SIEC, INEC or a Combination, for Credible Local Government Elections?
The age-long debate as to the status of Local Government Councils (LGC) doesn’t appear to have been finally settled, even with the recent Supreme Court judgement asserting the financial autonomy of the LGCs. Other important issues have trailed the LGCs, especially that of whether or not there should be a Local Government Electoral Commission, possibly within the structure of the Independent National Electoral Commission (INEC), to replace the State Independent Electoral Commission. Will it make LGC elections credible, so that it’s not always the ruling political party in the State or appointees of the Governors that take all the Chairmanship and Councillorship positions within their States, as has been the outcome in most States over the years, since it is the Governor that is responsible for staffing SIEC? Will it guarantee the LGC’s independence, and their place as a third tier of Government? Will it curb the high handedness of the State Governors? Festus Okoye, a former National Commissioner of the Independent National Electoral Commission (INEC) gives an in-depth analysis of the issue, and recommends the best approach to settling it
Sooner or later, the critical stakeholders in the Nigerian Federation must settle the debate on the place and role of State Independent Electoral Commissions in the matrix of electoral Commissions in Nigeria. Coterminous to the role and place of State Independent Electoral Commissions (SIEC), is the raging debate on the role, place, and independence of Local Governments in the Federal structure of Nigeria.
Related Issues
Three related issues underscore the urgency of a quick debate and resolution of the issue of Local Governments, through constitutional alteration and amendment of the constitutive legal instruments. The first is the unreported judgement of the Supreme Court in Suit No. SC/CV/343/2024 delivered on the 11th day of July, 2024 involving the Attorney-General of the Federation and the Attorneys -General of the 36 States of the Federation, on what is now popularly referred to as Local Government autonomy.
The second issue relates to a pending Bill before the Senate of the Federal Republic of Nigeria, seeking to establish a National Independent Local Government Electoral Commission (NILGEC) charged with the responsibility of conducting elections to the office of Local Government Chairmen and Councillors across all States of the Federation. The Bill titled “Local Government Independent Electoral Commission (Establishment) Bill, 2024 (SB. 531)” was sponsored by the Chairman of the Senate Committee on Finance, Senator Sani Musa, (APC, Niger-East).
The third issue is the flurry of Local Government Elections that have been conducted since the judgement of the Supreme Court delivered on the 11th day of July, 2024. There are also the judgements of the Court of Appeal and the Supreme Court on the dissolution of Local Governments, and the unimplemented reports of Committees set up by the Federal Government on electoral matters, that have become residual issues in our electoral framework.
The other ancillary issue is that Section 197 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), establishes the State Independent Electoral Commission as one of the State Executive Bodies. The Constitution gives the Governor of each State the power to appoint the Chairman and members, subject to confirmation by the House of Assembly of the State. Nigeria and Nigerians must resolve whether the State Independent Electoral Commissions must continue to exist and conduct Local Government elections. This is because of their performance and sheer powerlessness, before the State Governors and the State Houses of Assembly.
Impact of Supreme Court Judgement in LG Financial Autonomy Case
There is no doubt that the judgement of the Supreme Court of Nigeria on financial autonomy for the seven hundred and sixty-eight Local Government Areas in Nigeria and six Area Council Areas in the Federal Capital Territory has raised, once again, the question of the place, relevance and independence of the various Local Governments in Nigeria. It has also raised the question of the independence, relevance, and impartiality of the States’ Independent Electoral Commissions. More fundamentally, it has brought to the fore, our practice of Federalism and the place of grassroots structures in our Federal structure.
The critical question is, whether the judgement of the Supreme Court delivered on the 11th day of July, 2024 will solve the myriad challenges bedevilling the Local Government system in Nigeria. Other than the Supreme Court judgement on the financial independence of the local governments, are there other issues that must be tackled to strengthen the place of local governments in the Nigerian Federal structure? First, it will be good to understand the problems resolved by the judgement of the Supreme Court.
On the 24th day of May, 2024, the Attorney-General of the Federation (AGF) took out an Originating Summons before the Supreme Court of Nigeria against the Attorneys-General of 36 States of the Federation, seeking various reliefs. On the 11th day of July, 2024, the Supreme Court delivered its judgement and granted 11 Declarations and 3 Orders. The Supreme Court granted a declaration that the States of Nigeria, or any one of them, acting through their/its respective State Governors and or State House of Assembly, are/is under obligation to ensure democratic governance at the third tier of government in Nigeria, that is the Local Government level.
The Supreme Court decried the unlawful and unconstitutional dissolution of democratically elected Local Government Councils, and their replacement with Caretaker Committees. It held that State Governments and the Houses of Assembly have no power to constitute, appoint, or determine a Local Government. It held that a State Government or the Governor of a State has no power to constitute, appoint, or determine a local government that Section 7(1) of the 1999 Constitution has prescribed can only be by Local Government Councils, democratically elected by persons in a local government area.The Supreme Court stated that only democratically elected Local Governments can receive distributable amounts standing to the credit of Local Government Councils in the Federation Account. The Supreme Court held that it amounts to grave misconduct to use a State Law or Administrative directive to dissolve or cause the dissolution of democratically elected Local Government Councils. It also held that the State Governments have no power to keep, control, or disburse allocations from the Federation Account to Local Government Councils. It granted an order of injunction restraining the State governments by themselves, their privies, agents, officials, or howsoever called, from further collecting, receiving, spending, or tampering with local government council funds from the Federation Account for the benefit of Local Government Councils. It also ordered that the Federation or Federal Government of Nigeria, through its relevant officials, should commence the direct payment to each Local Government Council of the amount standing to the credit of each of them in the Federation Account.
Before the Supreme Court judgement, most Nigerians saw the local governments as glorified outposts of the State Governments, and most of them were selected and not democratically elected. The State Independent Electoral Commissions organised “one-way” elections, and in most of the States, the ruling party “cleared” all the contested positions.
The State Governments and the State Houses of Assembly dissolved the Local Government Councils at will, appointed Caretaker Committees, and arbitrarily fixed their tenure. The Courts intervened, but, the problems persisted. The bone of contention has been the interpretation and application of Section 7 of the Constitution (as it provides 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”).
In the case of Eze & ors v Governor of Abia State & ors (2010) LPELR-4133(CA) on the dissolution of democratically elected Local Governments, the Court of Appeal per Helen Moronkeji Ogunwumiju, JCA (as she then was) held that the powers conferred on the Government of every State by Section 7(1) of the 1999 Constitution to ensure the existence under a law which provides for the establishment, structure, composition, finance and functions of a local government, can only be executed within the confines of the provisions of the Constitution. Thus, the power of the State House of Assembly under Section 4(7) of the Constitution, cannot extend to truncate the tenure of a democratically elected local government council. The Constitution only recognises elected members of the local government council. It is ultra vires the Constitution, for any State Legislature to make a law that dissolves a local government council made up of elected Chairmen and Councillors, and replace it with members of a Caretaker Committee selected by the State Government.
The Court of Appeal in the case of AG Benue State & ors v Umar & ors (2007) LPELR-8076, emphasised that Caretaker Committees have no place in our constitutional democracy. It held that “under Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999, the system of local government by democratically elected Local Government Councils is guaranteed, and the Government of every State is obliged to ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils”.
The Electoral Reform Committee (ERC) (2008), weighed in on the conduct of Local Government elections by the State Independent Electoral Commission (SIEC). It addressed the composition and functions of SIEC in Chapter 5 of Volume 1(Main Report). The Committee found that “the 1999 Constitution provides for the establishment of State Independent Electoral Commissions (SIECs), which have the function of conducting elections of Chairmen and Councillors into the Local Government Councils. Paragraph 3 to the Third Schedule (Part II) of the 1999 Constitution provides that “A State Independent Electoral Commission shall comprise the following members (a) a Chairman; and (b) not less than five but not more than seven other persons” who are to be appointed by the State Governor, and confirmed by the House of Assembly for the State. Many people who submitted memoranda, expressed dissatisfaction with the performance of SIECs, which were considered mere organs of the incumbent State Governors and the ruling parties. Unfortunately, the conduct of the local government elections by them in 2004, and more recently in 2008 in many States of the Federation, tended to support the negative perception of the SIECs. In most of the States where local government elections were conducted, candidates of the ruling parties won virtually all the seats. Often, such results do not reflect the voting pattern in Federal elections. In view of the performance of the SIECs in 2004 and 2008 elections, there have been popular suggestions at the public hearings, in some of the memoranda submitted, and also in the media for their abrogation. The poor performance of SIECs gives cause for concern, given the significance of local governments in a democratic society. The third tier of government, should be the foundation of democratic governance for the citizens. It is the closest level of government to the citizens. Therefore, it should be seen to address the basic needs of the citizens. Furthermore, it provides citizens with more direct representation, and opportunity for political participation. However, in its present form, Local Government operators are seen as mere nominees of State Governors who lack the independence to implement popular and democratic programmes”.
Various Recommendations on the Reform of SIECs
The Committee recommended that the existing SIECs be reorganised and integrated into the structure of INEC, for greater efficiency and autonomy. This will entail constitutional amendment and statutory provisions, integrating and coordinating the activities of the State offices of INEC and SIECs for all elections.
1) Scrapping of SIECs and Transfer of their Functions to INEC
On 4th October, 2016, the Constitution and Electoral Reform Committee (CERC) was inaugurated by Mr Abubakar Malami, SAN, the then Attorney-General of the Federation and Minister of Justice “to, among other things, recommend measures required to improve the electoral process and deepen democracy in Nigeria”. The Committee recommended the scrapping of SIECs, and the transfer of their functions to INEC. The Committee also recommended the amendment of the Constitution to include a provision that “INEC shall not be subject to the directive or control of any other authority or person, in the performance of its functions’’. This provision is to insulate INEC from the influence and control of Government and its agencies.
2) Establishment of National Independent Local Government Electoral Commission
Presently, we have a Bill before the National Assembly seeking to establish a Local Government Independent Electoral Commission. The Bill titled “Local Government Independent Electoral Commission (Establishment) Bill, 2024 (SB. 531)”, was sponsored by the Chairman Senate Committee on Finance, Senator Sani Musa, (APC, Niger-East). The Bill seeks to establish the National Independent Local Government Electoral Commission (NILGEC) responsible for conducting elections to the office of the Local Government Chairman and Councillors, and any other matter to do with local government as a third tier of government. NILGEC will organise, oversee, and conduct elections for the offices of Local Government Chairman and Councillors across all States.
Part of the functions of NILGEC will include preparing and maintaining an accurate and up-to-date voter register, ensuring the conduct of voter education and public awareness regarding the electoral process, and setting and enforcing electoral guidelines and regulations for Local Government elections, recruitment and training of electoral officers and staff for efficient election management and investigating and adjudicating electoral disputes. The budget for the proposed Commission will be approved by the National Assembly, and elections for the offices of Local Government Chairman and Councillors shall be conducted every four years. “Upon the establishment of NILGEC, all powers and functions related to the conduct of Local Government elections previously vested in any other body or authority, shall be transferred to NILGEC.”
Now, the Federal and State Governments are working out modalities to implement the judgement of the Supreme Court. This has led to a flurry of Local Government elections, and dates for their conduct. Kwara State has conducted its Local Government Election, and the ruling party “won” all 16 Chairmanship positions and the 193 Councillorship positions. Imo State conducted its Local Government elections, and the ruling party “won” all 17 Chairmanship positions and the 305 Councillorship positions. Enugu State has conducted its Local Government Elections, and the ruling party won all 17 Chairmanship positions. In Delta State, the ruling party “won” the 25 Chairmanship positions and 499 of the 500 Councillorship seats. In Sokoto State, the ruling party “won” all the 23 Chairmanship seats and the 244 Councillorship positions. Anambra State conducted its own Local Government elections on the 28th day of September, 2024. The ruling party” won” the Chairmanship and Councillorship positions in the 21 Local Government Areas of the State. Kaduna State will conduct its own on the 19th day of October, 2024 and Abia State will conduct its own on the 4th of November, 2024.
The Supreme Court’s judgement, is a huge victory for the rule of law and due process. It is a credit to the AGF, that some form of financial independence has been restored to the Local Governments. Nigerians expect the Local Governments to impact grassroots development, rather than existing for the payment of salaries and sharing overheads.
A related issue thrown up by the Supreme Court’s judgement on the local government’s financial autonomy, is whether the problems bedevilling the Local Governments have everything to do with the retention and use of money meant for the Local Governments by State Governments through the Joint Accounts. The retention of the money due to them, rendered the Local Governments redundant. The arbitrary dissolution of the local governments instills fear in the occupants of the positions, and makes them subservient to the State Government and the State Assembly. The juggling and uncertainty of tenure means that, aspirants to the position of Chairman and Councillors of Local Governments can spend so much money on nomination forms, campaigns, payment of poll agents, and other ancillary things, and lose office in less than one year after assuming office.
Financial autonomy has not changed, and may not change the dizzying scenarios associated with Local Government elections. The results from the conduct of Local Government elections after the judgement of the Supreme Court, further affirms that Nigeria has a long way to go in restoring the integrity and independence of the Local Governments.
The Bill pending before the National Assembly, seeks to establish a NILGEC. The sponsor of the Bill is responding to the challenge of the Local Governments, and the inability of the State Independent Electoral Commissions to conduct credible elections. The sponsor of the Bill therefore, seeks a collective and uniform approach to solving the problem through a single electoral management body to conduct elections in the Local Governments in the 36 States of the Federation.
The Bill may suffer a stillbirth, for a variety of reasons. Local Governments in Nigeria are a creation of the Constitution. Section 7 of the Constitution is clear and emphatic, on the system of local government administration. “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”. Furthermore, Section 197 of the Constitution establishes the State Independent Electoral Commission, as one of the State Executive Bodies. The Constitution gives the Governor the power to appoint the Chairman and members, subject to confirmation by the House of Assembly of the State.
This means that no law made by the National Assembly, can alter or override the provisions of the Constitution. The Constitution is the fundamental law of the land, and all other laws flow from the Constitution, and any other law that is inconsistent with the provisions of the Constitution will be void to the extent of the inconsistency. Section 1(3) of the Constitution provides: “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 National Assembly, the Executive, and the Judiciary derive their powers from the Constitution. As observed by Ayoola, JSC in the case of INEC v MUSA (2003) LPELR-24927(SC), “the legislative powers of the Legislature, cannot be exercised inconsistently with the Constitution. Where it is so exercised, it is invalid to the extent of such inconsistency”. He also observed that“where the Constitution has enacted exhaustively relating to any situation, conduct, or subject, a body that claims to legislate in addition to what the Constitution had enacted, must show that it has derived the legislative authority to do so from the Constitution”. Hon. Justice Mary Peter-Odili, JSC, made the same point in the case of Jegede & Anor v INEC & Ors and said “The Constitution is the very foundation and structure, upon which the existence of all organs of government is hinged. It must be held inviolable”. Similarly, in the case of HOPE DEMOCRATIC PARTY v OBI (2012) ALL FWLR (Pt. 612) 1620 at page 1644, the Supreme Court, per Adekeye JSC held that: “The Constitution is the supreme law of the land, therefore, the provisions are superior to every provision embodied in any Act or law, and are binding on all persons or authorities in Nigeria. The failure to follow any of the provisions, renders the steps taken unconstitutional, null, and void.”
The Bill titled “Local Government Independent Electoral Commission (Establishment) Bill, 2024 (SB. 531), cannot be used to amend the Constitution. The Bill cannot abolish State Independent Electoral Commission, as it is a creation of the Constitution. The new Commission cannot organise the registration of voters, as that power is specifically donated to the Independent National Electoral Commission. The Distinguished Senator can only introduce a Bill to amend the Constitution, and bring into being the proposed Local Government Independent Electoral Commission. While the sentiments that gave rise to Local Government Independent Electoral Commission (Establishment) Bill, 2024 (SB. 531) are understandable, the route to an independent State Electoral Commission must be found in the Constitution. It is wasteful to duplicate electoral management bodies. It is wasteful for the new body, to conduct voter registration. It is wasteful for the new body to have the full complement of offices, staff, and the paraphernalia of conducting elections.
I still submit that it is wasteful to have 36 electoral management bodies for the country, with each having offices and staff in all the Local Government areas of the country. It is wasteful for the State Independent Electoral Commissions to have their own Bimodal Voter Accreditation System, ballot boxes, and cubicles.
The Best Approach and Constitutional Amendments Required
The best approach to an independent electoral management body that can conduct credible elections at the local governments, is suggested by the Electoral Reform Committee (2008), and that is the integration of the State Independent Electoral Commission into the structure of the Independent National Electoral Commission, to form one electoral body for the country. The Committee recommended that the existing SIECs be reorganised and integrated into the structure of INEC, for greater efficiency and autonomy. This will entail constitutional amendments, and statutory provisions integrating and coordinating the activities of the State offices of INEC and SIECs for all elections. This will entail altering Part 1 of the Third Schedule to the Constitution, to vest the Independent National Electoral Commission with the power to conduct Local Government Elections. It will entail amending Section 285 of the Constitution and all other corresponding sections, to bring them into conformity with the new legal regime.
It will also entail amending Section 7 of the Constitution, to prescribe a definite tenure for the Local Governments in Nigeria. The National Assembly must amend Section 197 establishing the State Independent Electoral Commission. They must also amend Sections 198, 199, 200, 201, 202, 203, 204, and 205 of the Constitution. These sections deal with the removal of members of SIEC, independence of certain bodies, quorum and decisions, powers and procedures, and interpretation. Section 110 of the Electoral Act 2022 has prescribed the procedure for the removal from office, of a Chairman and Vice-Chairman of an Area Council. The amendment must follow the same pattern, and prescribe the procedure for the removal from office of a Chairman or Vice-Chairman of a Local Government. The National Assembly must also tweak Section 150 of the Electoral Act relating to the procedure for Local Government Elections, in furtherance of Paragraph 11 of Part ll of the Second Schedule to the Constitution, to rhyme with Sections 98 to 113 of the Electoral Act.
Half measures, will not be enough. Financial independence alone, will not guarantee the autonomy of the Local Governments. The process through which Local Government Chairmen and Councillors get elected and assume office, must be protected. Their tenure must be guaranteed, and there must be diversity in the membership of the various Local Government Councils. The Executive and the Legislature at the National and State levels must put the nation first, and strengthen grassroots democracy. Every nation arrives at Federalism based on its history, culture, practices, and antecedents. We must practice Federalism that works for us, and not one that undermines grassroots democracy.
Festus Okoye, Legal Practitioner; former National Commissioner, Independent National Electoral Commission (INEC)
