From: Godwin Tsa, Abuja The feud between the Attorney General of the Federation and Minister of Justice, Abubakar Malami, (SAN) and the Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu may not be over. It clearly manifested on Friday in the response by the AGF to the media report that the…
Concept and meaning of federalism
Federalism is derived from the Latin word “foedus” meaning covenant. It is a political concept in which a group of members are bound together by covenant with a governing representative head. The term is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constitutional political units (like states or provinces). Federalism is a system in which the power to govern is shared between National and State Governments, creating what is often called a federation. Powers in a federal set up are constitutionally shared between the central government and the federating units. In Nigeria, this is between the federal, state and local governments.
It is to be noted that it has been difficult for scholars over the years to reach a consensus as regards the definition of federalism. This problem is inherent in the fact that it is difficult to establish a proper linkage between theory and practice of federalism on the one hand and the issue of different scholars viewing federalism from different perspective, on the other hand. However the concept of federalism has attracted the attention of various scholars, hence the need to look at different definitions of scholars on federalism.
K.C. Wheare, the father of federalism, as regards the legal or constitutional perspective of federalism, defined federalism as a constitutional arrangement which divides law making powers and functions of the state between two levels of government which are coordinate in status. By this definition however, K.C. Wheare emphasizes the need for each level of government to have adequate resources to perform its functions without appealing to the other level of government. He went further to argue that if the component government in a federation discovers that the services given to them are too expensive for them to perform and call on the federal government for assistance, they are no longer coordinate to the federal government, but subordinate to it and when this happens, federalism cease to exist. Though this definition has been described as too legalistic and rigid, it has remained the classical definition of federalism.
In the same vein, Professor B.O. Nwabueze stated that:
Federalism is an arrangement whereby powers of government within a country are shared between a national (nationwide) government and a number of regionalized (i.e. territorially localized) governments in such a way that each exists as a government separately and independently from the others, operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of its affairs and with an authority in some matters exclusive of all others.
According to Professor Itse Sagay, federalism is:
“an arrangement whereby powers within a multi-national country are shared between a federal government and component units in such a way that each unit, including the central authority exists as a government separately and independently from others, operating directly on persons and properties with its territorial area and with a will of its own apparatus for the conduct of affairs and with an authority in some matters exclusive of others”.
For the inimitable Elaigwu, Federalism simply is:
“…a compromise solution in a multinational state between two types of self-determination – the determination to maintain a supranational framework of government which guarantees security for all in the nation-state on the one hand, and protects the self-determination of component groups which seek to retain their individual identities on the other hand.”
Federalism also has been seen by Kincaid John, as the approach to governance that seeks to combine unity or shared rule with diversity or self rule. R.L. Watts defines federalism as a political system characterized by two sub-systems, one of central government and the other of state governments, in which the component government are coordinate in the sense that neither is politically subordinate to the other but interact with each other at many points both cooperatively and competitively. The main idea here is that although it is desirable that each level of government should be relatively autonomous in its sphere of competence, there is also the need for intergovernmental cooperation as well as the inevitability of competition.
C.J. Fredrich sees federalism somewhat differently (from the way K.C. Wheare see it) when he defined federalism thus: Federalism is a process by which a number of separate political communities enter into arrangements for working- out solutions, adopting joint policies and making joint decision on joint problems and conversely also the process by which a unitary political community become differentiated into a federally organized whole, i.e. as a process of federalism. To him, institutional cooperation is an integral part of federalism as it involves a working arrangement to achieve an objective at a particular time. Hamilton sees federalism as an association of state to form a new one. Some other writers also regard federalism as a kind of decentralized government, in the sense that the central government alone possesses inherent authority but develops some power on the units as a means of facilitating the administration of the country. In some countries also, federalism is seen as regionalism, ethnicity being the distinctive feature which delineates the units.
HISTORY OF FEDERALISM IN WESTERN THOUGHT
A wide-spread interest among political philosophers in topics concerning the centralised nation state has fuelled attention to historical contributions on unitary sovereignty. However, we can also identify a steady stream of contributions to the philosophy of federalism, also by those better known for their arguments concerning centralised power.
Several of the early contributors to federalist thought explored the rationale and weaknesses of centralised states as they emerged and developed in the 17th and 18th century. Johannes Althusius is often regarded as the father of modern federalist thought. He argued in Politica Methodice Digesta (Althusius 1603) for autonomy of his city Emden, both against its Lutheran provincial Lord and against the Catholic Emperor. Althusius was strongly influenced by French Huguenots and Calvinism. As a permanent minority in several states, Calvinists developed a doctrine of resistance as the right and duty of “natural leaders” to resist tyranny. Orthodox Calvinists insisted on sovereignty in the social circles subordinate only to God’s laws.
The French Protestant Huguenots developed a theory of legitimacy further, presented 1579 by an author with the telling pseudonym “Junius Brutus” in Vindiciae Contra Tyrannos. The people, regarded as a corporate body in territorial hierarchical communities, have a God-granted right to resist rulers without rightful claim. Rejecting theocracy, Althusius developed a non-sectarian, non-religious contractualist political theory of federations that prohibited state intervention even for purposes of promoting the right faith. Accommodation of dissent and diversity prevailed over any interest in subordinating political powers to religion or vice versa.
Since humans are fundamentally dependent on others for the reliable provision of requirements of a comfortable and holy life, we require communities and associations that are both instrumentally and intrinsically important for supporting [subsidia] our needs. Families, guilds, cities, provinces, states and other associations owe their legitimacy and claims to political power to their various roles in enabling a holy life, rather than to individuals’ interest in autonomy. Each association claims autonomy within its own sphere against intervention by other associations. Borrowing a term originally used for the alliance between God and men, Althusius holds that associations enter into secular agreements—pactum foederis—to live together in mutual benevolence.
Several early contributors explored what we may now regard as various species of federal political orders, partly with an eye to resolving inter-state conflicts. Ludolph Hugo was the first to distinguish confederations based on alliances, decentralized unitary states such as the Roman Empire, and federations, characterized by ‘double governments’ with territorial division of powers, in De Statu Regionum Germanie .
Charles de Secondat, Baron de Montesquieu argued in the Spirit of Law that for confederal arrangements as combining the best of small and large political units, without the disadvantages of either. On the one hand they could provide the advantages of small states such as republican participation and liberty understood as non-domination—that is, security against abuse of power. At the same time confederal orders secure the benefits of larger states such as military security, without the risks of small and large states. A ‘confederate republic’ with separation of powers allows sufficient homogeneity and identification within sufficiently small member units. The member units in turn pool powers sufficient to secure external security, reserving the right to secede (Book 9, 1). Member units serve as checks on each other, since other member units may intervene to quell insurrection and power abuse in one member unit. These themes reoccur in later contributions, up to and including discussions concerning the European Union.
David Hume, disagreed with Montesquieu that smaller size is better. Instead, “in a large democracy … there is compass and room enough to refine the democracy.” In “Idea of a Perfect Commonwealth”. Hume recommended a federal arrangement for deliberation of laws involving both member unit and central legislatures. Member units enjoy several powers and partake in central decisions, but their laws and court judgments can always be overruled by the central bodies, hence it seems that Hume’s model is not federal as the term is used here. He held that such a numerous and geographically large system would do better than small cities in preventing decisions based on “intrigue, prejudice or passion” against the public interest. Several 18th century peace plans for Europe recommended confederal arrangements. The 1713 Peace Plan of Abbé Charles de Saint-Pierre would allow intervention in member units to quell rebellion and wars on non-members to force them to join an established confederation, and required unanimity for changes to the agreement. Jean-Jacques Rousseau presented and critiqued Saint-Pierre’s proposal, listing several conditions including that all major powers must be members, that the joint legislation must be binding, that the joint forces must be stronger than any single state, and that secession must be illegal. Again, unanimity was required for changes to the agreement.
Immanuel Kant defended a confederation for peace in On Perpetual Peace (1796). His Second Definite Article of a Perpetual Peace holds that the right of nations shall be based on a pacific federation among free states rather than a peace treaty or an international state: “This federation does not aim to acquire any power like that of a state, but merely to preserve and secure the freedom of each state in itself, along with that of the other confederated states, although this does not mean that they need to submit to public laws and to a coercive power which enforces them, as do men in a state of nature.”
The discussions surrounding the U.S. Constitutional Convention of 1787 marks a clear development in federal thought. A central feature is that federations were seen as uniting not only member units as in confederations, but also the citizenry directly. The Articles of Confederation of 1781 among the 13 American states fighting British rule had established a centre too weak for law enforcement, defence and for securing interstate commerce. What has become known as the U.S. Constitutional Convention met May 25–September 17, 1787. It was explicitly restricted to revise the Articles, but ended up recommending more fundamental changes. The proposed Constitution prompted widespread debate and arguments addressing the benefits and risks of federalism versus confederal arrangements, leading eventually to the Constitution that took effect in 1789.
The “Anti-federalists” were fearful of undue centralization. They worried that the powers of central authorities were not sufficiently constrained e.g., by a bill of rights that was eventually ratified in 1791. They also feared that the centre might gradually usurp the member units’ powers. Citing Montesquieu, another pseudonymous ‘Brutus’ doubted whether a republic of such geographical size with so many inhabitants with conflicting interests could avoid tyranny and would allow common deliberation and decision based on local knowledge . In what has become known as The Federalist Papers, James Madison, Alexander Hamilton and John Jay argued vigorously for the suggested model of interlocking federal arrangements Madison and Hamilton agreed with Hume that the risk of tyranny by passionate majorities was reduced in larger republics where member units of shared interest could and would check each other: “A rage for paper money, for an abolition of debts, for an equal division of property, or for any improper or wicked project, will be less likely to pervade the whole body of the Union than a particular member of it.” Splitting sovereignty between member unit and centre would also protect individuals’ rights against abuse by authorities at either level, or so believed Hamilton, quoting Montesquieu at length to this effect.