LOCAL GOVERNMENT AUTONOMY IN NIGERIA; THE STATUS QUO ANTE VIS-A-VIS THE RECENT SUPREME COURT JUDGEMENT.

By Adie Christopher Bekeh

INTRODUCTION:

Local government autonomy, although guaranteed constitutionally, has suffered gravely in practice. The clamor for local government autonomy has gone on for decades with a lot of legal opinions from lawyers, statutory and judicial authorities on the matter. This battle is engendered by the overbearing influence of the state government, particularly the state governors, as a result of their arbitrary and undemocratic acts of dissolving and instituting unconstitutional government in local government affairs. While this has gone on for a while now; confusion as to whether full autonomy is constitutionally guaranteed or not has been a topic of intense legal battle. However, a recent landmark judgment from the apex court seems to have broken the legal ground on this matter.

This article seeks to examine and lay bare some of the legal framework surrounding local government autonomy in Nigeria, juxtaposing the extant provisions of the law Vis a vis the Recent judgment, possible pitfalls, and a way forward.

LEGAL FRAMEWORK

Many will argue the intent of the legal drafters of the 1976 Local Government Reforms; by stating that local governments were created merely for administrative convenience and that the local government cannot exist independently of the state because they exist within the legislative jurisdiction of the state, it is pertinent to quote verbatim the provision of the Local government Reforms 1976 regarding this matter. LOCAL GOVERNMENT as otherwise stated under the statute is " a government at the local level which is exercised through representative councils established by law to exercise power within defined areas to have substantial control over local affairs as well as the staff, institutional and financial powers to initiate and direct the provision of services... And to ensure that local initiative and response to local needs and conditions are maximized."[1]

Furthermore, the constitution also provides for an independent and democratic framework for local government councils under Section 7(1) CFRN where it emphatically captured 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.”

This position has time without number gained judicial imprimatur in a plethora of cases, where courts have declared the actions of arbitrary dissolution of local government council and replacing same with caretakers committee without due cause unconstitutional and a mess on the constitutional provisions stated above.

It was in line with the foregoing that the supreme court in Eze v. Gov., Of Abia State[2] while condemning the act dissolving a duly elected local government council opined that: "Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 imposes a duty on the Governor of a State to ensure that the system of local government continues unhindered..Accordingly, a Governor's act of dissolving local government councils and replacing them with Caretaker Committees amounts to the Governor acting on his whims and fancies, unknown to Nigerian laws, and clearly illegal. In other words, it is the duty of the Governor of a State to ensure the existence of local government councils instead of being responsible for destroying them. In this case, the Court of Appeal was right when it found that the 1st respondent lacked the legal competence to dissolve the elected local government councils and appoint Caretaker Committees in their stead and that the 1st respondent's Dissolution of the elected local government councils was illegal, ultra vires, and of no effect whatsoever." See also the case of Akpan v. Umah[3] where the court of appeal declared the act of dissolution of local government council by state governors contra legem and in defiance to the provisions of the 1999 Constitution of The Federal Republic of Nigeria as Amended.

Now the next question that begs for an answer is whose duty is it under the law to dissolve local government councils in cases of insubordination and abuse of power?

On this the position of the law in Governor of Akwa Ibom v. Umah[4] confers such duties on the State House of Assembly, by stating that; "Although the word "Dissolution" is not in the section 7 (1) of the 1999 Constitution, the House of Assembly which has the powers to make laws to regulate the affairs of a local government council, that is, for establishment, structure, composition, etc of such council, can make a law for the Dissolution of an erring local government council and for a bye-election to prevent chaos and disorder. Guaranteeing the system of local government by democratically elected local government councils under the Constitution means that the local government council must be a democratically elected one and it is in order if a local government council is dissolved and a bye election is or..."

It is therefore deducible that any Dissolution which is contrary to this is illegal, unconstitutional, null and void.

Furthermore, the issue of autonomy does not go all the way to the end, because the constitution also covertly provides for some degree of Federal and state government interference in Local government Affairs and this is evident under sections 4 (6), 8 (3) and (5), 162 (3) (5) (6) (8) Of the 1999 Constitution of The Federal Republic of Nigeria (as amended), which shall now be examined one after the other;

• LEGISLATIVE POWER OF S/HASS. OVER LOCAL GOVERNMENT AFFAIRS.

First and foremost, S 4(6) provides that; "The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State." The literal implication of the above provision is that the State House of Assembly shall have the power to legislate on matters that concern the state and by extension the local government under it; that is why we have the tenure for local government council legislated upon by the respective state Houses of assembly.

Also, S 8(3) [5] and the relevant subsections under it provide that; "A bill for a Law of a House of Assembly for the purpose of creating a new local government area shall only be passed if -

(a) a request supported by at least two-thirds majority of members (representing the area demanding the creation of the new local government area) in each of the following, namely -

(i) the House of Assembly in respect of the area, and

(ii) the local government councils in respect of the area, is received by the House of Assembly;

(b) a proposal for the creation of the local government area is thereafter approved in a referendum by at least two-thirds majority of the people of the local government area where the demand for the proposed local government area originated;

(c) the result of the referendum is then approved by a simple majority of the members in each local government council in a majority of all the local government councils in the State; and

(d) the result of the referendum is approved by a resolution passed by two-thirds majority of members of the House of Assembly."

Thus by implication, the local government is a creation of the state government through its House of Assembly and is subject to the ratification of the National Assembly through the relevant requirements of S8 (5) of the CFRN.

• FINANCIAL AUTONOMY

Furthermore, The Issue of financial autonomy is inconclusive without taking a cursory glance at the provisions of S162 of The constitution, this section has been the focal point of the struggle for Local government autonomy. For context a combined read of Subsections (2) (3) (5) (6) (8) [6]of that section will be relevant to our discourse;

(2) The President, upon the receipt of advice from the Revenue Mobilization Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density;

Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen percent of the revenue accruing to the Federation Account directly from any natural resources.

(3) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly.

5) The amount standing to the credit of Local Government Councils in the Federation Account shall also be allocated to the State for the benefit of their Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly.

(6) 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.

(7) Each State shall pay to Local Government Councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.

(8) The amount standing to the credit of Local Government Councils of a State shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.

The foregoing Thereby sets an intricate protocol for the allocation of local government funds, which involves the creation of a "State Joint Local Government Account" under subsection (6) from which it Is now distributed to the various local governments in the state in compliance with the directive of the national assembly.

This position was also strengthened by the court in A. G ABIA STATE V. A. G FEDERATION[7], where the court held that the National Assembly cannot validly make any law permitting the allocation of funds directly to the local government; rather, they should be sent to states who will in turn send it to the "state joint Local government account".

However, this provision apportioned a lot of irregularities, corruption, and arbitrary withholding of local government funds by state governors as was the case in the imbroglio leading to the ongoing Rivers state crisis. There seems to be a consensus that one major hindrance to the realization of local government autonomy is economic. By connotation, loyalty lies where the money lies. It is because of this that the epoch-making judgment on local government autonomy was made to ameliorate the hardship of the overbearing influence of state government in local government affairs.

THE RECENT SUPREME COURT LG AUTONOMY VERDICT

The Supreme Court verdict on Local government autonomy on 11th July 2024 has sparked a myriad of debates, appraisals, and criticism amongst social critics, legal scholars, and politicians. While some on one hand describe the verdict as an Epoch-making development others seem to disagree by saying the judgment had dealt a severe setback to the principle of federalism as defined by section 162(3) of the 1999 Constitution.[8]

However, commenting on the subject matter, Prof Mike Ozekhome, Senior Advocate of Nigeria (SAN), described, the court’s judgment asking the federal government to pay allocations due to local government areas directly to their account, thereby abolishing the old practices of State-Local Government Joint Account, as timely and courageous.[9]

Some others describe the Federal Government act of instituting this action against the 36 states as a means of turning itself into performing the function of the legislature, and that the ideal thing was to sponsor a bill for the amendment of the constitution or a new statute to that effect.

Many others hold that it was necessary and that it is consistent with the legal doctrine of necessity, and the court has the authority to use its "judicial interpretation" powers under the constitution to correct this anomaly, necessitating further amendments.

Given the foregoing, the Supreme Court in the recent case filed by the Attorney General of the Federation against the 36 state governors marked SC/CV/343/2024,[10] affirmed the autonomy of the 774 local governments in Nigeria and by doing so strengthened their independence. In light of this, the Supreme Court held that:

• The local governments across the country shall receive their allocations directly from the Accountant-General of the Federation.
• It is illegal and unconstitutional for governors to receive and withhold funds allocated to local government areas (LGAs) in their states.
• It is illegal for a state governor to arbitrarily dissolve a democratically elected local government council and replace same with a caretaker committee.
• The Supreme Court also granted an order of injunction restraining the defendants from collecting funds belonging to the local government councils when no democratically elected local government councils are in place.
• And mandated immediate enforcement and compliance with these orders by the state governments and successive governments henceforth.

IMPLICATION AND CONCLUSION.

By implication, this verdict has enhanced the chance of rural development, reduced the influence of state Governors in Local government affairs, and enhanced the smooth flow of activities. On the other hand, the Verdict may have granted Unbridled Power to the Local Government Councils thereby creating room for abuse of power, misappropriation of funds, corruption and insubordination, and abuse of power by officials at the grassroots level.

The corollary to this research is that, while the Supreme Court verdict may come as a big stride, in the enhancement of grassroots development and an attainment of true federalism. It is noteworthy to identify the hidden snags it may attract in the long run. This calls for the federal and state governments through the instrumentality of the legislature to strengthen the regulatory framework by ensuring stability, and seamless flow of operations and checkmate the activities of Local government councils to avoid abuse of power.

1. K. M Mowoe, Constitutional Law in Nigeria (Malthouse Press Limited, Lagos, 2008) p.239.

2. (2014) 14 NWLR (Pt. 1426) 192

3. (2002) 7 NWLR (Pt. 767) 701

4. (2002) 7 NWLR (Pt. 767) 738

5. CFRN 1999

6. ibid

7. (2006) 16 NWLR (Pt. 1005) 265

8. Jonathan Nda-Isaiah, Sunday Isuwa, Olakunle Olasanmi, Olugbenga Soyele and Femi Oyeweso, LG Financial Autonomy: Supreme Court Judgement Throws Up National Debate, Leadership News, July 13, 2024

9. Supra

10. Emmanuel Agbo, UPDATED: Supreme Court affirms local governments' financial autonomy, declares caretaker committees illegal, Premium Times, July 11, 2024