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Section 1. Administrative law
https://doi.org/10.29013/EJLPS-21-2-3-10
Oladele Grace Abosede, LL.B, B.L, LL.M, M. Phil, Ph.D, Faculty of Law, Adeleke University, Ede, Osun State, Nigeria
E-mail: [email protected]
LEGAL INTERVENTION FOR THE AUTONOMY OF LOCAL GOVERNMENT COUNCILS IN NIGERIA
Abstract. This paper examines the problem of lack of autonomy of Local Government Councils in Nigeria and the challenges confronting them. Nigeria is a federation with three tiers of government - Federal, State and Local Governments. In true federalism, each tier is autonomous and is fully recognized by the Constitution. This paper shows that while the Federal and State Governments are well recognized, in terms of executive, legislative and judicial organs, etc, under the Constitution, Local Government Councils are not accorded the same recognition. The Constitution empowers State Governments to make laws for the establishment, administration and powers of Local Government Councils. In addition, State Government are empowered to conduct elections into the Councils and disburse the revenue allocated to these Councils. This has placed Local Government Councils under the autocratic governance of State Governments, and has resulted in poor development of Local Government.
This paper concludes that autonomy of Local Government Councils as the third tier of government is a necessity for the operation of true federalism and development at the grass root level in Nigeria, And until this is done, Local Government Councils will remain handicapped by the overwhelming and exacerbating control of State Governments and unable to develop their localities.
Keywords: local self-government, problems of autonomy, federalism, democratic values, amendments to the Constitution.
Introduction
Local Government is the third tier of government and closest to the people. It is vested with the power to promote democratic ideals and coordinate development in the locality [1]. The necessity for the creation of local government stems from the need to facilitate development at the grassroots. Its importance is a function of its
ability to meet up with the expectations of the populace [2].
Before 1976, during the colonial era, Local Government System in Nigeria was faced with myriads of problems, ranging from inefficiency to mismanagement by State Governments. These led to agitations for a reform of the Local Government System in Nigeria [1, note 1, P. 204]. Thus, in 1976, the Federal
Government embarked on extensive reforms of the Local Government System. The 1976 reforms among other things developed a uniform system of local government for the entire country and conceptualized Local Government as the third tier of government [1, note 1, P. 204]. It further provided for election into certain offices of the Local Government Councils. Most of these recommendations were incorporated into the 1979 Constitution of Nigeria.
Under the present Constitution of Nigeria [3], Local Government Councils are placed under the control of State Governments. They lack the necessary autonomy and constitutional recognition to function effectively as the third tier of government. For example, section 7(1) of the Constitution guarantees democratically elected Local Government Councils and mandates State Governments to ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of the Councils. This provision places State Government in absolute charge of Local Government Councils since they are statutorily empowered to make laws for their existence and administration. Also, with respect to Local Government revenue, section 162(5) of the Constitution makes it clear that the amount standing to the credit of Local Government Councils in the Federation Account shall be allocated to the State for the benefit of their Local Government Councils. In addition, section 162(8) of the Constitution provides that 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 ofAssembly of the State. These provisions clearly deny Local Government Councils fiscal autonomy and create opportunities for maneuvering and manipulation Local Government revenue by State Governments. Some State Governments have even gone to the extent of encroaching on constitutional functions of Local Government Councils which are sources of internally generated revenue for
the Councils. These and other inferences of the State Government have made it difficult for Local Government Councils to efficiently perform their roles in developing their localities [4].
This paper therefore examines the problems emanating from State Governments' control over the affairs of Local Government Councils in Nigeria, which are due largely to lack of Local Government autonomy. It recommends full autonomy of Local Government Councils and their recognition as the third tier of government under the Constitution of Nigeria. These are amongst other recommendations made for the effective functioning of Local Government Councils in Nigeria.
Local Government System in Nigeria
Local Government is a unit of government below the central and State government established by law to exercise political authority through a representative council within a defined area [5]. It is the tier of government closest to the people, vested with powers to exercise control over the affairs of its domain [5].
Local Government system in Nigeria had undergone several reforms since the early 1950s. During that period, colonial local administration revolved around traditional rulers, with the unit of local administration referred to as the native authority [6]. The native authority was charged with the responsibility of collecting taxes, maintenance of law and order, construction and maintenance of local roads and sanitary inspection.
However, modern reform of Local Government system in Nigeria started in 1976. This reform aimed to restructure and harmonize local government administration in Nigeria [6, P. 32]. For the first time, the country had a uniform structure of local government rather than the various structures present in the various States of the federation. The recommendations of the reform include [7]:
1) Local Governments all over the country were to become single-tier and uniform in operation.
2) Local Governments became the third tier of the government. The first and second tier being Fed-
eral and State Governments respectively. The Local Government became recognized with certain powers and functions.
3) Past debts of the Local Governments were to be written off so as to give them a fresh start.
4) State Governments were mandated to set up Local Government Service Board that would be responsible for the training of the staff of the Local Government Councils. This was aimed at improving the standards and quality of their personnel.
5) Federal and State Governments were mandated to release monthly allocations to the Local Governments. This was to finance the important functions of the Councils.
6) Local Governments were to be elected chairmen and councilors. Traditional rulers were restricted from partisan politics. Under the reform, the traditional rulers are to perform purely advisory roles [7].
The provisions of the 1976 Reform were entrenched in the 1979 Constitution which had since been replaced with the present operative Constitution enacted in 1999.
Under the present Constitution of Nigeria [8], Local Governments are not accorded the same recognition given to Federal and State Governments. Although, Nigeria claims to operate a federal system with three tiers of government - Federal, State and Local Governments, emphasis is laid on the Federal and State Governments to the detriment of the Local Government. This is because the Constitution places Local Governments under the control of State Governments. This has greatly deprived Local Governments the autonomy needed to effectively perform their roles and give full realization to the ideals of true democratic federalism.
Challenges Confronting Local Government Councils Due To Lack of Autonomy
There are a number of challenges confronting Local Government Councils in Nigeria due to lack of autonomy. These are examined below.
1. Status of Local Government Councils Under the Constitution of Nigeria: Literally, Nigeria
operates a federal system consisting of three tiers of government - Federal, State and Local Government. However, section 2(2) of the Constitution provides that the federation of Nigeria consists of States and a Federal Capital Territory. This provision obviously creates a lacuna because it does not include Local Government Councils as part of the federation. Although, section 3(6) of the Constitution provides that there shall be 768 Local Government Areas in Nigeria as shown in the second column of Part I of the First Schedule and six area councils as shown in Part II of that Schedule, this provision does not cure the defect in section 2(2) which gives no recognition to Local Government. This is in addition to the fact that the Constitution does not specifically state that Nigeria operates a three tier government namely -Federal, State and Local Governments.
Also, the Constitution lays emphasis on the status of Federal and State Governments. It recognizes the legislative, executive and judicial organs of the Federal and State Governments. Legislative powers of the Federal and State Governments are stated in section 4 of the Constitution. In addition, provisions on federal legislature (Senate and House of Representatives) are stated in Part I of Chapter V while provisions on State legislature (House ofAssembly) are contained in Part II, Chapter V of the Constitution. Executive powers of the Federal and State Governments are stated in section 5 of the Constitution. Also, provisions on the Federal executive are stated in Part I, Chapter VI of the Constitution, while the State executive is recognized under Part II, Chapter VI of the Constitution. Also, judicial powers of the Federal and State Governments are stated in section 6 of the Constitution. Federal and State Courts are recognized under Chapter VII of the Constitution.
Furthermore, the Constitution makes elaborate provisions on elections into the Federal and State executive [9] and legislative offices [10] including the tenure of the President [10, section 135], Governor [10, section 180], members of Federal and State legislature and the criteria for their removal from office
[10, section 143]. These provisions have accorded Federal and State Governments the constitutional autonomy and legal framework required for their operations. However, this is not so in the case of Local Government Councils. The Constitution is silent with respect to executive, legislative and judicial powers and organs of Local Government Councils. Rather, the Constitution, places Local Governments under the control of State Government. Section 7(1) of the Constitution provides that the system of Local Government by democratically elected Local Government Councils under the Constitution is guaranteed; and accordingly, the Government of every State must ensure their existence under a Law, which provides for the establishment, structure, composition, finance and functions of such Councils. This provision portrays Local Government Council as an appendage of the State Government over which they enjoy absolute discretion. State Government being the second tier of government should not make laws for the establishment, structure, composition, finance and functions of Local Government Councils which are the third tier ofgovernment. Each tier should operate independently and make laws through their legislatures. Local Government Councils should make laws through its Legislative Council which consists of Councillors elected to make laws for the Local Government. Unfortunately, the Constitution is yet to be amended in this regard. And this drawback in section 7(1) of the Constitution has created an opportunity for manipulations by State Governments.
2. Revenue: In Nigeria, the three tiers of government (that is, Federal, State and Local Governments) are entitled to revenue from the federation account. Section 162(3) of the Constitution provides that any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly.
Under the Constitution, Local Government Councils are entitled to receive revenue from the federation
account and the State Government. Section 7(6) of the Constitution provides that (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. To receive this revenue, the Constitution mandates each State to maintain a special account called "State Joint Local Government Account" into which allocations from the federation account belonging to both the State and Local Governments Councils are paid. The State Government then receives the revenue on behalf of the Local Government Councils and distributes it among them. Section 162(5) of the Constitution provides that the amount standing to the credit ofLocal Government Councils from the federation account is allocated to the State for the benefit of their Local Government Councils as prescribed by the National Assembly. Also, section 162(8) ofthe Constitution provides that 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 ofAssembly of the State.
These provisions have given many State Governments the opportunity to misappropriate Local Government funds by diverting part of the allocation. This has deprived Local Government Councils the capacity to perform their functions and live up to the expectations of the people.
Furthermore, the statutory revenue allocation for Local Government Councils from State purse, are rarely paid. Section 4(1) of the Allocation of Revenue (Federation Account, Etc.) Act provides that in addition to the allocation made from the Federation Account to Local Government Councils, there shall be paid by each State in the Federation to the State Joint Local Government Account in each quarter of the financial year, a sum representing 10 per cent of the internally-generated revenue for that quarter of the State concerned. Also, section 4(2) of the Act
provides that the ten percent revenue must be distributed among the Local Governments in that State on such terms and manner prescribed by the State House ofAssembly. Most State Governments do not release this revenue and those who do so, stylishly take it back through various manipulations.
3. Creation of Unconstitutional Local Government Development Areas: Presently in Nigeria, the Constitution recognizes 768 Local Government Areas in the 36 States of the Federation and 6 Area Councils of the Federal Capital Territory, Abuja [10, section 3(6)]. To create a new Local Government Area, section 8(3) of the Constitution gives the House of Assembly of a State the power to so create [10, section 8(3)]. However, this is subject to sections 8(5) and (6) of the Constitution which provide that the names and headquarters of newly created Local Government Areas must be submitted to the National Assembly and listed in Part I of the First Schedule to the Constitution [10, section 8(5) and (6)]. It is after this had been done that new Local Government Areas are legally created. Thus, creation ofLocal Government Area is in two phases. The first phase is the creation of the Local Government Areas by the House of Assembly of a State as provided in section 8(3) of the Constitution. The second phase is the submission of the names and headquarters of the new Local Government Areas to the National Assembly for listing in Part I of the First Schedule to the Constitution as required by sections 8(5) and (6) of the Constitution. A State Government cannot therefore, claim to have created a Local Government Area until the name and headquarter of the Local Government Area has been submitted to the National Assembly and listed in the Constitution. It cannot unilaterally create Local Government Areas without recourse to the National Assembly.
However, in exercise of the power to create new Local Governments, Houses of Assembly of some States complied with the requirement under section 8(3) of the Constitution but failed to complete the process by complying with the requirements under
sections 8(5) and (6) of the Constitution by submitting the names and headquarters of the newly created Local Government Areas to the National Assembly for listing in the Constitution. Due to this defect and their unwillingness to comply with the demands of the Constitution, they changed the names of the newly created Local Government Areas to Local Council Development Areas, Development Areas or other similar names and administered them like constitutionally recognized Local Government Areas. For example, in Lagos State, in the year 2004, the House ofAssembly created fifty-seven (57) Local Government Areas under the Local Government Areas Law No. 5, 2002 of Lagos State and conducted elections into them. The matter was challenged in court in the case ofAttorney-General of Lagos State vs Attorney-General of the Federation [22]. As a result, the Government ofLagos State amended the Local Government Areas Law and changed the names of the Local Government Areas to Local Council Development Areas. Presently, in Lagos State, there are 20 Local Government Areas recognized under the Constitution and 57 Local Council Development Areas unrecognized by the Constitution.
Similarly, in Ebonyi State, the House of Assembly created twenty one (21) new Local Government Areas under the Local Government Area Law No. 7 of 2001 (as amended). The names of the Local Government Areas were later changed to Development Areas. More Development Areas were subsequently created bringing them to a total of sixty-four (64) with the amendment of the Local Government Area Law. Ebonyi State now has thirteen (13) Local Government Areas recognized under the Constitution and 64 Development Areas unrecognized by the Constitution.
Also, in Nassarawa State, the House ofAssembly created sixteen (16) Development Areas under the Nassarawa State Local Government Law, No. 5 of 2009. This is in addition to the thirteen (13) constitutionally recognized Local Government Areas. Presently, in Nassarawa State, there are 13 Local
Government Areas stated in the Constitution and 16 Development Areas not stated in the Constitution.
This ugly trend has been embraced by a number of State Governments in Nigeria. These Local Council Development Areas, Development Areas and other similar bodies are unconstitutional and should be abolished.
4. Elections into Local Government Councils: In Nigeria, elections into Local Government Councils are conducted by State Governments through the State Independent Electoral Commission [12]. The State Independent Electoral Commission is established under section 197(1)(b) of the Constitution. The duties of the State Independent Electoral Commission are to - (a) organise, undertake and supervise all elections into Local Government Councils within the State [13]; (b) render necessary advice to the Independent National Electoral Commission on the compilation of the register of voters as applicable to Local Government elections in the State [14].
The fact that Local Government elections are conducted by the State Government gives room to great manipulations by the State. They determine who contests elections. Sometimes, they refuse to conduct elections and appoint caretaker committees to administer the Local Government Councils. These caretaker committees simply carry out the wishes and instructions of the State Government. This is unfortunate, because in a genuine federation, each tier of government should be autonomous, and Local Government elections should be conducted by Local Government Independent Electoral Commission established under the Constitution.
5. Dissolution of Local Government Councils: The Constitution of Nigeria does not contain any specific provision on dissolution of Local Government Councils. However, some State Governments have legislated on this issue. However, in most cases, Councils are dissolved indiscriminately. For example, in Oyo, State section 10 of the Local Government Law, 2001 (as amended) provides that the Local Government Council stands dissolved at
the expiration of a period of 3 years commencing from the date of the first sitting of the Council. This implies that each Council dissolves automatically as soon as the 3 year tenure of its members' expire and fresh elections should be conducted. Ideally, such elections should be conducted some months before the expiration of the tenure of the Council, in order to avoid creating a vacuum and resist the temptation of appointing unelected committees to administer the Local Government. Unfortunately, this is not so in most States of Nigeria. Rather than conduct elections at the appropriate time, the State Governors appoint committees under various names such as -caretaker committee, transition committee or administrators and put them in charge of the Councils. This had been done by Governors of Katsina, Borno, Yobe, Kwara, Kogi, Bauchi, Taraba, Benue, Enugu, Anambra, Imo, Ogun [15] and Oyo States [15]. This violates section 7(1) of the Constitution which guarantees democratically elected Local Government Councils. This position had also being affirmed in the case of the Governor Ekiti State & Ors V. Olubunmo & Ors [16], where the Supreme Court of Nigeria held that State Governors do not have the power to dissolve elected Local Government Councils. In that case, the Governor relied on section 23b of the Ekiti State Local Government Administration (Amendment) Law, 2001 of Ekiti State to dissolve elected Local Government Councils in the State before the expiration of their tenure and went ahead to appoint caretaker committees in their stead. The Supreme Court invalidated this law and held that the Governor had no constitutional power to dissolve elected Local Government Councils and replace them with caretaker committees. The decision of the Supreme Court is premised on section 1(3) of the Constitution which provides that the Constitution prevails over every law and any law that is inconsistent with the provisions of the Constitution is null and void to the extent of its inconsistency. Therefore, any action taken under such a law is unconstitutional. Thus, appointing unelected committees to administer Local
Government Councils whether backed by a State law or not, is absolutely illegal.
Conclusion
Local Government Councils are fundamental to true federalism. They are the most potent instrument in mobilising people for local participation and the spread of democratic values. Through these Councils, people at the grassroot experience development and good governance. But due to the present situation in Nigeria, people living in Local Government Areas are deprived of amenities, infrastructure and other developmental necessities. It is therefore expedient for the Nigerian Government, in particular the legislature to immediately embark on constitutional amendment, granting Local Government Councils absolute autonomy. This will put Nigerian democracy in the right perspective and enhance development at the grassroot level and the nation as a whole.
Recommendations
To give constitutional reality to the concept of three-tier federalism in Nigeria, the Constitution should be amended to specifically and unambiguously include Local Government Councils in section 2(2) of the Constitution as a part of the federation.
Following the above, Local Government Legislature should be included in section 4 and Chapter V of the Constitution. Similarly, Local Government executive should be recognized under section 5 and Chapter VI of the Constitution. Also, judicial powers of the Councils should be included under section 6 and Chapter VII of the Constitution.
Section 7 of the Constitution should be amended to empower Local Government Councils make their laws independently and not by the State Government.
This amendment will remove the provision which gives State Governments the leeway to make unconstitutional laws, usurp the statutory functions ofLocal Government Councils and plunder their resources. Also, by this new legal regime, Local Governments will be able to enhance their internally generated revenue.
The Constitution should be amended to abolish State Joint Local Government Account. Each Local Government Council should have independent revenue account into which revenue should be paid from the federation account and the State Government. The Constitution should clearly state that all revenue from the federation account and other monies meant for Local Government Councils should be paid directly into each Local Government Council's Account. This would help restore fiscal autonomy of Local Government Councils and improve their viability. The populace should however, hold the officers accountable for the funds allocated to the Local Government and corrupt officers should be prosecuted.
The Local Government Service Commission should be accorded constitutional recognition and properly funded and administered. This would support the human resource and staffing development of Local Governments in Nigeria.
Local Government Electoral Commission should be statutorily established to conduct Local Government elections. This would eradicate the ugly trend of election manipulations by the State Government.
Local Council Development Areas and other similar bodies should be abolished. State Governments should comply fully with the requirements for creation of Local Government under section 8 of the Constitution of the Federal Republic of Nigeria.
References:
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2. Onuigbo R. A. and Eme O. I. "An Analysis of the Dilemma of Local Government in Nigeria from Colonial Times Till Date". International Journal of Managerial Studies and Research,- Vol. 3.- Issue 9. 2015.200 p.
3. Constitution of the Federal Republic of Nigeria Cap. C23 Laws of the Federation of Nigeria 2004 (as amended).
4. Oviasuyi P. O. and Isiraojie L. "Appointment of Local Government Caretaker Committees: An Aberration in Local Government Administration in in Nigeria". Internationaljournal of E-Government & E-Business Research,- Vol. 2.- Issue.-January, June, 2017.- 3 p.
5. Otu J. E. and Anam B. E. "Internally Generated Revenue and Local Government Performance in Nigeria: Implications for Rural Development". International Journal of Development Strategies in Humanities, Management and Social Sciences,- Vol. 9.- No. 2. 2019.- 114 p.
6. Adetiba T. C. "Existentiality of Local Government in Nigeria an Answer to Grassroots Development, but for Unsolicited Socio-Political Factor" Acta Universitatis Danubius,- Vol. 9.- No. 2. 2017.- 31 p.
7. Ebun O. D. "Local Government and the Sustenance of Democracy in Nigeria". Journal of Advance Research in Social Science and Humanities,- Vol. 4.- Issue 3. 2018.- 9 p.
8. Constitution of the Federal Republic of Nigeria (as amended) op cit note 5.
9. Constitution of Nigeria, Chapter VI.
10. Chapter V contains all issues on Federal and State legislature including elections and tenure of office. Section 68 the Constitution states the tenure of office of members of the National Assembly while section 109 of the Constitution states the tenure of office of members of House of Assembly of a State.
11. 2004. 18 NWLR Pt. 904,- P. 1.
12. Constitution of Nigeria, op cit note 1, section 7(4).
13. Constitution of Nigeria, op cit note 1, section 7(4). Paragraph 4(a), Part II of the Third Schedule.
14. Constitution of Nigeria, op cit note 1, section 7(4). Paragraph 4(b), Part II of the Third Schedule.
15. This Day News, 27 January, 2020, "Despite Supreme Court Judgment, Oyo, 12 Others Run LGs with Caretakers". URL: <https://www.thisdaylive.com/index.php/2020/01/27/despite-supreme-court-judgment-oyo-12-others-run-lgs-with-caretakers/> (accessed 30 March 2020).
16. 2016. LPELR-48040 (SC).
