By Law Mefor
Prince Lateef Fagbemi SAN, the nation’s attorney general, became born again after having previously supported the Nigerian governors in their quest to deny local governments (LGs) financial autonomy. Insofar as the brief is good, lawyers, you know, can represent anybody, even terrorists, bandits, rapists, and killers. By the way, local government autonomy is the freedom given to local governments to exercise authority within the confines of the law or constitution. This is to enable them to discharge legally or constitutionally assigned responsibilities satisfactorily but without undue interference or restraint from within or higher authority.
This time, the minister of justice and learned Silk has a different view of the subject of Local Government autonomy. Or, to put it another way, he now works for the Nigerian president, who appointed him as the No. 1 legal officer. He went to the Supreme Court to request an interpretation of certain sections of the 1999 Constitution, which deal with Local Government autonomy.
The Supreme Court granted all of the attorney general’s requested reliefs, which have overarching implications for both the express letters of the 1999 Constitution (as amended) and the fundamental federalist principles that place the governors in charge of overseeing and caring for the local governments. With little to no thought for the landmark ruling’s implications for Nigeria as a federation, the majority of Nigerians appear to concur and commend the Supreme Court on it.
The Supreme Court knew it could not overturn the Constitution; it could only interpret it, so it made a political and policy decision with the judgement under review because the same Supreme Court in 2022 quashed President Buhari’s Executive Order 10 that sought to empower the Accountant General of the Federation to bypass state governments and disburse federal allocations directly to local governments based on violating the principle of federalism.
Today, the Supreme Court is clinging to a perspective that no one can disprove. As a policy court, the Supreme Court renders decisions on constitutional interpretation as a court of first and last instance. In the end, the Supreme Court’s interpretation of the law determines its meaning. Any appeal would be to God and posterity. Put another way, the Supreme Court seems to have the authority to veer off course and create the appropriate legal consequences to fill the gaps and cure contradictions in the Constitution. The 1999 constitution, which has made Nigeria a unitary system and government, is the problem, not the Supreme Court.
It is the 1999 Constitution, which established a joint account between the states and local governments. Although inelegant, Local Government autonomy can be maintained as is, even without amending the constitution to smooth out any rough edges. However, in reality, the governors will be waiting for the Local Government councils and their chairmen to whip them into line.
The 1999 constitution, which established local governments as a layer of government to further solidify unitary federalism, is arguably the worst Nigerian constitution ever operated. The states are the only federating units in any organic federation. Nigeria, however, is not one. Following Nigeria’s unification or amalgamation in 1914, the country began as a unitary system and began to devolve powers by creating states, from 12 to 36 states as of right now and counting.
Weakening the states as federating units is deliberate policy which included the inclusion of local governments in the constitution. It was a calculated move to solidify the unitary system. This provides context for understanding the Supreme Court’s decision. Therefore, support or opposition to the Supreme Court judgement depends on one’s wish for the nation – unitary, or federal system.
By seizing the cash meant for the Local Governments, the governors attempted to regain the status of states as federating units. It was a bad idea that the Supreme Court just declared invalid. Under Section 162(6) of the 1999 Constitution, which created a joint state/local government account, state governors spend money due to the local government on their behalf. Although the governors had depended on the joint account, they will no longer be able to handle local government funds directly, according to this Supreme Court’s decision. Every local government would receive its money straight from the federation account and use it for its purposes without accepting any orders or allowing the state governors to meddle.
That’s where the issue is: state governors now have worthy challengers in their backyards in the Local Government chairmen. There is nothing a governor can do to stop the federal government from dealing directly with any Local Government chairman on any political or economic matter, and that is interference in the states’ affairs as federating units. For this reason, some commentators have claimed that the Tinubu administration is planning to seize control of local governments to circumvent the governors’ overarching influence, particularly when it comes to elections.
Even if this accusation was not the goal of the Tinubu administration, it will eventually turn out to be an unexpected consequence by default, and it may manifest itself to its fullest extent in 2027 when the incumbent president will be running for reelection.
If the governors haven’t seen this coming since 1999, it’s their entire fault. Since Local Government autonomy would need 24-state concurrent affirmations to pass as a constitutional amendment, the governors’ only action whenever it was introduced as a constitutional amendment was to block it in their states.
The complete handover of the Local Governments via their removal from the constitution is what the governors should have fought for the entire time. However, since the Local Governments serve as the foundation for revenue sharing, the states that unfairly benefit from the military’s favouritism—when they unfairly and unequally created the local governments—never gave that much thought because it would mean having less money to play with.
Currently, about 21 states with local government caretaker committees have three months to hold Local Government elections, or else their Local Government allocations will be withheld. Governors appoint Caretaker Committees despite Section 7(1) of the 1999 Constitution stating, “The system of local government by democratically elected local government councils is guaranteed under this constitution; and accordingly, the government of every state shall, subject to Section 8 of the constitution, ensure their existence under a law that provides for the establishment, structure, composition, finance, and functions of such councils.” When such occurs, since the Supreme Court has already made a decision, the governors will be unable to file an appeal with the apex court, as President Tinubu did while serving as the governor of Lagos State during the Obasanjo presidency.
What is more, Section 162(4) of the Constitution allows the president to withhold funds from the Federation Account if a state or local government fails to comply with the provisions of the Constitution or any law enacted by the National Assembly. This section can be invoked by President Bola Tinubu as well.
However, it’s still not enough for Local Government autonomy. The state governors will continue their reliance on the State Independent Electoral Commission (SIEC) to select their cronies as Local Government chairmen and thereby sustain their financial and other forms of indirect control over the Local Governments. Using a constitutional amendment, the FG needs to get INEC to take over the Local Government elections the 3rd tier of government is a constitutional creation.
An electoral agency for Local Government elections is now being considered by the National Assembly. Let it then be mentioned that, as desired as this step may be, it may be the last straw that breaks the nation’s federalism since it will annex the local governments to the centre and finally castrate the states as federating units. Supporters of democracy and federalism should recognise the risk of delegitimising states, or splitting their powers as federating units by elevating Local Governments to the status of federating units. Naming Local Governments in the constitution as a tier is an aberration and anomaly that has to be fixed by removing them from the constitution and granting state governments the authority to create and manage them as they see fit. That is the situation in the other twenty-five federalist nations.
That is the neglected perspective and a risky one at that. Nigeria is either a unitary state or a federation. The judgement has, rather, dealt a severe setback to the principle of federalism as set out in Section 162(3) of the 1999 Constitution. Many informed Nigerians have also stated this.
*Dr. Law Mefor, an Abuja-based forensic and social psychologist, is a fellow of The Abuja School of Social and Political Thought; [email protected]; Twitter: @Drlawsonmefor.
