Is it a case of executive lawlessness? Or is it another case of ministerial overreach? Or is it an inevitable product of a constitutional quandary?
Attorney-General of the Federation (AGF) and Minister of Justice Abubakar Malami is just recovering from a close shave with the menacing claws of the mean-spirited leopards of the West. But, it appears that he’s not one to be cowered by such an experience in the hands of any big cat. So, this time he got himself into another squabble, with Engineer Seyi Makinde, the PDP governor of the Pacesetter state. Trouble seems to come with the territory the AGF occupies. For him, it appears unavoidable.
Let us, however, be clear that the AGF’s trouble with Oyo State is not of his own making. It is the lacuna created by the 1999 Constitution on the matter of local government autonomy vis-à-vis the states’ claim of supervisory authority over the third tier of our federal system of government.
Section 7 (1) of the 1999 Constitution declares 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”. (my emphasis).
The key declaration here is the constitutional guarantee of “democratically elected local government councils” with the burden placed on every State to “ensure their existence” by legislation. The constitutional mandate appears clear enough. States are to create enabling legislations to establish democratically elected local government councils for each local government area. However, since 1999, states have done anything but respect this constitutional provision. At best, they have mostly ignored it, or at worst, they have been openly contemptuous of it. Why?
To the question “Why?” there are charitable and uncharitable answers. The uncharitable answer depicts human nature is egoistic and state governors are just being human. This requires mind-reading for which I am not well-equipped. Therefore, I will not go there.
The charitable answer focuses on the constitutional quandary on the nature of local governments. States governments do not see the local government as an autonomous tier of government. However, such states are being too clever by half. Afterall, the 1976 Local Government Reform was very clear in its intent of making the local government an autonomous tier of government just like the states.
Furthermore, however, the governors have also been helped by the ambiguity of the constitutional provisions. First, there is the provision cited above, which mandates democratically elected local government councils. Second, however, there is also the provision of Section 162 which requires a State Local Government Joint Account to be supervised by the State Government. So, we have a case of political autonomy without financial autonomy. But we know that without the latter, the former is dead. Governors know this and have exploited the constitutional quagmire.
Two efforts have been made in recent times to correct this anomaly. First, though, the National Assembly came late to this recognition, it eventually passed the Local Government Autonomy (Amendment) Bill in 2018. The amendment gives teeth to Section 7 (1) with a provision that withholds legal recognition from local government councils that are not democratically elected: “A local government council not democratically elected shall not be recognized by all authorities and persons and shall not be entitled to any revenue allocation from the Federation Account or the state government”. Further, “It shall not also exercise any function exercisable by a local government council under this Constitution or any law for the time being in force.”
Though the 8th National Assembly had passed this Bill, for the same reason alluded to above on the attitude of state governments to local government, it did not secure the necessary two-third concurrence of the State Houses of Assembly.
The second effort was the recent guideline from the Nigerian Financial Intelligence Unit (NFIU) which sought to boost the financial autonomy of local government councils by releasing them from the suffocating grip of state governments. As to be expected, the governors, through its corporate entity, Nigerian Governors’ Forum (NGF) kicked against the guidelines. It accused NFIU of dabbling into a matter that is beyond its mandate and it insists on the letters of the 1999 Constitution which provides for State, Local Government Joint Account.
Recently, the 9th National Assembly has waded into the controversy with a bill to amend the 1999 Constitution by abrogating the State, Local Government Joint Account and making provision for each local government to create and maintain its own special account to be identified as Local Government Allocation Account. Federal allocations as well as allocations from Internally Generated Revenue of the state shall be deposited directly into this account.
Going by the failed experience of the 8th National Assembly to secure the concurrence of two thirds of State Assemblies for its local government autonomy bill, we cannot be optimistic about the success of this new initiative. But we are also not unmindful of the unreliability of inductive reasoning.
The foregoing takes a cue from the constitutional muddle that provides for democratically elected local government councils but also makes provision for those councils to be tied to the financial apron string of state governments which effectively denies them autonomy. For state governments, this is the way it should be because they don’t see local governments as an independent tier of government. Therefore, dissolving elected local government councils, or refusing to conduct democratic elections, and creating ad-hoc caretaker committees to which they appoint their loyalists, are all in tandem with this belief in the dependency of local governments on state governments.
As it should be, the initiatives and counter initiatives have been largely limited to the National Assembly, State Assemblies and State Governors. The Federal Executive has not had much to do with the back and forth beside waiting to assent to or withhold assent from a bill that is passed to the President. Until now, with the AGF’s letter to Oyo State Governor Makinde. But that letter was not just out of the blues. It was pursuant to the decision of the third branch, which has the constitutional mandate to clear constitutional fogs.
On Friday, December 9, 2016, a Supreme Court panel of five justices issued a decision on an appeal filed by the Governor of Ekiti State and Others against the judgment of an Appeal Court over the power of the governor to dissolve democratically elected government councils. In that unanimous judgment, the Court decided against the state government, nullifying Section 23B of the State Law on Local Government Councils which provides that the State Government could dissolve a democratically elected local government council and replace it with a Caretaker Committee, because that section is inconsistent with Section 7 (1) of the 1999 Constitution.
Since this is the verdict of the highest court of the land, it is expected to be valid for all state governments in their interaction with their local government councils. Yet, according to recent media reports, at least 13 states, including Oyo State, have either dissolved their democratically elected local government councils or have neglected to conduct democratic elections since the ruling.
With a subsisting Supreme Court decision in place, instead of sacking the democratically elected chairmen and councilors, the Oyo State Governor should have approached the Court to challenge the legality of their election. Now, he has belatedly and curiously gone to the High Court of Oyo State to have his dissolution of the local government councils protected from the Supreme Court decision.
As Chief Law Officer, Malami feels an obligation to correct this anomaly which amounts to a mockery of our system of law. There is just one problem. Despite his official status, the AGF is seen as a political appointee with partisan interests. But the Supreme Court itself must certainly have an abiding interest in the enforcement of its judicial decisions. Therefore, the victims of executive judicial coup and the AGF need to exercise their right and responsibility to seek the Supreme Court’s intervention in the impasse.