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A bridge too far

By Awa Kalu

A Bridge too far’; That certainly is the title of the star studded movie shot in the eighties but based on the Second World War. The weight and calibre of the stars in that movie reminds me of the calibre of the ‘’stars’’ in the imaginary movie arising from the Yar’Adua and Fashola exchanges.

After exchanging literary missiles, Vanguard, (vol.25: no 60899) Wednesday, July 29, 2009) has cast an encouraging headline- ‘’Lagos LGs: FG opts for dialogue’’.

‘According to that newspaper, ‘President Umaru Yar’Adua may have decided to sheath his sword over the recent renewed war of words between the Federal Government and the Lagos state government on the issue of the 37 local Council Development Areas (LCDAs) with a commitment to pursue dialogue as an option towards resolving the issue’.

That certainly is a statesmanlike approach towards an amicable settlement of what has become an intractable political and constitutional issue. What is baffling however is how an issue like this has become an octopus threatening to convolute the peace of this Republic. In the context of the movie, the question is whether the Federal Government’s quest to coerce the Lagos state government to revert to the twenty local government structure will not in the end turn to a bridge too far?

It would do us some good to recount a bit of the history behind this undemocratic story. By letter under the hand of the President, the Governor of Lagos state was directed to revert to the twenty local government council structure ‘recognized’ by the Constitution or face the consequences.

This is not the first time that this kind of directive veiled as ‘request’ has been made. It will be recalled that the ex-President Chief Obasanjo had, during his tenure, written a letter that later erupted into a major constitutional debacle. Perhaps, with that scenario at the back of his mind, Governor Fashola replied President Yar’Adua in unmistaken terms. The Guardian (vol. 27, No. 11, 170, Monday, July 27, 2009,) carries the banner headline ‘Lagos Councils: Fashola says ‘No’ to Yar’Adua’.

The relevant excerpts from that letter will definitely guide a discerning reader in the appreciation of the nuances of this matter. The letter (from Fashola to Yar’Adua) reads as follows: ‘’In specific response to the issues raised in your letter under reference it is perhaps proper to start with a reminder that the decision of the Lagos State Government to conduct elections on 11th October, 2008 into 20 Local Government Councils and 37 Local Council Development Areas was based on Laws validly enacted by the Lagos State House of Assembly pursuant to its legislative competence under the Constitution.

The laws under which the Local Council Development Areas were created and under which the elections were conducted are as follows: (i) The creation of Local Government Areas Law No.5 2002; (ii) The Creation of New Local (Amendment) Law No.15 at 2004;  (iii) The Creation of New Local Government (Amendment) (No.2) Law of 2005: and (iv) The Lagos State Independent Electoral Commission Law 2008.

Governor Fashola states further that: ‘’The decision of the Supreme Court noted in Your Excellency’s letter in the case of Attorney General of Lagos State v. Attorney -General of the Federation (2005) 2 WRN 1 affirms the validity of two of the laws mentioned above namely the Creation of Local Government Areas Law No.5 2002 and the Creation of New Local Government Ares (Amendment) law 2004.

In the judgment delivered by Uwais CJN, as he then was the Supreme Court held that:’ Having read all the provisions of the Constitution aforementioned l am satisfied that the House of Assembly of Lagos state has the right to pass the Creation of Local Government Areas (Amendment) Law 2004’’ See AG Lagos v. AG Federation & Ors’’.

Governor Fashola seems to be right on this count. For, in Attorney- General of Lagos State v. Attorney – General of the Federation (2005) All FWLR (pt.244) 805, Uwais CJN, as he that was, held that: ‘’Having read all the provisions of the Constitution aforementioned, I am satisfied that the House of Assembly of Lagos State has the right to pass the Creation of Local Government Areas Law No. 5 of 2002 and to amend it by passing the Creation of Local Government Areas (Amendment) Law, 2004.

It is very clear to me, however, that for the plaintiff to receive funds from the Federation Account under section 162(3) and (5) there must be local government councils which have legally or constitutionally come into existence.  It seems to me for this to happen the remaining or consequential action must be taken by the National Assembly to amend section 3 subsection (6) and Part I of the First Schedule to the Constitution.  This is so, because the references made in section 162 to local government areas specified in section 3(6), which I have earlier held to be equal to or synonymous with local government councils.

What follows from this is that the Laws enacted by Lagos State that is Law No. 5 of 2002 and the 2004 Law are both valid Laws since the House of Assembly of Lagos State has the power under sections 4 subsections (6) and (7), 7 subsection (1) and 8 subsection (3) of the Constitution to legislate in respect of the creation of new local government areas and local government councils which are one and the same for the purpose of section 162 subsections (3) and (5) of the Constitution.

However, in the context of section 8 subsection (5) and section 3 subsection (6) such laws cannot be operative or have full effect until the National Assembly makes the necessary amendment to section 3 subsection (6) and Part I of the First Schedule to the Constitution. The effect of this is that the Laws are valid but inchoate until the necessary steps as provided by the Constitution are taken by the National Assembly”.

It is no longer in doubt that the only disagreement in the apex Court arose from whether the action of the Lagos state House of Assembly was enough to solidify the existence of the new Local government councils. It is therefore beyond doubt that while the majority of Justices held that the newly created councils were inchoate, others dissented from that view.

The decision of the Supreme Court indicating that the new Local Government Areas created by the Lagos State House of Assembly are inchoate or in abeyance is a shorthand way of saying that in the eyes of the law, they are as yet, not in existence.

This conclusion did not receive concurrence from all the Justices of the Court who sat on the dispute. Accordingly, Justices Uwaifo and Akintan dissented on this point and it would appear instructive to quote both of them in extenso.  In the words of Uwaifo JSC (as he then was):”I think it is helpful to read subsection (6) before Subsection (5).

It must be noted that it is after the creation of more local government areas that a House of Assembly shall make adequate returns to each House of the National Assembly.

In other words, the creation has been concluded and the relevant local governments areas have been brought into being by the action taken by a House of Assembly through its bill before returns thereof are made to each House of the National Assembly.

In relation to local government areas affected or involved, the National Assembly shall then pass an Act, based on the returns so furnished to it, to make consequential provisions with respect to the names and headquarters of the said local government areas.

I strongly hold the view that the only purpose of the consequential provisions is to update the local government areas “as provided in section 3 of the Constitution and in Part I and II of the First Schedule to this Constitution”.  It is like birth registration under the provisions of an Act.

The delay in the formality of registration of any particular birth cannot ignore the fact that there has been a child born who is living.  To my mind, it does not confer supervisory authority on the National Assembly which it may use to delay, direct, control or frustrate the effect of a Law duly enacted by a State.

It is a simple process for a simple formal consequence; it is a process different from that of passing an Act for the alteration or amendment of a provision of the Constitution as laid down in section 9 of the Constitution.  In my opinion, there is nothing, therefore, special about it that ought to postpone the coming into force of the Law constitutionally passed by a State to create local government areas in its domain”.

On his own part, Akintan JSC noted that: “the above constitutional provisions clearly show that the process of creation of new local government councils is entirely a State affair.  This is why it is provided in section 8(5) that the National Assembly is only required to make ‘consequential provisions’ with respect to the names and headquarters …I have no doubt that none of the definitions of the word ‘consequential’ or ‘consequence’ given above could lead to the inference that the role which the National Assembly has to play in section 8(5) of the Constitution is part of the process of creation of new local government councils.

I believe that the process of creating the new local government councils has been completed before the National Assembly is called upon to perform its own role under section 8(5) of the Constitution.  It is therefore not correct to say that the process of creating the new   local government councils by the Lagos State was incomplete or inchoate until the National Assembly carries out  its role under section 8(5) of the Constitution’’.

It does appear that the ball is now in the Court of the National Assembly. There are indications that august assembly of eminent legislators believes that it cannot act on the Lagos state Local councils matter unless there is an amendment to the constitution.

To that extent, finger-pointing in the direction of the Lagos state government would seem futile. Dialogue then, as proposed by our dear President would seem a nice way to end this imbroglio. Otherwise, this would seem to be a bridge too far.


Disclaimer

Comments expressed here do not reflect the opinions of vanguard newspapers or any employee thereof.