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(h) Injustice inherent in the current distribution of local councils in Nigeria. Why it is impossible for states to create (additional) local governments that will draw allocation from the Federation Account
Let us not forget that the Monitoring of Allocation to Local Governments Act, 2005 was enacted, ostensibly, to ensure that funds meant for local governments in Nigeria actually got to them without re-allocation or redistribution (to new local councils not yet recognised by NASS) by the state governments. The Attorneys-General of Abia, Delta and Lagos challenged the Act at the apex court because of its general unconstitutionality and, most especially, its erosion of the federal principle, which is the foundation that holds the edifice of this nation.
However, it is worth mentioning that the Monitoring of Allocation to Local Governments Act, 2005 did not emerge out of the blue; it has a history. It came against the backdrop of injustice manifest in the disproportionate creation of local councils across the country by the military regimes. Lagos, despite its sprawling population, has 20 local governments. Kano State has 44 local councils. Jigawa State, which was carved out from Kano State in 1991, has 27 local governments! Bayelsa State, despite its ginormous contribution to the Federation Account, has only eight local governments!
In 2002, during the administration of Tinubu as governor, the Lagos State Government kick-started the process of creation of 37 additional local governments in line with the 1999 Constitution. On Saturday, 27 March, 2004, elections were conducted into the entire 57 Local Government Areas. Ebonyi, Katsina, Nasarawa and Niger also created additional local councils. But the Obasanjo-led Federal Government reacted with a letter dated April 8, 2024 to all the governors and local government chairmen, stating in part: “As the National Assembly is yet to make the necessary consequential provisions in respect of any of the newly created Local Government Areas in the country, conducting election under or funding any of them from the Federation Account would clearly be a violation of the constitution. Consequently, no allocation from the Federation Account should henceforth be released to the Local Government Councils of the above-mentioned States and any other State that may fall into that category until they revert to their constituent Local Government Areas specified in Part I of the First Schedule to the Constitution.”
The Lagos State Government then proceeded to the Supreme Court to challenge the power of the Federal Government to seize allocation meant for – please pay attention! – Lagos State Government for its local governments. (see Attorney-General of Lagos State v. Attorney-General of the Federation (2004) 18 NWLR (Pt 904) 1)
In order to apprehend and appreciate the import of the Supreme Court decision of Friday, 10 December, 2004, I have placed side by side the counter reliefs or counterclaims of the Federal Government (FG) against the Lagos State Government (LASG) with the verdict of the SUPREME COURT:
FG: “1. A declaration that the Plaintiff/Defendant to the Counter claims (LASG) has no power or right under the 1999 Constitution to abolish Local Government Areas created under the 1999 Constitution by altering their names, adjusting their boundaries and dividing them into smaller units until the National Assembly has acted pursuant to the provisions of S. 8(5) of the 1999 Constitution.
SUPREME COURT: “The plaintiff (LASG) has the power under Section 7(1) and 8(3) of the Constitution to create new Local Government Areas as done in Law NO.5 and the 2004 Law. The declaration sought is therefore refused.”
FG: “2. A declaration that the Plaintiff/Defendant to the Counter claims (LASG) has no power or right under the 1999 Constitution to create new local governments without recourse to the National Assembly as provided for under the constitution.”
SUPREME COURT: “The Plaintiff (LASG) has the power under the Constitution to create new local governments but the local governments so created will not take effect or come into operation until the National Assembly passes an Act to amend section 3 (6) and Part I of the First Schedule to the Constitution. The declaration sought is therefore refused.”
FG: “5. A declaration that sections 1, 2 and 3 of the Local Government Areas Law No. 5 of 2002 of Lagos State are in contravention of section 3 (6) and Part 1 of the First Schedule to the Constitution of the Federal Republic of Nigeria, 1999 and therefore are unconstitutional, null and void in so far as they purport to alter the provisions of the said section 3 (6) and part 1 of the First Schedule to the 1999 Constitution with respect to Lagos State of Nigeria.”
SUPREME COURT: “Section 1, 2 and 3 of the New Local Government Areas law No. 5 of 2002 in fact constitute the law which was enacted by the plaintiff in accordance with the provisions of section 7(1) and 8(3) of the Constitution. The Law is therefore valid even though it is not yet operative. Consequently, the declaration sought cannot be granted and is hereby refused.”
FG: “9. An order of injunction restraining the Lagos State Governor, the Lagos State House of Assembly or any functionaries or agencies of the Lagos State Government from maintaining, financing and recognising any local government in Lagos State apart from the ones created under Schedule 1 of the 1999 Constitution.”
SUPREME COURT: “The order to restrain the Lagos State Government, the Lagos State House of Assembly or any functionaries or agencies of the plaintiff not to maintain, finance and recognise any Local Government in Lagos State apart from those created under Part 1 of the First Schedule of the1999 Constitution is vague since the National Assembly could at any time it deems fit exercise its powers under Section 8(5) of the Constitution to amend section 3(6) and Part 1 of the First Schedule to the Constitution. Therefore the order cannot be granted and it is hereby refused.”
Now Sections 7(6)(a) and (b) of the 1999 Constitution provide that:
“(6) Subject to the provisions of this Constitution – (a) the National Assembly shall make provisions for statutory allocation of public revenue to local government councils in the Federation; and (b) the House of Assembly of a State shall make provisions for statutory allocation of public revenue to local government councils within the State.”
Sections 8 (5) and (6) of the same Constitution provide that:
“(5) An Act of the National Assembly passed in accordance with this section shall make consequential provisions with respect to the names and headquarters of State or local government areas as provided in section 3 of this Constitution and in Parts I and II of the First Schedule to this Constitution.
(6) For the purpose of enabling the National Assembly to exercise the powers conferred upon it by subsection (5) of this section, each House of Assembly shall, after the creation of more local government areas pursuant to subsection (3) of this section, make adequate returns to each House of the National Assembly.”
For obvious reasons, no state government since 1999 has been able to create (additional) local councils that can draw statutory allocation from the Federation Account. Since local governments depend on monthly allocation from the Federation Account, members of the National Assembly will be divided along ethnic and regional lines, with the aim of cornering the most financial resources to their respective states. In effect, local government is another unfair way created by the various military rulers to corner financial resources from the Federation Account to their own states or regions.
We can see from the above why it is practically impossible for Lagos or any state in Nigeria to successfully create additional local governments that can draw statutory allocations from the Federation Account. Hence the injustice inherent in the disproportionate creation of local councils by successive military regimes remains, in effect, permanent, except there is a constitutional amendment.
(1.4) Local government should be removed from the 1999 Constitution
As earlier submitted, local governments are not units of the federating states. It is not surprising that the federal constitutions of 1954, 1960 and 1963 had no place for local councils, they being in the bowels of regional governments. I should mention, in passing, that before the incursion of the military into governance, there was a multi-tier system of local government administration in Nigeria – the West (divisional, district, local) and the East (county, district and local), in particular. The 1976 Local Government Reforms, during the Gen Obasanjo regime, introduced a uniform, one-tier local government system across the country. That also marked the beginning of direct involvement of the Federal Government in local council affairs. Unfortunately, issues on local governments, however limited, found their way into the 1979 Constitution and in the subsequent 1999 Constitution midwifed by the military. This is an aberration in our federal arrangement. Local government matters should be the exclusive preserve of state governments. As a matter of fact, any state government can choose to turn every household within its territory into a local council. That should not be the headache of the central government. In this context, all provisions relating to local government administration should be expunged from the current Constitution of the Federal Republic of Nigeria. Consequently, revenue allocation should be between the federal and state governments. In doing this, we could be guided by the first republic federal constitution, before the era of military distortions; specifically Sections 136 to 145 of the Constitution of the Federation, 1963.
*To be continued next Thursday
(Read the online version of the column at www.independent.ng)