By Henry Uche
Nigeria’s constitutional lawyer and human rights activist, Professor Mike Ozekhome, spoke on the Supreme Court judgement in favour of Local government Area Councils for their financial autonomy. He made his views known on the trending issue among others on Channels Television.
Are you cautious or celebrating over the recent judgement giving financial autonomy to the local government?
I’m not cautious, I’m celebrating. I did a write up about it which has gone viral celebrating the Supreme Court on this judgement. I’m surprised about the raucous and brouhaha generated from certain quarters over a judgement that shredded everything. It’s simply saying, Local governments do have your independence back. I always like to discuss in an attempt towards nation building, issues by situating from historical perspective. Remember that there were three regions in Nigeria. The western region, the northern region and eastern region. By 10th of August 1963, the Midwest region was created out of Western Region through a popular referendum for the people, thus having four regions. Under Section 140 of 1963 republican constitution, all the regions were shared from proceeds of products produced in their respective regions. Cocoa in the western region, cotton, hides and skin and kano groundnut pyramid in the North and in the south, and oil palm produce in the East, and rubber and timber in the Midwest region, which later became Bendel State, and now Delta and Edo States. Now 50% was paid to the region that had that product, 20% was paid to the Federal Government at the centre, and 30% was paid to a distributable account from which all the regions including the region that has already taken its 50% share; that was the situation , until the military putsch of 15th January 1966, led by Major Kaduna Nzeogwu Chukwuma, and other young military officers. Then Gowon created 12 states. Today, we have 36 states. Now we also have 774 local government areas. But by 1976, a system of local government was established in Nigeria, which has been given imprimatur – constitutional recognition, by section 7 of the 1999 constitution, which provides that a system democratically elected government shall be ensured and that state governments can only make laws that ensure that these local governments are democratically elected in terms of their structure, finances, and functions. The question is, how many tiers of government do we have by this historical background that I have given. We have three tiers of government. The federal government, the state governments and the local governments. Three tiers. In 2014, we fought frantically to make it two tiers so that States which are the federating units will be the second tier. But of course over 600 recommendations of the 2014 national conference are all being looked into except things like the National Anthem, which I humbly also with all respect spearheaded. Now, section 162 of the 1999 constitution provides on how monies is to be received and distributed.
Section five declares that money or allocations, standing to the credit of local government councils shall be paid to the states, what was that for? For the benefits of local government areas. Then sub-section 162 says, there shall be a joint state -local government accounts, into which these monies shall be paid. In other words, the states were just being made vehicles, messengers, post agents to send this money to the local government councils, but that has not been the case. What has been happening is that, after the federal government takes its own, the states take their own, but because this money is being paid into a joint account, warehoused by the states, they again waylay the ones meant for the local government areas. In an article I wrote on the 17th of October 2020, I declared them, I said, the States waylay like bandits the allocation meant for the local government councils. I wasn’t a fantastic fan of Buhari government style, but that was one instance I praised president Buhari, for issuing order executive 10, which said, money standing to the benefit of federal and State courts which was supposed to be paid to the National Judicial Council for them, but which were being waylaid by the governor concerning state courts, should be paid directly to the heads of these state courts. And I welcome that decision. So substitute states courts for local government councils. So I think this is a judgment that is salutary, that should actually be celebrated because like the Attorney General has said, it has led to the emancipation of local government councils from the grip of states. The local government councils are nearest to the grassroots being in charge of culverts, maternity, dispensaries, etc.
Implementation is a question here, what happened to Local government Chairmen installed by the governor? Don’t you think the governors would be by the corner to get the money one way or the other?
Well, it is for the local government Council Chairman to now stand. In fact, I see the judgement as empowering the local government Council Chairmen by taking some powers from the State governments. The state governments send their commissioners for finance to Abuja at the end of every month to go and share money for the states, coming from a distributable account. Don’t forget that in Nigeria, we only know how to share, we don’t care to know how the cake is baked, we only share the national cake.
What it means is that local government council chairmen have been empowered by the judgment to also travel to Abuja where we all go to, to sit down with the state governors, and ask the ministers, what is our own share? Instead of their fate being decided by proxy by the State governors, who will take the money and then cease part of it at source, remitting to the local government councils what they feel. By the way, I thought we should be celebrating on the ground that this is so good to cede away from the past, from the allocations of the federal government, because local governments Chairmen can now sit or argue that what you are saying that is due to us is not actually due to us. It’s not what we should have. What is the federal government doing with the kind of money it’s having? 62.68% of national revenue, and all the 36 States are having 26.72%, while the whole 774 LGAs 20.60% of our national revenue. I think what we have is an over bloated federal government that has been over- pampered with too much money. That is why everybody fight and die to go to the centre at Abuja rather than staying in the states or local government areas. There is too much money at the centre and these monies should be distributed to states and should go to the local government areas in Nigeria.
If the federal government does not have too much money for example, why when we are crying that the government should even shed its weight, its behemoth and elephantine weight, why are we creating a new ministry of livestock? For what? Towards what? Livestock could just be made a department of the Ministry of Agriculture, because when you create a ministry of livestock, we are going to have permanent secretaries, we’re now going to have special advisers. We’re now going to have senior special assistants who will have special assistants, who will have personal assistants, who will have drivers; there would be cleaners, you have different layers of government building up, instead of shedding, a livestock ministry should not be an autonomous Ministry. It should just be an arm, just a department of Ministry of Agriculture, you can even collapse ministry of Agriculture with water resources and livestock and forestry, so that we have one ministry. You can see what is going on in Kenya. After the people took their destinies in their hands, their President has dissolved his entire cabinet, including the attorney general, leaving only the Foreign Affairs Minister and one or two others he’s going to reconstitute because the people said your government is too expensive. He has stopped budgetary allocations to the office of the First Lady, second lady, third lady, whatever you call them, foreign travels, purchases of new vehicles, refurbishment of infrastructure because the people were being made and taxed with $2.7 billion excessive finance bills act which was meant to even tax the bread. So, I think this judgement to me, by this judgement, the Supreme Court, which said it was using a progressive interpretative device, a progressive interpretation by looking at what was this money meant for, it was meant for the local government councils. Where is it now? Is being warehoused by the states and all that the supreme court is saying is, look this money should be paid to local government councils through states or governors, now to be paid directly to them to work with.
What happens now to caretaker Chairmen like in Rivers State and other states?
The judgement is clear. The Supreme Court is trying to rescue the local government councils which are supposed to be democratically elected under Section seven of the Constitution. The Constitution is clear about it. How local governments should come in to be. Have we not witnessed it since 1999, Governors dissolving local government councils that were duly elected by the people, for the people and by the people? And then putting their minions, their surrogates as chairmen caretakers. There is nothing like caretaker chairman in the constitution, it’s an aberration, it doesn’t happen, what the supreme Court is saying is, ‘Hello… henceforth, we only pay money directly to local government council chairmen, but these local governments council chairmen themselves have to be democratically elected, not handpicked by governors as caretaker chairmen. I think the judgement to me is quite clear enough. And in fact, the supreme Court gave injunctions, restraining governors from further dissolving democratically elected council chairmen and then appointing their own, saying this should never be done and this judgment should be obeyed. What it means is that governors who presently have caretaker Chairmen should go to the drawing board by ensuring that elections are held to bring in democratically elected council chairmen and not hand picked ones, and that it’s those ones that will enjoy this largesse from the federation account section 162 (5 & 6). If you are caretaker, it means you will not enjoy it, what it means the states will share their own and the federal government. Those for the local governments, if they’re not democratically elected, for now, should be warehoused until such states get democratically elected council chairmen. The judgement is clear. It should be celebrated. I don’t know what’s difficult there at all. The Supreme Court was clear. We’re using progressive interpretation. Why did the Attorney General go to the Supreme Court to invoke its original jurisdiction if Money was going down to the local governments. I’m from a community, if you go to a local government chairman, he will tell you that we don’t have money because the governor has not given us money, which is a misnomer. Because it is not the governor that is supposed to give them money. The money is supposed to be their entitlement, their birth right, coming directly from the same source from which the governor himself also shares, but because he had been made mere appendages by state governors, they don’t have their money, the populace cry to them including children, they can’t do anything because they have no money to use. Now the money will now go to them, the question of how to hold the local government accountable is another thing.
The People will go for the jugular, they live with them, they know their houses. They will go and meet them and say, we know that such and such X amount has been paid to you, to your Coffers, what are you doing with the money, they will now hold them accountable now.
What happens to JAC?
The law is not what is on the paper until it’s interpreted. The prophecies of what the court will do are nothing more pretentious; it is what I mean by law. That was how it was interpreted by the great jurists. The Supreme Court has its progressive interpretation of the law to cure a mischief that has been there. So we now know what section 162 subsections 3,4, 5 and six are saying. So, the question of amendment to me becomes otiose and superfluous. I don’t think you need any amendment except of course don’t forget that judgments of the Supreme Court themselves can also be overridden by the National Assembly because they have the power to make laws for the peace, order and good governance of Nigeria. So, the National Assembly may decide to amend the Constitution going through Section 9, of the Constitution as to how to amend, and if they do want to amend it or remove certain sections or insert certain sections, thats ok, but you cannot use an Act of Parliament out of the National Assembly to amend the provisions of the Constitution. Only the Supreme Court can through opposing interpretation, through progressive interpretation to remove certain mischiefs can say what the law has declared for the laws and don’t forget that the supreme court is the apex court in the land and it is clear that we are final, not because we are infallible; we’re infallible because we are final. That was in the case of Adegoke Motors limited. So, it has made the judgement clear. Those who are not satisfied cannot go to another Supreme Court because we don’t have a second Supreme Court. All that they can do now perhaps is to go to the National Assembly to say we don’t like what has gone on, we want an amendment to again override the decision of the Supreme Court. But I think it should be nothing to override. It’s a good judgement to me with all humility as a constitutional lawyer.
What would the relationship between both the states and the local government be like?
Well, there would be some muscle flexing. Before now, governors have been treating local governments as their minions, their appendages. When they ‘Jump’, the local government chairman would only ask, ‘how high should I jump’? When the governor says, “Run’’, the local government chairman would ask, ‘how fast you want me to run’? Like Usain Bolt, or like Ben Johnson. But now you can’t do that. A local government chairman now knows his own sphere of influence. The state governors now know their own limitations. So, a local government chairman can now tell a governor, excuse me sir, this money is meant for us, we are to use it on behalf of the people. So, you can’t tell us to give you part of it, I’ll be responsible and accountable to the people and the people themselves will come to the local government Council Chairman and say, “hello, we know you have such an amount. We want you to use it for us. In other words, the three tiers of government which was brought in power since 1976, has now come into play, no longer two tiers. We have been seeing three tiers in theory, but actually two tiers of government in practice- federal government and state government. What the Supreme Court has said is that, these three tiers of government should actually play out not only in theory, but in practice. So, local government Chairmen have been energized and empowered. No doubt about that. The powers of state governors have been whittled down.
I can also say, to me, the power of the federal government, contrary to arguments are thereby being whittled down because hitherto, that too small local government Chairman can also come to Abuja to go and hold that joint allocation meeting with the federal government to know what is coming to them. Not negotiation being done on their behalf. Like M.K Abiola would say, “if it takes a man 20 years to learn madness, how many years will it require to practise it? If we have been practising something since 1999 and it is not working out, we didn’t know where to go and the apex court now decided to show us the way to go. I think it is celebratory, it calls for celebration. That is why in my write-up recently, I said I feel the Supreme Court and I’ve seen it, I’m not mincing words about it, that it has not made the federal government an over lord over the local government and over the states contrary to what people are saying, rather, the federal government has now been told, this is your sphere of influence, stay there, Local government, this is your sphere of influence that has been crowded over the years, you now have it. I don’t see anything to worry about at all. I don’t see how this judgement would empower the federal government to now become something else against the local government, I don’t see it.
What happens to states where there are more local government council that has been in contention like Lagos?
The judgement is clear. Incidentally it was done under President Tinubu, his Special Advisor has just celebrated the judgement, that means Tinubu himself is celebrating the judgement. Under him, Development Councils were created because you wouldn’t create a state like Lagos that is the most populous state in Nigeria with over 25 million people and was still having how many local governments. So, he creatively decided to create development council areas. But what this judgement is saying ‘hello’ if you are not a democratically elected local government council, you cannot have this money under sections 162(5 & 6) of the 1999 constitution. You can’t have it. So it means that money should now be ploughed to those local governments that are in existence democratically, but I can tell you that politicians have a way for being creative. All they can do is if there are development council areas not recognized by the Constitution, neither by section 7 nor by the latest judgement of the supreme Court and they are still in existence, all they would do for example, let’s say, Alimosho LGA under which I lived for many years until some years ago when I came to Abuja, if there are development council areas created under it which is not recognized in section three of the Constitution, what they can do is money should be sent to those constitutionally recognized local Government Areas,. They can now meet to say, look, you know that this money has come to you directly, but don’t forget that we also now have a Development Council Area. They can do that internally to share, that is your internal business. Nobody can control that. They can do that. But for now, the money can only go to those local government areas, named by the Constitution. Don’t forget that they’re even named in the constitution, 774 local government Areas, they are named. Their names are there, from alphabet A to Z, they are there. Those are the local governments that the money will go to.
What should be the time frame to conduct local government elections for those with caretaker agreement?
It’s left to them. I have said it again and again. The Supreme Court judgement is clear. As clean and as clear as a whistle. If you want to look at government councils in your state to receive money for the Federation account, then bring them up to be democratically elected, whether you do it tomorrow, or in October, or whether you do it January next year. Whether you don’t want to do it at all, it’s left to you, nobody will force you, but the important thing is that if what you have in place is caretaker local government council, be sure that it will not have money from the Federation account. Hello. I think this is too clear that, with all respect, the deaf can hear, the blind can see it, the lame can walk it, the numb can feel it, I think it’s clear that, we are not going to get money paid into caretaker local governments. If you want money to go to local government from the federation account, the law says such councils have to be democratically elected. So, whether in Lagos which has some development areas, or Rivers, which has caretakers, it’s not only Rivers, in many of the states across Nigeria, not less than 15 to 20 of them, they have caretakers, and that is what the governors have been doing. Because they know that these caretaker committees are answerable to them. So, they handpicked their supporters and their minions, surrogates, bootlickers and just put them up in place and say you’re the chairman of this local government.
So if for example, let’s say one billion naira comes in the joint state- local government account, the governor can just decide and say well, in fact, the Council Chairman dare not ask questions. All the governor would say, I’m sending you 100 million naira to run your council. And the chairman will be jumping at least he or she can pay salary to the people, maybe one or two. They can’t ask the governor, ah but sir, we know that one billion came in the account, who is the chairman of a local government to dare ask the governor that kind of question. The governor would remove him or her the following day or that very moment because he is the appointor; he who pays the piper dictates the tune. But what the supreme Court has said is that, local government chairman is like the governor, he was elected by the people. So, he becomes Psalm 105 verse 15. “Touch not My Anointed and do my prophet no harm” So the supreme Court is telling the State governors, touch not my anointed (local government council chairmen) and do them no harm). They have been imbued with that toga or immunity from overbearing sophisticatiion and asphyxiating state governors influence, that is what it has done. And I think, to me, is something that’s salutary.
Possible backdoor influence
Have we not been clamouring for restructuring? It is not this judgment. This judgement to me I do not agree with that view. What is the business of the federal government having 67 items on the exclusive legislative list? What is the business of the federal government licensing your vehicles? Even having the marriage Act, that guides you to marry and how you live with your wife and how you separate, and how you divorce. What is the business of the federal government having so called Unity schools, secondary schools which should be a matter for states and local governments. We have been clamouring for restructuring, did you hear that? It’s not this judgement that is making it centric, rather, the government is actually breaking it down. The three tiers of government recognized since 1976 and under Section seven of the Constitution, and under sections two and three of the constitution, have actually been made to come into effect, a local government chairman can now challenge the federal government by saying, I’m entitled to X amount and you are giving me A’ amount, that is not my due. Before now. they could only do that through the states, but they can now cry out. They can cry out and say, this is not our due, don’t forget that they have ALGON, their association. They can now meet and say, this is not what we are supposed to have. I do not see it as giving more powers to the federal government. Rather, I personally feel it’s actually taking some powers from the federal government by being made to sit down now with local government council chairmen rather than only governors. I think some powers are being chipped away from the federal government. When the states commissioners of finance sit with the Minister of finance at a roundtable to discuss, the chairman of local government can now attend that meeting. During their FAC sharing, he can now sit down to know how much is coming to them. That’s what the judgement means. It can now sit down with the federal government. How does that make the federal government more powerful when actually the circumstances are now extenuating and the powers have been chipped away. I see it from the other angle, I don’t see it as the federal government now have more power over the local government. It’s the sharing formula, the sharing is done at a roundtable. They all know what goes to them. I think rather than seeing it as concentrated powers in the hands of the federal government, I think it has shifted away from the powers of the imperial and imperious federal government that can now be challenged by local governments chairmen; I see it from that angle. The judgement is salutary.