Recent developments have sparked a debate over whether there are exceptions to the Supreme Court verdict on local government autonomy. The Senate has asked states, Assemblies and councils to comply with the judgment and not undercut it. ADEBISI ONANUGA asks senior lawyers whether the verdict can be varied in any form.
The Senate has expressed concern over what it perceives as attempts to override the landmark decision which abolished joint state/local government accounts and nullified the caretaker system.
Recent developments indicate that the verdict is still being subjected to various interpretations.
In Anambra, Governor Charles Soludo introduced a bill that seeks to compel local governments to remit a portion of their federal allocations into a consolidated account to be controlled by the state government.
The bill, titled “Anambra Local Government Administration Law 2024”, provides in Section 13(1) that the state shall maintain a “State Joint Local Government Account,” into which all federal allocations to local governments in Anambra must be deposited.
Section 14(3) of the bill stipulates that each local government must remit a state-determined percentage to the consolidated account within two working days of receiving their allocations from the Federation Account.
Section 14(4) maintains that if the state receives the local government allocation on its behalf, it must deduct the specified percentage before disbursing the remaining funds to the local governments.
Commissioner for Information, Law Mefor, said the government acted under Section 7 of the Constitution, which empowers the House of Assembly to make laws regulating the local government.
He argued that the state government aimed to “safeguard” the finances of the local governments and “direct” council chairpersons to their responsibilities, especially for projects often carried out in collaboration with the state government.
However, the Socio-Economic Rights and Accountability Project (SERAP) asked Soludo to withdraw the bill.
“Governor Soludo must immediately withdraw the unlawful bill seeking to compel local governments to remit a portion of their federal allocations to a bank account controlled by the state.
“We’ll see in court if the bill is passed into law,” the civil society group said.
On October 8, Lagos State House of Assembly suspended the Chairman of Alimosho Local Government, Mr Sulaimon Jelili, indefinitely.
The House resolved unanimously that the Vice Chairman, Mr Akinpelu Johnson, should take over running the affairs of the council.
The suspended chairman has argued that his suspension was illegal as it violates the Supreme Court judgment on council autonomy and has instructed his lawyer to fight the matter in court.
Also, local government workers’ unions urged the Federal Government to make their salaries a first-line charge on the Federation Account.
They want their salaries paid directly to statutory bodies, including the Local Government Service Commission, rather than the local government itself.
The unions made their position known in a memorandum to the Federal Government.
Under the aegis of the Joint Action Committee (JAC) of Local Government-based Unions, they include the Nigeria Union of Local Government Employees (NULGE), the Nigeria Union of Teachers (NUT), and the Nigeria Union of Pensioners.
They believe direct payment to them is necessary for the industrial stability of the local government system.
The memorandum was signed by NUT president Titus Amba, NULGE president Ambali Akeem and NUP president Godwin Abumisi.
It reads in part: “For workers’ welfare and industrial harmony, training and capacity building and sustainability of industrial stability in the local government system, payment of the gross salary of local government workers should be made a first-line charge and domiciled in the relevant agencies.”
Reacting to the developments, the Senate resolved all states and local governments are “to fully comply with the recent Supreme Court judgment on the disbursement of and utilisation of funds accruing to all local governments in Nigeria.”
It vowed to ensure further amendment to the Constitution to provide for local government autonomy.
The Supreme Court judgment
The Supreme Court judgment was on a suit by the Attorney-General of the Federation, Prince Lateef Fagbemi (SAN).
The apex court held that all allocations due to local governments should be paid directly to them.
It held that it would be illegal and unconstitutional for governors to receive and withhold funds allocated to local governments.
The Federal Government was empowered to withhold local government allocations administered by appointed officials or caretaker chairmen.
Are there exceptions to the judgment? Can it be varied?
Senior lawyers who are versed in constitutional matters shared their views on the matter.
They include Dr. Joseph Nwobike (SAN), activist Chief Louis Alozie (SAN), Deputy Vice Chancellor, Afe Babalola University, Ado Ekiti (ABUAD), Prof, Damilola Olawuyi (SAN) and a leading litigator, Wahab Shittu (SAN).
According to Nwobike, the judgment did not create any new right or change the state of the law on the status of the local governments under the Constitution of Nigeria.
He said the judgment merely clarified the law and directed the parties, the Federal and State Governments to allow the management of the local governments in Nigeria in line with the provisions of sections 7 and 8 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).
“The thesis in the judgment is that the state governments, whether through the state legislatures or executives, cannot interfere in the local government affairs undemocratically.
“State law inconsistent with the Constitution is invalid.”
Nwobike further stated that the test, for the validity of any law passed by the state legislature, is whether the law is consistent with the democratic principles enshrined in the Constitution.
Once the laws passed by the state legislatures are inconsistent with the Constitution, such laws will be invalid regardless of the legislative intentions behind them.
He said it would appear that the Anambra State House of Assembly will have to critically evaluate its legislative proposals to ensure their consistency with the Constitution.
“I am unable to see how the civil servants engaged by the local governments can be able to have their salaries placed on the first line charge from the Federation Account without any enabling legislation.
“The judgment of the Supreme Court under reference did not make any pronouncement on that issue or possibility,” Nwobike said.
Constitution subjugates local govt
Alozie said Nigeria is supposed to be running a presidential system of constitutional democracy which is said to be federalism, whereby there is separation of powers not only amongst the three arms of government but also between the Federal and state governments.
He regretted that what was obtained in practice was a unitary system where the Federal Government was all-powerful.
According to him, the constitution subjugated the local governments so that they can safely be said to be an extension of the state governments.
He said this is so because the power to create local governments is vested in the states.
He noted that the state governments not only determine the existence and usurp functions of local governments, but also legislate for them on matters of taxation/revenue and economic planning and development.
Alozie said the cry by the Labour unions flows from the judgment of the Supreme Court on the financial autonomy of local governments.
“It is doubtful if that judgment granted full autonomy to LGs to the extent that they can exist or function independently of the state governments.
“If one looks carefully at Section 7, and 162 subsections 5,6,7 and 8, and the provisions of Part 11 of the Second Schedule to the Constitution, paragraphs 8,9 and 10 on the Concurrent Legislative List, it is clear that the Local Governments are not independent.
“We agree that the judgments of courts of law including that of the Supreme Court ought to be obeyed without further arguments because the instant judgment of the Supreme Court was based on public policy and did not strictly interpret the provisions of the Constitution.”
‘Why Supreme Court judgment must be obeyed’
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Alozie however, noted that there has been some discontent from the state governments and other legal scholars who think that the judgment is constitutionally flawed.
“That notwithstanding, the judgment ought to be obeyed without much ado.
“So all levels of government, especially the state governments ought to obey the judgment,” he said.
‘No state can vary judgment’
Alozie added: “No state House of Assembly has the power to by legislation vary the judgment of the Supreme Court. The judgment is binding on all of them. Any action contrary to the said judgment cannot stand, being a nullity.
“I believe the state governments are trying to riggle out of the legal effects of the judgment by trying their hands on legislation but to the extent that such legislation seeks to take back from LGs their due statutory allocations, they are already ill-fated.
“The state governments are supposed to help fund the local governments, and not take from them.
States, state house of assemblies can’t interfere in local government.”
‘States, Assemblies can’t interfere’
Prof Olawuyi noted that local governments have financial and administrative autonomy under the clear provisions of the fourth schedule of the 1999 Constitution which spells out their functions and scope of authority.
“It is, therefore, a flagrant disregard of the Constitution for a state government or state House of Assembly to interfere in the running of local governments or attempt to usurp their financial or administrative autonomy, which has been asserted by the recent decision of the Supreme Court.”
Olawuyi stressed that the judgments of the Supreme Court, the highest court in the land, are binding on all persons and sub-national authorities, including the Houses of Assembly.
“Actions taken in disregard for Supreme Court decisions by any person or authority are constitutionally illegal and would amount to a clear contempt of court which would naturally attract judicial sanctions and censure,” he said.
He admonished political stakeholders to avoid lawless and reckless actions that distract from much-needed societal development and that could undermine the three-tier system of government that the Constitution establishes.
Shittu: undercutting judgment will cause anarchy
For Shittu, no one or entity is entitled to compromise the Supreme Court judgment without endangering democracy.
“The result will be a recipe for anarchy or descent into the law of the jungle.
“Once the Supreme Court makes a pronouncement, same is final,” he said.
