Following last week’s landmark decision of the Supreme Court of Nigeria in the case that was brought against the 36 states of the federation challenging their near-total disregard of the specific provisions of the Constitution commanding the “preservation of the system of democratically elected local government” in Nigeria, it can now be said with a reasonable degree of jurisprudential certainty that every tier of government in the Nigerian federation, including the Local Governments, is entitled to directly receive funds allocated to them from the federation account free of any extraneous administrative encumbrances.
In the same vein, the apex court also resolved with creative judicial finality that no tier of government in the federation, including state governments, has the right to interfere, withhold or otherwise interfere with whatever is due to other tiers and in this particular case, “democratically elected” Local Government Councils, a deliberate adjective which effectively excludes other forms of local government administration such as the odious caretaker-ship shenanigan and other unconstitutional contraptions that are being unlawfully utilized by State governors as conduit pipes for siphoning resources meant for Local Government Councils.
While it is conceded that technically speaking, the federation is structured to be an arrangement essentially between the States and the Centre, it should also not be forgotten that the states themselves are composed of territories occupied by local government as there is no state that is hanging in the air. What is more, the funds that we are talking about are not funds which the states, as economic entities, have generated on their own but funds only flows down from the federation in which the states and local governments are common beneficiaries.
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This has been one of the problems bedeviling the nation’s democracy as a whole and in particular, the structurally and fiscally distorted constitutional arrangement spelling out the exact nature of the relationship that should exist in a properly operated federal system of government hence, the longstanding clamour for “true federalism”. This column has been steadfast in pointing out that unless the clamour begins with resolving the unhealthy relationship between local government system which is the nearest (grassroots) tier to the people and their states, the whole struggle would just be like putting the cart before the horse.
In furtherance of that advocacy, we strenuously argued a fortnight ago that, considering what the state governments have made of the constitutional relationship subsisting between them and their local governments, “President Ahmed Bola Tinubu would be advancing on Nigeria’s democratic process if the much-talked about refor¬mation of the local government system means returning it to the local people, just as the name implies, instead of the current wholesale unconstitutional usurpation being brought to bear on them by state governors who do not understand why the Constitution specifically commands the “guarantee” of the local government system for the wellbeing of the country.
We made that advocacy in the full awareness that matters have gotten to a head on the issue, which has forced the Attorney-General of the Federation, Lateef Fagbemi, to take the bold public interest litigation to the Supreme Court with the scope of the original jurisdiction of the apex court as it relates to disputes between the various tiers of government.
As expected, the various states of the federation rose in unison to contest the prayer of the Attorney-General who was acting to protect the constitutional rights of the Local Governments and, by implication, the people they were all created to serve. It is really a surprise that in spite of the clear wordings of the Constitution, state governors continue to act with little or no regard for the provisions of the Constitution vis-a-vis the Local Government until Supreme Court judicially educated them.
Below is the constitutional environment in which local governments in Nigeria are expected to operate:
A. Section 7 of the Constitution of the Federal Republic of Nigeria provides that:
“(1) 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.
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(4) The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a local government council.
(5) The functions to be conferred by Law upon local government council shall include those set out in the Fourth Schedule to this Constitution.”
B. With respect to the flow of funds from the federation account to the local government through their state government, Section 162 of the Constitution specifically provides that:
“(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.”
Note that this sub-section applies only to funds that may be payable to the local government from the state’s generated funds and not the funds meant for them from the federation account. It was always a source of concern for most Nigerians that in spite of these elaborate constitutionally laid out environment for the fiscal operation of the Constitution with respect to the local governments that State governors, have for so long denied the Local Government Councils their due constitutional liberty to manage their local affairs as independently and responsibly as possible coupled with the guarantee that what is due to them is paid directly to them.
We have the unique situation in Nigeria in which there is supposed to be a “Joint Account” owned by both tiers government but which in actual fact had only one signatory, the greedy State governments! Our task today is simply to layout the text of the constitutional environment in which Local Government Councils and their States are expected to operate, a relationship which the Supreme Court, deploying its inherent judicial powers, has just resolved with finality for all concerned.
In subsequent essays we shall be examining the jurisprudential imperative that was at play at the Supreme Court and also to seek to explain why the ruling is automatically binding on all parties as it is self-executory requiring no additional input from another arm of government within the framework of separation of powers before going into effect. We shall in subsequent weeks, elucidate on why our Supreme Court can also function as a Constitutional Court vested with the powers to constructively read and interpret the text of the Constitution either restrictively or expansively, depending on the circumstances of the case because, under our theory of constitutional law, the Nigerian Constitution is the type often referred to as a “Living Document” perpetually alive to the exigencies of the societal evolution.
