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The LGAS, LCDAS, federalism and the constitution

By Emeka Ajaegbo

The problem of 37 new Local Government Areas or Local Council Development Areas created by the Lagos State
Government was created by what we call the 1999 Constitution of the Federal Republic of Nigeria and its operations or implementation. How? Section 2(2) of the said 1999 Constitution provides; “Nigeria shall be a federation consisting of states and a Federal Capital Territory.”

What then is a Federation?
It is a political system where allied states form a union, not, indeed, to such an extent as to destroy their separate organization or deprive them of quasi sovereignty with respect to the administration of their purely local concerns, but so that the central power is erected into a true national government, possessing sovereignty both external and internal, while the administration of national affairs is directed, and its effects felt, not by the separate states deliberating as units, but by the people of all, in their collective capacity, as citizens of the nation.

It is a system where power is shared between the central authority and a number of constituent territorial units and where the constituent states contribute from their resources for the running of the central authority.

Then section 3(1) of the constitution named the states (federating units) that make up the federation of Nigeria, while Section 3(3) named the capital cities of each of the federating units (states). Section 3(2) showed the territorial extent of each state by defining them in Part 1 of the 1st schedule to the constitution.

Section 3(4) provided for and defined the territorial extent of the Federal Capital which is Abuja. The said constitution went ahead in Section 7(1) and provided as follows; “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 the establishment, structure, composition, finance and functions of such councils.”

From the above underlined portion of that provision, it is crystal clear that, it is the state government that has the constitutional powers to create (ensure their existence) under a law which provides for the establishment, structure, composition, finance and functions of such local government councils. However this constitutional power was qualified by subjecting it to the provisions of section of 8 of the constitution. The relevant portions of that section is subsections (3) and (4) which provide;

“(3) A bill for a law of a House of Assembly for the purpose of creating a new local government area shall only be passed if- (a) a request supported by at least two-thirds majority of members (representing the area demanding the creation of the new local government area) in each of the following, namely- (i) The House of Assembly in respect of the area, and (ii) The local government councils in respect of the area, is received by the House of Assembly;
(b) a proposal for the creation of the local government area is thereafter approved in a referendum by at least two-thirds majority of the people of the local government area where the demand for the proposed local government are originated;

(c)    the result of the referendum is then approved by a simple majority of the members in each local government council in a majority of all the local government councils in the state; and (d) the result of the referendum is approved by a resolution passed by two-thirds majority of members of the House of Assembly.

“(4) A bill for a law of a House of Assembly for the purpose of boundary adjustment of any existing local government area shall only be passed if- (a)    a request for the boundary adjustment is supported by two-thirds majority of members (representing the area demanding and the area affected by the boundary adjustment) in each of the following, namely- (i) the house of assembly in respect of the area, and (ii) the local government council in respect of the area, is received by the House of Assembly; and

(b) a proposal for the boundary adjustment is approved by a simple majority of members of the House of assembly in respect of the area concerned.”

If therefore the government of any state (a federating unit) of the Federation of Nigeria fulfils and complies with the said provisions of sections 8(3) & (4) of the constitution, it can create a new local government area or areas. But then the constitution had earlier in section 3(6) provided as follows:- “There shall be seven hundred and sixty eight local government areas in Nigeria as shown in the second  column of Part I of the first schedule to this constitution and six area councils as shown in Part II of that schedule.”

This is where the problem started. If in a federation or a federal system of government, the separate organization of the federating units are not destroyed by the union and their quasi sovereignty not deprived them with respect to the administration of their purely local concerns, the constitution should not have in section 3(6) pegged the number of local governments in the federation to 768, and in sections 7(1) and 8(3) gave the federating units power to create local government areas.

It is clear that whilst sections 7(1) and 8(3) are in consonance with the spirit of federalism as a system, by safeguarding and protecting the separate organization and quasi sovereignty of the federating units with respect to the administration of their purely local concerns (one of which is the local government areas), section 3(6) of the constitution is non-federal in spirit as it hampers their separate organization and quasi sovereignty with respect to the administration of their purely local concerns.

Having created this problem, the constitution went further in an apparent bid to solve it, to provide in section 8(5) & (6) as follows:-“(5) An Act of the national Assembly passed in accordance with this section shall make consequential provisions with respect to the names and headquarters of states or local government areas as provided in section 3 of this constitution and in Parts I and II of the First schedule to this constitution.

(6) For the purposes of enabling the National Assembly to exercise the powers conferred upon it by subsection (5) of this section, each House of Assembly shall, after the creation of more local government areas pursuant to subsection (3) of this section, make adequate returns to each House of the National Assembly.” On this, the above provisions as much as it relates to local government areas which are local concerns of the federating units is non-federal in nature, as it encroaches on the local concerns of the federating units.

Again whilst section 7(1) gave powers to the State governments (federating units) to make a law that will provide for the finance of local government councils (which is their local concern), section 7(6) (a) gave powers to the National Assembly (which is part of the central authority) to make provisions for statutory allocation of public revenue to local government councils in the federation, thereby tampering with the quasi sovereignty of the federating units (the states) with respect to the administration of their local concerns.

Furthermore, a look at section 162(3) of the constitution shows another infringement by the central authority on the quasi sovereignty of the federating units in relation to financing the local government councils which is a local concern of the federating units. It provided as follows; “Any amount standing to the credit of the federation account shall be distributed among the federal and state governments and the local government councils in each state on such terms and in such manner as may be prescribed by the National Assembly.”

Section 162(5) also made similar incursions when it provided as follows; “The amount standing to the credit of local government councils in the Federation Account shall also be allocated to the states for the benefit of their local government councils on such terms and in such manner as may be prescribed by the National Assembly.” The above provisions subject the federating units to the decisions of the National Assembly (which is part of the central authority) on how to finance the local government areas and thus negating the powers of the federating units provided for under section 7(1) of the same constitution and eroded their quasi sovereignty in financing their local concerns.

The most non-federal provision on this issue is the provisions of section 162(6) an (7) of the constitution which provided as follows; “(6) 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.  (7) Each state shall pay to the local government councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.”

The above provisions clearly and in very certain terms eroded completely the quasi sovereignty of the federating units in terms of financing the local government councils which are clearly their local issue. These provisions do not represent provisions that are supposed to be in a federal constitution. As a result, this country is not running a federal system of government but what I would call the “Nigerian federal system of government” as it does not conform to what is obtainable in the United States of America from whom we borrowed the federal system of government. So our constitution should, in the real sense of it, have been called the Constitution of the Nigerian Federal Republic of Nigeria.

So the issue of the local government areas or local council development areas created by the Lagos State government should not have come up if we are truly running a federal system of government and operating with a truly federal constitution. For instead of the federating units owning the resources in their areas and contributing to the centre or central authority for the running of the federated union, the centre took everything from the federating units and was allocating to the federating units. The above is just to show some of the problems created by the non practice of true federalism.

The whole argument of the LCDAs not being LGAs under the 1999 Constitution does not arise as it is clear that they are not LGAs because the National Assembly has not acted under section 8(5) of the constitution, even though Lagos State House of Assembly has done its functions under section 8(6) thereof.

However, I believe that the Federal Government should not bother itself with the 37 new LCDAs, rather it should concern itself with what it has to give to Lagos State as allocations for the 20 local government areas known to the 1999 Constitution.

The Federal Government should not concern itself with how Lagos State chooses to apply the funds amongst its 20 LGAs and 37 new LCDAs, as the administration of both purely within the ambit of the Federalism called ‘local concerns of federating units in a federation.

I offer this advice because Lagos State are not asking the Federal Government for allocations for the 37 LCDAs. Lagos state so long as it uses its funds judiciously has not in anyway done anything mischievous as the first mischief was created by what I have described above as the ‘Constitution of the Nigerian Federal Republic of Nigeria’ because we are running a federation that is peculiar to Nigeria.

This practice of a federation that is peculiar to Nigeria has led to the concentration of everything at the centre and thus killed true federalism. The death of true federalism led to the death of true democracy and our economy. Prosperity cannot be achieved in the circumstances and vision 20-2020 will be unrealistic and may die like its brother vision 2010 unless we come together now and give ourselves a true federal constitution and truly operate it, as we all know that this one was foisted on us by the Military.

Allow the federating units to own resources that are in their areas and contribute certain percentages of revenues accruing therefrom to the federation for the running of the central authority.


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