Volcanic explosion of an uncommon agenda for development
Olisa Agbakoba advises the 10th National Assembly on how it can deliver on a transformative legislative agenda for Nigeria’s political and economic progress.
Nigeria’s political and economic development is very badly stunted. The 10th National Assembly plans to reverse this through what it describes as a transformational legislative agenda. What actions can the National Assembly take to deliver on this transformative legislative agenda? There are many potential solutions, but I will only focus on the issue of governance.
Governance is an important policy tool for development planning. Governance reviews the performance of regulatory, legal, and environmental processes to assess in relation to economic and political development. Nigeria’s governance environment is operating sub-optimally. There is a very urgent need to improve it. I suggest we study how Franklin D. Roosevelt and Margaret Thatcher’s governance strategies turned around the United States and United Kingdom respectively. These two leaders are considered as the most effective leaders of the 20th century. Many valuable lessons can be learned from how they leveraged governance mechanisms to drive political and economic development.
The National Assembly must first understand the scope of its legislative powers. The National Assembly has assumed that it has only two types of legislative powers: the powers to act as the legislature of the Federal government, and the powers to legislate for the Federal Capital Territory. Professor Ben Nwabueze suggests that there is a third power – the power to legislate for the Federal Republic of Nigeria under section 4 (1) of the Constitution. This is the unique power that makes the National Assembly a sovereign parliament. The National Assembly is unaware of this power. The closest the National Assembly has come to exercising this power as a sovereign legislature was when it invoked the doctrine of necessity to swear in Goodluck Jonathan as President. The National Assembly must exercise its sovereign powers a great deal to achieve success.
I will start the governance conversation by looking at political governance. Political governance in Nigeria is very weak. The International Index of failed states classifies Nigeria as being in a low-grade civil war. Insecurity, conflict, and agitation are all pervasive throughout the country, with groups such as Boko Haram, IPOB, Niger Delta militants, Fulani herdsmen, bandits, and kidnappers causing chaos and disorder.
Nigeria can’t achieve development without first establishing peace, order, and unity. National Order is the process or system by which a nation secures its peace. Once peace and order are established, transformational development can occur.
The concept of National Order originated in Europe with the Catholic and Protestant wars. Europe in the early 15th and 16th hundreds fought two major wars, between Protestants and Catholics. The first war lasted 80 years and the other over 30 years. As these wars raged, Europe was ravaged by disease, poverty, instability, and decline. It was the brilliant leader, Maximilian that took charge and brought leading European leaders together at a major political conference. The conference produced what is now known as the Treaty of Westphalia. A major outcome of the Treaty of Westphalia was the establishment of peace and stability throughout Europe. It was this peace and stability that gave rise to the industrial revolution in Europe.
It is so crucial to have peace and stability in Nigeria without which there will be no development. Since 1914, Nigeria’s political structure has been imposed on us. We have never agreed on the nature of our political marriage. The 10th National Assembly should facilitate an agreement on the political arrangements that will work for Nigeria. The National Assembly has powers to do this under section 4 (2) of the constitution. The National Assembly is empowered to make laws for the peace, order, and good government of the Federation.
Closely connected to political governance is constitutional governance. The 1999 Constitution does not have popular acceptance because it was imposed by the military. We have been on a journey to find a suitable model that will give the constitution’s acceptability and legitimacy. We have considered National Conferences, which failed. The present model of alteration of the Constitution has not worked. It has taken far too long and has failed to win popular and legitimate acceptance.
Professor Ben Nwabueze suggests a third model, which is wholesale constitutional replacement. Professor Nwabueze argues that the 1999 Constitution is only a schedule to Decree No. 24. All that the National Assembly needs to do is repeal the schedule and replace it with a new schedule i.e. a brand-new constitution. The National Assembly will of course take into account elements of inclusivity and legitimacy by Nigerians. This power, Nwabueze argued, is derived from sections 4(1) and 315(1) (a) & (4) of the 1999 Constitution.
This new constitution will provide a clause that strengthens Institutions that consolidate democracy. Institutions like the INEC, Police, ICPC, Accountant General, National Judicial Council, Attorney General, CBN, National Human Rights Commission, Judicature, EFCC, Public Defender, Code of Conduct Bureau, etc. We can copy Chapter 9 of the Constitution of South Africa, titled “Institutions Consolidating Democracy”, which guarantees independence and effective functioning of national institutions. I also suggest massive devolution of powers from the Federal to the States governments. The Federal government is far too strong. The local government system has to be established to guarantee its independence.
The next related concept is electoral governance. INEC, our election management body, has flawed structures that fails to guarantee that our votes count. To strengthen INEC is to implement the Uwais report.
I turn to legal and judicial governance. The failure of the legal and judicial process is clearly impeding our development. The critical role of the National Assembly is to reverse legal and judicial failure. The starting point is to expunge outdated laws on our books. The National Assembly should copy Rwanda that embarked upon a comprehensive and ambitious review of over 1,000 laws.
Our courts are overburdened. Massive legislative overhaul is needed to revamp the judicature. We need to unbundle the unitary structure of the Judicature to create federal, state, and local government court systems. Federal matters will go to federal courts, state matters to state courts, and local matters to local government courts. This is the only way to decongest the judicial roadblock.
The National Assembly will need to understand the difference between Administration of Justice, where they cannot legislate, and Justice Administration where they can. For example, the mode of appointment of Senior Judges is a matter for legislation but the National Judicial Council has usurped that power. The National Assembly can legislate on mode of appointment of Judges. This will confer credibility in the Judicial process.
Our economic governance system needs overhaul. The National Assembly will have to clarify Nigeria’s economic ideology. Section 16 of the Constitution describes Nigeria as a socialist economy, but we are a mixed economy. This contradiction must be resolved. The second point is to alter the notion that public revenue is only about tax revenues. Non-tax revenue is also a critical part of the public revenue as provided under section 162 (10) of the Constitution. The non-tax element of public revenue has not been effectively deployed, which is why we always struggle with budget deficits. The combination of tax and non–tax revenues will result in a robust and potential income source that may exceed N100 trillion annually.
It is also vital to strengthen the revenue collection processes of the government. To achieve this, there has to be a one-stop shop for revenue collection. Currently, far too many agencies collect revenue. This is not efficient. There should be one collection agency. For instance, the Customs Service currently serves two functions, enforcement and revenue collection. It is suggested that the revenue collection function of Customs be transferred to a new agency styled as National Revenue Authority to collect all tax and non-tax revenues.
Public revenue cannot by itself drive economic growth. This notion to the opposite is wrong. Capital is actually what drives economic growth. We have to distinguish public revenue from capital. Public revenue derives from tax. Private capital is the aggregation of economic activity. In Nigeria, the legal infrastructure to tap into private capital does not exist. For example, the value of the Nigerian Housing stock is estimated at over $6 trillion but 80% of properties in Nigeria do not have titles and so have no capital value. Legislative reform of property titling will generate trillions in capital formation to power economic growth.
The structure of economic governance is driven by the performance of public and private banks. But the legislative process driving the banking system must be overhauled. A public bank, the CBN is overburdened and needs to be supported by other critical institutions. On the part of the private banks, if they are not comprehensively supervised, they become traders rather than banks that should provide credit. Without credit, the economic system will be anaemic. Legislation is needed for the public bank – CBN – and private banks.
I suggest that the CBN be unbundled into at least three separate institutions. The present CBN should retain responsibility for monetary policy and financial systems stability. As in England, I suggest that a new institution styled Prudential Regulatory Authority should be established for banking supervision. Again, as in England, I suggest that a Financial Conduct Authority be established for financial conduct in banks.
For the private banks, a new banking legislation is overdue. The Banks and Other Financial Institutions Act (BOFIA) is outdated. We need to copy from the US, the Glass-Steagall Act and Frank Dodd Act that focused US banks on the key role of lending to the economy. This is called consumer lending.
We need to strengthen our trade policy and governance. Our trade policy and governance are very weak. As a result, Nigeria is a dumping ground. The gold standard is to have a localised World Trade Organisation (WTO). I recommend a National Trade Office. The National Trade Office will be complemented by a trade remedies legislation to protect our local industries.
Nigeria’s developmental challenges may seem daunting, but they are not insurmountable. The 10th National Assembly has a unique opportunity to articulate and drive an uncommon agenda for development. I recommend that the National Assembly work SMART i.e. have Specific, Measurable, Achievable, Relevant, and Time-Bound objectives. It is only by working SMART that President Tinubu’s aspiration of growing Nigeria’s GDP to $1. 0 trillion in 7 years will become a reality.
Olisa Agbakoba, SAN, former President of the Nigerian Bar Association, is Senior Partner at Olisa Agbakoba Legal.
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