Matters arising from Supreme Court LG autonomy verdict

 “It is the position of this court that the federation can pay local governments allocations directly to the local governments or through the states. In this case, since paying them through the states has not worked, justice demands that local governments allocations from the federation account should henceforth be paid directly to the local governments,” – Justice Emmanuel Agim on Thursday, July 11, 2024.

Nigeria’s federation rests on a tripod: federal, state and local governments. However, over the years, local governments have operated as a mere appendage of the state government. By virtue of Section 162 (6) of the 1999 Constitution that created a joint state/ local government account, state governors spend money due to local government on their behalf. They award contracts on behalf of LGs in their states and make any other deductions they deem fit. Local government administration has been left comatose as workers of LGs are owed a backlog of salaries, sometimes up to a year. Primary education, primary health centres and Trunk ‘C’ roads, which are supposed to be serviced and maintained by local governments are abandoned. Workers in local governments have gone on routine strikes.

While the 768 local governments and the six area councils recognised by the constitution are gasping for breath from the chuck hold of governors, some of the governors went ahead to create what they called Local Council Development Areas. Lagos alone has 37 of them in addition to the 20 constitutionally recognised LGs. What many governors do is simply redistribute the federation allocations paid into the joint state and local government accounts. Thus, what is not sufficient to effectively run the constitutionally recognised LGs is further reduced to fund the LCDAs. Meanwhile, most of the functions of the local governments listed in the Fourth Schedule of the 1999 Constitution have been taken over by the state government.

It doesn’t end there; State Independent Electoral Commissions are created by section 197 of the constitution. However, they lack both administrative and financial autonomy. That’s part of the reason they kowtow to the whims and caprices of the state governors on who should win at the local government elections. Had it been that SIECs also enjoy financial and administrative autonomy which the Independent National Electoral Commission has been enjoying since the constitutional alteration of 2010, the story of badly conducted LGA polls could have been different. As has been witnessed across many states, new governors routinely dissolve SIEC boards put in place by their predecessors and reconstitute them with their own loyalists. Supreme Court has ruled these state governors out of order in many of its judgments but ‘none so deaf as those who will not hear.’

 

 

 

Section 7 (1) of the 1999 Constitution says, “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 the constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”  There is no gainsaying that this constitutional provision is observed in breach. According to The Guardian newspaper of Monday, July 15, 2024, 21 states have caretaker committees running the affairs of their local governments. Supreme Court in many of its judgment has said this is unconstitutional, null and void but the governors continue to ignore the warnings and orders of the apex court. That is how deep the culture of impunity has sunk in Nigeria.

In 2019, under former President Muhammadu Buhari, the Nigerian Financial Intelligence Unit issued a regulation, effective from June 1, 2019, which bans transactions on State and Local Governments Joint Accounts. Funds were sent directly to the accounts of the local governments. It also limits cash withdrawals from local governments accounts to a maximum amount of N500,000 per day with penalties for banks that fail to comply. The Nigerian governors under the aegis of the Nigerian Governors’ Forum kicked against this regulation and the NFIU eventually capitulated.

The status quo was maintained until May 2024 when the Attorney-General of the Federation, Lateef Fagbemi (SAN), filed suit marked SC/CV/343/2024 at the Supreme Court to strengthen the autonomy of the local government areas as guaranteed by the constitution. It sought to prevent state governors from unilaterally dissolving democratically elected local government councils and establishing caretaker committees, actions that violate constitutional provisions. The AGF argued that the constitution mandates a democratically elected local government system and does not allow alternative governance structures.

The suit also prayed that the funds from the Federation Account be channelled directly to local governments, bypassing the allegedly unlawful joint accounts managed by state governors. The Federal Government also sought an injunction to stop governors and their agents from receiving or spending local government funds without a democratically elected local government system in place. It contended that the governors’ failure to establish such a system constitutes a deliberate subversion of the 1999 Constitution. The Supreme Court heard parties to the case on June 13, with the state governments, through their respective attorneys-general, opposing the suit.

That was the prelude to the Supreme Court judgment of last Thursday, July 11, 2024, which has now affirmed the financial autonomy of Nigeria’s 774 local governments. In the unanimous judgment of its seven-member panel, the Supreme Court upheld the suit brought by the federal government to strengthen the independence of local governments in the country. A member of the panel, Emmanuel Agim, who delivered the court’s lead judgment, held that the local governments across the country should henceforth receive their allocations directly from the Accountant-General of the Federation. He ruled that it is illegal and unconstitutional for governors to receive and withhold funds allocated to local government areas in their states.

He noted that ordinarily, the constitution permits the Federal Government to pay local government allocations directly to them or through the state governments. However, he said, “Demand for justice requires a progressive interpretation of the law.” He then ordered that, “The amount standing to the credit of local government councils must be paid by the federation to the local government councils and not by any other person or body.” He added, “An order of injunction is hereby granted restraining the defendants from collecting funds belonging to the local government councils when no democratically elected local government councils are in place. An order that henceforth no state government should be paid monies standing to the credit of the local government councils. An order for immediate enforcement and compliance with these orders by the state governments and successive governments henceforth.”

This decision which has been welcomed by well-meaning Nigerians is laudable but not far-reaching enough to guarantee total independence to the LGs. This is because the credibility and quality of elections into local government have to be equally sorted out. Also, the Secretary of Local Government and other key administrative staff of the LGs are appointees of the state government. In essence, governors can still control LG funds by proxy. The other point is that the state Houses of Assembly which exercise oversight on local governments are still strongly tied to the apron strings of their respective governors and could be used to witch-hunt any LG chairman or councillor who fails to do the bidding of the state governors.

Apart from the overbearing attitude of the governors, there are powerful traditional rulers and godfathers operating in the LGs who can still make life miserable for any chairman or councillor who refuses to do their bidding. Some of these elected political office holders at the LG may actually be made to swear an oath of allegiance and loyalty to the godfathers in shrines in order to coerce them to do the bidding of these powerful individuals. The NFIU and anti-corruption agencies like the ICPC and EFCC must also henceforth beam their searchlights on local government chairmen and councillors to ensure that there is proper accountability of the LG funds. Lastly, there is a need for a constitutional amendment to streamline the Supreme Court decision with the provisions on local government administration as stipulated in the 1999 Constitution.