A New Elixir for the LGs

Again, the Supreme Court, last week delivered a landmark judgment that could rescue local government administration from the stranglehold of state governors, if adhered to. Davidson Iriekpen writes

The highest court in the land, the Supreme Court, last week breathed life into the administration of local governments in the country when it voided laws enacted by the states’ Houses of Assembly, which give governors the powers to sack democratically-elected local governments’ chairmen and councillors and replace them with caretaker committees or sole administrators.

While delivering judgment in the appeal in relation to the dissolution of the 16 local government executives in Ekiti State during Kayode Fayemi’s administration, a five-man panel of justices led by Justice Olabode Rhodes-Vivour, in a unanimous judgment, described the practice as “executive recklessness,” which must not be allowed to persist.

Fayemi, now the Minister of Solid Mineral Development had on assumption of office as governor on October 29, 2010, announced the dissolution of the councils in a radio announcement, when the elected council officials still had up till December 19, 2011 to end their three-year tenure.
Consequent upon this, Sanmi Olubunmo, then Chairman of Ido Osi Local Government Area and Chairman of Association of Local Governments of Nigeria (ALGON), Ekiti chapter and 13 others challenged their sack at the court. Just like in other states, where this arbitrariness frequently occur without challenge, the governor relied on Section 23(b) of the Ekiti State Local Government Administration (Amendment) Law, 2001, which empowered him to dissolve local government executives.

But the Supreme Court in its judgment, faulted the governor’s reliance on Section 23(b) of the Ekiti State Local Government Administration (Amendment) Law, 2001, saying it was violation of Section 7(1) of the Constitution from which the state House of Assembly derived the power to enact the local government law.

Just like in other states of the federation, Justice Centus Nweze, in the lead judgment, said Fayemi’s reliance on the state Local Government Administration (Amendment) Law, which empowered him to dissolve local government executives, was in conflict with section 7(1) of the Constitution (supra). Hence, it is bound to suffer the fate of all laws which are in conflict with the Constitution, section 1(3) thereof.

“There can be no doubt, as argued by the appellants’ counsel, that the Ekiti State House of Assembly is empowered to make laws of Ekiti State. However, the snag here is that, in enacting section 23(b) of the Ekiti State Local Government Administration (Amendment) Law, 2001, which empowered the first appellant to bridge the tenure of office of the respondents, it overreached itself.

“In other words, section 23(b) (supra) is violative of, and in conflict with section 7(1) of the Constitution (supra). Hence, it is bound to suffer the fate of all laws which are in conflict with the Constitution, section 1(3) thereof.”

While Section 7(1) of the Constitution states that: “The system of local government by democratically-elected councils (which) is by 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.” Section 1(3) expressly states that “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

The judge consequently said to that extent, section 23(b) of the Ekiti State Local Government Administration (Amendment) Law, 2001, cannot co-habit with section 7(1) of the Constitution and must, in consequence, be invalidated.

He said Section 7(1) of the Constitution seeks to guarantee “the system of local government by democratically-elected local government councils and conferred “sacrosanctity on the elections of such officials whose electoral mandates derived from the will of the people freely exercised through the democratic process.

“The implication, therefore, is that section 23(b) of the Ekiti State Local Government Administration (Amendment) Law, 2001, which was not intended to ‘ensure the existence of’ such democratically-elected councils, but to snap their continued existence by their substitution with caretaker councils, was enacted in clear breach of the supreme provisions of section 7(1) of the Constitution.

“To that extent, it (section 23(b) supra) cannot co-habit with section 7(1) of the Constitution (supra) and must, in consequence, be invalidated. The reason is simple. By his oath of office, the governor swore to protect and not to supplant the Constitution.
“Hence, any action of his which has the capacity of undermining the same Constitution (as in the instant case where the first appellant, ‘Governor of Ekiti State and others’ dissolved the tenure of the respondents and replaced them with caretaker committees) is tantamount to executive recklessness which would not be condoned,” the judge said.

Justice Nweze said the tenure of the local government councils could not be abridged without violating the supreme constitutional provisions. “Simply put, therefore, the election of such officials into their offices and their tenure are clothed with constitutional force. They cannot, therefore, be abridged without breaching the Constitution from which they derive their force. The only permissible exception, where a state governor could truncate the lifespan of a local government council which evolved through the democratic process of elections, is ‘for overriding public interest’ in a period of emergency.”

He upheld the earlier decision of the Court of Appeal on the issue and adopted the orders made by the Court of Appeal on the case in its judgment delivered on January 23, 2013.
The Appeal Court had among others, ordered the Ekiti State Government to compute and pay all the allowances and salaries accruable to members of the dissolved councils between October 29, 2010 and December 19, 2011, both dates inclusive.

Justice Nweze directed the Attorney- General of Ekiti State to ensure that the orders of the lower court (Appeal Court) affirmed in his judgment, are complied with. This latest judgment brings to two the number of judgments in recent times to rescue the local from the stranglehold of the governors.

For instance, in 2012, the same apex court had in landmark judgment, held that state governors do not have the powers to sack their elected officials. While delivering judgment in the case of the removal of 148 elected local government officials by the Abia State Government in 2006, the court unanimously held that the action was illegal and amounted to “official recklessness” by the governor.

The five-member panel of justices led by Justice Walter Onnoghen held that no state governor in the country has the right to remove democratically-elected local government officials. The court then ordered the state government to pay the sacked 148 elected officials their salaries and entitlement for the 23 months they were to serve their tenure.

Besides the two landmark judgments, other lower courts across the country had at different times, condemned the frequent habit of governors using caretaker committees to run the affairs of local government councils in the country.

Unfortunately, despite the judgments, nothing has changed. As soon as a new governor particularly from a different political party is sworn in, his first assignment is to dissolve the local government system in the state under a very flimsy excuse.

There is no doubt that the local government is the third tier of government in Nigeria. It is the closest to the people and intended to take development directly to them. The wisdom of the framers of the country’s constitution to accord the local government system its due recognition and properly equip it to discharge its responsibilities was based on the belief that it would bring governance and popular democracy to the people at the grassroots’ level and act as a catalyst for rapid socio-economic development of the country.

But since the enthronement of democracy in the country in 1999, local government administration has been hijacked by state governor, who have perfected plans to strangulate the system. Part of the plans is to regularly handpick their cronies as sole administrators or caretaker/transition committees as the case may be rather than allow for the election of chairmen and councillors.
Currently, virtually all the states of the federation are running their local governments with individuals handpicked by the governors. The practice cuts across political parties with a predominant number of state governments regarding the third tier of government as mere administrative appendages placed under commissioners for local government and chieftaincy matters.

Though Section 7 (1) of the Constitution (as amended) is very clear on how the local government should be run, subsisting practices from across the states confirm the absolute reluctance of the state governors to accept the existence of local government system as a separate arm of government.

To them, the thought of having independent council chairman with huge funds is considered by most state chief executives as a threat to them. One way they have successfully done this over the years is through their Houses of Assembly. They have enacted their own laws empowering them to selfishly take over the running of the local government and their revenue.

To a lot of Nigerians, it is an open secret that governors have been dipping their hands into local governments’ funds. Any elected chairman seen to be offering any form of resistance to such a practice can be removed on the basis of some spurious allegations.

Though the administration of local governments is within the purview of the state governments, many analysts have argued that the manner in which this control is being exercised in Nigeria is antithetical, not only to the principles of federalism but also to the basic tenets of democracy.
Not only has the council system lost its financial independence but its operational autonomy, thereby rendering them redundant and incapable of rendering even the simplest of social services to the grassroots. The situation is said to be a major factor to grinding poverty and increasing under-development at the local government levels.

To many observers, there are no longer secrets why governors prefer caretaker committees to run the local government areas – they take undue advantage of the joint accounts with the local governments to determine how much should go to the councils, contrary to the actual amount allocated to them by the federal government.

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Though the administration of local governments is within the purview of the state governments, many analysts have argued that the manner in which this control is being exercised in Nigeria is antithetical, not only to the principles of federalism but also to the basic tenets of democracy