The Constitution forms the foundation of all state institutions, including local government, as a system of government in Nigeria. The people, as the ultimate source of all constitutional authorities as enshrined in the 1999 Constitution, have hailed the Supreme Court of Nigeria for its landmark judgement on local government financial autonomy in Nigeria. The Supreme Court of any constitutional democracy is the glue that sustains enduring principles of the state. To ensure certainty and finality in judicial decisions, Supreme Courts face the duty to provide objectively correct answers to most complex constitutional questions, against the legal realists’ assertion that law is not a system of rules that is clear, consistent, and complete but that law is incurably “indeterminate,” riddled with ambiguities, gaps, vague terms, and conflicting rules of interpretation.
It is within this construct of the Supreme Court as a court of the Federation and a court of finality under the Nigerian legal system that Justice Chukwudifu Akunne Oputa wisely concluded that “we (the Supreme Court) are final not because we are infallible; rather, we are infallible because we are final.” The finality of the Supreme Court’s decisions is therefore expected to reflect prevailing social interests and public policy that help promote the greatest good for the greatest number of Nigerians.
“The finality of the Supreme Court’s decisions is therefore expected to reflect prevailing social interests and public policy that help promote the greatest good for the greatest number of Nigerians.”
The landmark judgement of the Supreme Court of Nigeria on local government autonomy creates a sideline solution to a constitutional crisis on the structure of Nigeria’s federalism. Whereas the judgement reflects the aspiration of many Nigerians on local government autonomy, it is important to situate it within the context and intendment of Section 7(1) which provides that “..accordingly, the Government, of every state shall subject to section 8 of this Constitution, ensure their (local government) existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”; and Section 162(6) that “each states shall maintain special account to be called “State Join 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.”.
Without questioning the wisdom of the learnt Justices, the following questions are pertinent as we celebrate the judgement, to wit: is the local government a component of Nigeria’s federalism? Is the judgement in consonance with the intention of the provisions of Section 7(1) and 162(6) as earlier referenced? Is the Supreme Court likely to reverse itself in the nearest possible future, as has been suggested by some critics of the judgement, particularly in a case where a different Attorney General of the Federation decides to approach the apex for such review?
These questions are fundamental, given that in the determination of who has the power to make laws in regard to local government councils in Nigeria, the Supreme Court held in A.G. Abia State v. A.G. Federation that state governments have jurisdiction over local government areas due to Section 7(1), Section 197, and item 22 of the Second Schedule, Part 1 of the Constitution. According to the court, the exception to this is in relation to laws made by a State House of Assembly on local government elections, which must not be inconsistent with any law made by the National Assembly on the same subject matter as envisaged by items 11 and 12 of the Concurrent Legislative List.
Whereas the answer to the first question demands deepened democratic dialogue, the last question is likely to be in the affirmative, given the complex conflicts of Nigeria’s politics. In the case of the latter, and for the sustainable future of our democracy, it is safer for the Presidency to leverage on the judgement to seek the amendment of Section 7, Section 162, and items 11 and 12 of the concurrent legislative lists to seek periodic and regular elections, local government autonomy, and ensure rational legislation at the subnational level for the effective administration of the local government councils.
The appreciable judicial activism of the Supreme Court on local government autonomy is now a subsisting law, but for the judgement to stand the test of time, it needs a legislative lifeline in amending the identified relevant provisions of the Constitution. Consequently, the President must send an executive bill for the amendment of the aforementioned sections of the Constitution. The Asiwaju presidency is already defined by some bold structural steps on restructuring Nigeria; local government reform will definitely be a core of this history if conclusively pursued.
On the structure of our federalism, I am compelled to argue that we need a system that reflects our current socio-economic realities and development demands. More than 65 percent of Nigerians live in rural areas where local government councils are meant to have a development impact. It is only rational for the scale of good reasoning to weigh towards the logic that the local government system, as recognised by Section 162(3) in the outlined tiers of government for the ‘amount standing to the credit of the Federation Account to be distributed—federal, state, and local governments’, deserves a constitutional life as a complementary tier of government, complementary to the state government, but not a competing component against the states.
The proposed bill on “National Independent Local Government Electoral Commission” is likely to further create an institutional crisis. Elections held in each polling unit in Nigeria every four years will only take INEC extra ballot papers and not logistics to include local government elections for chairmen and ward councillors during general elections. To truly localise democracy and governance, the people must be involved as envisaged by the Constitution under Section 14(2)(C) that “the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.” It is time for the people to exercise their right as “employers” of public officials to constantly demand an account of service and, when necessary, exercise the unfettered right to terminate the employment of their representatives through recall processes.
God bless the Federal Republic of Nigeria.
Ekpa, Stanley Ekpa a lawyer and leadership consultant wrote via ekpastanleyekpa@gmail.com
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