All Equal Under the law or Simply Half-Baked?

For most of my adult life I have been part of discussions about the governance of Nigeria or have heard oft-cited charges of chronic mismanagement and visible ineptitude leveled at the implementers of public policy in Nigeria. One constant refrain has been ‘how hard can it be?’ i.e., to govern Nigeria well. Can it really be that difficult to overcome the systemic challenges that halt our progress? Surely, all it takes is a combination of sincere, pro-active and committed leadership and a great deal of tenacity to get things back on course?

Well, only recently I discovered that it is actually extremely hard…much harder than I thought. Sewn intricately into the fabric of our foundational principles are ideas that appear just as sound as when first propounded by our founding fathers, but which serve at the same time to present real obstacles to our country’s development. One such notion is that of ‘Federal Character’.

Section 14(3) & (4) of the 1999 Nigerian Constitution insists that federal, state and local governments and their agencies must reflect the diversity of ethnic and national groups to promote national unity and loyalty within Nigeria. So sacrosanct is the principle underlying this apparently laudable provision that debate on the issue is deemed almost blasphemous. Might we not want to consider the extent to which such unchallengeable legal behemoths are really conducive to progress?

True story: the Director General of one of the federal government agencies planned to hire the most competent and skilled people available to help him deliver on the Herculean objectives he faced. However, when he presented his list the floodgates opened up: the most competent people where not representative of Nigerian character; what he was doing was against the law and he would not succeed. The project was abandoned, he did not succeed or at least the objectives of that particular agency were not met (and are still not being met) and we, Nigerians are all worse off for it.

The theory that government and the civil service must reflect Nigeria’s diverse ethnic groups first took form in 1954 when the Quota System started for the recruitment of persons into the officers’ corps of the Armed Forces, the police and educational institutions.

However, feelings of marginalisation and inequality persisted and ‘Federal Character’ was born in the 1979 Constitution, where it was defined as:

‘The distinctive desire of the peoples of Nigeria to promote national unity, foster national loyalty and give every citizen of Nigeria a sense of belonging to the nation...’

But Federal Character remained largely ignored, especially by the military government and it remained an issue during the 1995 Constitutional Conference. This resulted in the Federal Character Commission Act of 1996 (the Act) establishing a Commission to manage and enforce this principle. The bedrock of the Commission is Section 14 of the Constitution which in order to ensure that the ‘cake’ is equitably distributed, has only guaranteed that the cake is always half baked.

‘Equitable formula’; ‘Redressing the problems of imbalances and marginalisation in the Nigerian system of federalism as it obtains in the public and private sectors’. These phrases within the Act beg the question: is it more important for the Federal Government to ‘reflect’ the ethnic mix of Nigeria or is it more important for Nigeria to be managed by the most skilled, competent and passionate people? The two are not always mutually exclusive and the ideal would be to have both at the same time. But what if this is not possible? What if one set of people, regardless of whether they graduate from university, prefer to be ‘contractors’? What if the other set prefer trade to school? What if another set are ‘known’ for being educated but a large number of them have just manipulated the system by cheating? Do we still need to employ these people to manage our affairs?

In defense of ‘Federal Character’, the idea of ensuring the ‘excluded’ are included is old. The most famous being America’s principle of ‘affirmative action’ based on the federal affirmative action law which is enforced through the Equal Employment Opportunities Commission (EEOC). However, there are almost no similarities between affirmative action and ‘federal character’. One, the need for affirmative action is based on slavery and the centuries of marginalisation of blacks. We have not had slavery on that scale here…so who exactly are the marginalised and disadvantaged? Two, affirmative action law has not led to the practice where the presidency is ‘zoned’ between blacks and whites neither is there a blanket insistence on a mechanical approach to ensuring every office has a representative from each state. A third and significant difference, for lawyers and judges, is that in the US, affirmative action decisions are regularly challenged right up to the Supreme Court. This safeguards the process as the rules of application are periodically honed to ensure it still works and the objectives are still pertinent.

If our Act does not define clearly who and what the ‘marginalised’ are, how are we going to know when we can stop applying the federal character theory? Most importantly, what are the plans of the Commission to ensure that the identified ‘marginalised’ are working on bridging the gaps or are they content to remain marginalised forever?

Another defect with the Act is that to read it you would think the only diversity issues we have in Nigeria are between ethnic groups. The Act completely ignores other aspects of Nigerian ‘character’: the women; the disabled; the religiously prosecuted and even generations of foreigners who call Nigeria ‘home’. Why not have one Minister from each State, one Minister from each religion, one Minister from each generational group and even equal Ministers from each gender? And, why not throw in a Minister representing supporters from each Premier League football team for good measure?

Perhaps, as we await the impending cabinet changes, it is time to review some of the legal provisions that we far too often take for granted and which might actually be inimical to our efforts at reform. Several years after the introduction of ‘Federal Character’, Nigerians are still extremely dissatisfied and still complain about marginalisation. For the many who keep wondering when ‘Nigeria will ever get “there”’, the answer is: not for a long time unless we challenge institutionalised mediocrity and we start getting public officials who are the best people for the job as opposed to being from the ‘right’ part of the country.

Published October 21 2008