By Sambo Muritala ESQ.
Unlawful, illegal and unconstitutional were the wailing from the co-wailers on social media, and this, they are entitled to in a democratically established venue as victims. This is a law, and it is a game we play; a lesson we have learnt to become learned, and matter we have mastered. Let us all relax while reading.
Nigeria is undoubtedly one of the world’s more prominent federal states. Like many other federal unions, the Nigerian federation has evolved over time, and has undergone considerable political restructuring to realize the object of true federalism. Perhaps unlike other federal unions, Nigeria’s federalism has generated considerable debate and controversies. Part of these controversies revolve around the three-tier structure of the federation: the federal government at the centre; the Federal Capital Territory and 36 state governments; and 774 local governments.
There are some contradictions in the 1999 constitution of the Federal Republic of Nigeria in connection to local government administration. Section 7(1) states emphatically that “The system of local government by democratically elected local government councils is under this constitution guaranteed; and accordingly, the government of every state shall subject to section 8 of this constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils”.
Section 7 (6a) states that “the National Assembly shall make provisions for statutory allocation of public revenue to Local Government councils in the federation. But the confusion is extended further by section 7 (6b) which states further that “the House of Assembly of a state shall make provisions for statutory allocation of public revenue to local government councils within the state”.
These confusions also reoccurred in section 162 (6) where it established the State Joint Local Government Account for the purpose of payment of “all allocations to the Local Government councils of the State from the Federal account and from the Government of the State”.
In Section 162(7) it directs State Government to pay to Local Government councils its total revenue on the terms prescribed by the National Assembly. At the same time it gives the same power and functions to the State House of Assembly in section 162(8).
Further, section 8 (subsections 5 and 6) saddles the National Assembly with some functions before creation of a local government can become legal. The implication of all the identified contradictions and ambiguities is that it is difficult to locate constitutionally the locus of power on local government creation. The unsettled contradictions, confusions and ambiguities created in the 1999 constitution have been tools in the hands of politicians to cripple the Local Government system in Nigeria. The steps taken by the governors to remove or suspend local government chairmen was just to take impunity to the highest level. These are the excesses President Muhammadu Buhari is trying to check in his law reforms. This was what Ekiti State Governor got penalized for. We also appreciate the Supreme Court for setting a precedent for such an impunity.
Ever since the idea of a multi-tiered federation was conceived, there have been varying interpretations of the constitutional status of local government as the third tier of the federation. See Section 7 of the constitution. The constitution assumes that the law relating to local government creation would be made by the State Houses of Assembly. Thus, the legal framework does not see local governments as a third tier of government, but merely recognizes local government as an appendage of state government where the latter enjoys absolute discretion over the former. I am not saying the House has absolute power to remove the properly constituted authority like local chairmen but it can use the strength of law to play its supervisory roles.
The constitutional status of the federal and state governments is clear and unmistakable. Thus Chapter V, Part I (Sections 47–89) of the 1999 constitution makes extensive provision for the legislative arm of government at the federal level. Similarly, Part II (sections 90–129) of the same chapter makes provisions for legislative arms of government at the state level. Provisions are also made in respect of the executive powers and functions of the federal and state governments. These provisions automatically accord the federal and state governments the constitutional autonomy and legal framework required for their operations. No such provision exists for local governments, and it is for this reason that their constitutional guarantee of third-tier status should be treated with circumspection.
In the second schedule of the 1999 constitution, two types of legislative power are categorised, namely the Exclusive Legislative List and the Concurrent Legislative List. It is curious to note that in the Concurrent Legislative List, no mention is made of local government – a situation that further undermines the third-tier status of LGs.
Moreover, a close perusal of the fourth schedule of the 1999 constitution, where the functions of local government are listed, reveals that local government councils are effectively administrative units of state government. For example, item 2(d) referring to the functions of local councils provides that: “The functions of a local government council in the government of a state as respects the following matters… and such other functions as may be conferred on local government councils by the House of Assembly of the state”. This provision grants state governments unfettered discretion to decide on what local governments within their state can or should do, or to usurp some of the specific local government functions set out in item 1 (a)–(k).
I apologize to none legal minded readers, it is never my intention to bore you with legal intrigues of this issue. It is just unfortunate that the topic can’t be perfectly appreciated without the above analyses. There may be uncountable contradictions in the constitution but it is not ambiguous that Local government chairmen can not be removed by a governor or state assembly since they are democratically elected by people just like the governor.
They can be suspended by the monitoring agents which is the state assembly while investigating both their administrative and financial standing while they are in office. Just as the state assembly checks the governor, they have responsibility to check the chairmen of local government. Supreme Court did not say and will never say the local government should not be suspended while investigating them by the state assembly. These are those things I think those chairmen and their sympathizers should know before going to court.
1. They should look at themselves if in actual sense they have managed the resources at their disposal appropriately.
2. They can be referred to EFCC, ICPC, SSS or POLICE for further investigations, as these are the bodies charged with responsibility to investigate criminal activities.
3. The fact that their monies were given to stakeholders or leaders in politics is not tenable
4. They should always remember the maxim; “he who seek for equity must do equity.”
Having considered these and dissatisfied with the step taken by the Kwara State Assembly, they can further test the law from High Court to Supreme Court and we would be here waiting for the outcome in the legal exercise.
The only way forward is to amend the constitution of Nigeria to reflect three or two tiers of government, depending on our view. Mind you, all these long procedures were taking in compliance to law of the land.
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DISCLAIMER: All views expressed on our opinion page are those of the writer and do not represent the position of INSIDER or any of its reporters/editors.