By Nnamdi Elekwachi
The landmark judgment granting full financial autonomy only to democratically elected local governments across the federation should be considered as a ‘Doctrine of Necessity,’ because the Supreme Court had to expeditiously explore grey areas, and in so doing came up with its final and conclusive interpretation. It is quite sad that governors reigned with impunity like czars, diverting funds due to the LGAs and imposing puppets thereto, leading to this judgment. When it comes to how the local governments are to be established, and by which tier of government, the constitution is not ambiguous in Section 7(1), where it states 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.’
The thirty-six state governments, under the above provision, were mandated to ‘ensure the existence’ of local government councils by making laws, through state Houses of Assembly, that guarantee the ‘establishment, structure, composition, finance and functions’ of these local governments. Sadly, what the state governments only ensured was the strangulation of these local government areas. In place of grassroots democracy, we are treated to appointed puppets and weekender caretaker committee chairmen, who are loyal to the governors, and not answerable to the local populace. This is a fallout of constitutional ambiguities and lawlessness on the part of state governments.
A clear example of such ambiguities is to be found in Section 2(2) of the 1999 constitution, as amended, which expressly stated that ‘Nigeria shall be a federation of thirty-six states and the FCT,’ without acknowledging the local governments as a federating unit. State governments had leveraged this provision to submit that the councils, the third-tier government, are ‘not federated,’ and so should be exclusively run according to the dictates of the states. Former Governor Rauf Aregbosola advanced this line of submission following his ‘State of Osun’ creation when he established over thirty Local Council Development Areas, LCDAs. Aregbosola maintained that the local governments are structures within the states, and are therefore outside the domain of the federal government.
Also, Section 162(6) of the 1999 constitution (as amended) which created the state joint and local government accounts inserted a sharp contradiction in the laws of the federation, to the point that it nearly vacated the claim of local governments being the third tier of government. With this, financial autonomy and fiscal responsibility were both denied the grassroots because states decided what the local governments got from the so-called ‘joint account,’ as against the revenue laws. It was not surprising therefore when former President Muhammadu Buhari claimed that some states retain as high as 50% of the councils’ federal revenues, leaving the third-tier government weak and unable to pay workers.
The matter came to a head when Buhari contemplated a constitutional amendment (Fourth Alteration Bill) in order to expunge the joint accounts clause for which the National Financial Intelligence Unit (NFIU), in a bid to cap daily withdrawals at the various councils, came up with what it tagged ‘Guidelines to Reduce Vulnerabilities Created by Cash Withdrawals from Local Government Funds throughout Nigeria.’ Under this executive fiat, no council was allowed to exceed ₦500,000 withdrawal threshold daily. As was expected, the governors massed their attorneys general and challenged the initiative up to the apex court.
These governors later won their case at the Supreme Court, just like they did when the same Federal Government under Muhammadu Buhari had, through Executive Order 10, sought to entrench independence of the judiciary and legislature across the thirty-six states by ordering accountant general of the federation to ensure that state judiciaries and legislatures received their funds directly from source should governors fail to pay them or that the governors transfer all statutory payments to their credit to first line charge of the budget.
In all, the landmark judgment delivered by the Supreme Court yesterday, as decisive as it is, put an end to decades-long tussle that has been there hitherto. Even Justice Emmanuel Agim who read the lead judgment yesterday, for example, sat on the panel that decided on the Executive Order 10 matter in favour of the governors, when in a split judgement of six to one, Justice Agim supported the governors’ petition that the federal government lacked the locus standi to decide how the states should run their affairs. So what changed now?
Understanding this matter requires viewing it through the perspective of intergovernmental relations, IGR, with a keener focus on how the three tiers of government relate in the area of revenue sharing so as to independently take care of their financial responsibilities at all levels, a principle known as fiscal federalism.
Vertically, the three arms of government relate in diverse areas of shared or mutual interests like: education, agriculture, energy, roads, and so on, except where matters to be deliberated upon fall within the exclusive list of the federation. In the area of finance, the relations is viewed in a vertical sense using pyramidal illustration with the federal government, sitting atop, enjoying 52.68%, while the states and councils, both respectively positioned at the middle and base, take 26.72% and 20% respectively. Scholars often liken this to an ‘inverted pyramid,’ because it allows the federal government, a single amorphous entity, to walk off with over 50% of the revenue. On the horizontal relations among thirty-six co-equal states as federating units, each tries to benefit more from the centre citing the number of local councils it has; sometimes they try to attract federal projects or presence based on their number of legislative seats either carved out from the councils or simply created by merging two or more councils together. The point is simply that the local government system is central to our federation.
Since Section 7(1), pursuant to Section 8, empowered states to ensure the existence of the local government system within their domain, states leverage this apparent lacuna to divert nearly all the federal revenues and other pecuniary benefits that are supposed to diffuse in the grassroots. To this should be added the flagrant usurpation of powers of council with the states overstepping their boundaries to exercise functions clearly assigned to the councils. State governments, this way, arrogate more powers to themselves. The reason is not far-fetched as governors want to remain politically relevant in the gaming board; so to secure their survival, they need to see to it that their political offices, across the councils, are intactly manned by loyalists.
From the get-go of the Fourth Republic, whether we are to look at Tinubu’s Lagos State versus the federal government under Olusegun Obasanjo, or when Abia State, under former Governor Orji Uzor Kalu, championed a cause that challenged the constitutionality or otherwise of the National Assembly making laws on the tenure of office and election of council chairmen and officials, the issue of intergovernmental relations, especially when it comes to governance of local councils, has always emerged on the scene of discourse albeit in diverse forms. What usually changes is the title suit, but the context of the case has always remained the same, and this poses the question: how can Nigeria, with her quasi federalism, operate without suffocating the grassroots?
So the judgment yesterday, as interpretative as it was, did not totally rely on constitutional provisions, rather it gave clarification on constitutional silence in order to address inherent ambiguities. Like I said before, the judgement should not be lauded for its constitutional merit, but for the definite legal boundaries it created in our flawed federal system.
Since yesterday, I have been searching and exploring the laws. I am yet to see a provision that mandated the federal government to relate directly – especially in finance – with the councils. What this judgement means is that: due largely to their nefarious tendencies, state governments have been stripped of the fiscal responsibility they once exercised on behalf of the councils. It is so because the thirty-six state governments failed to allow the councils stand on their own two feet, as elections thereto are not periodic but subject to the governors’ wish as effectively carried out by state ‘independent’ electoral commissions (SIECs). Whatever it takes, the judgment was delivered in the interest of the federation.
It remains an irony of sorts that the same constitution which recognises the councils as third-tier government also rendered that tier of government financially dependent on the states by failing to create separate accounts for the three tiers of government. That constitutional defect is where the assumption that the councils are appendages of the states stems from. If the governors had performed their duty without suffocating the councils, a ’judgment day’ like yesterday would not have come, but since we cannot throw away the federation in preservation of its laws, bending the laws to preserve the federation became a necessity for the survival of the federation itself.
It Is for this reason that I consider the judgment as a Doctrine of Necessity!
Nnamdi Elekwachi, a historian wrote from Umuahia, Abia State.
