By C.N Iheji Esq.
The concept of local government has no definite and precise accepted definition, however, the United Nations Office for public administration defines local government as a “political subdivision of a nation {in federal system} state, which is constituted by law and has substantial control of local affairs including the powers to impose taxes or to exact labour for prescribed purposes. The guideline for local government reform defines local government as “government at local level exercised through representative councils established by law to exercise specific powers in defined areas.
Three levels of government that is, federal, state and local government are common to most federal system. However, the place and role of local government in those systems varies markedly. In some States that practice federalism, local government is a separate tier of government with its existence fully guaranteed by the constitution, while in others, it is merely a component of the state, province government, like that of Nigeria.
Nevertheless, local government has an increasing role in the governance of federal countries, placing new demands on the theory and practice of federalism. The issue of independence and separate legal identity of local government from other level of government has remained a matter of concern, because of the provision of sections 7 and 8 of the Constitution.
It is important to recognize that the legal framework for decentralization in constitutions is one of the many factors that determine the success of decentralization. The principle of autonomy is significant in the determination of whether there is an assignment of sufficient and real power to a democratic local government. To this end, clear legal framework for constitutional recognition, democratization, fiscal autonomy and a clearly defined structures or organs of the local government, have now become vital issues for consideration as this concerns the status and autonomy of local government. This is because the constitution is used to enshrine the broad principles on which decentralization operates, including the rights and responsibilities of all levels of the of government.
Although the constitution of the Federal Republic of Nigeria 1999 (as amended) herein referred to as the Nigerian Constitution seem to have upheld federalism and a decentralized system of government, the question whether the legal framework is one that guarantees adequate autonomy and decentralization of powers, more especially as it concerns local government from the other levels of government, remains an unsettled issue.
The concept autonomy has come to assume a place of great importance in recent discuss. Autonomy was first employed by the Greeks to denote certain rights of a city to manage its own affairs even when dependent on a mother-city or outside power. It is thus derived from the Greek words “autos” and “nomos” meaning, literally “self rule”. Starting from the linguistic significance, the freedom to govern according to their own rules or by extension the right to self–administration.
Contextually autonomy under a federal system means that each government enjoys a separate existence and independence from the control of the other governments. It is an autonomy which requires not just the legal and physical existence of an apparatus of government like the Legislative Assembly, Governor, Court, but that each government must exist not as an appendage of another government, but as autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs free from direction of another.
It is further stated that autonomy would only be meaningful in a situation whereby each level of government is not constitutionally bound to accept dictation or direction from another. Therefore, local government autonomy should consist of degree of discretionary authority separately established in four areas: structure (determining their form of government and internal organization), function (choosing the functions they perform), fiscal (raising revenue, borrowing and spending) and personnel (fixing the numbers, types and employment conditions of their employees). To this end, autonomy defines the extent of discretion in terms of local government functions, actions and legitimate behavior.
(a) The Legal Status of Local Government and Autonomy Under The Constitution
The Constitution is the formal document by which governance is organized, limits of powers and relationship between the levels and organs of government are defined and prescribed. As from 1999 to date, civil rule as a system of government re-emerged and still remains in operation and it is governed by the provisions of the Constitution. The Nigerian Constitution to say the least, provides the juristic foundation for the Nigeria Federalist Structure (It sets out its government).
The Nigeria Constitution in addressing the framework and structure of government essentially shared constitutional powers between the federal, state and local government. The Constitution essentially treated local government as an appendage of the state government. The Constitution made mention of local government in several of its provisions, the first of which is Section 3(6) which sets out the total number of local government in Nigeria.
The constitution then proceeded to provide for the system of local government in Section 7 in the following terms:
The system of local government by democratically elected local government council is under this constitution guaranteed and accordingly, the government of every state shall subject to section 8 of this constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such council…
It shall be the duty of a local government council within the state to participate in economic planning and development of the area referred to in subsection (2) of this section and to this end an economic planning board shall be established by a law enacted by the House of Assembly of the State.
The government of a state shall ensure that every persons who is entitles to vote or to be voted for at election to House of Assembly shall have the right to vote or be voted for at an election to a local government council…
The functions to be conferred by law upon local government council shall include those set out in the fourth schedule to this constitution.
Subject to the provisions of this constitution:
(a) The National Assembly shall make provision for statutory allocation of public revenue to local government council 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.
The constitution in section 8(3) set out the process for the creation of new local government and the adjustment of boundaries of existing ones. In relation to public revenue and its distribution, the constitution provides thus as it concerns the local government:
Any amount standing to the credit of the federation account shall be distributed among the federal and state governments and local government councils in each state on such terms and in such manner as may be prescribed by the National Assembly…
(5) The amount standing to the credit of local government councils in the federation account shall also be allocated to the state for the benefit of their local government councils on such terms and in such manners as may be prescribed by the National Assembly…
(8) the amount standing to the credit of local government councils of a state shall be distributed among the local government councils of the state on such terms and in such manner as may be prescribed by the House of Assembly of the state.
Irrespective of the incorporation of the local government in the constitution as a tier of government, a community reading of the above sections of the Constitution of Federal Republic of Nigeria 1999 (as amended) clearly indicate that the local government as provided for under the constitution is not an autonomous entity but an appendage to the state governments, as it derives its powers and existence from the state governments as encapsulated by the Constitution.
However, there is need to put the level of autonomy debate in perspectives, such debate must factor in the powers granted the National Assembly to make law on any matter, to the exclusion of other levels of government “for peace, order and good government of the federation or any part thereof.
Also the power granted by the constitution to the National Assembly extend to the functions of the local government. These two provisions mentioned above are germane in the discourse of the autonomy of the local government in Nigeria. This is because it is the backbone of both the federal and State government in the meddlesomeness complained about in the local government administration.
Even though section 7, guaranteed democratic composition of local government, the section failed in two areas: first, the section failed to foreclose the constitutions of local governments otherwise than by democratically elected officials. The same section has exacerbated this failure by providing that the government of every State shall ensure their (local government) existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.
Pursuant to the above section, most state government have passed laws that empower them to execute projects on behalf, of the local governments and the funds deducted at source without the consent of the local government councils.
Secondly, the section failed to specify the tenure of the elected officials of local government like the constitution has stated very categorically for the Federal and State officials respectively.
One may however also argue that the same Constitution impliedly conferred a four year term on the local government officials since the compliance to this provision is compulsory for all public servants.
The provision read thus:
Every public officer shall within three months after the coming into force of this code of conduct or immediately after taking office and thereafter …
(a) at the end of every four years…
(b) at the end of his term of office, submit to the code conduct bureau a written declaration of all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.
The absence of express provision for the term of office for local government officials has produced more harm than good, this has led to situations in which some State governments remove elected officials of local government for failure to cooperate.
It is on the totality of the above that we submit that the issue of autonomy of local government in Nigeria is not attainable with the current provisions of the constitution. It is only a constitutional amendment to that effect that can put the issue to rest. And that as long as this amendment has not taken place the local government as provided under the constitution remains an appendage to the state government.
By the provision of section 9 of the 1999 Constitution of Federal Republic of Nigeria, it is only the National Assembly by votes of two third majority that can alter provisions of the Constitution.
By the brief from the Supreme Court judgment delivered on the 11th day of July 2024 as per Justice Agim JSC. The learned justice declared that, it is unconstitutional for state governors to hold onto funds for local government administrators and consequently directed that local government allocation from the Federation Account should be paid directly to them henceforth.
The provisions of the Constitution pertaining to local government will be found in sections 3(6), 4(6) and (7),,7,8(3),(5) and (6), 9 and 162(3),(5),(6)-(8) of the Constitution Federal Republic of Nigeria 1999. All these provisions must be read holistically and together in order to interpret the provisions of Section 162(2) and (5). If this is done, what emerges is that for a new local government area to be created the provisions of Section 8(3) must be complied with by the House of Assembly of the state where the local government areas or councils are to be created. Section 4(6) and (7) give the House of Assembly the powers to legislate for the state for the peace, order and good government of the state. Section 7(1) guarantees the existence of democratically elected government councils and every state is directed to ensure that they exist under a state law which provides for their establishment, structure, composition, finance and functions, section 8(3) specifically vests the State House of Assembly with the power to pass a bill creating a new local government area When this is done, a return is to be made by the House of Assembly to the National Assembly for the purpose of enabling the latter to exercise its powers under section 8(5) of the constitution. This power entails the making of consequential provisions with respect to the names and headquarters of the local government areas provided in section 3 and part 1 of the first schedule to the constitution.
The allocation even if sent directly to the Local Government will still finds its way back to the state through the LGA/State Joint Project Laws and other laws of that nature by the House of Assembly.
From the totality and holistical reading of the above provisions on the local government as contained in the constitution, vis-a- vis the pronouncement of the supreme Court, it is apposite to submit that the local government system in Nigeria even though constitutionally recognized remains an appendage of the State by the extant provisions of the Constitution elucidated above, and only a constitutional amendment to that regards by the National Assembly can put to rest the issue.
