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Part 2 Country Case Studies, 6 Constitutional Design and Anti-Corruption Reform in Nigeria: Problems and Prospects

Rotimi T Suberu

From: Corruption and Constitutionalism in Africa

Edited By: Charles M. Fombad, Nico Steytler

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 03 December 2022

(p. 139) Constitutional Design and Anti-Corruption Reform in Nigeria

Problems and Prospects

1.  Introduction

Like its predecessor constitutional charters since the collapse of Nigeria’s first post-independence democratic experiment in the 1960s, the 1999 Nigerian Constitution incorporates multiple institutions for combating political corruption. It directly creates major anti-corruption and oversight bodies, while providing a broad mandate for governmental elites to statutorily establish and administratively implement diverse anti-corruption agencies and policies. These constitutional interventions authorize a wide range of preventative, investigative, educative, prosecutorial, and punitive strategies for cauterizing corruption.

Despite such concerted constitutional engineering, however, grand political corruption remains a metastatic condition of Nigerian government, with one commentator describing the country as ‘the most corrupt nation on earth’.1 Emblematic of the epic scale of political corruption in Nigeria was the revelation by President Muhammadu Buhari, following his inauguration in May 2015, that some USD150 billion dollars in public funds had been stolen and laundered internationally by the country’s public officials during the preceding ten-year period.2

Indeed, Nigeria typically appears at the bottom of the most authoritative global surveys on transparency, integrity, and corruption control.3 It continues to fare poorly on Transparency International’s Corruption Perceptions Index, ranking 148th out of 180 countries in 2017 (albeit having improved its position after being ranked the least transparent country in the world in the 2000 index), and receiving an abysmal score of 27 on a scale of 0 to 100. Similarly, the World Bank reports that the percentage of firms likely to encounter corruption by public officials in Nigeria is more than double the average for sub-Saharan Africa.4 Consequently, the country ranks poorly (145th out of 190) on the World Bank’s Ease of Doing Business Index for 2018. Domestic and external experts often describe the country as a byword for corruption and an epicentre globally of organized crime.5

(p. 140) The evident failure of Nigeria’s constitutional institutions to remediate the kleptocratic nature of the country’s governance seems to confirm the pessimistic conclusion ‘that there is very little if anything that a constitution can and should do to limit opportunities for corruption’.6 According to one authoritative report, a focus on ‘weaknesses in legal and institutional arrangements’ treats merely the ‘symptoms of corruption’, and therefore should be replaced with ‘a more strategic perspective that assesses underlying causes and the deeper political-economic dynamics that have influenced the evolution of corruption in a country’.7

A careful appraisal of the Nigerian experience suggests, however, that flagrant deficiencies in constitutional architecture, including flaws in the institutional design of anti-corruption and oversight agencies, can contribute directly to the failure of anti-corruption reform. The following constitutional flaws are especially promotive of Nigeria’s corruption epidemic: the imperial, quasi-monarchical prerogatives of political chief executives at federal and sub-federal levels; the weak insulation anti-corruption agencies have from political interference; the decentralization of political corruption through a perverse federal revenue-distribution system; the feckless and hollow nature of laws on official transparency and open government; and a non-participatory, non-inclusive, and non-integrative constitution-building process that reinforces the perceived illegitimacy and amorality of the Nigerian commonwealth. Constitutional reforms that address these deficiencies are required if anti-corruption outcomes are to be more successful than they have been hitherto.

The chapter begins by reviewing the constitutional framework for anti-corruption in Nigeria in the light of contending scholarly discourses about the economic, cultural, leadership-based, and constitutional drivers of corruption. This is followed by the chapter’s centrepiece, which illustrates how flaws in formal institutions (ones either directly established under the Constitution or indirectly legitimized or inspired by it) have abetted Nigerian corruption and undermined anti-corruption outcomes. Next, the chapter reviews proposals and prospects for constitutional change and anti-corruption reform, after which a concluding section highlights the chapter’s main arguments.

While significant literature abounds on constitutional politics and on anti-corruption reform, there is little scholarship that joins these elements and applies them to Nigerian governance in the comprehensive, political-analytic manner attempted in this chapter.

2.  Reassessing the role of constitutional institutions in addressing corruption

The Nigerian Constitution provides a multilayered array of warrants for fighting corruption. A prime component of this constitutional architecture is a system of separation of powers and checks and balances, including provisions for autonomous judicial review and legislative oversight of the executive. Specifically, the judiciary and legislature are constitutionally entrenched as independent, self-regulating institutions that enjoy a remarkable degree of operational and financial autonomy from the executive branch.

(p. 141) Section 6 of the Constitution assigns judicial review to a supreme constitutional court and an array of subordinate appellate and high courts. Furthermore, the Constitution endows the National Judicial Council (NJC), which is headed and largely appointed by the chief justice of the federation, with broad autonomous powers to oversee the funding, appointment, and discipline of the judicial branch.8 Similarly, following a series of constitutional alterations introduced in 2010–2011, the Nigerian National Assembly formally became financially autonomous, reinforcing its already extensive constitutional powers of oversight, legislation, and representation. In particular, section 6 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010 amended the Constitution to add the National Assembly and the Independent National Electoral Commission (INEC) to the judiciary as bodies to be funded via a first-line charge on the Consolidated Revenue Fund of the Federation. Appropriations for these bodies would be ‘paid directly’ to them rather than administered by the executive.9

The system of separated powers has produced, and been reinforced by, considerable jurisprudence on inter-branch relations, checks, and balances. Pertinent judicial decisions include National Assembly v President of Nigeria (2003),10 which ruled that a presidential veto cannot constitutionally be overridden by a mere motion (as distinct from an iteration of the entire legislative process) passed by a two-thirds majority of legislators. Another decision, Inakoju v Adeleke (2007),11 affirmed the justiciability of impeachment proceedings by setting aside the legislature’s impeachment of a subnational executive whose purported removal flagrantly violated the relevant procedures set out in the Constitution. In Agbakogba v Attorney-General of the Federation & Ors (2013),12 the Federal High Court found all forms of executive interference in the funding arrangements of the judiciary, including presentation of annual budgetary estimates, to be inconsistent with the constitutional guarantees of a self-governing, autonomous judiciary.

In addition to instituting a system of inter-branch oversight and checks and balances, the 1999 Constitution directly entrenches a number of regulatory, monitoring, accountability, prosecutorial, crime-fighting, or disciplinary agencies, most of which are located within the executive branch. These institutions of restraint include the offices of Auditor-General at national and subnational levels; the positions of Attorney-General in the federation and in the states; the Nigeria Police Force, along with a Police Council and a Police Service Commission; the Public Complaints Commission; the Civil Service Commission at federal and sub-federal levels; national and subnational electoral commissions; and the Revenue Mobilization Allocation and Fiscal Commission (RMAFC).

A separate set of constitutional institutions and provisions directly seeks to curtail the abuse of public office for private gain. These are the Code of Conduct for Public Officers (which prohibits any ‘personal interest conflicts’ in the public service or any abuses of public office for private gain); Code of Conduct Tribunal (which tries cases involving contraventions of any provisions of the Code of Conduct); and Code of Conduct Bureau (charged primarily with receiving and reviewing declarations of assets by public officers).13

Finally, the Constitution boldly declares the abolition of ‘all corrupt practices and abuse of power’ as a fundamental objective and directive principle of state policy, while endowing (p. 142) the federal government with broad powers to ‘promote and enforce the observance’ of these objectives and principles through the ‘establishment and regulation of authorities for the Federation or any part thereof’.14 This broad mandate has enabled the federal government to statutorily establish several anti-corruption agencies and mechanisms. The most prominent of these are the Corrupt Practices (And Other Related Offences) Act 2000, which established the Independent Corrupt Practices Commission (ICPC), and the Economic and Financial Crimes Commission (EFCC) (Establishment) Act 2004.

Other statutory instruments for anti-corruption include the Fiscal Responsibility Act 2007, the Public Procurement Act 2007, the Nigeria Extractive Industries Transparency Initiative (NEITI) Act 2007, and the Freedom of Information (FOI) Act 2011.15 In spite of this multilayered institutional architecture for fighting corruption, however, ‘the battle against corruption remained largely ineffective’, as the 2017–2020 Nigerian anti-corruption strategy document acknowledges.16

The failure of constitutional institutions to curb corruption evokes rich debate about the underlying causes of and potential cures for Nigeria’s governance quagmire. A popular viewpoint is to blame the failure of anti-corruption reform on poor political leadership. As claimed by Olusegun Obasanjo (Nigeria’s past military ruler, two-term civilian president, former board member of Transparency International, and moving spirit behind the creation of the EFCC and ICPC), ‘the various control and accountability measures instituted in the constitution have been rendered inoperative or impotent by the same people who are expected to make them work … What is starkly and shamefully lacking is compliance.’17 This position is consistent with Robert Rotberg’s actor-specific and agent-focused approach, which isolates a political leadership’s will, commitment, boldness, or resoluteness as the ‘key ingredient in any recipe for corruption reduction’.18

A more nuanced perspective on Nigerian corruption focuses on structural and historical factors that constrain the behaviour of political actors. Especially influential are analyses that underline the cultural underpinnings of malfeasance. Peter Ekeh’s concept of the ‘two publics’ and Richard Joseph’s notion of ‘prebendalism’, for instance, emphasize the ways in which corruption is legitimized by popular expectations, values, and norms regarding the exploitation of resources and opportunities in the modern post-colonial state or civic public sector for the benefit of not only individual officeholders but members of their sectional communities or ethno-political networks.19 This ‘amorality of the civic public’, as Ekeh puts it, is (p. 143) historically embedded, reflecting the violent, arbitrary, and exploitative colonial origins of the modern Nigerian state, its relative infancy and underdevelopment, and its sheer ethnic fragmentation.20

Viewed from this culturalist perspective, corruption in Nigeria constitutes a form of social equilibrium or trap that is underwritten by widely understood and shared informal rules that encourage or tolerate abuse of public office for personal and communal gain. When it is culturally embedded, corruption becomes a collective-action conundrum in which agents (political officeholders) and principals (citizenry), rather than political elites alone, are deeply implicated in the sociopolitical normalization of corrupt behaviour as the equilibrium behaviour.21

Because it is essentially an analysis of the moral economy of corruption, the culturalist perspective bears close affinity with a political-economy paradigm that focuses on the primary role that Nigeria’s underdeveloped, resource-dependent, statist economy plays in driving malfeasance. According to this paradigm, the availability of easy oil revenues encourages elite predation and rent-seeking while producing abysmally low levels of public taxation (estimated at only 6 per cent of gross domestic product), thereby depriving ‘citizens of a powerful source of leverage they can use to hold government accountable’.22 In addition, natural resources create ‘a disincentive for state leaders to build strong institutions that might interfere with their ability to allocate rents to supporters’.23

A common feature of the leadership-oriented, cultural, and political economy approaches to corruption is the scepticism they share about the capacity of formal institutions to mature and successfully cauterize corruption in contexts such as Nigeria. These approaches instead emphasize long-term, informal, indirect, or actor-specific solutions. The recommendations include rebalancing social structures of power; encouraging economic development and diversification; investing massively in public education; supporting exemplary and transformative political leadership that can signal and catalyse a shift in a country’s corruption equilibrium; mobilizing civic grassroots initiatives on anti-corruption reform; and promoting external trusteeship or more intrusive foreign intervention in the governance of countries caught in the social trap of pervasive corruption.24

Yet what is often neglected or understated in these recipes are proposals for the reform of formal constitutional arrangements and political institutions. As acknowledged by the authors of Nigeria’s anti-corruption strategy paper, the key drivers of grand political graft in Nigeria are the ‘broad foundational gaps and weaknesses in current institutional structures, frameworks and arrangements that undermined previous and current anti-corruption efforts’.25

There are compelling reasons to revisit and reaffirm the importance of formal institutions in the fight against corruption. First, focusing on the anti-corruption roles of formal (p. 144) institutions does not necessarily discount the importance of other factors. A focus on constitutional and legal frameworks instead can complement and enrich analyses of political leadership, political culture, or political economy. An institutionalist focus, for example, can explore the roles that formal institutions stand to play in reducing or extending the scope for abuse of political leadership, in supporting positive or negative political culture norms, or in exacerbating or attenuating problematic economic incentives. A considerable advantage of an institutionalist focus is thus the prospect of affording ‘a stronger conceptualization of the diverse ways in which formal and informal institutions impact on one another’, as well as of ‘the enduring capacity of formal institutions to shape cultural identities and personal networks’.26

Secondly, recent comparative and historical studies highlight the crucial roles that formal institutions play in generating fundamental social change and historic political and economic development. These studies demonstrate, for instance, that positive socio-political outcomes such as prosperity and democratization are driven less by initial structural conditions such as demography or culture than by inclusive institutions and rules that effectively constrain and broadly distribute or divide power.27

Thirdly, as has happened elsewhere in Africa, with democratization having highlighted ‘the different ways in which formal political institutions matter in the African context’, Nigeria’s return to democracy since the 1990s has been accompanied by the increasing institutionalization or formalization of political power.28 Thus, formal institutions, such as democratic elections and constitutional term limits, are beginning to constrain longstanding traditions of neopatrimonial rule. Democratization, of course, has not eliminated patron–client relations, corruption, personal rule, and other unwritten rules and informal norms of neopatrimonial politics. However, it has created more space than was previously available for formal institutions, such as courts, parliaments, elections, and constitutional regulations and reforms, to shape politics.

Finally, a careful reading of Nigeria’s recent history demonstrates that formal institutional change has been a key driver of some of the country’s political milestones. Changes in the number and size of Nigeria’s internal constituent federal units since the late 1960s, for instance, have been decisive in helping the country avoid a recurrence of its 1967–70 civil war despite the persistence of intense ethno-political conflict. Specifically, Nigeria has evolved from having only three major ethnic regions at independence in 1960 to having 36 constituent states today. The replacement of large ethnic regions with smaller constituent units since 1966 has crosscut the identities of the biggest separatist ethnicities, afforded smaller ethnic communities a voice in the federation, diffused and defused ethnic conflicts across multiple constituent units, and generally undermined the credibility and viability of centrifugal challenges to national unity.

Another example of constructive formal institutional change involves the country’s recent successes in reducing electoral corruption. Briefly, constitutional and statutory reforms that enhanced the operational and financial autonomy of the national electoral agency led to palpable improvements in the quality of the country’s elections in 2011 and 2015. The (p. 145) Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010, included impactful constitutional amendments that guaranteed the financial security of the INEC and reinforced its ‘powers to make its own rules or otherwise regulate its own procedure’ without presidential ‘approval or control’. The amendments subjected the appointment of the INEC’s subnational resident electoral commissioners to senatorial ratification, thereby removing the president’s unilateral powers to appoint these commissioners. The amendments also empowered the Commission to monitor and enforce internal party democracy; created a more conductive and manageable electoral calendar; and clarified and streamlined the processes for adjudicating electoral disputes.

Similarly, provisions guaranteeing the internal autonomy and financial security of the legislature and judiciary under the 1999 Constitution have produced significant instances of legislative oversight and judicial activism. The Senate’s resounding defeat in 2016 of President Obasanjo’s attempt to overturn constitutional two-term limits on the executive, and the judiciary’s intermittent activism in ‘[rolling] back abuses of government power more frequently and effectively than any other institution’, are dividends of this constitutional investment in the separation of powers.29 The fact that such constitutional engineering has not significantly reduced political corruption, including malfeasance in all three branches of government, cannot be dissociated from glaring, systemic deficiencies in Nigeria’s broader constitutional architecture. The enormous amount of time, energy, and resources that Nigeria currently devotes to debating or promoting constitutional change (including having convened two national constitutional conferences and ratifying multiple constitutional alterations since the transition in 1999 from military to civilian rule) suggests that Nigerians themselves believe formal constitutional institutions and reforms matter for controlling corruption.30

3.  Deficient constitutional institutions and rampant corruption

This chapter’s thesis is that flaws in Nigeria’s formal political architecture, including institutions directly entrenched by the 1999 Constitution and those that are indirectly inspired or legitimized by it, significantly contribute to the country’s rampant political corruption. While the constitutional flaws implicated in Nigeria’s corruption are complex and multifaceted, the following deficits stand out: the excessive discretion of political chief executives; weak political insulation for key oversight institutions; fragile constitutional and legal frameworks for public transparency; a purely distributive intergovernmental revenue-sharing system; and an unpopular constitution-making process.

3.1  Presidential near absolutism

As is the case in other hyper-presidential constitutions in Africa, ‘[the] Nigerian Constitution, in letter and spirit, makes the Nigerian President an Emperor with near-absolute powers’.31 (p. 146) Sections 5(1) and 148(1) vest ‘the executive powers of the Federation … in the President’, including the ‘discretion’ to exercise these powers ‘directly or through [delegates]’ such as ‘the Vice-President and Minsters of the Government of the Federation or officers in the public service of the Federation’. The broad constitutional powers of the President ‘extend to’ assuming ‘responsibility for any business of the Government of the Federation’, the ‘execution and maintenance’ of the Constitution, and the enforcement of an omnibus list of sixty-eight exclusive federal legislative matters.

Remarkably, unlike the case with the legislature and judiciary, where authority is constitutionally vested in institutions, ‘[the] 1999 Constitution vests executive authority not in any institutions, but in the person of the president’.32 This constitutional design makes the presidency a personalist (rather than collegiate) branch of government, legitimizes a regime of imperious presidential discretion, and fuels a violent, corrupt, polarizing, and ethnically disintegrative political struggle to control such an awesome, personalized presidential office.

Several specific provisions of the Constitution underscore the President’s prodigious appointing, quasi-legislative, quasi-judicial, and allocative powers. Some of the most decisive presidential powers under the Constitution involve the authority to appoint the heads, and direct, ‘deploy’, or ‘determine the operational use, of the armed forces’ and the police;33 to name persons to key ‘independent’ agencies or offices (such as the offices of the Auditor-General and Attorney-General of the federation, as well as the census, code of conduct, and revenue allocation commissions, among other ‘federal executive bodies’ established under section 153 of the Constitution); to approve the internal rules and procedures of such ostensibly independent agencies;34 to establish ‘offices of minister of the government of the federation’;35 and to appoint and remove key officers in the federal public service.36

The President is also constitutionally empowered to attend ‘any meeting’ of the national legislature; to conditionally or unconditionally pardon ‘any person’ convicted of ‘any offence’ under federal law; to ‘issue a proclamation of a state of emergency in the federation or any part thereof’; to modify any existing federal law in order to bring it into conformity with the provisions of the Constitution; and to ratify or veto legislation enacted by the national legislature.37

Economically, the President is empowered to advance proposals for allocating revenues between the governments of the federation; to prepare ‘at any time in each financial year’ budgetary estimates of revenues and expenditures of the federation; and to authorize expenditures in default of legislative appropriations for a period of up to six months in a financial year.38 Meanwhile, under section 308 of the Constitution, Nigerian presidents (along with their vice-presidents and the governors and deputy governors) enjoy immunity from civil and criminal proceedings during their tenure.

Presidential powers are, of course, theoretically constrained by Nigeria’s federalist division of legislative powers; by independent judicial review; and by legislative oversight, including the powers of the legislature to disapprove of presidential appointments and budgetary proposals.39 Yet, as evidenced in the omnibus nature of the federal exclusive legislative list, (p. 147) the Nigerian system of federalism is highly centralized, retaining overwhelming powers at the centre in general and in the federal executive in particular.

Similarly, despite constitutional guarantees of independent judicial review, several decisions of the courts demonstrate that the judiciary’s capacity to restrain executive powers is severely constrained both by the hyper-presidentialist letter and spirit of the Constitution itself and by the judiciary’s own periodic adherence to the political-question doctrine, according to which the courts should recoil from deciding politically contentious matters. Illustrative decisions of the Supreme Court include Attorney General of Abia State & Ors v Attorney General of the Federation (2003),40 where the apex court upheld the constitutionality of the President’s substantial legislative modification of federal revenue sharing arrangements; and Plateau State v Attorney General of the Federation (2006),41 in which the Court declined to pronounce on the constitutionality of the use of the President’s emergency powers.

Furthermore, despite remarkable instances of bold legislative oversight, Nigerian legislators, like most of their counterparts elsewhere on the continent, have tended to prioritize constituency engagement over their oversight functions. Other factors constraining legislative oversight of the President in the Nigerian context ‘include corruption, religion, ethnicity, adverse legislative environment, inexperienced legislators coupled with the dearth of skilled legislative staff and aides, [an] overbearing executive, and party loyalty’.42

The executive’s constitutional prerogatives are, indeed, buttressed by multiple extra-constitutional factors, such as an extractive political economy in which the central executive enjoys enormous powers to receive and reallocate oil rents; the personalist nature of political party organization and competition in a developing world context; a post-colonial history of executive organizational continuity that contrasts with the institutional instability and subversion suffered by legislative and judicial branches of government during periods of non-democratic rule; and a widespread African belief in strong personal leadership as the driver of national political and economic development.

In essence, despite the country’s formal adherence to the devolution and separation of powers, ‘presidential imperialism remains a fact of political life in Nigeria’, where, as elsewhere in Africa, this super-presidency is ‘fueling corruption, nepotism, and ruinous economic decision making’.43 In particular, excessive presidential powers have been implicated in opaque security-related budgeting, the misallocation of lucrative economic opportunities and rents, the proliferation of political patronage appointments, the abortion of anti-corruption reform, and the manipulation and politicization of oversight agencies.

Presidential discretion and corruption have been especially evident in the security sector, including in so-called ‘security votes’, which represent a budgetary black hole of ‘opaque slush funds spent with no legislative oversight or outside scrutiny’.44 Although it is rooted in the country’s legacy of abusive military rule and hence strictly unconstitutional, presidential corruption involving secretive security-related spending reflects the abuse and impunity inherent in the personal concentration of executive powers and in the expansive, unilateral, and discretionary nature of powers of this kind.

(p. 148) Such corruption also reflects the President’s direct control of security institutions, the immunity enjoyed by political chief executives, and the exacerbation of all of these constitutional features by statutory provisions such as section 11 of the FOI Act 2011 and 15(2) of the Public Procurement Act 2007, which formally exclude any matters the executive designates as defence or security-related from effective oversight and scrutiny.

Under President Goodluck Jonathan, for instance, opaque security-related spending allegedly led to the embezzlement of USD15 billion in public funds through inflated or fictitious defence contracts. Ostensibly designed to procure arms to fight Islamist Boko Haram insurgents, the contracts were diverted to fund his 2015 re-election campaign.45 Furthermore, in addition to perpetuating a culture of non-transparency in defence spending, the administration of President Buhari in 2016 implemented a budget that contained more than thirty security votes ‘amounting to N210 billion’ (or the equivalent of more than USD700 million as at December 2016).46

Another example of corrupt executive discretion involves the President’s power, under section 13(1) of the Customs, Excise Tariff, Etc. Consolidation Act 4 of 1995, to ‘impose, vary, or remove any import or excise duty’ on the recommendation of an executively controlled Tariff Review Board in the Federal Ministry of Finance. Described by Nigeria’s organized private sector as a ‘mockery of the rule of law’,47 this power has been used indiscriminately, whimsically, preferentially, and opaquely by successive Nigerian presidents to benefit ‘individual operators in an industry rather than the entire industry’, thereby becoming a conduit for patronage to political cronies and supporters of the President or his party.48

Costing the treasury USD155 million in 2009, and NGN585 billion (or more than USD 2.9 billion as at December 2015) between 2011 and 2015, the import duty waiver scam exemplified the conversion of presidential power into a ‘steady source of corruption’ that financed presidential electoral campaigns and benefited ‘well-heeled businesspeople’ at the expense of fair economic competition and sound economic governance.49

Presidential discretion is at its most egregious in the strategic petroleum sector, where the presidentially appointed Minister of Petroleum Resources, or the President himself (when he doubles as his own Petroleum Minster), is statutorily empowered, under various iterations of the Petroleum Act 1969, to ‘grant, amend, renew, extend, or revoke any license or lease required for petroleum exploration’.50 A proposal under the Petroleum Industry Governance Bill, 2018, to transfer this enormous power to a newly created Nigerian Petroleum Regulatory Commission is largely meaningless since the President is empowered to appoint the governing board of the commission.

Meanwhile, direct presidential control of strategic institutions in the petroleum sector is underscored by section 1(3) of the Petroleum Products Pricing Regulatory Agency (Establishment) Act 2003, which provides that the agency ‘shall not be subject to the direction, control, or supervision of any other authority in the performance of its functions under this Act other than the President’. In essence, as a prominent journalist claimed,

(p. 149)

[w]hen Nigerians say that their president is the most powerful in the world, what they mean essentially is that he/she has control over the oil industry [. . . and] can turn a pauper to a billionaire by the stroke of a pen.51

Presidential discretion to establish ministerial offices has contributed to the proliferation of ministries, departments, and agencies (MDAs), thereby giving the President powers to appoint not only multiple federal minsters but so too the boards of more than 500 ‘parastatals, commissions or agencies’ of the federal government.52 The presidency ignored the report of a 2011 committee that recommended the restructuring, merger, or scrapping of many of these bodies to eliminate ‘overlaps, duplications and redundancies’ and reduce ‘the cost of governance, while ensuring accountability’.53 Instead, in a move reflecting the role these bodies play as a source of presidential patronage, the presidency in a single announcement in December 2017 appointed as many as 209 chairmen and 1,258 board members to the agencies. The announcement promised, instructively, that ‘more appointments are still being processed and will be released in due course’.54

Imperial presidential rule has been used to frustrate legislation or constitutional amendments designed to promote anti-corruption reform. Obasanjo vetoed an initial version of the FOI law in early 2007, thereby effectively delaying the passage of the law until May 2011 under the presidency of Goodluck Jonathan. Jonathan himself vetoed the Fourth Constitution Alteration Bill, 2015, which included provisions to curb presidential powers and enhance the political insulation or financial autonomy of oversight agencies such as the offices of the Attorney-General, Auditor-General, Accountant-General, the RMAFC, and the police and other security agencies. According to Jonathan, the amendments amounted to ‘an unjustified whittling down of the executive powers of the federation vested in the president by virtue of section 5(1) of the 1999 Constitution’.55 The veto ensured in effect that key security and oversight institutions would remain weak and vulnerable to presidential manipulation and corruption.

3.2  Weak and over-politicized oversight institutions

Imperial presidential rule has undermined the autonomy, functionality, and credibility of Nigeria’s major oversight and anti-corruption institutions. Ben Nwabueze describes this fundamental institutional challenge as follows:

Being subject to the President’s control and direction and being also mere tools in the service of his regime of personal and autocratic rule, the Code of Conduct Bureau, the Code of Conduct Tribunal, the Independent Corrupt Practices Commission and the Economic and Financial Crimes Commission are totally impotent to apply the anti-corruption/abuse (p. 150) of office laws and their sanctions … against an incumbent President … The fact that the President is, as a practical matter, free from the sanctions of the fight against corruption/abuse of office is the reason why it has made and can make hardly any appreciable and lasting impact on the incidence of corruption in the country.56

The President’s control of anti-corruption institutions is extreme in the case of the EFCC, the heads of which have been removed unilaterally by successive presidents. The members of the EFCC consist of a chair, secretary, four part-time members, and sixteen ex-officio members drawn from MDAs such as Finance, Foreign Affairs, Police, National Intelligence Agency, Customs, and Immigration. As units of the federal executive, these MDAs and their personnel are under discretionary presidential control and direction. What is more, although the appointment of the chair and members of the EFCC (other than ex-officio members) is subject to Senate confirmation, the President is statutorily empowered to remove a member of the commission ‘at any time’ if the ‘President is satisfied that it is not in the interest of the Commission or the interest of the public that the member should continue in office’.57

Presidential appointment and control of the EFCC and other statutory anti-corruption agencies (such as the ICPC, National Council on Public Procurement, Bureau of Public Procurement, and Fiscal Responsibility Commission) imitates the hyper-presidentialism evident in the design of key, constitutionally entrenched anti-corruption institutions. These institutions include the Code of Conduct Bureau, Attorney-General of the federation, Inspector-General of the Nigeria Police Force, and federal Auditor-General.

While the chair and nine members of the Code of Conduct Bureau and the Attorney-General are (subject to Senate confirmation) direct political appointees of the President, the Inspector-General of police and the federal Auditor-General are appointed by the President on the advice or recommendation of the Nigeria Police Council and the Federal Civil Service Commission, respectively; yet both the Council and the Commission are constitutionally classified among ‘federal executive bodies’, which are appointed and/or chaired by the President. In the case of the police, section 215(3) of the 1999 Constitution and 9(4) of the Police Act further entrench the politicization of the institution by giving the President virtually unrestricted authority and ‘operational control’ over the Inspector-General of Police and the Police Force, thereby ‘[making it] difficult for the police to act professionally’.58

The politicization of the appointment and control of watchdog agencies has damaged anti-corruption reform in several interrelated ways. Presidential control of anti-corruption agencies effectively shields presidents and their closest supporters from scrutiny because these agencies ‘would not touch a scandal that reached as high as the president’.59 Under section 52 of the ICPC Act, for instance, the Chief Justice of the Federation is empowered to appoint an independent counsel to investigate credible allegations of corruption against the President, with the ICPC being ‘enjoined to fully cooperate with such independent counsel’.60 However, aside from the practical challenges that the President’s constitutional immunity and broad powers could pose to such an investigation, the political proximity of anti-corruption institutions to the chief executive makes it a virtual impossibility that these institutions would probe a sitting president.

(p. 151) Presidential appointment or control of anti-corruption agencies deepens widespread scepticism about the credibility, neutrality, or integrity of anti-corruption investigations and prosecutions. Credible allegations have been made that the agencies seek presidential clearance regarding their investigation and prosecution of persons connected with corrupt activities and ‘serious economic crimes’, which ‘[reinforces] the impression that the anti-graft agencies are being used to settle political scores’.61 In the words of one authoritative report, ‘Successive presidents have used the EFCC and its sister agencies to go after corrupt political rivals while pressuring them to turn a blind eye to their own allies’ misdeeds.’62

Presidential direction of anti-corruption institutions exposes committed and crusading anti-corruption reformers to executive intimidation, retaliation, or victimization. For instance, President Obasanjo sacked Vincent Azie as acting Auditor-General of the federation for publishing reports that exposed widespread embezzlement in the presidency and MDAs; President Umaru Yar’Adua removed Nuhu Ribadu as chairman of the EFCC apparently to undermine the Commission’s prosecutions of political allies of the President; and President Jonathan suspended (and effectively terminated) Sanusi Lamido as Governor of the Central Bank following Lamido’s exposure of multi-billion dollar scams in the federal government’s management of oil revenues. These attacks on anti-corruption officials, which highlight the President’s ability to subvert agencies designed to rein in grand political corruption, represented monumental setbacks for good governance.

Most devastatingly, however, the presidential appointment and politicization of oversight agencies has stymied the institutional maturation, development, and professionalization of these organizations. The well-publicized travails of the police and the EFCC underscore this institutional underdevelopment. Independent observers commonly describe the Nigerian police as an institution where appointments are ‘influenced by nepotism, political patronage, and regime interests and preferences’ and one notorious for ‘unprofessional, corrupt and criminal conduct’.63 Ordinary Nigerians consistently rank the police as the most corrupt public institution in the country.64 Indeed, according to the 2016 World Internal Security and Police Index, Nigeria has the worst police force in the world in terms of resources devoted to internal security, the effective use of allocated resources, and public trust in the police.65

Like the police, the EFCC too has been damaged institutionally by its politicization. Its political vulnerability and weak professionalism as the home of Nigeria’s Financial Intelligence Unit (NFIU) was thrown into sharp relief in July 2017 when the global Egmont Group of 156 Financial Intelligence Units (FIUs) voted unanimously to suspend the membership of the NFIU. The suspension followed ‘repeated failures on the part of the NFIU to address concerns regarding the protection of confidential information … and the legal basis and clarity of the NFIU’s independence’.66

Largely in response to the suspension, section 2(3) of the Nigerian Financial Intelligence Unit Act 2018 moved the ‘institutional location’ of the unit from the EFCC to the relatively (p. 152) less politicized or controversial, but still politically dependent, Central Bank of Nigeria. The politicization of the EFCC threatens to denude it of many of the ingredients associated with robust anti-corruption institutions, among them being stable leadership; a professional and independent board; internal cohesion; strong public support or legitimacy; adequate human and financial resources; the technical or professional capacity to prosecute high-profile corruption cases diligently; and predictability, credibility, and transparency in the performance of their functions.

3.3  Feckless and fragile transparency laws

The constitutional design and legislative frameworks for transparency in Nigeria have fundamental flaws that prevent any transformation of the pervasive culture of secrecy and opacity plaguing the country’s governance. These flaws relate to deficiencies and contradictions inherent in current constitutional provisions on asset declarations by public officers; the design of the country’s flagship NEITI; the role of the current office of federal Attorney-General as the authority overseeing the FOI Act; and the country’s corrupt system of intergovernmental relations.

In the first place, the Code of Conduct requires ‘every public officer’ to ‘submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities … immediately after taking office and thereafter at the end of every four years and at the end of his term in office’.67 However, this provision is rendered nugatory by the absence of any provision mandating the publication of such asset declarations. The Constitution instead authorizes the Code of Conduct Bureau to make public officers’ asset disclosures ‘available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe’.68 Yet the Assembly has not prescribed any legislation regulating public access to asset declarations. Although a few political officeholders have published their asset declarations voluntarily, the overwhelming majority of officials have not followed their example. Indeed, the Code of Conduct Bureau has discouraged such publications in the absence of a relevant enabling law.

This combination of constitutional lacuna, legislative perfidy, and bureaucratic obstruction has left Nigeria’s asset declarations framework in a shambles, thereby preventing the public from scrutinizing its representatives’ violations of the Code of Conduct, while giving politicians the freedom to continue using their public offices for private gain.

The lack of public access to asset disclosures represents a fatal gap in Nigeria’s anti-corruption institutions. Studies show that the ‘crucial imperative for political accountability is that disclosure be made publicly’, and that ‘secret disclosure, even if extensive’ does not reduce perceived corruption.69 What is more, Nigeria’s secretive asset disclosure practices deviate from a global trend in which ‘[m]any countries make available the asset declaration information online and [in which] the number of countries publishing declarations online is constantly growing’.70 Remarkably, Nigeria’s approach to asset disclosure also falls short of (p. 153) standards established in several countries in sub-Saharan Africa, where 38 per cent of those surveyed in a major study make asset declaration publicly available by law.71

Weak standards of transparency are also evident in the NEITI, which is part of a global anti-corruption initiative in the extractive industry sector. Although putatively a civil society initiative, the NEITI has fallen victim to the country’s constitutional ethos of imperial presidentialism. Whereas countries such as Ghana and Azerbaijan constitute their EITI managements by empowering civic organizations to select their own representatives to the EITI, in Nigeria section 6 of the NEITI Act 2007 empowers the President to handpick representatives of civil society and other organizations on NEITI’s governing board—or, as it is known, National Stakeholder Working Group—‘without consulting’ these organizations.72

A related weakness of the NEITI is that it deals with transparency issues in a superficial manner, focusing largely on oil companies’ disclosures of revenue payments to the government, while giving relatively limited attention to the need for transparency in equally critical areas such as ‘licensing, contracting, revenue management, planning and budgeting’.73 Thus, much of the governance of the Nigerian oil sector is opaque, with there being restricted access to information and, thus, limited opportunity for oversight by the media, legislature, the political opposition, and the citizenry at large.74

With regard to the FOI Act 2011, it has not, despite its ambitious and potentially revolutionary provisions, rectified the opacity and informational black holes that mar Nigerian governance. The Act empowers citizens ‘[to] request information which is in the custody of any public official, agency or institution’ and to institute judicial action compelling any public institution to provide access to such information.75 It obliges public institutions to make official records (with exceptions on the grounds of privacy and national security) widely and readily available through print and electronic media, and imposes a fine of half-a-million naira on violators of the Act. A major problem with the Act, however, is that its enforcement is ultimately entrusted to the office of the Attorney-General of the Federation, a presidentially appointed position and an office that also doubles as the office of the federal Minister of Justice.

Conferred with broad powers under section 174 of the Constitution to institute, undertake, take over, or discontinue criminal proceedings, the office of the Attorney-General has been implicated in the politicization and frustration of anti-corruption investigations and prosecutions.76 Consequently, it has a disappointing record of promoting compliance with the FOI Act. The office has bemoaned alleged underutilization of the Act by the citizenry, but has not addressed the systemic suppression of information, including the ‘inexplicable disregard’ federal MDAs have shown for citizens’ FOI requests.77

The FOI Act has also faced resistance from subnational governments, which argue that the legislation may take effect in their jurisdictions only after it is adopted or domesticated (p. 154) by the respective state legislatures. The resistance has persisted in spite of judicial decisions, such as General India Garba v Commissioner of Finance, Benue State (2012)78 and Martins Alo v Speaker, Ondo State House of Assembly & Anor (2017),79 affirming that the FOI Act is binding on the constituent states of the federation. Indeed, matters such as evidence and archives or public records are included in the exclusive and concurrent legislative lists of the Nigerian constitution, respectively, thereby making them legitimate subjects of federal legislation.

That the states nevertheless consistently oppose the FOI Act reflects a broader tendency on their part to resist federal initiatives on good national governance, notwithstanding the fact that under Nigeria’s federal system they are funded to an overwhelming extent by centrally collected and redistributed oil revenues.

3.4  Federalism as decentralized plunder

According to Brandon Kendhammer, ‘Nigeria’s federal constitution since the late 1970s has played a key role in the country’s descent into corruption and poor governance.’80 His assertion is not inconsistent with the view that the current Nigerian federal system of multiple subnational states has functioned relatively well in promoting inter-ethnic accommodation, preserving a reasonable level of national stability, preventing a resurgence of the violent centrifugal secessionism that plagued the three-region federalism of the 1960s, and, indeed, sustaining a broad elite consensus regarding the maintenance of Nigeria as a multi-ethnic entity. Nonetheless, several aspects of Nigeria’s federal practice reduce the system into a classic example of the decentralization of political corruption.

The key, constitutionally embedded, aspects of the Nigerian federal system that have been detrimental to accountability and good governance include the overwhelming dependence of subnational governments on centrally collected and redistributed revenues; the intergovernmental sharing of revenues on the basis of largely political criteria, such as equality and the relative population of constituent units; the absence of any strong mechanisms to induce the states to spend devolved revenues efficiently, effectively, and in ways supportive of national macroeconomic stability; the immense discretionary powers of executive governors amidst the conspicuous weakness of oversight or countervailing agencies at the subnational level; and the vulnerability, politicization and dysfunctionality of the RMAFC, the constitutional body charged with developing a robust revenue-sharing system for the country.

To begin with the first of these contentions, the Constitution, in section 162, establishes a general intergovernmental distributable pool, the Federation Account, ‘into which shall be paid all revenues collected by the Government of the Federation’. The Account is the repository for the most buoyant national revenue sources, such as petroleum, gas, company and import taxes and revenues. The only major revenues constitutionally excluded from the Account are the personal income taxes of national defence, diplomatic, and security agencies and residents of the Federal Capital Territory of Abuja, which are regarded as independent revenues of the central government; value-added tax, which is levied and administered by the Federal Government but transferred largely to subnational governments, with the centre (p. 155) retaining only 15 per cent of the proceeds as estimated costs of VAT administration; personal income tax, which is levied by the Federal Government but administered and retained by the states; and property taxes, which are levied, administered, and retained by subnational governments.

The Constitution provides for revenues in the Federation Account to be distributed vertically between the centre, the states, and localities, and horizontally among the states and among the localities. The distribution would be on ‘such terms and in such manner as may be prescribed by the National Assembly’ after proposals for the allocations have been tabled before the Assembly by the President acting on the advice of the RMAFC. However, the Constitution provides that any approved revenue sharing formula should (a) ‘take into account the allocation principles … of population, equality of states, internal revenue generation, land mass, terrain as well as population density’; and (b) allocate ‘not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources’ on a derivation or unit-of-origin basis.

Under current revenue-sharing arrangements, the Federation Account is shared in the proportions of 48.5 per cent, 26.72 per cent, 20.6 per cent, and 4.18 per cent to the central government, the states, local governments, and federally controlled special funds, respectively. The allocations to the subnational governments are then distributed among the states and among the localities using the following principles and accompanying weights: inter-unit equality, or equal shares to each state or each locality, 40 per cent; relative population, 30 per cent; social development needs, 10 per cent; land mass and terrain, 10 per cent; and internal revenue generation, 10 per cent.

A key challenge with this revenue-sharing framework is that it centralizes major revenues in the Federation Account, thereby giving subnational governments relatively limited incentives to raise their own revenues. According to the Central Bank of Nigeria, for instance, the aggregate internally generated revenues of the states amounted to only 21.8 per cent and 26.4 per cent of total states revenues in 2014 and 2015, respectively, with the balance coming from centrally collected revenues.81 As predicted by theories of fiscal federalism, the fact that subnational governments mainly spend federal financial handouts, rather than their own revenues, has encouraged fiscal irresponsibility and inefficiency. Nigerian states are notorious for their weak and opaque financial management, misconceived and abandoned public construction projects, abysmal delivery of basic social services and public goods (especially basic education, health, and water and sanitation), extravagant numbers of political patronage appointments, outrageous pension and severance packages for governors and other political officeholders, and huge debts and salary arrears.82 As a sobering report on inequality in the country observes,

Across Nigeria’s 36 states, there is no correlation between the revenues collected by government at various levels, the volume of budgetary resources appropriated over the years, and the outcomes in terms of quality of infrastructure and public service delivery to citizens.83

The ruinous economic behaviour of subnational governments reflects the extent to which they rely on political criteria to receive revenues automatically and unconditionally. These (p. 156) transfers are not designed to promote or reward efficient, accountable, and transparent governance by subnational governments. Rather, a huge amount of the distributable revenue is simply divided equally among the units in accordance with the constitutionally entrenched allocation principle of equality of states. The application of the inter-unit equality principle indeed often extends to large portions of revenues that are formally designated for distribution on the basis of social needs and internal revenue-generation.84 The equality principle has become a major bane of Nigeria’s financial constitution, promoting a sense of fiscal entitlement among the states, producing per capita disparities and other distortions in the devolution of revenues, and fuelling relentless pressure for a proliferation of new units of subnational government in order to access an equal share of federal largesse.

The perversion of fiscal federalism in Nigeria is compounded by the replication of imperial presidential rule at the subnational level, where state governors reign like elected dictators or ‘provincial chiefs in a decentralized patrimonial order’, as Joseph describes them.85 The states constitute the ‘governor’s domain’ because, here even more so than at the national level, all potential agencies of restraint (the legislature, local governments, traditional rulers, the offices of state Auditor-General and Attorney-General, and the judiciary, among others) operate largely at the behest and discretion of the political chief executive.86 Co-opted and compromised through gubernatorial patronage, state legislatures, for instance, ‘have become mere appendages and instruments of political executives’.87

Although the Constitution of the Federal Republic of Nigeria (Fourth Alteration, No. 4) Act 2017, was passed to address such executive manipulation by providing for the funding of state legislatures ‘directly from the Consolidated Revenue Fund’ of state governments, the broader constitutional and informal contexts of gubernatorial hegemony remain in place. Local government councils, for example, are run by caretaker committees handpicked by the governor, or by councillors chosen in farcical elections administered by a constitutional agency (the State Independent Electoral Commission), which is appointed by the governor.

In theory, the absence of subnational checks and balances can be mitigated by making the states partly accountable to independent, non-partisan, national oversight agencies. An underlying problem in Nigeria’s federal revenue-sharing system, however, stems from the politicization and institutional dysfunctionality of the RMAFC, the body constitutionally designed to develop, monitor, and review the system.

Consisting of a chairperson and one member from each state of the federation, all of whom are appointed by the President subject to Senate confirmation, the RMAFC operates largely as another presidential political patronage apparatus rather than a technical, non-partisan oversight body. The Constitution gives the President broad discretion to constitute the RMAFC. Other than the requirement of state representation, the chair and members of the Commission are simply those ‘who in the opinion of the President are persons of unquestionable integrity with requisite qualifications and experience’.88 In practice, the President has appointed partisans into the RMAFC. Such partisanship led the Commission’s chair to campaign openly in 2015 for the re-election of the sitting federal president.89 A symptom of its maladies is that the RMAFC has been unable to articulate and promote reforms that could (p. 157) modernize the country’s corruption-prone revenue-allocation system and restructure the flawed fiscal foundations of its federal constitution.

3.5  An imposed constitution

Nigeria’s rampant political corruption is indicative not only of problematic constitutional content but of non-participatory processes of constitutional development. These processes have been led or dominated by non-democratic colonial and military regimes that allowed only limited roles, or no roles at all, for elected civilian elites and for the public at large. As a result, the Nigerian constitutional framework is commonly perceived as a top-down imposition and lacking in legitimacy; this in turn has aggravated the fragility of the country’s sense of national political community, identity, and citizenship, and thereby been a major factor underpinning Nigeria’s culture of political corruption.

In a fascinating comparison of constitution-making in Bougainville and East Timor, Joanne Wallis argues that while East Timor’s non-participatory constitution-making process ‘did not create a unified sense of national identity capable of constituting a political community’, public participation in constitution-building in Bougainville helped produce more benign governance and state-building outcomes.90 Similarly, a study of constitutional options for South Sudan convincingly analyses the positive contributions that widespread public participation in the design, deliberation, and final ratification of a national constitution can make to good governance and political development in that divided society. According to its author, Mark Deng, the inclusive construction of a constitution as a foundational public good in the South Sudanese context can help ‘break down the barriers of disunity among South Sudan’s ethnic nationalities and bring them together to participate collectively in the defining intellectual process of devising a new constitution’.91

Conversely, the absence of a process of participatory constitutionalism in Nigeria has precluded the potential contribution an inclusive constitution-making process could make to consolidating a strong national identity or common citizenship, to forging a foundational social compact among diverse communities around constructive values and norms (such as a rejection of corruption), and to building social legitimacy for the Nigerian state, thereby reducing its vulnerability to predation and exploitation by ethnically based elites and constituencies.

The applicability of concepts such as ‘prebendalism’ and ‘the two publics’ indicates instead that Nigerian corruption is normatively rooted in a pervasive culture that normalizes appropriation of the resources of a weak, poorly legitimized, multi-ethnic, post-colonial state both for individual profit and the benefit of ethnically defined clients and constituents. As Chidi Odinkalu argues,

Corruption of the Nigerian hue is a crime against a common patrimony in search of a people, or of the shared values to underpin nationhood. In the absence of a shared sense of ownership of the Nigerian nation space, most of those with the opportunity set upon what (p. 158) should be our common patrimony. What we call corruption is in fact competitive asset stripping of the country.92

The fragile nature of Nigerian national identity is rooted in the arbitrary, coercive, and exploitative manner in which British colonialism corralled diverse ethnic formations into a single polity. Political developments in the post-colonial era, including successive political transitions and constitution-making exercises, did not remediate this foundational defect because they failed to promote a democratic, inclusive, and consensual constitutional validation of Nigeria as a political community; instead, Nigerian constitution-making processes have been ‘top-down, sectarian, manipulative … elitist, arrogant, non-participatory, non-inclusive, and non-transparent’.93

Constitution-making in the lead-up to Nigeria’s independence in 1960 was conducted by the British colonial hegemon and a tiny, ethnically fragmented, indigenous civilian-successor elite. Post-colonial constitution-making, in turn, was dominated by authoritarian military elites. Rejecting the British constitutional legacy of decentralized parliamentary federalism, the soldiers articulated and imposed a centrist presidential constitutional vision for the country. Civilian experts and representatives were relegated to a purely advisory or deliberative role in the military’s constitution-making project. More importantly, no attempt was made, neither in the colonial nor post-colonial era, to involve the voices of the broader national population in constitution-building through a referendum.

In essence, constitution-making procedures have exacerbated, rather than mitigated, the weakness of legitimacy that renders the Nigerian state vulnerable to individual and group expropriation. Perceived constitutional illegitimacy has fuelled demands for participatory constitutionalism, including a popular, democratic (re)negotiation of Nigerian nation-being. These demands reiterate the belief that, as ‘a product of a small clique of the political elite’, the 1999 Constitution lacks ‘the broad-based consensus that normally accords constitutional legitimacy’.94 Advocacy in this regard calls for an inclusive constitution-making process and advances a repertoire of compelling proposals for addressing the substantive constitutional deficiencies underpinning Nigeria’s poor governance.

4.  Constitutional proposals for anti-corruption reform

Several proposals for constitutional change in support of improved governance have been articulated in constitutional amendment bills at the National Assembly, in national political-reform conferences convened by the federal government, in the reports of government investigative committees, and in blueprints developed by non-governmental, ethno-regional, and partisan organizations.95 The report of the 2014 national constitutional conference, for instance, includes promising ideas for correcting imperial presidential rule, feeble oversight institutions, secretive governance, flawed federalism, and non-inclusive constitution-building.96

(p. 159) Among the ideas for reforming corrupt discretionary executive rule are proposals to replace Nigeria’s ‘omnipotent presidential Caesar’ with a ‘parliamentary primus inter pares’, or with a semi-presidential structure.97 Calls for a return to parliamentary governance or a dual-executive semi-presidency reflect a sentiment that ‘the presidential system of government is synonymous with corruption’.98 However, shifts from presidential to parliamentary rule are relatively uncommon, while semi-presidential systems in Africa have often produced even more extreme, ‘hyper-presidential’ concentrations of power in the person of the president.99

A more compelling approach to cauterizing executive discretion would be to curtail the executive’s excessive prerogatives and privileges. For instance, the report of the 2014 national constitutional conference mentioned above included proposals to remove constitutional immunity for political chief executives, to drastically reduce the number of MDAs and accompanying presidential appointments, and to limit executive powers over the ‘appointment, operations, and funding’ of key oversight institutions.100

With regard to correcting feeble oversight institutions, there is support in Nigeria for promoting ‘constitutionally entrenched commissions that are more independent of the executive in terms of direction, appointment and funding’.101 Especially influential is the principle that funding for key oversight, regulatory, or anti-corruption agencies should come in the form of direct disbursements from the treasury, or so-called first-line charges, beyond the control of the executive.102

The issue of an appropriate modality for appointing these agencies is more contentious, however. A major contributor to this debate is Larry Diamond, who proposes the establishment of a National Oversight Council comprising nominees of non-partisan civic associations, including national associations of lawyers, journalists, students, academics, and women.103 The Council would be tasked with appointing, supervising, and determining the funding of all oversight or regulatory organizations, among them the electoral administration, the police, judiciary, and anti-corruption and code-of-conduct agencies.

A comparable proposal for constituting oversight agencies is contained in the report of the Electoral Reform Committee (ERC), which was appointed by the presidency following trenchant domestic and international criticism of fraudulent general elections in 2007.104

The INEC board, according to the ERC, should be constituted through a multilayered process that begins with soliciting nominees for membership of the Commission from the general public and designated civil society organizations (including labour, the bar, the media, and women’s organizations). Based on these public and civic nominations, the National Judicial Council (NJC) would prepare a shortlist of INEC board members from which the Council of State (an advisory constitutional body chaired by the President and including former heads of state and current governors) would make the final appointment, subject to confirmation by the Senate.

(p. 160) The key innovation in this recommendation is the attempt to dilute partisan presidential control of the INEC by involving multiple stakeholders, including civil society and all three governmental branches, in the appointment of the Commission. The recommendation is compelling for its inclusiveness, and therefore should be adopted, or adapted, in selecting not only the electoral commission but the leaderships of other oversight agencies as well.

To secure their autonomy and insulation even further, chairpersons and commissioners of oversight agencies should enjoy a fixed, extended, non-renewable term (of about ten years), as distinct from the current renewable term of four to five years. Such an extended single-term would encourage oversight commissioners ‘to be politically independent as they do not need to curry favor [for reappointment]’.105 Similarly, in terms of a widely canvassed proposal, the office of the Attorney-General would be established as an independent, non-partisan office by separating it from the executively appointed political position of the Minister or Commissioner of Justice.106 Among other potential outcomes promotive of good governance, depoliticizing the office of Attorney-General in this way would enhance transparency and accountability by giving it the autonomy it requires to discharge its current FOI obligations.

Turning to the issue of transparency in Nigerian politics and governance, it could be advanced by amending the Constitution to require the Code of Conduct Bureau to make the assets declarations of public officers freely ‘accessible to the public’.107 Such an amendment would ‘alleviate the administrative burden on agencies tasked with verifying disclosures by harnessing the manpower of the public at large’ and give ‘the public a direct stake in the fight against corruption’.108 The amendment would advance the goals of the FOI Act while reinforcing current official policies and proposals for promoting and protecting whistle-blowers.109

Transparency and anti-corruption efforts can also be promoted by incorporating appropriate incentives into the federal revenue-sharing system. Constitutionally, revenue devolutions should no longer be automatic and unconditional. Fiscal transfers rather ought to be tied to preconditions that reward good governance, including budgetary transparency, fiscal efficiency, revenue mobilization, and effective delivery of public services. Such a conditional intergovernmental revenue-sharing scheme could build on elements of the fiscal sustainability plan developed by the federal government in the wake of the insolvency of the states in 2016–2017. The plan sought to commit the states to principles of sound fiscal governance in the form of conditions for receiving federal bailouts. The conditions included timely publication of reports of audited finances and budget implementation performance; compliance with international public-sector accounting standards; improvements in independently generated revenues; implementation of a centralized single treasury account; limitations on personnel expenditure as a share of total budgeted revenue; privatization or concession of inefficient state-owned enterprises; implementation of the national Fiscal Responsibility Act; and the development and maintenance of a credit rating for subnational governments.110

However, the fiscal plan remained unimplemented and unsuccessful for several reasons: it was designed as a set of action points, and not as genuine preconditions for federal bailouts; (p. 161) it was tied to federal bailouts only, rather than to general revenue transfers, which continued to be disbursed unconditionally using the highly politicized criteria of inter-unit equality and relative population; and the conditions outlined in the plan were never really regarded as legitimate by the states, which considered themselves constitutionally entitled to sustenance by automatic federal revenue transfers and resented the centre’s perceived manipulation of the revenue-sharing system. What is more, the fiscal plan was deployed as a purely administrative intervention of the Federal Ministry of Finance; in other words, it lacked statutory or constitutional backing, which prompted defection by the states.

A potential path to reducing the incentives to predation and corruption inherent in Nigerian federalism is to constitutionally embed and statutorily codify the conditions outlined in the federal government’s fiscal plan. Implementing such a revised fiscal federalism would, however, require establishing a truly independent and professional, rather than presidentially controlled, revenue commission. Thus, the multilayered appointment process proposed by the ERC should be utilized for reconstituting, depoliticizing, and professionalizing the RMAFC.

A professional RMAFC would be better placed than the current dysfunctional and politicized commission to redesign Nigeria’s intergovernmental relations in ways that assuage ongoing agitation for restructuring the country into a decentralized or ‘true federalism’. But doing so would also require instituting a more participatory and inclusive constitution-making process. By mobilizing popular participation in constitutional reforms, such a process could alleviate the propensity to predation arising from a belief that ‘the Nigerian State was an imposed, exploitative, alien British creation … an immoral realm … that … could be utilized for narrow sectional goals or looted without [this] being immoral’.111

The legitimacy of the Nigerian Constitution and multi-ethnic union would be advanced by subjecting future constitutional changes to a nationwide referendum, as numerous political institutions and civic organizations have suggested, among them the Senate, the 2014 national conference, and the APC.112 Yet such a referendum process could compound a relatively rigid constitutional amendment formula that so far has produced only very modest constitutional changes.

Under section 9 of the 1999 Constitution, any amendments must be approved by no less than two-thirds of all the members of each house of the bicameral National Assembly, or by a four-fifths majority of these members if the change concerns the constitutional amendment formula itself or the provisions of the Constitution on fundamental human rights, boundary adjustments, and the creation of new states and localities. In addition, all amendments must be supported by resolutions of at least two-thirds of state assemblies. Furthermore, according to the Federal High Court in Agbakoba v National Assembly & Ors (2010), constitutional alterations require presidential assent before they can come into effect.113

Adding a referendum to this relatively rigorous process could thus make it even more prohibitive and less productive of constitutional change. Nevertheless, the crisis of constitutional (p. 162) illegitimacy in Nigeria makes plebiscitary participation in the reconstruction of the Nigerian Constitution a desideratum for stable, good, and accountable governance.

Furthermore, the social legitimacy of the Nigerian constitution and nation can be advanced through popular constitutional provisions that are capable of generating broad civic identification and engagement with the polity. The 2014 national conference report, for instance, included recommendations for making justiciable the non-justiciable socio-economic rights incorporated in the Constitution. It also called for ‘institutionalization of affirmative action for women and people living with disability’ and for enshrining ‘residency rights’ for so-called non-indigenes or internal migrants.114 Similarly, the aborted Fourth Constitution Alteration Bill, 2015, included two remarkable amendments to make the rights to free basic education and free primary-cum-maternal healthcare justiciable.

More recently, the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 27) Act 2017, was ratified by President Muhammadu Buhari in May 2018 in response to the ‘Not Too Young to Run’ movement. The Act sought to increase the social legitimacy of the Constitution among the country’s overwhelmingly youthful population by amending it ‘to reduce the age qualification for the office of the president’ from 40 to 35 years, and that for ‘membership of the House of Representatives and State Houses of Assembly’, from 30 to 25 years. Yet although it was celebrated for promoting ‘a greater voice for young people’ in constitutional design and governance, the amendment not only left untouched the age requirement of 35 years for governors and senators, but also fell short of an original proposal to lower the presidential candidacy age to 30.115

Indeed, the relatively modest nature of existing amendments to the Nigerian 1999 Constitution underscores the difficulty of achieving more fundamental constitutional reconstruction. A major impediment in this regard is presidential manipulation and obstruction: while Obasanjo sought to use the constitutional reform process to extend his tenure, both Jonathan and Buhari withheld assent from constitutional reform bills that sought to curb presidential powers.116 Moreover, Nigeria’s overlapping ethnic, regional, religious, and developmental fault-lines impede the construction of the national political consensus necessary for approving far-reaching constitutional change. Constitutional politics often pits proponents of radical decentralization based in the more economically developed south against more constitutionally centrist and conservative interlocutors from the demographically larger and politically dominant north. Thus, reflecting the dominant perspective in his northern Muslim base, President Buhari in 2018 expressed scepticism about radical constitutional change, proclaiming that Nigeria’s governance challenges have more to do with political processes than with constitutional structures.117

There are grounds nonetheless for cautious optimism about the prospects for constitutional reform in the country. As Emeka Anyaoku maintains,

There is a universal recognition within the country that the existing constitution is neither a constitution that derived its legitimacy from ‘we the people,’ nor a constitution that (p. 163) provides adequate basis for tackling effectively our country’s two major challenges: socio-economic development and enduring political stability.118

In addition, several concrete reform proposals are already in place; for instance, multiple constitutional reform bills that have been considered or passed by the National Assembly can guide an agenda of constructive constitutional change. What is more, Nigeria’s past achievements in implementing impactful formal political change, including federal territorial restructurings and electoral reforms, suggest that the country can successfully undertake further constitutional change to reduce corruption and advance good governance.

5.  Conclusion

Corruption in Nigeria is a formidable problem, one that implicates not only its political leadership, political culture, and political economy, but so too its constitutional institutions, which significantly worsen matters instead of mitigating them. Especially complicit are excessive political executive discretion, weak and politicized watchdog agencies, poor transparency regulations, a perverse intergovernmental revenue-sharing system, and a constitution-making process that undermines the social legitimacy of the Nigerian federation and reinforces alienation from, and expropriation of, the commonwealth.

Although they remain mostly contentious and unfulfilled, current constitutional reform debates and blueprints in Nigeria engage to one degree or another with the institutional factors that engender political corruption and undermine good governance. These constitutional agendas have sought to curb presidential powers, enhance the autonomy of oversight institutions, promote open governance, modernize and rationalize the federal system, and forge a more socially inclusive constitutional compact. The persistence and pervasiveness of these constitutional discourses suggest that Nigerians themselves regard formal constitutional change as an important element in their struggles to create more accountable and sustainable governance.

Furthermore, in the past and more recently, formal constitutional change has been decisive in shaping Nigerian governance. Beginning in the 1960s, the reconfiguration of Nigerian federalism through the dissolution of large ethno-regional bastions into smaller constituent units has been crucial for maintaining Nigeria’s multi-ethnic union despite its many challenges. Similarly, constitutional and statutory reforms in electoral administration significantly reduced domestic and international perceptions of corruption in Nigeria’s 2011 and 2015 general elections. Anti-corruption interventions in Nigeria must, of course, address economic, cultural and political-leadership issues; but the struggle to combat malfeasance will be incomplete unless serious attention is given to constitutional design.

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Footnotes:

1  Joel Brinkley, ‘Nigeria’s Squandered Opportunity’ Los Angeles Times (Los Angeles, 18 March 2013).

2  Muhammadu Buhari, ‘Nigeria Committed to Good Governance and Fighting Terror’ (Washington Post, 20 July 2015).

3  Jakob Svensson, ‘Eight Questions About Corruption’ (2005) 19(3) Journal of Economic Perspectives 25.

4  Robyn Dixon, ‘Anti-Corruption Drive Presents Officials in Nigeria a New Problem: How to Survive on Their Salaries Alone?’ Los Angeles Times (Los Angeles, 27 December 2016).

5  Ngozi Okonjo-Iweala, Reforming the Unreformable: Lessons from Nigeria (The MIT Press 2012) 81; Stephen Ellis, This Present Darkness: A History of Nigerian Organized Crime (OUP 2016).

6  Sujit Choudhry, Michael Heyman and Richard Stacey, Combating Corruption: Constitutional Frameworks for Middle East and North Africa (Center for Constitutional Transitions, International Institute for Democracy and Electoral Assistance, and the United Nations Development Project 2014) 11.

7  United States Agency for International Development, Practitioner’s Guide for Anti-Corruption Programming (USAID 2015) 11.

8  Constitution of the Federal Republic of Nigeria 1999, 3rd Schedule, Part I, ss 20–21.

9  Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010, s 6.

10  9 NWLR (Pt 824) 104.

11  4 NWLR (Pt 1025) 423.

12  Suit No. FH/LABJ/CS/63/2013.

13  Constitution of the Federal Republic of Nigeria 1999, 5th Schedule, Part I, s 1.

14  ibid, s 15 and 2nd Schedule, Pt I, Item 60.

15  See Federal Ministry of Justice, National Anticorruption Strategy 2017–2010 (Federal Ministry of Justice 2017).

16  ibid 7.

17  Olusegun Obasanjo, ‘Nigeria Yesterday, Today and Tomorrow: Governance and Accountability’ (First Akintola Williams Annual Lecture, Lagos, 23 November 2016).

18  Robert I Rotberg, The Corruption Cure: How Citizens and Leaders Can Combat Graft (Princeton University Press 2017) 299.

19  The works of Ekeh and Joseph engage with the profound moral dilemmas arising from the fragility and incoherence of national identity in Africa’s colonially concocted multi-ethnic states. Ekeh’s concept of the ‘two public’ refers to colonialism’s enduring effects in bifurcating the African state into a primordial or ethnically based realm, in which communitarian ethical or moral standards persist, and an amoral, modern, multi-ethnic, civic realm. Devoid of communal and moral legitimacy, the civic realm is susceptible to exploitation and predation by African elites seeking to advance their personal and primordial interests. Prebendalism, according to Joseph, involves the systematic reduction of state offices and associated public resources in Nigeria into medieval-type ‘prebends’ or fiefs that can be appropriated and expropriated by individual officeholders not only for their own personal enrichment, but also for the benefit of their reference, support, or communal groups, thereby promoting widespread toleration and legitimation for corruption. See Peter P Ekeh, ‘Colonialism and the Two Publics in Africa: A Theoretical Statement (1975) 17(1) Comparative Studies in Society and History 91; Richard Joseph, Democracy and Prebendal Politics in Nigeria: The Rise and Fall of the Second Republic (Cambridge University Press 1987).

20  Ekeh (n 19) 105.

21  Letitia Lawson, ‘The Politics of Anti-Corruption Reform in Africa’ (2009) 47(1) Journal of Modern African Studies 74; Anna Persson, Bo Rothstein and Jan Teorell, ‘Why Anticorruption Reforms Fail: Systemic Corruption as a Collective Action Problem’ (2013) 26(3) Governance: An International Journal of Policy, Administration, and Institutions 449; Ray Fisman and Miriam Golden, Corruption: What Everyone Needs to Know (OUP 2017).

22  Carl LeVan, Dictators and Democracy in African Development: The Political Economy of Good Governance in Nigeria (CUP 2015) 11.

23  Erika Weinthal and Pauline Luong, ‘Combating the Resource Curse: An Alternative Solution to Managing Mineral Wealth’ (2006) 4(1) Perspectives on Politics 38.

24  Alina Mungiu-Pippidi, ‘Learning from Virtuous Circles’ (2016) 27(1) Journal of Democracy 101; Persson, Rothstein and Teorell (n 21).

25  Federal Ministry of Justice (n 15) 11.

26  Nic Cheeseman, ‘Introduction: Understanding African Politics: Bringing the State Back in’ in Nic Cheeseman (ed), Institutions and Democracy in Africa: How the Rules of the Game Shape Political Developments (CUP 2018) 23, 31.

27  Daron Acemoglu and James Robinson, Why Nations Fail: The Origins of Power, Prosperity and Poverty (Crown Business 2012); Henry Hale, ‘Formal Constitutions in Informal Politics: Institutions and Democratization in Post-Soviet Eurasia (2011) 63(4) World Politics 581.

28  Cheeseman (n 26) 2.

29  Human Rights Watch, Corruption on Trial: The Record of Nigeria’s Economic and Financial Crimes Commission (Human Rights Watch 2011) 36.

30  Rotimi T Suberu, ‘Managing Constitutional Change in the Nigerian Federation’ (2015) 45(4) Publius: The Journal of Federalism 552.

31  Reuben Abati, ‘Obasanjo and the Extent of Presidential Powers’ Premium Times (Abuja, 30 January 2018).

32  ibid.

33  Sections 5, 215, and 218.

34  Section 160.

35  Section 147.

36  Section 171.

37  Sections 58, 67, 175, 305, and 315.

38  Sections 81–82 and 162.

39  Sections 4, 6, 80, 147, and 154.

40  4 NWLR (Pt 809) 124.

41  3 NWLR (Pt 986) 346.

42  Sylvester Shikyil, ‘Legislative-Executive Relations in Presidential Democracies: The Case of Nigeria’ in CM Fombad (ed), The Separation of Powers in African Constitutionalism (OUP 2016) 141.

43  Henry Kwasi Prempeh, ‘Presidential Power in Comparative Perspective: The Puzzling Persistence of Imperial Presidency in Post-Authoritarian Africa’ (2008) 35(4) Hastings Constitutional Law Quarterly 815; Henry Kwasi Prempeh, ‘Presidents Untamed’ (2008) 19(2) Journal of Democracy 111.

44  Transparency International, Weaponising Transparency: Defense Procurement Reform as a Counterterrorism Strategy in Nigeria (Transparency International 2017) 17.

45  Alexis Akwagyiram, Felix Onuah and Richard Balmforth, ‘Nigeria’s Vice President Says $15 Bln Stolen in Arms Procurement Fraud’ Reuters (London, 2 May 2016).

46  Transparency International (n 44) 17.

47  Omoh Gabriel, ‘President’s Power to Change or Impose Tariffs a Mockery of the Rule of Law, OPS’ Vanguard (Lagos, 20 September 2010).

48  Nwanneka Modebe and others, ‘The Abuse of Import Duty Waivers in Nigeria’ (2014) 113 Leiden: African Studies Center Working Paper 113/2014 3.

49  Editorial, ‘On Import Duty Waivers’ The Guardian (Lagos, 19 February 2016); Okonjo-Iweala (n 5) 63–64.

50  Victoria Ibezim-Ohaeri, ‘Petroleum Industry Bill: More Hurdles to Cross’ Premium Times (Abuja, 5 February 2018).

51  Olusegun Adeniyi, ‘PIB, Malabu and the $1 Billion Bazaar’ (The Scoop, 15 August 2013 <http://www.thescoopng.com/2013/08/15/olusegun-adeniyi-pib-malabu-and-the-1-billion-bazaar/> accessed 1 October 2018.

52  Federal Republic of Nigeria, White Paper on the Report of the Presidential Committee on Restructuring and Rationalization of Federal Government Parastatals, Commissions and Agencies (Federal Government Printer 2014).

53  ibid 5–6.

54  Sani Tukur, ‘Buhari Appoints 209 Board Chairmen, 1,258 Board Members’ Premium Times (Abuja, 29 December 2017).

55  President of the Federal Republic of Nigeria [Goodluck Jonathan], Re: Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 (2015) <http://placng.org/new/upload/PRESIDENTSVETOLETTERTONASS.pdf> accessed 13 February 2018.

56  Ben Nwabueze, How President Obasanjo Subverted the Rule of Law and Democracy (Gold Press 2007) 382, 385.

57  Economic and Financial Crimes Commission (Establishment) Act (4 June 2004), s 3(2).

58  NOPRIN Civil Society Panel on Police Reform in Nigeria, Final Report: September 2012 (2012) 28–29 <http://www.noprin.org> accessed 13 February 2018.

59  Lawson (n 21) 81.

60  Corrupt Practices and Other Related Offences Act 2000.

61  Femi Falana, ‘Why Government Loses Corruption Cases’ Sahara Reporters (New York, 12 April 2017).

62  Matthew Page, A New Taxonomy for Corruption in Nigeria (Carnegie Endowment for International Peace 2018) 15.

63  NOPRIN (n 58) 30; Human Rights Watch, Everyone’s in on the Game: Corruption and Human Rights Abuses by the Nigeria Police Force (Human Rights Watch 2010) 2.

64  United Nations Office on Drugs and Crime, Corruption in Nigeria: Bribery, Public Experience and Response (UNODC 2017) 37–38.

65  Institute for Economics and Peace, World Internal Security and Police Index 2016 (IEP 2017) 5.

66  Plenary of the Egmont Group of Financial Intelligence Units, ‘ “Co-Chairs” Statement’ (24th Plenary of the Egmont Group of Financial Intelligence Units, Macao SAR, 7 July 2012).

67  Constitution of the Federal Republic of Nigeria 1999, 5th Schedule, Pt I, s 11(1).

68  ibid, 3rd Schedule, Pt I, s 3(c).

69  Simeon Djankov, Rafael La Porta and Andrei Shleifer, ‘Disclosure by Politicians’ (2009) National Bureau of Economic Research [Working Paper 14703] 24.

70  Dmytro Kotlyar and Laura Pop, ‘Asset Declarations: A Threat to Privacy or a Powerful Anticorruption Tool?’ (World Bank, 26 September 2016) <https://bit.ly/2D5lJS1> accessed 1 October 2018.

71  Ivana Rossi, Laura Pop and Tammar Berger, Getting the Full Picture on Public Officials: A How-To Guide for Effective Financial Disclosure (World Bank 2017) 92.

72  Dauda Garuba and John Ikubaje, ‘The Nigeria Extractive Industries Transparency Initiative and Publish What You Pay Nigeria’ in Mary McNeil and Carmen Malena (eds), Demanding Good Governance: Lessons from Social Accountability Initiatives in Africa (World Bank 2010) 150.

73  Alexandra Gillies and Antoine Heuty, ‘Does Transparency Work? The Challenges of Measurement and Effectiveness in Resource-Rich Countries’ (2011) Spring/Summer Yale Journal of International Affairs 25, 39.

74  ibid 31.

75  Federal Republic of Nigeria, Laws of the Federation of Nigeria, Freedom of Information Act 2011, s 1.

76  Page (n 62) 15.

77  Samuel Ogundipe, ‘Hall of Shame: 21 Nigerian Institutions Criticized for Violating FOI Law’ Premium Times (Abuja, 23 November 2017).

78  Suit No. MAC/2564/M/2012.

79  Suit No. CA/AK/4/2017.

80  Brandon Kendhammer, ‘Getting Our Piece of the National Cake: Consociational Power Sharing and Neopatrimonialism in Nigeria’ (2015) 21(3) Nationalism and Ethnic Politics 143.

81  Central Bank of Nigeria, Annual Report and Statement of Accounts (CBN 2016) 120.

82  Paul Adams, ‘State(s) of Crisis: Sub-National Government in Nigeria’ (2016) Africa Research Institute [Briefing Note 1602] 2.

83  Oxfam International, Inequality in Nigeria: Exploring the Drivers (Oxfam International 2017) 24.

84  World Bank, Nigeria Economic Report No. 1 (World Bank 2013) 24.

85  Joseph (n 19) 72–73.

86  Adams (n 82) 2.

87  Shikyil (n 42) 147; World Bank, State and Local Governance in Nigeria (World Bank 2002) 19.

88  Constitution of the Federal Republic of Nigeria 1999, 3rd Schedule, Pt I, s 31(a).

89  ‘Ebonyi Will Massively Vote for Jonathan, Says Mbam, RMAFC Chairman’ Vanguard (Lagos 16 January 2015).

90  Joanne Wallis, ‘How Important is Participatory Constitution-Making? Lessons from Timor-Leste and Bougainville’ (2016) 54(3) Commonwealth and Comparative Politics 376.

91  Mark Deng, ‘Defining the Nature and Limits of Presidential Powers in the Transitional Constitution of South Sudan: A Politically Contentious Matter for the New Nation’ (2017) 61(1) Journal of African Law 24.

92  Chidi Odinkalu, ‘As Buhari Fights Corruption without a Strategy’ Premium Times (Abuja, 20 December 2016).

93  MHA Bolaji, ‘Sharia’h in Northern Nigeria in the Light of Asymmetrical Federalism’ (2010) 40(1) Publius: The Journal of Federalism 129–30.

94  ibid 128.

95  Suberu (n 30).

96  Federal Republic of Nigeria, Final Conference Report (The National Conference 2014).

97  Tatalo Alamu, ‘Hegemonic Parties and their Discontents’ The Nation (Lagos, 4 February 2018).

98  Editorial, ‘Agenda for Restructuring’ The Guardian (Lagos, 16 October 2012).

99  Oda van Cranenburgh, ‘Democracy Promotion in Africa: The Institutional Context’ (2011) 8(2) Democratization 447.

100  Final Conference Report (n 96) 119, 157, and 176.

101  Chris Heymans and Chris Pycroft, Drivers of Change in Nigeria: A Preliminary Overview (Department of International Development 2003) 37.

102  Final Conference Report (n 96) 157.

103  Larry Diamond, ‘Issues in the Constitutional Design of a Third Nigerian Republic’ (1987) 86(343) African Affairs 220.

104  Federal Republic of Nigeria, Report of the Electoral Reform Committee (Federal Republic of Nigeria 2008) 28.

105  Choudhry, Heyman, and Stacey (n 6) 92.

106  Femi Falana, ‘For an Independent Prosecutor’ This Day (Lagos, 29 September 2014); Final Conference Report (n 96) 230.

107  Final Conference Report (n 96) 722.

108  Choudhry, Heyman, and Stacey (n 6) 113–14.

109  Ismail Akwei, ‘20 Nigerians to Get over $1m Whistleblower Reward for Recovered $36.8m’ (Africa News, 6 August 2017); Final Conference Report (n 96) 337.

110  Kemi Adeosun, Fiscal Sustainability: Fiscal Framework for Sub-National Governments in Nigeria (Federal Ministry of Finance 2016).

111  Darren Kew, ‘Nigerian Elections and the Neopatrimonial Paradox: In Search of a Social Contract’ (2010) 28(4) Journal of Contemporary African Studies 500.

112  Suberu (n 30) 564; Ike Ekweremadu and Offornze Amucheazi, Constitutional Review in an Emerging Democracy: The Nigerian Experience (Goldline and Jacobs Publishing 2015) 137; Final Conference Report (n 96) 230–31; All Progressives Congress (APC), Report of the APC Committee on True Federalism Vol. 2: Legislative, Executive and Other Action Plans (APC 2018), 53–54.

113  Suit No. FHS/L/1940/2010.

114  Final Conference Report (n 96) 109–10 and 298.

115  Paul Carsten and others, ‘Nigeria Lowers Minimum Age for Office in Victory for Youth Campaign’ Reuters (London, 1 June 2018) <https://af.reuters.com/article/topNews/idAFKCN1IX410-OZATP> accessed 1 October 2018.

116  Policy and Advocacy Centre (PLAC), ‘President Muhammadu Buhari Withholds Assent to Five Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration) Amendment Bills’ (PLAC, 25 July 2018) <https://bit.ly/2v8einF> accessed 1 October 2018.

117  ‘Full Text of Muhammadu Buhari’s 2018 New Year Address’ Punch (Lagos, 1 January 2018 <https://punchng.com/full-text-muhammadu-buharis-2018-new-year-address/> accessed 1 October 2018.

118  Emeka Anyaoku, ‘Nigeria: In Urgent Need of True Federalism’ The Guardian (Lagos, 7 February 2016) <https://guardian.ng/politics/nigeria-in-urgent-need-of-a-true-federalism/> accessed 1 October 2018.