By Michael Chibuzo
The stage is set for a landmark shift in the manner this federation called Nigeria would be treating its third tier – the local government areas going forward. The apex Court in the land has reserved judgement in a suit filed by the federal government against the governors of the 36 states of the federation to enforce the autonomy of administration of local government areas as stipulated in the Nigerian constitution.
Both the Attorney-General of the Federation and 36 states governors have adopted their final written addresses. Even though I am not privy to the arguments contained in the written addresses of the parties to the suit, I have a clue as to the general outline of their various arguments.
First and foremost, Lateef Fagbemi (SAN) in the originating summons he filed on behalf of the federal government prayed the Supreme Court for an order permitting the funds standing in the credits of local governments to be directly channelled to them from the Federation Account in line with the provisions of the Constitution as against the alleged unlawful joint accounts created by governors.
He also sought an order of the court stopping governors from constituting caretaker committees to run the affairs of local governments as against the constitutionally recognised and guaranteed democratic system. The AGF also sought for an injunction restraining the governors, their agents, and privies from receiving, spending, or tampering with funds released from the federation account for the benefit of local governments when no democratically elected local government system is put in place.
The Attorney-General equally asked the Supreme Court to invoke sections 1, 4, 5, 7, and 14 of the constitution to declare that the state governors and State Houses of Assembly are under obligation to ensure a democratic system at the third tier of government and that the governors cannot lawfully dissolve democratically elected local government areas.
What the Attorney-General of the Federation was basically asking the Supreme Court is to firmly establish the financial autonomy of the local government areas in line with relevant provisions of the Nigerian constitution. The AGF also wants the Supreme Court to pronounce the local government areas as the third tier of the Nigerian federation and then establish that the local government areas must be administered by elected officials at all times as captured in the constitution.
The aim of these prayers by the federal government is to stop the incursion by the state governors into the local government system some of whom routinely carry out civilian coups on the elected LGA officials, sack them and replace them with Sole Administrators or Caretaker Committees, similar to what the military does after a successful coup d’etat.
The Supreme Court will be determining a couple of issues regarding the financial and administrative autonomy of the local government. Regardless of which direction the Supreme Court’s pendulum swings, one thing is certain – their decision will change the local government system in Nigeria. I will highlight four of the issues the Supreme Court will likely determine:
WHETHER IT IS CONSTITUTIONAL FOR GOVERNORS TO SACK ELECTED OFFICIALS OF LGAs
This is perhaps the bane of the local government system in Nigeria – governors sacking elected local government chairpersons and Ward Councillors and replacing them with appointed loyalists mostly from their political parties. The Supreme Court will have to determine if by interpretation of relevant sections of the constitution especially Section 7(1), a State Governor acting together with the State House of Assembly has the powers to sack or suspend an elected local government chairperson or ward councillor from office or even dissolve an entire local government administration.
The Attorney-General would argue that the existence of the local government areas is guaranteed by the constitution in section 7(1) which states:
“7. (1) 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.”
Therefore, the election and removal of local government chairpersons and councillors must follow the provisions of the laws section 7(1) of the constitution mandates state Houses of Assembly to create. This means that at all times, there must be an elected local government chairperson/vice chairperson and Ward Councillors. So, neither the State House of Assembly nor the Governor has powers to dissolve a local government council.
The implication of the foregoing is that even if a legislation by the state House of Assembly makes provisions for the dissolution of a local government council and permits appointment of a caretaker or transition committee by the governor with the approval of the House of Assembly to oversee the affairs of the local government area pending the conduct of local government elections, that particular section would be rendered null and void in accordance with section 4(5) of the constitution as it would be inconsistent with section 7(1) of the Nigerian constitution, which guarantees the existence of democratically elected local government councils at all times in a local government area.
So, if the Supreme Court rules that the tenure of LGA councils is sacrosanct, regardless of any contrary legislation by a state House of Assembly, it means the era of appointed Caretaker or Transition Committees in many LGAs would have come to an end.
MANDATORY CONDUCT OF LGA ELECTIONS BEFORE THE EXPIRATION LGA COUNCIL TENURE
If the Supreme delegitimises the practice of unelected local government councils, it then means that they would have mandated, whether directly or by inference, that local government elections MUST be conducted by the states independent electoral commissions (SIECs) before the expiration of the tenures of incumbent LGA Council chairpersons and Ward Councillors so as to ensure handover to elected officials upon the expiration of the tenure of a local government administration as is the practice with INEC at the federal and state levels.
It is important to add here that the constitution is silent on the issue of duration of the tenure of a local government council, which means it is the prerogative of the State Houses of Assembly to legislate on the tenure of office of local government elected officials. States would be forced to increase the tenure of office from two or three years, which is the prevalent duration across the country to four years to reduce frequency of financing LGA elections.
TRANSFER OF STATUTORY REVENUE FROM THE FEDERATION ACCOUNT DIRECTLY TO THE LGAS
The Attorney-General of the Federation in the suit is also seeking for a pronouncement from the Supreme Court that would give the federal government legal backing to transfer statutory revenue standing credit to the LGAs from the federation account directly to the accounts of the local councils. The Supreme Court may not make such such a ruling because of the constitutional provisions that allows for the creation of a State Joint Local Government Account.
Section 162(6) of the constitution states: “Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the local government councils of the State from the Federation Account and from the Government of the State.” The purpose of this joint account for all the LGAs in the state is to pool all the calculated statutory revenue allocations from the federation account for the local government areas in a state AND the share of revenues from the STATE itself that is supposed to also go to the LGAs in the state into one account. It is from this account that the state is then MANDATED to transfer what is due to each local government council to their specific accounts.
Therefore, the Supreme Court may not make any ruling that will give the federal government the green light to bypass the State Joint Local Government Account. However, what the Supreme Court may rule is that the funds transferred to the State Joint Local Government account from the federation account is not meant to be tampered with by the states or reallocated, rather it is meant to be combined with the counterpart revenue from the state itself before the they are now transferred to the individual accounts of the local government areas. In essence, the joint account is just the states’ version of FAAC.
WITHHOLDING OF STATUTORY ALLOCATION FROM THE FEDERATION ACCOUNT TO LGAs WITHOUT ELECTED LGA OFFICIALS
The Attorney-General of the Federation, Lateef Fagbemi in his written address on behalf of the federal government said that in the face of the clear provisions of the Constitution, the governors have failed and refused to put in place a democratically elected local government system, even where no state of emergency has been declared to warrant the suspension of democratic institutions in the state. The failure of the governors to put a democratically elected local government system in place according to the AGF, is a deliberate subversion of the 1999 Constitution, which they and the President have sworn to uphold.
The AGF is arguing that in the face of the violations of the constitution by the governors, the federal government is not obligated, under Section 162 of the Constitution, to pay any state funds standing to the credit of local governments where no democratically elected local government is in place. In other words he is seeking a pronouncement from the Supreme Court to the effect that states where there are no democratically elected local government system, should not receive any statutory revenue from the federation account into the Joint Local Government Account for the local government areas in the state.
FATE OF LOCAL GOVERNMENT SYSTEM IN NIGERIA AFTER THE SUPREME COURT VERDICT
By the time the Supreme Court would have successfully determined those four issues I have outlined in any direction, the shape of the local government system in Nigeria would have witnessed a remarkable change for the better. The Supreme Court by certain pronouncements can bring the local government system closer to what the 1999 constitution intended when it decided to create a third tier of government that would be closer to the grassroot.
There is a huge possibility that after the Supreme Court verdict, it would become sacrilegious for any local government area in Nigeria to be run without a democratically elected Council in place. Equally there is the possibility that local government areas would enjoy greater financial autonomy once the Supreme Court gives the federal government the power to put mechanisms in place (as part of the responsibility to enforce the constitution) to ensure that states do not touch any fund meant for the LGAs from the federation account even if they were to be paid into the State Joint Local Government Account controlled by the state government.
If the Supreme Court’s pendulum swings to the above-mentioned directions, then the only problem that needs resolution is ensuring the credibility of the local government elections that states independent electoral commissions would conduct. The debate around transferring responsibility of conducting local government elections to INEC is already raging. Time would tell where that pendulum will swing too.