Constitutional Problems of State Creation in Nigeria

Constitutional Problems of State Creation in Nigeria

The problems regarding state creation in Nigeria stems from the provisions of the Constitution on this subject. These problems could be categorized into two, and are briefly discussed below. First, the constitutional requirement for state creation as provided for under Section 8 of the 1999 Constitution is too difficult and unrealistic to fulfil.

Now, the problem that arises from this requirement stipulated by the provisions of Section 8 of the Constitution is this – by what means would the National Assembly ascertain the two third majority of the representatives of the area demanding the creation of new States?

This problem arises because each State in Nigeria has just three senators, which would mean it is impossible to obtain two-third majority of just one senatorial district clamouring for a new State. This is because such senatorial district might have just one senator with no possibility for two-third majority. How then does the Constitution intend that two-third majority of an area represented by just one senator would play out.

This is undoubtedly a complex and impossible mathematical problem — reminiscent of the mathematical complexity that played out in Awolowo v. Shagari where the question arose as to what the 2/3rd majority of 19 states of the federation would be.

It must however be mentioned that no one knows for sure how this may play out as this particular constitutional provision is yet to be demonstrated in over two decades of Nigeria’s return to democracy since 1999. Thus, it is not hard to see why the issue of State creation in Nigeria has dragged on for so long due to stringent constitutional requirement for such.

A similar problem of interpretation of two-third majority, although to a much lesser severity, bedevils the ascertainment of two-third majority of the House of Representatives members, House of Assembly members, and the Local Government councils in respect of an area clamouring for State creation.

Thus, it is unclear whether the requirement that a request for state creation be supported by a two-third majority of legislators of the concerned area, refers to just the area demanding for a new state. If this is the case, a constitutional problem might arise because since each state of the federation is entitled to only three senators, then an area clamouring for a new state might cover just one senatorial district represented by just a senator.

How then can request for creation of new states be forwarded by just one senator? This appears clearly to be an absurd provision. Absurdity of statutory provisions however, is no stranger to the constitutional law. It refers to any statutory provision which when literally construed, can produce an absurd or illogical result.

On this point, the American case of Church of the Holy Trinity v. United States is very instructive. According to the court:

Frequently words of general meanings are used in statute, words broad enough to include an act in question, and yet a consideration of … the absurd results which follow from giving such broad meanings to the words, makes it unreasonable to believe that the legislator intended to include the particular act…’

The foregoing best describes absurdity in statutory enactment as is evident in Section 8 of the 1999 Constitution. However, absurdity in statutory provisions is a justification for the court’s interpretation of a provision in a way that does not result in absurdity. This is what is known as the absurdity doctrine. To be sure, the absurdity doctrine rests on a judicial judgment that a particular statutory outcome, although prescribed by the text, would sharply contradict society’s “common sense” of morality, fairness, or some other deeply held value.

As Chief Justice Marshall once put it, the doctrine authorizes judges to avoid results that ‘all mankind would, without hesitation, unite in rejecting.’ The absurdity doctrine therefore serves the important legitimate function of solving the problem of statutory generality where such generalist interpretation could result in deeply troubling outcomes.

Taking a cue from the pronouncement aforesaid, it is deducible that Section 8(1) of the 1999 Constitution exudes absurdity, and this is not a desirable thing in law. As a result, recourse might be made to judicial interpretation of this provision in line with the powers of the court under Section 6 of the 1999 Constitution.

But considering the delay associated with judicial process in Nigeria, resorting to the courts at such an early stage of the process of state creation is likely to militate against the entirety of process of state creation. Therefore, one of the first constitutional problems associated with state creation in Nigeria is the absurdity of Section 8(1) of the 1999 Constitution.

Secondly, the subjection of the referendum decision of an area clamouring for a new state to the approval of all other states in the federation, is another major constitutional problem. This could be antithetical to democratic values because the wishes of the people clamouring for a new state as expressed in their referendum vote, may be upturned by other states of the federation. At any rate, it is unlikely that other states of the federation would approve of the creation of a new state.

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This is especially true of the extant state from which the new state would be created from. This is because creation of a new state from an extant state, is likely to reduce the financial earnings of the latter. Moreso, some political office holders in the extant states might lose their official positions as a result of the creation of new states. Thus, this provision is problematic as it constitutes a stumbling block in the realization of the yearnings of deserving groups for their own littoral state.

Despite the foregoing, it may be counter-argued that since state-creation affects every other state of the federation on the basis of economic and political devolution, there exists a justification that the Nigerian legislature must make sure that the country has sufficient resources to cater for a new state.

Moreso, since democracy is about majority vote, if majority of members of the National Assembly are opposed to the new state, it is analogous to saying majority of people in the country are equally in opposition.

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Although the vitality of these counter-arguments cannot be missed, the point must nevertheless be made that the subjection of the wishes of a group of people for a littoral state of theirs, is likely to create feelings of dissatisfaction and ill-will among such groups of persons.

In view of the foregoing, Section 8 of the 1999 Constitution requires an urgent review to simplify the process of state creation in the country. This is not to say that leeway should be granted to every group clamouring for state creation, but in a bid to pre-empt needless agitation for state creation, the legitimate agitations of deserving groups should not be ignored under the guise of a cumbersome process.

 

By Admin

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