Constitutional and legal basis of urban development in nigeria

Being the full text of a  Paper presented by Prof A. A. Utuama, SAN, FNITP (Hon.) on the occasion of the 1st Nigeria Urban Summit at the Transcorp Hilton Hotel, Abuja with the theme Positioning Nigerian Cities to achieve top 10 Economies by 1010

I am honoured to be invited to this august occasion of the 151 Nigeria Urban Summit and to present the paper on the all-important topic of Urban Development and its legal and constitutional bases in Nigeria. I commend the initiative of the organizers. The summit is timely in view of the nation's vision to rank among the 20 most advanced economies in the world by the year 2020. '"

The accomplishment of these worthy and ambitious goals requires conceptual analysis, a new thinking and a new way of doing things. Urban planning and access to development are a core aspect of these goals. The existing social, economic and legal framework require continuing examination and review and this must be done in the light of cities, systematically planned, more people and investment-friendly, against the background of a technology driven economy.

I have considered it desirable to attempt a re-ordering of the tide of the paper in the light of the relative values of its key expressions bearing in mind that, the constitution is the basic law of a nation from which all other legal perspectives can be deduced. The urban   development model required to prepare for and sustain an urban industrialised economy' of the year 2020 will briefly be outlined. Against this background, it will be contended that the existing constitutional and legal frameworks are deficient to provide the legal basis. A framework that creates shared aspirations and responsibilities for all governments will be canvased and recommended.

The constitution is the basic Law otherwise referred to as the grundnorm of our country from which other laws are derived. It occupies the apex of the hierarchy of laws and prevails over every other law that is inconsistent with ill. Section 1(1.) of the constitution of the Federal Republic of Nigeria evinces this trite knowledge and proclaims the constitutional supremacy and bindingness of its provisions on all authorities and persons throughout the Republic. A corollary to this is Section 1(3) which voids any other law that :is inconsistent with the provisions of the constitution to the extent of its inconsistency.

On the other hand, Legal signifies that which pertains to law and the lawfulness of any act or conduct. In this sense, every known and binding rule in our country, enacted or otherwise, consistent with the constitution, is legal. Accordingly, statute, common law and customary law in so far as they are not inconsistent with the constitution, can be denoted as legal.

Urban.
The Blacks Law Dictionary tells us that urban is that which relates to living or dwelling or associated with a city or town, not rural. City, on the other hand, is defined by the Chambers dictionary as a very large town. When these two concepts are taken together, the picture which immediately emerges is first of a throng of people calling for attention, the harnessing of scarce resources such as land., structures., infrastructure, facilities, amenities and environment for their well socio-economic and religious well being,

URBAN DEVELOPMENT MODEL FOR THE 2020 ECONOMY

The Urban Development model required to support and sustain an advanced industrialized economy must be deliberately planned to enhance the quality of the environment that is likely to be adversely affect from population concentration and industrial pollution.. The land use planning should efficiently allocate and hannonise the uses of. urban land to respond to tl1e industrial demands of factories, drainages, sewages, railways, tracks, highways, airports, housing estates, churches, public buildings and to serve and sustain the industrial economy. There is then the vital role of traffic and transportation, indispensable and expedient, a sine qua non of a successful, modem city; In urban planning and development, the crucial point that effective and efficient movement of goods and personnel makes for a workable system cannot be overemphasized. This view is aptly captured by J.N. Jackson, in his sweet book, Survey,
for Townn and Country Planning’s

"Cities in their present form would be impossible without facilities for extensive movement of people and of goods. It is transport, which permits the concentration of a labour force and manufacturing materials at specific points, which allows people to live away from their place of work or which permits the development of a locality. The radius of an urban sphere of influence, and, hence, of a town’s size and character, reflects the nodality and extent of its transport connections and facilities. The quantity of land under streets, highways, railways, canals, airfields, docks, and parking space may exceed a quarter of the developed area or be greater than any other land-use element. Planning for land use and traffic movement cannot be regarded as separate exercises, but are complementary to each other. Traffic provides a means where by the goals of city and regional planning might be achieved."

Planning ensures the right movement and direction of a civilized society which, in turn, impacts on all other areas of development of the race, whether in technological or economic advancement or indeed with respect to promotion of a hospitable environment When a city is properly planned and planning is given a pride of place, it is easier to monitor the activities of citizenry and have their cooperation with respect to compliance with regulations and bye laws.

Constitutional framework

The constitutional framework capable of supporting the envisaged urban model must be one which takes into consideration the requisite economic and financial resources required for the accomplishment of the modem urban city.. The 1999 Constitution established a federal system of government made up of 36 states and the federal capital territory. The present constitutional framework does not specifically enumerate matters relating to urban and regional planning matters in the exclusive or concurrent lists. It is, therefore, a presidential matter. This immediately limits the urban and regional planning powers of the Federal Government. to the Federal Capital Territory Abuja, while states retain urban and regional planning powers over their respective territories.. By this arrangement, there are 37 different legislations aimed at addressing land use varieties and peculiarities corresponding to the federal capital territory, Abuja and the 36 states in line with Sections 2, 3, 4, 5. and 299 of the   999 Constitution. The Supreme Court laid down this framework in the case of A-G of Lagos State v A-G of the Federation & 35 Ors where Uwaifo, l.S.C. held inter alia, "... .

Similarly, each state's House of Assembly has the exclusive function to make planning laws and regulations for the state under its residual power. It must follow that the National Assembly cannot make a law in the form and to the detail and territorial extent of the present Nigerian Urban and Regional Planning Act No. 88 of 1992. To do so will be in clear breach of the principles of federalism and an incursion into the legislative jurisdiction of die states. But it can make planning laws for the federal capital territory, Abuja, only on the basis of its residual powers. Again, the National Assembly cannot enact any law, in contravention of the Constitution, imposing any political philosophy of federalism that the federal government does not exercise supervisory authority over the state governments."

As said elsewhere, this framework is deficient in two important respects. While, admittedly, it advances the principle of federalism within the context of the existing constitutional arrangement, it is submitted it leaves a yawning gap in the absence of regional planning power for solving area wide problems and delivering of area wide services across the 36 states. There is no doubt in our view, that the Federal Government, requires regional planning legislative powers in order to legislate and execute, in any meaningful way, matters contained in the exclusive list. Such matters pertain to transportation and include the construction, alteration and maintenance of Trunk-A roads, railways and airports.. The Federal Government requires a system of overriding regional planning powers to design a national subject or regional master plan of its highways and railways across the 36 states to facilitate the movement. of peoples and goods and even to be able to intervene as an interventionist strategy to stimulate regional economic and industrial growth and for the purpose of population dispensers in our cities. A federal government without regional planning powers cannot lawfully make financial provisions in its budgets for the development of our urban centres in order to make them more people and investment-friendly.

The next deficiency in the framework is the fact that it gives planning law a very narrow focus in denying it of its rich environment content We all remember that the historical origin of the Lagos Planning Act of 1928 was to solve environment-related conditions in Lagos colony arising from factors such as over population, over crowding, slums and congestions arising from bubonic plague which ravaged the colony between 1924 and 1930. This view is strengthened by the dissenting judgements of Justices Ayoola and Niki Tobi in AG- of Lagos State v AG - of the Federation & Ors 7 In the words of Niki Tobi, JSC:

"'the effect or result of town planning qualifies as physical and economic development within the meaning of environment as it enhances the value of land being property. In my humble view, the urban and regional planning Act, No, 88 of 1992 is designed to improve the environment by protecting the land, thus coming within the purview of S. 20 of the Constitution. It is not my understanding of the Act that any planning scheme carried out within the Act will destroy or abuse the environment; On the contrary, such a scheme will protect and carry out improvements on the environment. , . ... In the light of the above, it is my view that town planning and physica.1 development is not a residual matter but a matter on the concurrent legislative list which both the National Assembly and State Houses of Assemb.1y have legislative powers within the meaning of S.4 of the Constitution. "

In the light of the foregoing, the Federal Government lacks the legal framework for analysing and resolving conflicts in diverse uses of land which is otherwise achievable by drawing up regional plans as a strategy of coping with current and anticipated problems in the use of land, movement of people and goods to deal with.1 urbanisation challenges of transportation, new towns, economic regional planning policies. The Federal Government must have regional planning powers to channel resources towards the development of our major cities which are heavily characterised with environmental imperfections, disconnected urban poor, urban filth, acute shortage of housing, inadequate transportation facilities and chaotic traffic condition, under developed agricultural sector, depletion of natural resources and infrastructural deficiency as matters of priority if the goals of Vision 2020 of making our country one of the 200000 most advanced countries in the year 2020 is to be achieved.

State Legal Framework

The framework for urban and regional planning is detailed out in the respective States Urban and Regional Planning Law. 8 The law establishes two planning organs. A Board which operates at the State level and an Authority at the local government level. The Board has responsibility for the formulation of State policies for Urban and Regional Planning, physical development of the state, including spatial location of infrastructural facilities. To this end, the Board initiates and prepares regional plans for the state, master plans for each of the local government areas in the state, urban master plan for major urban centres and district plans. It has also the function of reviewing such plans.

The Law operates on the twin principles of negative and positive planning. Negative planning involves essentially an obligation on the part of every developer to obtain a planning permit before commencing development within an area covered by an approved operating master plan. Accordingly, control departments are established to enforce compliance by monitoring of a developer in stages with a view of removing contraventions and penalizing the erring developer. Thus negative planning deals with development control and occupies a central position under the State law. The obtaining of approval before development is mandatory.”9

On the oilier hand, positive planning is an intervention forms and expressions. Public acquisition of lands for public purposes regional economic planning strategy, new towns development programmes, urban renewal and slum clearance programmes are classic examples of positive planning measures. A string that runs through all positive planning strategies is that they are aimed at making land available for development or livable in the right places at the right time and to the right standard. Ardill10 tells us regional planning from government standpoint has been mainly a regional economic strategy concerned with channeling public funds and government assistance towards the less prosperous regions and restricting growth in the more prosperous regions in an attempt to restore a balance. Similarly, new town development programme has been used to resolve problems of overcrowding and poor living conditions in our urban centres by rehousing in an entirely new town built far away from the parent city t9 allow it a separate existence. A classic example in our country is the movement of the Federal Capital Territory from Lagos to Abuja.

However, there are two important drawbacks in the state legal framework that makes an inefficient tool for developing our cities in preparation for the year 2020. The first drawback is that the state planning law lacks the capacity to deal with interstate urbanization challenges. For example, Lagos State and Ogun State have virtually merged into one mega city sharing common urban problems. Yet neither of the two States lawfully undertake regional planning strategy to deal with cross border urban problem affecting it. It is only the Federal Government that has a regiona1 planning power that is better equipped to solve inter state planning issues.

Secondly, public ownership of land is a key issue in positive planning in the making of land available and affordable for both the public and private sectors and for all essential purposes in our country including of course the urban centres. This is primarily one of the justifications for the promulgation of the Land Use Act, of 1978, the thrust of which is vesting of land in government for the purpose of control and management However, the Act after 30 years, has been unable to provide the necessary framework for management of our land rights to achieve wealth-creation and environmental sustainability mainly because of over regulation of land transactions making it and expensive for developers to access land. Certainly, for our nation to achieve the goals of Vision 2020 to be admitted into the committee of the 20 most advanced economies in the world, the Land Use Act requires serious review, if not repeal.

Both shortcomings, particularly the former, makes it necessary for the state legal. framework for ordering urban regional planning .activities to be complemented by national regional. planning strategy through which the Federal. Government can inject public funds and provide technical. assistance to the states for optimum development of our urban centres. This leads us to the consideration of the national planning model.

National Planning Model

Our urban centres of the year 2020 must be administered from the planning law viewpoint by the federal, state and local. governments, each having a befitting but not necessarily equal, proportional roles and to divide the integrity of our federal system of government. No one government will have sufficient resources to develop our cities and make them sufficiently livable, given the demand for responsive transportation facilities, environmental sustainability, industrial growth, housing, increased urban population, etc. In particular. it is only such a model that can confront the challenges of urban renewal. and integrating the urban or into the available urban opportunities of the 2020 economy. As earlier stated we need a federal government with constitutional, regional strategic planning powers that can intervene by way of new towns, regional economic strategy which have both the means of promoting new development to attract industrial growth and population dispenser and contain urban spread.

This is the model in use in the United States of America. In his Article, 'Land Use Control and the Federal System, Bruce D. McDowell, states the compelling reasons this model in modern times in the following passage:

"The fact that sharing of land use responsibilities is a current subject recognizes that intergovernmental relationships in this function are now changing rapidly, Actually, however, this change in intergovernmental relations is only a symptom.  The basic change is in what we expect to get out of land use controls. While we used to expect only that land use controls would give us a nice neighbourhood in which to live, now we expect it to give us efficiency in government, protection of natural resources, conservation of energy, a better social structure, and countless other benefits. To achieve these benefits, every level of government has now joined the effort to controll and use”

We expect planning law beyond its traditional role of giving pleasant neighbourhood, to provide efficiency in government, a better social structure, protect natural resources, conserve energy, and countless other benefits in our urban centres even now and the year 2020.

The Nigerian Urban and Regional Planning Act 1992, which was struck down by the Supreme Court as an Act having a federal coverage, was a good model of the planning legislative approach. Like the American model, the Act provided for shared planning responsibilities for federal State and local government councils. It had a commission at the federal level, a Board at the state level, and an authority at die local government level. .It integrated land use planning and development into a consistent national planning arrangement.

The Commission, for example, was charged with the function of formulating national policies for urban and regional planning the initiation, preparation and implementation of national physical plan. regional and subject plans. It also has the task of co-ordinating amongst. states and local governments in the preparation and implementation of urban and regional plans, apart from its power to supervise and monitor national physical plans and development controls as well as the provision of technical and financial assistance to states.

On the other hand, the Board is charged amongst other functions; with the formulation of state policies for urban and regional planning, the initiation and preparation of regional, sub - regional and urban master plans, the development control on state lands, the consultation and coordinating with the federal government and local governments in the preparation of physical plans and the preparation and submission of annual progress report on the operation of the National Physical Plan as it affects the state.

Finally, the Authority is charged with the responsibilities of preparing town, rural, local and subject plans and preparing and submitting to the Board’s annual reports on the implementation of the National Physical Development Plan and State Regional Plan. In order to coordinate the functions and activities of the commission, boards, and authorities for the purpose of securing integration, consistency, and coherence within and between all levels of the Physical Development Plan in the Federation section 13 of the   Act provides that: “….. the commission shall during the preparation of the National Physical Development Plan, call for submission from all relevant government organizations non-governmental organizations and interested members of the public whose contributions shall serve as part of the input towards the preparation of a draft national Physical development Plan.”

Although the Act may be objectionable in some respects, particularly in adopting top to bottom approach~ rather than bottom to top, its general thrust evinces a clearly democratic approach to land use planning to ensure a coordinated approach for the development of our major cities and capable of preparing and sustaining them for the responsibility of a technologically driven economy.

CONCLUSION
As seen above, the 1999 Constitution is not as pro-active and futuristic in our urban and regional planning concern for the effective development of our cities. A planning framework that denies the federal government specific regional planning powers to execute regional planning strategy with respect to matters such as aviation~ airports, railways, industrial parks, new towns in our major cities across the 36 states is not beneficial to the optimal development of our cities. The planning law that will sustain our cities for the 2020 economy must be one that creates shared aspirations and responsibilities and efficiently proactive.

 It is in this regard we believe that urban and regional planning should be a matter in the concurrent legislative list, like education, health safety and welfare of persons employed to work in factories, agriculture to name a few. The Land Use Act must also be reviewed or repealed and expunged from the constitution to facilitate the use of land as primary capital asset.

It is strongly suggested, therefore, that advantage must be taken of the on-going constitutional review exercise to enlist urban and regional planning matters in the concurrent legislative list so as to create a shared responsibility for the three levels of government for effective and efficient urban development and to re-examine the Land Use Act to make land a more viable prim~ capital asset.

Thank you for your kind attention.

Prof A. A. Utuama, SAN
Acting Governor of Delta State
September 2008