adamu, who is now a senator representing Nasarawa West, accused the governors of betraying the trust. According to him, While we accept the fact that we have various forms of association and freedom of expression as citizens, they have failed to express their views through the right channel. They are members of the Council of State. There is no better forum at their level to take a joint decision than such forum. The fact that they have taken a decision as a divisive move, does not speak well of their intention. Why cant they come to the appropriate body, which is the National Assembly, to project their ideas? The response of these two leaders substantially reflect the thinking of a section of the northern elite, who are unsettled by the fact that a united southern Nigeria is challenging the status quo.

However, the Southern caucus in the House of Representatives supports the governors position. The group commended the governors on the demand for true federalism and restructuring. Also, their colleagues in the Senate, under the auspices of Southern Senators Forum, hailed the resolutions of the governors, urging them to immediately approach the leadership of the National Assembly for necessary legislative input to give their decisions the required legal backing.

The resolutions of the Southern governors and the divergent reactions from members of the National Assembly from different sections of the country, reveal the deep-rooted conflict of perception and approach to the countrys problems from different sections of the country. It also brings to manifestation the primary North-South divide of our fault lines. The impression created is that while the South is pushing for some radical changes to solve current Nigerian issues, the far North is unsettled and would prefer the status quo to remain.

Surprisingly, the issue of open grazing in the South is still up for discussion. It should be clear to all and sundry by now that open grazing in the South is an open invitation to anarchy, death, and destruction. It is a fact that the last few years have created so much distrust and hatred between Southern farmers and Fulani herders, that open grazing is no longer sustainable.

Another takeaway from the Southern governors resolutions is that we cannot wish away the idea of re-examining the structure and functionality of the federation. Members of the elite class from all regions, religion, political persuasions and professional backgrounds agree that there is something fundamentally wrong with how the country presently functions. Still, the right approach to address the issues is as varied as the embedded socio-political interests.

About the current multidimensional national security challenges, the governors posit that Nigeria is an open sore. According to one travel advisory, you may encounter jihadist groups in the regions of Borno, Kaduna, Bauchi, Yobe, and Kano. The South-East and Niger Delta area are regarded as unsafe for tourists, as is Northern Nigeria, because of the ethnic and religious tensions.

There is a high level of crime throughout Nigeria, including armed robbery, kidnapping for ransom, home invasions, carjacking and violent assault. The South-East has become overwhelmed with the indiscriminate killing of security personnel attributed to Unknown Gunmen and the burning of government offices and public buildings.

the Southern governors meeting suggests that partisan differences should not dim the corporate interest of the South they have publicly admitted that there is something wrong with how Nigeria is working, which has nothing to do with party lines We hope that this is the start of extraordinary changes in Nigeria, structurally and institutionally.

It is significant that both Southern and Northern governors are in agreement that the complex and multidimensional security challenges that the country is facing demand an innovative, customised and proactive response, devoid of regional colouration. Coming from heads of the constituent units of the country makes the search for solution weighty and urgent.

Apart from the security challenges, the economic situation is dire. Millions of Nigerians go to bed hungry each night, while tens of millions of youths are without jobs. Controversies abound: The announcement that government may reduce civil servants salaries amid rising inflation, and the speculations in certain quarters that in the coming months, there would be virtually no monthly allocation for the Federal Government to share. All of these put the tragedy of the Nigerian economy in sharper perspective.

Many stakeholders in Nigeria have concluded that the country presently does not seem to be working. The best solution to save her from total disintegration is to have some form of restructuring. There are fears in some quarters that restructuring has become the new mantra of the Nigerian political class, the same way we had Power Shift and Resource Control in the recent past, both of which never radically changed anything in the country. However, when things are not going well, the worst thing is to do nothing. You cannot be doing the same thing repeatedly and expect a different outcome. So, it becomes imperative to restructure the country in some form to see whether things would turn out for the better.

At this challenging period of our chequered national history, Nigerians of different ethnic nationalities must come together to chart a viable course for the countrys future. That is the essence of a national dialogue the Southern governors are calling. Some have dismissed this because we already have a National Assembly that represents all sections and groups. A national dialogue is fundamentally different from a legislative session. Aside from a different nature of representation, the character, conceptual framework, and modus operandi of a national dialogue are different from that of the operations of a National Assembly. To confuse the two concepts is perhaps missing a fundamental point.

On the president addressing the nation, I believe that the governors acknowledged that these times demand effective leadership. Open communication is critical and will engender trust. Today, there is no denial that there is a deficit of trust between the leaders and the led, and among constituent units. The situation in the country has deteriorated so much that it requires regular address by the president to shore up hope amongst the citizens. A presidential broadcast will help him explain government efforts to tackle our crises and the results of actions taken so far.

Apart from the favourable impact this will have on the citizenry, it will also depict the administration as sensitive to the plight of Nigerians. In this kind of situation, no administration official can effectively represent the president. People hearing directly from the man in whom over 200 million Nigerians entrust their fate may bring relief to millions of Nigerians.

In summary, the Southern governors meeting suggests that partisan differences should not dim the corporate interest of the South. The cover provided by the revival of a Southern coalition has become a safety valve for them to have the balls to ask the president to speak to the nation and they have used this meeting to set the agenda for the president on the issues on which he needs to address the nation. Besides, they have publicly admitted that there is something wrong with how Nigeria is working, which has nothing to do with party lines or the person that occupies the countrys highest office. We hope that this is the start of extraordinary changes in Nigeria, structurally and institutionally. Now please let sincere and constructive conversations begin.

Dakuku Peterside is a policy and leadership expert.

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Southern Nigeria: Of Federalism and Conservative Rumblings, By Dakuku Peterside - Premium Times

The Scottish parliamentary elections this month resulted in a clear majority for pro-independence parties in Holyrood. The SNP government now claims a mandate to press for a second independence referendum. The Westminster government denies the existence of this mandate, but it is hard to see how it can be denied, after an election in which an independence referendum was a central policy of the SNP and Scottish Green Party manifestos. Moreover, Brexit has provided a clear change in circumstances since the last referendum in 2014. There now lies ahead a legal battle whose outcome could determine the future of the Union.

The SNP has already drafted a bill for an independence referendum which voters were able to scrutinise before the elections. Under the current devolution system, Schedule 5 of the 1998 Scotland Act reserves any legislation on the Union of the Kingdoms of Scotland and England to the UK government. So No 10 would deny that Scotland has the legal competence to adopt such legislation. Prior to the 2014 vote, this competence issue was settled by a Section 30 Order, namely the legal transfer of power to Scotland to hold the referendum. But Boris Johnson has declared that he will not make such an order this time.

So the question isdoes Scotland have the power to adopt the legislation and hold the referendum in any case? Nicola Sturgeon has said that, once the pandemic has abated, she will press ahead. The January 2021 SNP roadmap asserted the right to hold a referendum, declaring that if a pro-independence majority were returned to Holyrood, in such circumstances there could be no moral or democratic justification for denying that request. The onus would then be on the UK government to challenge the billa legal challenge that would be brought to the UK Supreme Court. And that is probably where this will end up.

What would be the likely result of such a challenge? The Supreme Court would have to decide whether a Scottish referendum bill related to a reserved matter. The relevant law is Section 29 of the Scotland Act, which requires the Court to look at the purpose of the Scottish legislation in regard (among other things) to its effect in all circumstances. On this basis, one might predict that the Court would find an independence bill outside of the Scottish parliaments competence, because it concerned a reserved matter under Schedule 5, and its purpose and effect was to lead to Scottish independence and therefore end the Union.

There are not many precedents, but in the first of the Gina Miller cases Supreme Court took a narrow approach to devolution, finding the Sewel Convention (which normally requires Westminster to obtain consent from the devolved parliaments before legislating in devolved areas) to be a mere convention and legally unenforceable. In the same case, the Supreme Court took a broad approach to the effect of actionsfinding that the royal prerogative could not be used to trigger Article 50 and commence the Brexit process, because its real effect led to the repeal of primary legislation. Put together, these examples suggest the Supreme Court would not find a referendum Bill within the Scottish parliaments powers.

However, that would not end the matter. It is very likely the Scottish government would also argue that the referendum was simply a consultation with the Scottish people to ask whether it should discuss independence with the UK governmenta sort of opinion poll. Framing the issue in this way, as one of mere consultation rather than intrusion into reserved powers, would be a harder claim to rebut, and the Scottish government might win this argument in court. Yet this could have its drawbacks. If the Court confirmed the referendum could go ahead on a consultative basis, there would be a risk of a boycott, as in Northern Ireland in 1973 (from Catholics in that case), or Catalonia in 2017 (from opponents of secession), leading to it being simply ignored by the UK government and Unionists. The matter would still not be settled.

There has been a fair amount of acknowledgement in Scotland that there needs to be a watertight legal and constitutional case for independence. Scottish independence also needs the approval of the international community. Apart from anything else, Scotland would not be readmitted into the EU if its independence were neither constitutionally solid nor internationally recognised (as it would have been in 2014). One of the reasons why Ireland was able to negotiate its independence in 1921 was the very strong international support it had. Of course, there had also been a campaign of violence, exhausting both Britain and Ireland. Fortunately, there looks to be little chance of a violent struggle for independence in Scotland, although these are certainly bumpy constitutional times.

Would this then produce an interminable stalemate, in which there existed a desire for a referendum in Scotland, and resolute opposition to that in London? Certainly, the present UK government does not look likely to support greater Scottish self-determination. Johnson, despite last-minute panic over the Union, is clearly hoping to kick the issue of independence into the long grass. In the immediate aftermath of the Holyrood results, he suggested a meeting of the four nations to discuss Covid, illustrating the now is not the right time because of the pandemic approach.

This is not going to satisfy anyone when it comes to constitutional futures. It is possible Johnson might announce some sort of Royal Commission on the future of devolution, or the constitution more generally. This would take years to report, by which time he would hope the issue of Scottish nationalism had gone away. The UK government might in any case pass legislation to make it absolutely clear that independence referendums of any sort, or secession, are illegalit has a big enough majority in Westminster to manage this.

The reflections above are somewhat pessimistic. But the UK government would do well to weigh the following four points when considering the future of the Union.

First, there is no overwhelming constitutional case for the continued existence of the UK Union. There is no provision in UK constitutional law prohibiting the secession of one of its nations. In contrast, Article 2 of the Spanish Constitution, which states that The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards, made the case for Catalonian independence hard, if not legally impossible, without a constitutional amendment. Since the 1869 US Supreme Court case of Texas v White, secession has been held unconstitutional in the US. There is no such provision in the British constitution. Scotland was not conquered by England, but was an independent sovereign nation that voluntarily chose the union, achieved by an international treaty. The United Kingdom of Great Britain is based on consent. If that Union is to continue, there needs to be a stronger case for the affective dimension of membership, a case that has not yet been made. Coercion will not make the case.

Second, there is no overwhelming case for illimitable and undivided UK parliamentary sovereignty. Such sovereignty is usually presented as an obstacle to greater self-determination for devolved nations, and as ruling out federalism, because it prevents the written constitution with entrenched provisions and divided sovereignty that federalism would require. The argument is that parliament could always overturn such legislation because it is sovereign. Indeed, Brexit seems to have engendered an ever more aggressive unionism, resting on assumed Westminster parliamentary sovereignty.

But strong historical precedents for illimitable, undivided parliamentary sovereignty are lacking. The jurist AV Dicey, writing in the 19th century, argued it was a matter of logic. But that cannot be right, because many systems (such as the US) exist where sovereignty is divided under federalism. This means the case must be contingent, based on a states specific history. Diceys case also looks suspiciously tautologicalparliament is sovereign because it is said to be sovereign.

There is no provision in UK constitutional law prohibiting the secession of one of its nations

Besides, in Scotland, there is much less support for the doctrine. In the 1953 Scottish case of MacCormick v Lord Advocate, Lord Cooper stated: The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law Continued insistence on parliamentary sovereignty as a fundamental principle of the British constitution distorts the situation today.

To be sure, the Scotland Act, as currently drafted, reserves certain matters, including the UK Union, to London. That presents an obstacle to an independence referendum if Westminster does not agree to one. But this could be changed. Such change is unlikely with the current government, but that is different from saying the allocation of powers could never be altered because of parliamentary sovereignty. Federalism, or other major constitutional changes, would be possible.

Third, it is likely that power underlies claims for parliamentary sovereignty, and rejections of S30 orders, today. Both sovereignty and power are concerned with the ability to control others and to have the ultimate final say. But whereas political power itself is often exerted by coercion, to claim sovereignty is to assert a legitimacy and authority that power by itself lacks. Power must be validated by something else. That normative grounding is lacking in the UK today. Indeed, a system which divided power more fairly, not allowing its concentration in the UK government, but to use Madisonian terminology, split the atom of sovereignty, seems ethically superior.

Fourth, other constitutional solutions are possiblethe choice is not just independence or concentrated central government. Here are two possibilities.

The first is the Dominion concept that operated in the British Commonwealth. By the late 19th century, Canada, Australia and New Zealand all had considerable autonomy and systems of responsible self-government. The Balfour declaration of 1926 (not to be confused with that of 1917) asserted that Equality of status, so far as Britain and the Dominions are concerned, is thus the root principle governing our Inter-Imperial Relations. Dominions had control over all domestic matters and could conclude their own treaties. Five years later, the 1931 statute of Westminster provided legal autonomy and equality for the Dominions. Of course, the term Dominion need not be used today, given its past associations with the British Empireanother term, such as Devo Max or Free State (bearing in mind that the Irish Free State had Dominion status at first) might be preferable. Another possible alternative is the Federacy, an arrangement that has much in common with the asymmetrical devolution that exists in the UK, in that it concerns the relationship between a smaller territorial unit and a larger state, in which the smaller unit shares the benefits of association with the larger polity. But, unlike UK devolution, Federacies have internal autonomy and very often full self-government.

Both examples offer two pertinent advantages. First, they leave the rest of British constitution unchanged. In either a Dominion or a Federacy, autonomous institutions of a sub-state territory, such as Scotland, may be made permanent, but without the necessity of dividing the rest of the state and therefore federalising the rest of the country. They require no alteration to the constitution as it applies in England, which might be attractive for those who want no English devolution. Second, they may, but do not have to, lead to independence, support for which presently stands at just over 50 per cent.

The Dominion solution was effective because the UK government and Westminster parliament acted in good faith. Is that still possible? Such a situation depends on mutual trust and the observance of conventionsqualities that may no longer be in great supply post-Brexit. Peter Hennessey captured this when he wrote that the good chaps (and surely this must include chapesses?) are no longer in charge of government. With no equivalent of the 1926 Balfour declaration, not to mention the statute of Westminster, in the offing for Scotland, a lack of trust in the good faith of Westminster itself and Whitehall may mean independence appears the only possibility.

But what is the alternative? A UK Union kept together by coercion, against the will of a Scotland whose claim to self-determination has been successively asserted at the ballot? An unhappy, deadlocked United Kingdom, where every further move seems less than optimal? A huis clos? It is time Westminster started taking Scottish claims for independence seriously, and stopped hiding behind flimsy and inadequate concepts. It is time for some intellectual honesty, whereby abusive exercises of power are not justified on the basis of an asserted insurmountable trump card of unlimited sovereignty. The British constitution does not provide an unassailable counter to either Scottish independence, federalism, or Home Rule, and it is dishonest to claim it does.

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Does the SNP have the law on its side? - Prospect Magazine

THOSE of us who heaved a sigh of relief following the solid rejection of independence in the 2014 referendum may have hoped for a few years of respite from the separatists.

But it wasnt to be. Almost immediately, the SNP and their Green collaborators began a clamour for Indyref2. Meanwhile, behind the scenes, a group of senior politicians from the main pro-union parties, together with former first ministers and officials from Scotland, Wales and Northern Ireland, set up the Constitution Reform Group (CRG), to examine ways of refashioning the constitution to make it fit for purpose in modern Britain.

Alarmed that the debate had been reduced to two options, the break-up of the United Kingdom or the status quo, the steering committee, under the chairmanship of Robert Salisbury, former Leader of the House of Lords, undertook six years of intensive work to provide a new paradigm for a sustainable future.

Convinced that the breakup of the UK would be a tragic and fundamental strategic blunder, the CRG invited leading constitutional lawyers and experts to draw up draft legislation for a new constitutional settlement. In the words of Robert Salisbury, breaking up the Union would subject its citizens to an unknowable number of years of uncertainty and disruption, destabilising their lives and the governance of their nations.

READ MORE:Struan Stevenson: Sturgeon should say thanks to Johnson

In his letter to the leaders of all of the UKs political parties, Robert Salisbury described the Union as astonishingly successful, culturally and economically, which has stood as a powerful defence of its peoples values and liberties in a dangerous world.

The CRGs warnings are timely, although their solution may be less so. With the 100th anniversary of the partition of Ireland on May 3 this year, an event which left us with the United Kingdom we know today, and seething anger in Northern Ireland where many unionists believe they were betrayed by Brexit, the union flag is dangling on a shoogly peg.

The election, once again, of a pro-independence majority of MSPs in the Scottish Parliament has increased the tension. The CRG believe that these stresses and strains can only be resolved by introducing new structures under a new federal system of governance.

The CRGs steering committee contains some notable members including Jack McConnell (former first minister of Scotland), Menzies Campbell (former leader of the Liberal Democrats), David Trimble (former first minister of Northern Ireland), Carwyn Jones (former first minister of Wales), Gisela Stuart (former Labour MP and minister) and other leading political, legal, constitutional and fiscal experts.

Their radical plans include options to replace the House of Commons with a United Kingdom Parliament, to create in addition a directly elected English parliament, to abolish the House of Lords or replace it with a much slimmed down elected upper house and to create a UK Central Bank.

David Trimble

The CRG say the UK Parliament will continue to be elected with representatives from across the United Kingdom. These MPs will have exclusive competence over central areas including succession to the crown, elections to the UK Parliament, foreign affairs, international treaties and conventions, EU affairs, defence, NATO, human rights, the function of the Central Bank, monetary policy and financial stability, government borrowing and currency, certain taxes, social security, the Supreme Court, national security, immigration and the civil service. However, the powers of the devolved governments will be strengthened under the revised system. Therein lies the problem.

The proposals would have to win the approval from referenda held in each of the four constituent parts of the Union. Any single part could exercise a veto, but the agreement of all four parts would signal an acceptance of the pooling of sovereignty for specified purposes, with universal citizenship guaranteeing certain social and economic rights.

The approval of England, Scotland, Wales and Northern Ireland for a federal system of governance, in a nationwide referendum, would almost certainly be doomed to failure. Federalism may work in a country like Germany, where everyone acknowledges themselves as German. But it can never be used as a means of accommodating nationalism within a unitary state. That is an irreconcilable dichotomy. Scotland would almost certainly veto the proposition in any referendum, as might Wales and even Northern Ireland.

One of the chief political theorists during the French Revolution was a man called Emmanuel-Joseph Sieys, a clergyman. Abb Sieys published a pamphlet in 1789 entitled Qu'est-ce que le Tiers-tat? (What is the Third Estate?), which became the manifesto for the revolution, the opening line of which stated: What is the Third Estate? Everything. What has it been hitherto in the political order? Nothing. What does it desire to be? Something.

There is an eerie confluence between Abb Sieys pamphlet and the CRGs Act of Union Bill, which Robert Salisbury describes, in his letter to the UK political leaders, as A Third Way for the future of the United Kingdom.

READ MORE: Sturgeon swimming against the tide

The CRG should perhaps examine what became of Abb Sieys. As the French Revolution began to turn towards Empire he spent his time writing complicated constitutional schemes and presenting them to Napoleon, who listened politely before chucking them in the bin as soon as Sieys left the room.

I fear the same fate awaits the Act of Union Bill 2021. Federalism has rarely been taken seriously in Scotland, where it is regarded as something akin to Devo Max, itself now a discredited proposition, hated by unionists as a way of salami-slicing power away from Westminster and hated by nationalists as never going far enough.

The CRG believe that a federalist UK is a clever alternative to outright separation but it wont stop the nationalists from trying to break up Britain.

Repeated attempts to stymie the SNP by devolving more and more powers to Holyrood have always failed; in fact, they have had the opposite effect. The more powers we devolve to Scotland, the more the demands for independence have increased.

Winston Churchill said: An appeaser is one who feeds a crocodile hoping it will eat him last. Robert Salisbury and the CRG must understand that their attempts to feed the crocodile by appeasing the nationalists will take us down the slippery slope to independence.

Our columns are a platform for writers to express their opinions. They do not necessarily represent the views of The Herald.

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Struan Stevenson: There's a third way between independence and status quo but it's already doomed - HeraldScotland