On Federal Character [II]

Its origins could be discerned in one of the declarations of the 1978 Constitution Drafting Committee: ’There had in the past been inter-ethnic rivalry to secure the domination of government by one ethnic group or combination of ethnic groups to the exclusion of others. It is therefore essential to have some provision to ensure that […]

Its origins could be discerned in one of the declarations of the 1978 Constitution Drafting Committee: ’There had in the past been inter-ethnic rivalry to secure the domination of government by one ethnic group or combination of ethnic groups to the exclusion of others. It is therefore essential to have some provision to ensure that the predominance of persons from a few states or from a few ethnic or other sectional groups is avoided in the composition of government, in the appointment or election of persons to high offices in the state.’
It was in order to remedy this that Section 14 of the constitution stated that: ‘The composition of the government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that government or any of its agencies.’
The constitution gave the commission wide-ranging powers to design an equitable sharing formula for the distribution of all cadres of posts in the public service of the Federation and of the states, the armed forces of the Federation, the Nigeria Police Force and other government security agencies, government-owned companies and parastatals of the states.
In addition, among other provisions, section 5 of the Federal Character Commission Act provides that the commission shall have power to formulate and provide guidelines for government agencies and other employers and providers of services and socio-economic amenities, and then monitor and enforce compliance with the guidelines and formulas at all levels; and, in doing this, it reserves the right to demand and receive returns on employment and socio-economic indices from all enterprises or bodies corporate and penalize non-compliance.
It shall also have the power ‘to institute investigation into any matter relating to any institution or organization where the institution or organization concerned fails to comply with the demands of the commission, and the institution or organization shall be required to bear the cost of such investigations; and it has the power do anything which in its opinion is incidental to its functions under this Act.’
Its guiding principles provides that: ‘each state of the federation is to be equitably represented in all national institutions and in public enterprises and organizations; that the best and most competent persons are recruited from each state of the federation to fill positions reserved for the indigenes of that state; that once a candidate has attained the necessary minimum requirement for appointment to a position, he/she should qualify to fill a relevant vacancy reserved for the indigenes of his/her state.
‘But where the number of positions available cannot go round the states, then sharing should be on zonal basis; but in the case where only two items are available, they should be shared between northern zones and the southern zones. And if the indigenes of a state are not able to take up all the vacancies meant for them the indigenes of other state(s) within the same zone should be given preference in filling such vacancies.’
The commission worked out an arrangement such that the indigenes of any state should not constitute less than the lower limit or higher than its upper limit; and in the ideal situation, ‘posts to be distributed among the indigenes of the states and Abuja on the formula of equality would be 2.75% for the indigenes of each state after reserving 1% for the indigenes of Abuja. If these guidelines have been followed strictly, it will not have compromised merit.’
All this is in order to create a sense of belonging to the polity in a particular set of people who have been victims of marginalisation or inculcate in them a feeling of pride and a sense of participation in their own affairs, or bring home to them the reality of the unity of the nation state.
With respect to a situation not entirely dissimilar from ours, Frederick Douglass, the celebrated emancipated slave, said of the struggle by then Negroes in the United States that blacks were not looking up to whites for benevolence or pity or for sympathy; what they wanted was justice. And exactly 150 years later, African Americans are still asking for the same thing—and getting it.
In three of the most celebrated cases in the United States over the course of the last three decades of affirmative action legal battles, it was always held that applying the principle in admission decisions to American universities was constitutional. In 1978, in the case of Regents of the University of California v. Bakke, the US Supreme Court held that affirmative action was constitutional, and ruled that the issue of race could be used for fixing underrepresentation.
Five years later, affirmative action was sustained in Grutter v. Bollinger and Gratz v. Bollinger in both of which the court upheld the right of the University of Maryland Law School to consider race—or presumably any of the possible causes of being disadvantaged—because it had a compelling interest in promoting class diversity. It hled that a race-conscious admission policy that favoured underrepresented minorities was not unconstitutional. And between 2012 and 2014, in Fisher v. University of Texas, the Supreme Court upheld the decision of the US Court of Appeals which had held that “universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.”
Yet, despite its enormous powers or perhaps because of them, the FCC has not been known to have received any charges or taken violators of its directives to court. In comparison, in the last year alone, for instance, the Equal Employment Opportunity Commission, EEOC, the FCC’s counterpart in the US, received 88,778 charges of discrimination, down from 93,727 the previous year; and it resolved them and successfully filed 167 suits.
Perhaps the real problem of federal character is the Federal Character Commission itself. If today federal character is not reflected in the nation’s public sector, it is not because adequate provision has not been made for it; it is perhaps because the commission is not entirely clear about its mission or how to go about achieving it; or the public is not aware of what it can do to help.
Also, with a member from each state of the federation, the commission is perhaps the only agency that truly reflects federal character; it is, nevertheless, obvious that it is really too big for effectiveness. A leaner and more focused, seven- or thirteen-member commission—a strong, apolitical chairman with six or twelve members representing the nation’s six zones—will have been more effective than its politicized, unwieldy 36-member structure.
Subordinated to the presidency, its effectiveness has been that much further undermined, because any president who is opposed to the idea of federal character will probably not allow it free rein to discharge its constitutional responsibilities. It will need to assert its independence here.
It therefore follows that not only must appointments into the board of the commission be predicated on the integrity and apolitical nature of the chairman and members, the commission itself must be put beyond the control, and not be made to stand in need, of the approval of the president or of any other authority.
In addition, the commission will need to create an outreach unit that tells the nation what it does, an intelligence unit that collects the statistics it can use to stop a discriminatory practices before they happen. In the circumstance, its mandate may also need to be extended to cover monitoring admissions into all federal institutions of higher learning. And to prepare for the deluge of litigations ahead of it, it needs to set up a strong, full-fledged legal department for the prompt prosecution of any non-compliance with its dictates. 
Clearly, the commission is neither toothless nor yet a bull-sheep; therefore what it needs are not teeth with which to bite; for, these it has got—what it really needs is the will to act and the government to back it up. As can be seen, federal character principle, as a tool for ensuring fairness in public service, equity in public institutions and the allocation of public goods, seeks to ensure that appointments to public service, admissions to public institutions and the location of amenities fairly reflect the ethnic, religious and geographic diversity of the country.
As a principle, therefore, there is nothing wrong with the fact of, or the demand for, or anything to be ashamed of about, the demand for federal character to be reflected. It is by no means an unearned privilege for spoilt brats: it is a right and a right it will remain so long as remediable inequality and under representativeness remain.
It is just like the doctrine of the rule of law, which, though the foundation of justice in society, is distasteful to some who have their own selfish reasons for disliking it; but it nonetheless  remains something that the entire system stands in dire need of, not least because there will indeed be no system without it. And if properly applied and executed, federal character will not have led to any lowering of the standard; it will in fact have led to what Gregory Walton once called affirmative meritocracy.