THE FEATURE OF NIGERIAN FEDERALISM: AN APPRAISAL



Introduction
Federalism and its centripetal variant, presidentialism, observance of fundamental human rights, and non-adoption of any religion as state religion are some of the fundamental tenets in the Nigerian system which was, not too long ago, taken as settled, even when deviations were experienced. Insightfully, these fundamental elements have become forces in the contested federalist tension of the country in the last 1990s[1].

For a federation to be able to resist future, the leaders and their followers, must feel Federal, they must be moved to think of themselves as one people, with one common self-interest - capable where necessary of over-riding most other considerations of small group interest. It is not enough that the units of a potential federation have the same ideal of “the good” but that “the good” for any one must be consciously subordinate to or compatible with “the good” ideological commitment not to federation only as a means - such as for example; a means to gain independence or financial stability, to utilize secondary or tertiary factors - but to federation as an end, as good for its own sake, for the sake of answering the summons of history[2].
It is the general agreement of the people of Nigeria (as history has shown, therefore) to remain under a federal structural system, being the only basis upon which Nigeria can remain united, despite its diversity and the peculiar conditions under which the different tribal communities live in the country[3]. This is because federalism as a system of government emanates from the desire of a people to form a union without necessarily losing their various identities. It is an attempt to reflect the various, diverse, social, political, cultural and economic interests within the framework of a broader functional unity[4].

CONCEPT OF FEDERALISM
            In line with the above ideology, the concept federalism has received a lot of definitions by scholars, lawyers, judges, political scientists, analysts, etc. All of whom tried so much as possible in their own views and perceptions to say of what federalism means. Most of these definitions are descriptive in nature.
            The term federalism is derived from the Latin word “fidere” meaning to “trust” or to “entrust” some agreed values to a central entity of a given country[5].  This gave rise to the thinking that federalism is a “process of formation of a particular kind of political union, with at least two autonomous but interdependent levels of governments”[6], that form of government where the component units of the political organization participate in a comparative manner[7]. Essentially, federalism is an arrangement between governments, a constitutional devise by which powers within a country are shared among two (or more) tiers of government rather than among geographical entities comprising different peoples[8].
Under a federal system of government, powers of the government within a country are shared between a national, country – wide government and a number of regionalized governments in such a way that each exists as a government separately and independently from the others, operating directly on persons, and property within its own and its own apparatus for the conduct of its affairs, and with an authority in some matters exclusive of all the others[9].
It could be observed from the definition proffered, the subject of federalism has been described in many different ways, in the first instance, “kinds of political union” was used, while in the second instance “component units” was used and in the third instance and by the definition given by Professor Nwabueze, the word tiers of government was used in describing the subject of federalism.
Wheare on the other hand when using the words “general and regional governments” in his description of the subject of federalism defined federalism as “the method of dividing powers so that the general and regional government are each, within a sphere, coordinate and independent”.[10] To Wheare, the division of authority should be such that “whoever has the residue, neither general or the regional government is subordinate to the other[11]. What is necessary for the federal principle (in this sense) is not merely that the general government, like regional governments, should operate directly upon the people, but further, that each government should be limited to its own sphere and, within that sphere, should be independent of the other[12].

STATES UNDER UNITARY AND FEDERAL SYSTEM OF GOVERNMENT
The term state today is a common universal phenomenon, yet there is no agreement on what actually constitutes it, nor are the ideas underlying it widely understood.[13] State has been defined by the United States Supreme Court in Texas Vs White[14], per Chief Justice Chase as:
“a people or Community of individuals, united more or less closely in political relations, inhabiting temporarily or permanently the same country, after it denotes only the country or territorial region, inhabited by such community, not infrequently it is applied to the government under which the people live, at other times it represents the combined idea of people, territory and government.”[15]
The state is and cannot be anything other than, an abstraction, it cannot be seen, touched, tested, smelled or heard, and from the fact that a multitude of individuals live together in one nation (territory) under a common government,[16] the state is a legal entity with a legal personality.[17]
In trying to distinguish between a state and nation in Africa, Professor Nwabueze, viewed that the national question in Africa and in many other new states of the third world refers to the phenomenon of a state which is not a nation, but only an entity superimposed upon a collection of different nations by the fiat of colonialism. In the usual sequence of things, a nation predates a state; it exists before a state is created out of it, through a process. In Africa, the process was tragically reversed, the states came into existence before the nation; this is because the nation is still in the process of being created.[18]         
The terms unitarism, federalism, and confederalism, refer to doctrines which underlie the contrasting structures of a state as well as the associated political processes and attitudes. They designate not merely the contrasting patterns of relationship among state’s levels of government. Rather they constituted doctrinal expressions of the number of levels of governance into which a state is subdivided, the pattern of power relations among them, as well as the accompanying or relevant political process and orientations.[19]  

FEDERAL STATES
A federation is a union comprised of a number of partially self-governing states or regions united by a central ("federal") government. In a federation, the self-governing status of the component states are typically constitutionally entrenched and may not be altered by a unilateral decision of the central government. The form of government or constitutional structure found in a federation is known as federalism. It can be considered the opposite of another system, the unitary state. Federations may be multi-ethnic, or cover a large area of territory, although neither is necessarily the case. Federations are often founded on an original agreement between a numbers of sovereign states (also not necessarily in all cases). Federations often employ the paradox of being a union of states, while still being states (or having aspects of statehood) in themselves. For example, James Madison wrote in Federalist Paper No. 39 that the United States Constitution "is in strictness neither a national nor a federal constitution; but a composition of both. In its foundation, it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal and partly national...."[20]
  This paradox stems from the fact that states in a federation maintain all sovereignty that they do not yield to the federation by their own consent. . The sharing of sovereignty between a federation and its constituent states sometimes makes it difficult to differentiate between a sovereign state and a non-sovereign state.[21] In a federation the component states are regarded as in some sense sovereign, in so far as certain powers are reserved to them that may not be exercised by the central government. However a federation is more than a mere loose alliance of independent states. The component states of a federation usually possess no powers in relation to foreign policy and so enjoy no independent status under international law.
Federations usually exhibit a single, two-tier (or more) structure of government across an entire jurisdiction. Exceptions may occur in which certain parts of the federation are under more direct control of the federal government, as is the case with the autonomous 'territories' of Canada and Australia, with Union Territories in India and with the United States District of Columbia. However it is not characteristic in a federation for small peripheral regions to be self-governing, while a central, much larger 'metropolis' region remains under the direct control of the central government. A federation often emerges (but not in all cases) from an initial agreement between a number of separate states to come together in order to solve mutual problems, or provide for mutual defence. This was the case with the United States, Switzerland, Canada and Australia.[22]

UNITARY STATES
A unitary state is sometimes one with only a single,[23] centralized, national tier of government. However unitary states often also include one or more self-governing regions. The difference between a federation and this kind of unitary state is that in a unitary state the autonomous status of self-governing regions exists at the sufferance of the central government, and may be unilaterally revoked. While it is common for a federation to be brought into being by agreement between numbers of formally independent states, in a unitary state self-governing regions are often created through a process of devolution, where a formerly centralized state agrees to grant autonomy to a region that was previously entirely subordinate. Thus federations are often established voluntarily from 'below' whereas devolution grants self-government from 'above'.[24] It is often part of the philosophy of a unitary state that, regardless of the actual status of any of its parts, its entire territory constitutes a single sovereign entity or nation-state, and that by virtue of this the central government exercises sovereignty over the whole territory as of right. In a federation, on the other hand, sovereignty is often regarded as residing notionally in the component states, or as being shared between these states and the central government.
A state with a unitary constitution may decide for a number of reasons to dissolve powers to regional assemblies. One common motive is the desire to decentralize political authority so that it’s more responsive to needs of local communities.[25] The dissolution of power may either be in relation to executive or legislative power (another form of subsidiary legislation).[26] In principle there is a clear deference between a federal constitution, and a constitution which grants, or allows the grant of, substantial legislative powers to the regions or states.[27]
Although even with the above contentions, the distinction between a federation and a unitary state is often quite ambiguous. A unitary state may closely resemble a federation in structure and, while a central government may possess the theoretical right to revoke the autonomy of a self-governing region, it may be politically difficult for it to do so in practice. The self-governing regions of some unitary states also often enjoy greater autonomy than those of some federations. For these reasons, it is sometimes argued that some modern unitary states are de facto federations if not federal in theory. But under a federal constitution one thing remain certain, there is a distribution of legal powers between the National and state (or regional, or provincial) authorities which can only be altered by constitutional amendment. Moreover, normally both the center and the state have the right to participate in the amendment process, so neither can alter the distribution of powers unliterary.[28]
Based on the above comparism, one could easily examine the essentials of the two system of government for better understanding.
A unitary form of government is one in which all legislative and executive authority is vested in a single legislature and a single executive. It has also been described as one in which "the habitual exercise of supreme legislative authority is carried out by one central power".[29] The single, central law making authority may if it so desires, delegate powers to subsidiary, subordinate bodies. If this is done it is done from the plenitude of its own powers.
The essence of a federal form of government includes the fact that it is a system for decision making in a federalist entity, composed of territorially defined groups, each of which enjoys relatively high autonomy and which together, participate in an ordered and permanent way in the formation of the central entity's will.[30]

Reason for the Adaptation of Federalism in Nigeria
The main essence of the principle of federalism is to maintain unity in spite of the cleavages among the diverse nation that have agreed to fuse together[31]. It was based on this notion that the founding-fathers of the place now known as Nigeria agreed on a federal system as a means of arrangement of its governmental powers.31a
Federalism as a normative basis for a nation’s socio-political structure would seem to be primarily a functional and pragmatic accommodation of the opposing principles of unity and separatism, integration and regional autonomy. Such accommodation is obviously based on the recognition of the need of national unity and a centralized system of governance, while acknowledging the differences, diversities and unique interests of the various federating communities[32].
The primary focus in federalism would therefore, be the creation and maintenance of some equilibrium between such opposing principles and consequent objectives, thus emphasizing the role of conflicts management in this process of governance[33].
One may now understand why of all the systems of government, Nigeria chose the federal system. The most important of the reasons why federalism was chosen (if one may emphasize) is because of the size of the country[34]. Nigeria is over 35,000 square miles[35]. It is said to be the size of Belgium, France and the United Kingdom put together, and bigger than France and Germany[36]. A government of a nation of this size needs to be decentralized. The other most important reason also is because of the country’s diverse ethnic, nationalistic, or linguistic groups[37].
In the Nigerian context, Federalism is a concept that has been defined, redefined; in fact it is an incontrovertible fact that since the concept entered the political domain, there have been many misconceptions about its true essence. This is as a result of many factors, which include:
1.      The key initiators and proponents of the concept did not seem to have adopted a bottom-up approach.
2.      Colonization and its experiences, together with the post-colonial complexities that have given rise to a series of crises, culminating as it were to military dictatorship and the consequential erosion of some cherished political values and principles[38].
This and many more factors that will be discussed affected the structure of the Nigerian Federalism to an extent some scholars described Nigerian federalism as a unitary federalism, but to the contrary some other scholars viewed that there is particular form a federation could or should take if the main principle of federal system has been abide by. In other words there is no specific model of federalism, each federation designs a system that would be suitable to it, having considered it historical background, and what led to it formation as a federal state.
Nigeria operates a federal, presidential system of government. The federating units consist of the federal, states and the local governments.[39]
The present structure of the Nigerian federation has been described as “unitary-federation,”[40] because of the nature of powers being highly concentrated in the centre and this for two reasons, colonialism and the military involvement in the governance of the place now known as and called Nigeria. The military government in 1976 made provision for another tier of government,[41] making Nigeria a federal state with three levels (the Federal government, 36 State governments, and currently 774 Local government arrears). At first, Nigeria was a federation with three regions[42], then four regions and the Eastern Cameroon,[43]  then twelve states[44] then 19 states, 24 then 36 states with the Federal Capital, Abuja[45].

THE FEATURE OF NIGERIAN FEDERALISM
Politically (as stated above) Nigeria is the product of the British experiment in political cloning, which product has been variously described as mere geographical expression and as the mistake of 1914.[46] By 1954 the same British Government realized that a unitary political system will not be suitable for Nigeria, [47] consequently, in 1954 the British converted the country into a federation with three regions.[48]
The feature of Nigerian federalism could only be better understood by a reproduction of the definition of the concept federalism, Professor Nwabueze in his definition, defined federalism as “an arrangement whereby governmental powers within a country are shared between a national, country wide government and a number of regional governments all equal in status as governments, in such a way that each of the national and regional governments exists separately and independently from the other(s) and operates directly on persons and property within the territorial area jurisdiction of its own, with a will of its own and its own apparatus for the conduct of its affairs, and within an authority in some matters exclusive of all the others. Federalism is thus essentially an arrangement between governments, a constitutional device by which political powers within the a country are divided among various units of governments, rather than among geographical entities comprising deferent peoples.”[49]   
From the definition above five issues could be identified as the main essential principles of federalism this includes:
1.                  There must be a system where powers are shared between the levels of government
2.                  There must also be in existence more than one level or unit of government among which a constitutional device is used to divide such powers.
3.                  The said units or levels of government are equal to one another in status as government.
4.                  This made each of the units or levels of government independent of one another, and this enables it to operate to person and properties within its own jurisdiction.
5.                  Although the units or levels of government may have instances where it exercises equal rights in matters but must also have exclusive rights in other matters.
The units comprising the federation must be multiplicity, preferably more than two and three, because where you have more units (like the United States of America, which has fifty states) there is the tendency of the awareness of each state of its relation insignificance vis- avis  the whole, and the futility of a policy of separatism.
But where you have a federation with just three units, there is the tendency for interplay of interests upon which a lasting equilibrium could be based.[50]
Closely to the above principles Professor Adediran identified three more principles that characterize the sharing or distribution of powers within a federation:
1.              The federal government must have power over those matters that are of general interest to the nation as a whole.
2.              The state governments must have power over those matters that are peculiar to their locality.
3.              In the exercise of their powers, both governments should coordinate and cooperate rather than one being subordinate to the other. [51]
From the above definition and principles of federalism, it could be much easier to identify the feature of the Nigerian federalism under the 1999 Constitution (F.R.N.), although there is no unique model of federalism, every state chooses amongst possible institutional feature, which corresponds with its nature and this can therefore vary between one federal system and another.[52] It could be a bit easier, when considering the models of federalism to place Nigeria as having a balanced federalism. Basically there are three models of what can be called constitutional federalism; these are the strong federalism, weak federalism, and balanced federalism. While the strong and the weak federations have vertical relationships between the constitutive territorial units and the centre, the balanced federation has both vertical and horizontal dimensions.[53]
These features would be discussed under three sub headings that is, written constitution in Nigeria, the nature of the Nigeria constitution, and the separation of powers, vertically and horizontally under the Nigerian constitution.    

FEDERALISM AND THE NIGERIAN WRITTEN CONSTITUTION
In the last fifty- five years, at least twelve different constitutions and pseudo- constitutions have been made for Nigeria by the British colonialists and post - colonial civilian and military rulers.[54]  Must of these constitutions are written, and from 1954 to date all Nigerian constitutions are federal constitutions except the 1963 Constitution.
Professor Wheare one of the architects of the Nigerian federalism, in defining federalism says it is a system of power division between the levels of government,[55] from this definition essentials of federalism is said to include:
1.      Written Constitutions which must show the division of powers.   
2.      The division of powers among the levels of government.
3.      Coordinate supremacy of the two (or three) levels of government with regards to their respective functions.
 According to Ramphal, the broad patterns of classical federalism include:
1.                  The presence of the supreme written constitution.
2.                  A pre – determined distribution of authority between the federal and state government.
3.                  An amending process, which allows for the revision of the federal compact but neither through the agency of the federal nor the state government.
4.                  A supreme court that exercise powers of judicial review.
5.                  Some measure of financial self – sufficiency.[56]
From the view of the two erudite scholars a written constitution is certainly an essential feature of every federation. Nigeria has with its adoption of federalism had a written constitution.
A constitution is a document having a special legal sanctity which sets out the framework and the principal functions of the organs of the government within the state, and declares the principles by which those organs must operate.[57] It is also a social or political pact or contract of fundamental impotence, which determines and prescribes how a community should be organized, politically, and administered to achieve the maximum welfare and happiness of its citizen.[58] It is a political and legal document that spells out the form and scope of the powers of state. in practical terms, a constitution, (1) defines the territory and population to which it applies; (2) prescribes the sovereign power in the state; (3) defines the mode, powers and functions of government; (4) establishes organs of the government; (5) defines the nature, powers and functions of government as well as the relationships among them; (6) determines the obligations and rights of citizens, and (7) determines the relationships among the state, government, civil society, and citizens.[59]  
Nigeria as against countries like the United Kingdom has a written constitution, just like the United State of America, Canada, and India.
In the modern world, the making of a constitution normally flows some fundamental political event (as it was is the case of Nigeria if one considers the constitutional development of the country) – the conferment of independent on a colony; a successful revolution; the creation a new state by the union of states which were formerly independent of each other; [60]and all of these is contained a form of a written document called the constitution. 
According to Nwabueze, the expectation is that under federalism separate national or regional government should have separate constitutions each. This was why the older federation such as the United State of America, Australia, and Nigeria in the first republic, states (or regions) has their own separate constitutions.[61] The separateness and independence of each government in a federation also implies, or should imply, that the terms of the arrangement, especially as concern the division of powers between them, must be embodied in a written constitution that is supreme over both the national and regional governments, and overrides any act done by either of them in violation of those terms, a constitution that binds and obliges them to keep within the terms of the arrangement, and which operate to invalidate any transgression of the limits imposed in the powers of each government.[62]
The second republic experienced another form of constitutionalism, another form of federalism. What it used to be is a federal system where all regions have separate autonomous governments, which implies a separate, autonomous constitution for each regional government involved. But by the second republic a single constitution was made for all the government, both federal and state, a situation Nwabueze described as a manifest contradiction (of the principle of federalism), and made reference to the definition of federalism by the Judicial Committee of the Privy Council in Attorney – General Vs Colonial Sugar Refining Co. Ltd.[63] “ the natural and literal interpretation of the world (federalism) confines its application to cases in which these States, while agreeing to a measure of delegation, yet in the main continue to preserve their original constitutions.”[64] 
The question that follows is how did this contradiction befall the Nigerian federal system? Having had a separate constitution for the federal and for each of the regional governments in a separate schedule annexed to the independence Order – in – Council.[65] Though separate and independent of one another, the several constitutions derived from a common authority, namely the Independence Order made by British Government. A common source of authority which is not that of the federal government is not inconsistent with the federal principle.[66]
But the independence, of the state governments would be violated if their constitutions were established for them by the federal government. That was the issue that confronted the making of the Republican Constitution in 1963. [67] In short the Nigerian problem started when the Federal Parliament enacted the Constitution of the federation Act 1963, which repealed and replaced the Nigeria Independence Act and the Order – in – Council in so far as they applied to the federation, and delegated a like authority to the regional legislatures, whereupon each region enacted its own constitutional Law repealing and replacing the Independence Act and the Order – in – Council in their application to it.[68] And when the Mid- western Region was created in 1964, its Constitution was enacted by the Federal Parliament in pursuance of power conferred on it in the Constitution of the federation, but that was after it had been approved by the people through the referendum conducted in the region and by the prescribed number of regions.[69]
The 1979 and the 1999 Constitutions reverted to the 1951 – 1954 form of organizing the federal and state government under one, single constitutional instrument. These Constitutions, Professor Nwabeuze strongly viewed that they have unitary character, and did not owe its origin as an act of the people, as a constitution is supposed to be.[70] But if one is put into consideration the opinion of Professor Elaigwu, a good justification may be found for having a single constitution for the Nigerian federal system, he said that “in practice, no country has been able to embody all these federal principles, in its traditional definition. In fact, it is generally agreed that federal system vary in content from one country to another. The particular political colouring that a country federal government takes is often reflecting of its historical experience, its political cultural, social and economic environment, and the disposition of its people at any particular point in time.”[71] Indeed going back to adopt the format of the 1951 to 1954 kind of constitution for Nigeria is not a miss do, but rather a reflect on to Nigerian political, constitutional, and socio-economic experience of the country.

NIGERIAN FEDERALISM: DIVISION AND SEPARATION OF POWERS 
Federalism and Separation of powers both imply constitutional limits on state power, either through the function or territorial division of governmental roles and office.[72] The discussion of contemporary federalism generally starts with K.C. Wheare who views federal government as a constitutional arrangement which divided law- making powers and functions between two levels of government. According to him, this constitutional form is brought about by circumstances where people are prepared to give up only certain other limited powers, both sets of powers to be exercised by coordinate authorities.[73] According to him, therefore, the federal principle includes the following:
1.                  the division of powers among levels of government;
2.                  written constitution showing this division; and
3.                  Coordinate supremacy of the two levels of government with regards to their respective functions.[74]
The most fascinating aspect of these principles identified by Professor Wheare is that it all has to do with division of governmental functions and powers, between separate levels and organs of the government. To him these division of powers among the levels and organs of the government forms the basis of the federal system of government.[75]
The principle of separation of powers under the Nigeria Constitution could be deduced as vertical division and horizontal separation of powers. In which effect the Nigerian Constitution, (as a federal Constitution) provided under Section 4, dividing the legislative powers of Nigeria between the federal government and the state government. It vested legislative power of the federation in the National Assembly (comprising of the Senate and the House of Representatives) and the States legislative powers in the States Houses of Assembly. Section 5 also divided the executive powers of Nigeria between the Federal and States executives. It vested the federal executive powers including the execution and maintenance of Federal laws in the president and Federal functionaries. It also vested State exertive powers including the execution and maintenance of the laws of the State in the Governor of the State and the State functionaries. Similarly, Section 6 divided the judicial powers of the Federation and the States. It vested the judicial powers of the Federation in the courts established therein for the federation. It also vested the judicial powers of a state in the courts established therein for the state.[76]
The Nigerian courts who were the protectors of the Nigerian Constitution[77] have in many cases checked both the Executive and the Legislature from exceeding their Constitutional powers, an example is the case Attorney General Ondo State Vs Attorney General of the Federation and 35 others,[78] the Supreme Court declared as unconstitutional, null and void, Section 26 (3) of the Corrupt Practices and other Related Offences Act, 2000, which prescribes that the prosecution of an offence be concluded and judgment delivered within 90 working days of commencement of the persecution. The Supreme Court held that the section infringed on the principles of separation of powers as it is a direct interference on the powers of the Judiciary by the National Assembly as to when the Court should conclude particular matters.[79]
Another example is the case of Attorney General of Lagos State Vs Attorney General of the Federation,[80] the same Supreme Court observed that;
“Nigeria is a federation and operates a federal constitution. An important attribute of a federal constitution is that there is a division of power between the centre or the Federal Government, and the States. The powers and roles given to each of the governments are defined and set out in the Constitution. None of the government is allowed to step out of its assigned field. If it does, whether it does outside its assigned field will be unconstitutional and will be declared null and void by the court.[81]
 So also in the case of Attorney General of Bendel State Vs Attorney General of the Federation, per Uwais, JSC, the Supreme Court held that;
“As a general principle of constitutional law, it is implicit in the character of a federal constitution that neither the Federation nor the States could make laws imposing extra burden on each other. This is because the legislative power in a true federation usually involves the division and limitation of governmental power. Therefore the observations made by this court in Attorney General of Ogun State and others Vs Attorney General of the Federation, conform with the general principle of federalism which recognizes the autonomy of States”[82]
The legislative powers of both Federal and the States (just like that of the Judiciary) are drawn up from the Constitution, whereby the federal authority has exclusive powers over enumerated items in the so called exclusive legislative lists. While both the Federal and the States have concurrent powers over some other enumerated items called the concurrent list. Under the Nigerian Constitution, the distribution of legislative powers between the Federal and State Governments is embodied in the Second Scheduled to the 1999 constitution – Parts I and II.[83] 
In respect of matters on the Exclusive Legislative List, only the National Assembly may legislate upon it. Both the Federal and State can legislate on the items under the Concurrent Legislative List. But in situation where in exercising this power the federal and the State Law conflicts, that of the National Assembly prevails over that of the State, and the Law of the State is to the extent of its inconsistency void.[84]
Any country that has divergent people and cultures should not only operate a federal system with separation of powers but must also provide for an independent judiciary. This is better done by an express provision in the Constitution that all judicial powers have been vested in the courts. This, as already provided for in Section 6 of the 1999 Constitution Federal Republic of Nigeria.[85]
The Nigerian Judiciary is an independent judiciary, the Supreme Court in the Case of Military Governor of Lagos State Vs Ojukwu,[86] per Obaseki JSC observed that;
“The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame – work of recognized rules and principles which restrict discretionary power… (T)he rule of law means that disputes as to the legality of acts of government are to be decided by judges who are independent of the executive”.[87]    
The Judiciary is the constitutionally the third arm of government,  and it is more concerned with the maintenance of peace, order and good government of the country  as the other two arms of government – the Executive and the Legislature.[88]
The constitution appointed the judiciary as its guardian and entrusted to it the judicial powers of the Federation and the State (by the provision of Section 6) which shall extend to all the inherent powers and sanctions of a court of law and to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings thereto, for the determination of any question as to the civil rights or obligations of that person.[89]
            Section 5 of the Constitution vests in the President executive powers. The vice President, Ministers, may also exercise such executive powers or officers in the Public Service of the Federation as may be conferred on them by law or through an act of delegated legislation. In the same vain the executive powers of a state is vested in the Governor of that State. Such power may be exercised either directly by the Governor or through the deputy Governor, Commissioners, or officers in the Public Service of the State.[90]
It is the duty of the President or the Governor and officers under them to execute and maintain the constitution and all laws made by the National Assembly or the State House of Assembly. In the execution of their duties, the Governor of a State or his officers must not endanger the continuance of the Federation or impede or prejudice the exercise of the Federal Executive powers or endanger the assets or investments of the federal Government in the State.[91]
Section 7 of the Constitution guaranteed the system of Local Government to be controlled by democratically elected Local Government Councils and that the Government of every State shall ensure their existence. It is submitted that under this section of the Constitution, no government other than a democratically elected Local Government Council can validly run the affair of a Local Government.[92] It is important to point out that the 1999 did not specifically vests executive powers in the Chairman, but by virtue of the position of a Local Government Chairman, his function includes policy formation, he also have the duty of establishing goals, examining alternatives, and determining strategies that will guide present and future actions to benefit the community.
The Council by virtue of section 38 of the Local Government Law is empowered to perform legislative functions. And by section 39 (1) of the Local Government Law, the Council may make and passed Bye – Laws.

CONCLUSION
The Nigerian federation has gone through lots of ups and downs, from regionalization, into number of states, from parliamentary to presidential, from two tiers of levels of government to three tiers of government, namely the Federal, State, and the Local governments. Powers of the Government were vertically divided and horizontally separated between the levels of government and the arms of the government respectively.
There are two views of scholars on the nature of the Nigerian federalism, one group which could be described as headed by Professor Nwabueze viewed Nigeria, not really a Nation but a country with a unitary federal system of government. It is therefore important to note that, despite the view of Nwabueze Nigeria is federal nation with unique model of federalism, recognized world wide (this is the view of the second group of scholars). And the support for the Nigerian kind of federalism is the view of Professor Lewis Wisely, who said:
“Federalism is a wide term. Outside Nigeria, formal federalism on the America pattern is not required or sought. All that is asked is a reasonable degree of provincial devolution. Countries with this kind of problem need both strong centre and strong provincial governments; and this is not a contradiction, since government functions are now so numerous that there is plenty of room for both. It is quite true that a country needs a strong central government to hold it together, meaning by this a government which acts boldly in all spheres which are of common interest. But it is equally true that a country with sharp regional differences needs to give its provinces the opportunity to look after their own affairs, if they are to feel content with the political union. Whether one calls this federalism or provincial devolution makes no difference”.[93]            
 This to one’s mind is the better argument in support of the Nigerian kind or model of federal system. One could therefore describe Nigerian federalism as one having federal feature on one part and unitary feature on the other hand, a situation that can be highly related to the historical past of Nigeria, that was under the rulership of colonial masters (which is unitary in nature) for about 150 years, and under the military rule for about 30 year, this two system of government that ruled Nigeria is still seriously hunting the Nigerian federal system of government.
 


* Lecturer, Faculty of Law, Islamic University in Uganda. Seconded Lecturer from the Faculty of Law, University of Maiduguri, Maiduguri, Borno State, Nigeria
[1] Oyovbaire, S. 2000. Federalism and the Balance of Political Power under the 1999 Constitution. In: I. A. Ayua, D. A. Guabadia, and A. O. Adekunle, ed. Issues in the 1999 Constitution. (NIALS) Nigeria Intec Printers Ltd. p113.
[2] Part of address of Shridath .S. Ramphal, Common Wealth Secretary-General , delivered at the International Conference on Federalism, N.I.I.A., Lagos, 10th May 1976 at page 6. Quoted in Elaigwu, J. I. 1997 Federal-State Relations in Nigeria’s New Federalism: A Review of the Draft Constitution, in ed. S. Kumo and A. Aliyu. The Nigerian Draft Constitution. Institute of Administration, A.B.U. Zaria. p143.
[3] Part of the address of Sir Abubakar Tafawa Balewa, the (then) Prime Minister of Nigeria, delivered to the House of Representatives in September 1957, printed by the Lagos Government Printers (1964), p2. Quoted in Elaigwu, J. I. 1984. Nigeria Federal Balance: Conflicts ad Compromises in the Political system. In: Unijos Postgraduate Open Lecture Series. Vol.1 No.4. p3.
[4] Wheare, K. C. 1963. The Federal Government, 4th ed, Oxford University Press, London, p.33. B.O Nwabueze viewed that “federalism provides an institutional bases for the propagation of ethnicism or racism in politics. It enables the parties in control of the regional governments to use the institutionalised power to champion, at both the regional and federal levels, the interests of the tribes or races they represent. The effect of this at the federal level is to cause the federal government to be regarded as but a huge cake, already baked, and which it is the duty of each ethnic or racial party to secure for its ethnic or racial group as large a share as possible”. Nwabueze. B.O. 1993. Democratization. Spectrum Law Publishing. Lagos. p 35. This view could be closely related to the reason for the Nigerian Federal Character principle, or why federalism favoured Nigeria.  
[5] Udenwa, A. 2005. The Future of Nigeria’s Federalism posted to the web: http://magazine.biafranigeriaworld.com p1.
[6] Jackson, R. J. and Stein, M. B.  2006. Issues in the Comparative Politics. Quoted in Vanguard Politics: The Future of Nigeria’s Federalism. p.2. http://vanguardngr.com/articles/2006/feature/law/
[7] Tamuno, T. 2005. Lawnews – A Commitment to Legal Excellence are Good Governance. Vol.1. No.5 Fayusuf Communications Ltd, Lagos. p122.
[8] Nwabueze, B. O. 1983. Federalism in Nigeria under the Presidential Constitution. Sweet and Maxwell, London. p.1.
[9] Ibid.
[10] Wheare, K. C. 1963 Op Cit. p.10.
[11] Ibid. p.14.
[12] Ibid.
[13]B. Nwabueze, “Constitutional Democracy in Africa”, Vol. 2, Op Cit, p 293
[14]7 Wall, p 700 at 720
[15]Ibid
[16]B. Nwabueze, “Constitutional Democracy in Africa”, Vol. 2, Op Cit, p 294
[17]Ibid
[18]Ibid Pp 295 – 300
[19]H. A. Asobie, “Centralizing Trends in Nigerian Federalism”, in Re – Inventing Federalism in Nigeria, Issues and Perspectives, Op Cit, p 15
[20]Answer.com, (Wikipidia.), World’s greatest Enclodictionalmanacapedia,  Pp 1-4
[21]Ibid
[22]Ibid
[23]G. Akinrinmade, O. Oliyide, “The Best Models For Good Government in Africa”, in Globalization, National Development and the Law, 2005, D.A. Guobadia, E. Azinge, (eds.), NIALS Press, Abuja, p 76  
[24]Ibid
[25]E. Barendt, “ Introduction to Constitutional Law”, 1998, Oxford University Press, U.K. p 59
[26]Ibid
[27]Ibid
[28]Ibid
[29]Answer.com, (Wikipidia.), World’s greatest Enclodictionalmanacapedia Op Cit
[30]Ibid
[31] Omoweh, D. A. 2001.  Addressing the Needs of Oil-Producing Areas Within the Nigerian Federal Structure. In: Political Reform and Economic Recovery in Nigeria, ed. Ayua, I. A. and Guobadia, D. A. NIALS, Intec Printers Ltd, p.547.
31a Nwabueze,B. 2003. Constitutional Democracy in Africa, Structure, Powers and Organizing Principles of Government. Vol. 1.  Dalag Prints & Packaging Ltd. Ibadan. Pp 59 -64
[32] Susu, B. A. 1993. Federalism, Federal Character and the Equal Protection Clause (Section 41 of the Constitution 1989. In: Nigerian Current Law Review 1988/1991. ed Ajomo, M. A. NIALS, Lagos. p181.
[33] Ibid.
[34] Umoh, G. 2005. Nigeria’s Federalism and Division of Powers Under the 1999 Constitution.  Modern Business Press Ltd, Uyo, p.2. Referring to the website: New Geography Dictionary 1988 Merrian website Inc. Springfield, Massachusetts. p. 848.
[35] Ibid.
[36] Awolowo, O. 1963. Thoughts on Nigeria Constitution.  Sweet and Maxwell, London. p.231.
[37] Umoh, G. 2005. Op Cit. Pp.4-5.
[38] Udenwa, A. 2005. Op Cit. p.1.
[39] Kolo, A . 2003 The Relationship Between the State and Local Governments, and the Powers and Functions of the Local Government Legislative and Executive Council:  A Legal and Policy Analysis Under the Borno State Local Government Law 2000. 6 U. MAID L. J. p.44.
[40] Udenwa, A. Op Cit. p.4.
[41] That is the Local Government Area Under the Leadership of General Murtala Ramat  Mohammed.
[42] Under the 1954 Constitution and 1960 Constitution.
[43] Under the 1963 Constitution
[44] In 1967, under the Leadership of General Gowon and on the Recommendation of Irikefo’s Commission of Inquiry on State Creation.
[45] Nigeria is a federation with 36 states, Federal Capital Territory Abuja and with 768 Local Government Areas.
[46]O. Fatula, “Constitutional Issues in Nigerian Federalism”, 2003, Vol. 6, U. Maid. L. J., p 84
[47]M. Bello, “In the Course of Justice”, Op Cit,  p3
[48] Ibid
[49]B. Nwabueze, “Constitutional Democracy in Africa”, 2004, Vol. 4, Printmarks Ventures, Ososami, Ibadan, p 201
[50]Ibid
[51]M.O. Adediran, “Critical Examination of the Constitutional Provisions on the Legislative Powers of the federal and States” being a chapter in Proceedings of the Conference on the 1995 Nigerian Draft Constitution, J.D. Ojo (etd.), p11, Quoted in D.A. Ijalaye, “The Imperatives of Federal/State Relations in a Fledgling Democracy Implications for Nigeria”, 2001, NIALS, Lagos, pp 2-3 
[52]N. Schmitt, “History of Constitution Making European and Australian Experience”, in Constitutions and Federalism, Op Cit,  p22
[53]J. A. A. Ayaode, “The Challenging Structure of Nigerian Federalism”, in Fundamentals of Nigerian Federalism 1960 – 1995, 2001, J.I. Elagwu, R.A. Akindele, (eds.), Vol. 3, IGSR, Jos, Pp 40 – 41.     
[54]E.E.O. Alemeka, “Fundamental Objectives and Directive Principles of State Policy within the Framework of a Liberal Economy” in Nigeria Issues in the 1999 Constitution, 2000, I.A. Ayua, D.A. Guobadia, A.O. Adekunle, (eds.), NIALS, Intec Printers Ltd., Ibadan, p 198. 
[55]K.C. Wheare, “Studies in Federal Planning” 1943, London, Macmillan, p34, quoted in O. Igbuzor, “Fiscal Federalism and Resource Control in Nigeria” in Issues in the Review of the 1999 Constitution, 2002, O. Igbuzor & O. Bamidele, (eds.),  CFCR, Op Cit, p 73
[56]Ibid Pp 74- 75
[57]A.W. Bradlay, K.D. Ewing, “Constitutional and Administrative Law” 12th ed., 1997, Longman, London and New York, p 4
[58]D.I.O. Ewelukwa, “The Amendment Process under the 1999 Constitution” in Nigeria Issue in the 1999 Constitution, 2000, I. A. Ayua, D. A. Guobadia, A. O. Adekunle, (eds.), NIALS, Intac Printers Ltd., Ibadan, p 325  
[59]E.E.O. Alemeka, “Fundamental Objectives and Directive Principles of State Policy within the Framework of a Liberal Economy” Op Cit, p 200.
[60]Ibid
[61]B. Nwabueze, “Constitutionalism and Democracy in Africa”, Op Cit, p 206
[62]Ibid p 206
[63]1914, A.C. P237 at 253
[64]B. Nwabueze, “Constitutional Democracy in Africa”, Vol. 1, 2003, Dalag Printing & Packaging Limited, Ibadan, Pp 59 – 62
[65]Ibid p 63.
[66]Ibid
[67]Ibid
[68]Ibid
[69]Ibid Pp 63- 64
[70]Ibid p 64
[71]J.I. Elaigwu, “Federal-State Relations in Nigeria’s new Federalism: A Review of the Draft Constitution”, in Issues in the Nigerian Draft Constitution, S. Kumo, and A. Aliyu (eds.), being the report of the Conference on Issues in the Draft Constitution, Held at the Institute of Administration A.B.U., Zaria. 21st – 24th March, 1977, Baraka Press Ltd., Pp143 – 146.
[72]P. Flora, “State Formation, Nation- Building and Mass Politic in Europe: The theory of Stain Rokkan”, 1999, Oxford University Press, Oxford, Pp5-7
[73]K.C. Wheare, in Patrick Ransome (ed), “Studies in Federal Planning”, 1943, Macmillan, London, p 34, quoted in L.O. Dare, “Perspectives on Federalism”, in Perspectives on Federalism, Op Cit, p 27
[74]Ibid. Max Frenkel's definition in Federal Theory highlights the importance of several key features of a federal form of government: autonomy; a division of powers between the centre and provinces/ regions/ states; the supremacy of the Constitution (for the ordered way) and provincial/ regional representation at the centre.
[75]Ibid
[76]M. Bello, “In the Course of Justice”, Op Cit, p 19
[77]What this means is that the Judiciary has been vested with the power to ensure due observance of the constitution and that the Judiciary has the power to pronounce on non – compliance by any of the Governments of the Federation.
[78](2002) 9 NWLR, Pt. 772, p 222
[79]Ibid, Pp 473 - 474
[80](2005) All FWLR, Pt. 244, p 805, at p 835 and p 905 paragraph H
[81]Ibid, p 905 paragraph H
[82]M.Bello, “In the Course of Justice”, Op Cit, p 20
[83]D.A. Ijalaye, “The Imperatives of Federal/State Relations in a Fledgling Democracy Implication for Nigeria”, 2001, NIALS, NIALS Annual Lecture Series, p 17
[84]Ibid, p 18, this could be better described as the supremacy of the Law of the National Assembly.
[85]G. Umoh, “Nigeria’s Federalism and the Division of Powers under the 1999 Constitution”, 2005, Modern Business Press Ltd., Uyo, p 19.
[86](1986) 1 NSCC Vol. 17 p 304
[87]Ibid p313
[88]M.Bello, “In the Course of Justice”, Op Cit, p 145
[89]Section 6 (6) (b) of the 1999 Constitution Federal Republic of Nigeria, and Ibid, p 23
[90]A. F. Afolayan, “Check and Balances under the Presidential System of Government in Nigeria”, Op Cit, p 64
[91]Ibid
[92]Ibid
[93]Professor Lewis Wisely, Quoted in S.O. Gyandoh, “History of Constitutional-Making: The African Experience”, in Constitutions and Federalism, Proceedings of the Conference on Constitutions and Federalism, Held at the University of Lagos, Nigeria. 23- 25 April 1996, 1997, M. A. Ajomo, et al, FOP Press, Ibadan, Pp 7- 8.     
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