By Omoniyi Salaudeen
The recent ruling of the Supreme Court judgment which ordered direct payment of federal allocation to local government accounts is as contentious as it is befuddling. Though the decision has been applauded as a dynamic process of change toward the autonomy of local governments, legal practitioners have different interpretations of the apex court ruling.
In its ruling on the case filed against the 36 states of the federation by the Attorney General of the Federation and Minister of Justice, Lateef Fagbemi, the Supreme Court held that it is illegal and unconstitutional for governors to continue to receive and seize funds allocated to local governments and that monies meant for them must be paid directly into their respective accounts. It maintained that the “dubious practice” which had gone on for over two decades, was a clear violation of Section 162 of the 1999 Constitution, as amended.
It also stressed that democratically elected officials must govern local governments.
“Demands of justice require a progressive interpretation of the law. It is the position of this court that the federation can pay LGA allocations to the LGAs directly or pay them through the states.
“In this case, since paying them through states has not worked, justice of this case demands that LGA allocations from the federation account should henceforth be paid directly to the LGAs,” the Supreme Court held.
While some legal experts insist that Section 162 (6) of the constitution which allows for State Joint Local Government Account must be amended before the order can be carried, others argue that the Supreme Court ruling must be complied with.
To be sure, Section 162(6) states that “Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the local government councils of the state from the Federation Account and from the Government of the State.” This section of the constitution is what state governments have always relied on to muzzle the powers of elected local government chairmen to their advantage.
Under the 1999 Constitution (as amended), local government is generally recognized as the third tier of government to be run by democratically elected chairmen and councillors who exercise all the powers of government enjoyed by the executive and legislature at state and federal levels.
Section 7(1) emphatically states that “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 this constitution, ensure their existence under a law which provides for them.”
However, due to the interdependency relationship between the state and local government, it has become a common practice for governors to dissolve elected chairmen and constitute a caretaker committee to run the council administration.
As such, they capitalize on the arrangement to fiddle with public funds meant for grassroots development. At present, no less than 21 states are under the administration of caretaker committees put in place by their respective governors as against the provision of the 1999 constitution which guarantees the operation of local government by democratically elected officials.
These include Jigawa, Rivers, Anambra, Imo, Kwara, Zamfara, Benue, Bauchi, Plateau, Abia, Enugu, Katsina, Kano, Sokoto, Yobe, Ondo, Osun, Delta, Akwa Ibom, and Cross Rivers states. The Supreme Court ruling frowned at the practice, maintaining that the 36 states are under obligation to ensure democratic governance at the third tier of government.
However, legal practitioners have different interpretations of the judgment, leading to confusion in the public. A renowned constitutional lawyer and human rights activist, Dr Tunji Abayomi, in a telephone chat with Sunday Sun, maintained that federal allocation must still be paid to the State Joint Local Government Account as contained in the constitution despite the judgment had placed an order on the governors not to divert the money.
His words: “My position is that money still has to be paid to the constitutionally recognized Joint State/Local Government Accounts. If you remember, the idea behind the State Joint Local Government Account is to enable the states to add their support for local governments. However, that account is often manipulated and abused by the states as they deem fit. Now, that will no longer be possible. All the monies will now go to the local governments and for the local governments.
“The Supreme Court didn’t say that federal allocation should be paid directly to the local governments and it cannot say so because the Joint State/Local Government Account has not been abolished. So, it is not possible to pay directly to local governments.”
Abayomi also argued that the idea of full autonomy to local government as canvassed by the advocates of power devolution would be impossible under the existing constitution.
He added: “It is generally impossible to have full autonomy for local government because local governments are created by states, but they can have independent financial allocation. Even now, the Supreme Court did not say the states cannot use the money belonging to local governments. It says the states can use the money for local government, but cannot divert it to a different purpose.
“The implication of the decision of the Supreme Court is that local government can now take legal action against any state that diverts the money of local government. If the local government officials cannot do so, citizens can. Now, there is a legal course of action that citizens in any local government can push against any state. There is no community in Nigeria without enlightened people. People will take action against any erring state government. In the past, they did not have anything to stand on. But now, they can stand on the Supreme Court judgment.”
Speaking on the fate of the 37 LCDAs created by the Lagos State government, he said that the state is at liberty to adopt any option it deems fit.
“Lagos is at liberty to do whatever it likes. Until now, the money coming from the federation account is for 20 local governments. Don’t forget that the Development Councils created are from those local governments. So, if you spend money on those LCDAs, you are indirectly spending the money on the local governments. What the Supreme Court judgment is saying is that you cannot spend monies belonging to a local government outside that local government,” he posited.
On the flip side, a Professor of law at Adeleke University, Ede, Osun State, Tayo Bello, dismissed the argument as a misinterpretation of the Supreme Court judgment.
In his conversation with Sunday Sun, he said: “There is no confusion about the judgment. People are just misinterpreting it, creating confusion. The Supreme Court judgment that says Federal Government allocation should be paid directly into the local government account becomes final.
“If you recall, former President Olusegun Obasanjo refused to pay Lagos State when 37 new development councils were created from the 20 local governments recognized by the constitution. Interestingly, the same person who was the governor then is the same person who took the states to court asking that the money should be paid directly to local government accounts. We have three tiers of government-federal, state, and local governments. That was the intention of the people who created the local government councils.
“But now, local government cannot even evacuate drainage because the state governments give them peanuts out of what is paid into their joint accounts. The problem is that some of them still want to continue to hold on to local government money. That is why they are creating this confusion. We should not let the local government be a stooge or appendage of the state. They should have authority, responsibility and accountability. However, because the state governors appoint the caretaker committees, they treat them anyhow.
“As far as I am concerned, there is no problem with the judgment, but there is a problem with the reactions of the people who don’t want things done properly. The same Bola Ahmed Tinubu who killed the autonomy of local government in 2003 is the same person who now wants autonomy for local councils.”
Prof Tayo, therefore, urged the National Assembly to expedite action on the proposed bill seeking the creation of the Local Government Independent Electoral Commission, saying that it would help to strengthen local council administration.
“If the INEC is allowed to conduct local government elections, there will be a time when different parties will be in charge of local governments. By that time, the state will not be able to divert the money belonging to the local government anymore,” he said.
He, however, insisted that elected council officials must be held accountable to ensure development at the grassroots.
“If they don’t hold local government elected officials properly, some of them will spend the money they collect anyhow. I cannot say that local government will not misappropriate the funds, but people must demand accountability. If they continue their sharing formula, people should checkmate them,” he said.
A Senior Advocate of Nigeria (SAN), Senator Anthony Adeniyi, added his voice, arguing that where the Supreme Court judgment is at variance with the provision of the constitution, the Supreme Court decision takes precedence.
He said: “Supreme Court is the highest court of the land. Whatever the Supreme Court says is law. Since the Supreme Court has said that federal allocation should be paid directly to the local governments, the governor has no business with local government funds any longer. So, whatever the Supreme Court, which is the highest court of the land, says is law.
“The Supreme Court interprets the provision of any law either the constitution or ground norm. In hearing this case, the Supreme Court constituted seven eminent judges to look into the matter. If the seven eminent judges have decided that allocation should be paid directly to local governments, then that is the law. Where the Supreme Court judgment is at variance with the provision of the Constitution, the Supreme Court takes precedence.
“The Supreme Court owes the duty to interpret any law, whether the ground norm or the constitution. It reads the minds of the makers of the Constitution. Whatever the interpretation the Supreme Court gives is the law. What that means is that the Joint State/Local Government Account is inconsistent with the intention of the drafters of the constitution. That is why the Supreme Court knocks it out. For those who still think the money should be routed through the local government, so be it, inasmuch as the funds go into the local government accounts.
“By Section 7 of the 1999 constitution, local government has to be constituted democratically. If there is an arm of the Constitution that runs contrary to the spirit of the Constitution, the Supreme Court can interpret it as it deems fit. By the judgment of the Supreme Court, any state that is running local government with a caretaker committee will not receive local government allocation. Henceforth, they will not get federal allocation until democratically elected local government chairmen and councilors are put in place”.