By Emmanuel Majebi
It was a very tough decision for me to decide to write this article about the LCDAâ€™s controversy especially when I find myself in a position where I do not for once agree with the Lagos state Government! The present Governor of Lagos State has performed well and is a breath of fresh air in the annals of political office holders in Nigeria, and he has been a shining example of the kind of leaders we want to see occupying public office in Nigeria! But this LCDAâ€™s controversy goes to the root of what we stand for as a democratic nation_ the sanctity of our grund norm, and legal order viz the 1999 constitution.
This Constitution has been much vilified and like every other man made document it is not perfect and probably needs some tinkering with here and there to make it a more perfect document, but do we simply ignore it because we do not agree with some of itâ€™s provisions?
Is a Law, a Law to be obeyed only when the provisions agree with our beliefs! I am not a politician I am a legal practitioner so in writing this piece I am going to concern myself ONLY with the legal issues raised by this controversy!
There is a lot of politics and raw emotions involved in this matter but those are not within the purview of this write up! The write up does not claim to be the final authority on the matter but just a small part of a lively debate, which we hope will help us throw light on and clarify some grey areas of the Constitution.
In discussing this matter I will raise a few legal and constitutional issues which I consider to be the main facts in issue in this present â€œPalaverâ€and try to address them.
1. What is the effect of the ruling of the Supreme court in AG Lagos v AG Federation (2004) 20 NSCQLR 99Â on the operation of Local Council Development Areas(LCDAâ€™s) in Nigeria (not Lagos alone)
2. Can the judgment in the said Supreme Court case be used in any way to justify the existence and operation of LCDAâ€™s when the said LCDAâ€™s were not even in existence at the time that case was decided?
3. What is the effect of the judgement of the Lagos High Court in the case ofÂ Chief Taiwo Joseph Tovi-Hungevu and Abraham O. Ogabi & 40 othersÂ which in reiterating the decision of the Supreme court and held that it was improper for the 37 LCDAâ€™s to continue to function?
4. What is the effect of non-completion of the Constitutionally laid down procedure for the creation of Local Governments by state governments?
5. Are the LCDAâ€™s in Lagos functioning as if they are duly constitutionally recognized Local Governments?
6. Does the Constitution empower a State Government to create LCDAs or a 4th tier of governance?
7. Does the Constitution empower a State Independent Electoral Commission(SEIC) to conduct elections into an LCDA?
An analysis of this matter cannot be complete without a discussion of the famed Supreme CourtÂ case of AG Lagos State v AG Federation supra) acts of this case are all too familiar and it will thus serve no useful purpose to rehash them here once again. The one major point to harp on in this case is that the legality of the process used by the Lagos State in creating the 37 new local government areas (not LCDAâ€™s) has never been in doubt; even the Supreme Court has said this in no unmistaken terms.
I have seen copious arguments educating us as to the fact that the Local Governments were created legally. The point that the Supreme Court harped which is germane in this present imbroglio; was that the process leading to the Constitutionally recognized creation of new local government has not been completed and as such the 37 new local governments in Lagos were â€œinchoate and in-operationalâ€.The Blackâ€™s law Dictionary 5th edition defines â€œinchoateâ€ thus : â€œimperfect, partial; unfinished, begun, but not complete e.g a contract not executed by all the partiesâ€¦.â€
A plain interpretation of the word â€œinchoateâ€ used by the Supreme Court in this matter as defined by Black will tend to portend that the 37 local government areas created by the Lagos state GovernmentÂ were â€œimperfect, partial; unfinished, begun, but not completeâ€¦â€ I do not think that this interpretation is in dispute at all even by Lagos state Government, hence the renaming or re-branding of the 37 inchoate Local Governments as LCDAâ€™s.
The problem however is that the LCDAâ€™sÂ as they now stand seem to be functioning as and exercising all the powers of local governments. Under the 4th Schedule to the 1999 Constitution for example inter alia the following functions are reserved for the Local Government Councils viz: â€œcollection of rates, radio and television licences; establishment and maintenance of cemeteries, burial grounds and homes for the destitute or infirm; licensing of bicycles, trucks (other than mechanically propelled trucks), canoes, wheel barrows and carts; establishment, maintenance and regulation of slaughter houses, slaughter slabs, markets, motor parks and public conveniences; construction and maintenance of roads, streets, street lightings, drains and other public highways, parks, gardens, open spaces, or such public facilities as may be prescribed from time to time by the House of Assembly of a State; naming of roads and streets and numbering of houses; provision and maintenance of public conveniences, sewage and refuse disposal;Â registration of all births, deaths and marriages; assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the House of Assembly of a State; etcâ€¦..â€
Any one who has lived in Lagos these past few years will readily testify that these LCDAâ€™s have in an indirect manner been carrying out some or all of the above functions reserved for Local Governments. There is no where in the 1999 Constitution where the functions given to the LGAâ€™s can be delegated either to the LCDAâ€™s or indeed any other body for that matter.
These issues amongst other matters formed the subject matter of the case brought in the Lagos High Court viz Chief Taiwo Joseph Tovi-Hungevu and Abraham O. Ogabi & 40 others to challenge the operation of the LCDAâ€™s which were not in existence as at the time the Supreme Court was deciding the case of AG Lagos v AG Federation and the Lagos High Court was unequivocal in reiterating the decision of the Supreme Court and stating that the operations of the LCDAâ€™s go against the spirit and letter of the Supreme Court in AG Lagos v A.G Federation.
There is this very ingeniousÂ argument which avers that because the Supreme Court upheld the process that created the incohoate 37 LGAâ€™s and the Lagos State Government has made returns to the National Assembly then that means that the LGAâ€™s have come to being. This argument is on the face of it self defeating because if this were to be so, there would not have been a need to re-designate the 37 LGAs as LCDAs. There is nothing like half creation of LGAâ€™s it is either a local government is created or it is not.
The invention of LCDAâ€™s was a extra-judicial solution to solve a constitutional and judicial problem and back then I remember arguing with a colleague that sooner or later the unconstitutionality of that act (of rebranding the 37 incohoate LGAs as LCDAs) was going to come to the fore!
I believe we are at that point now!! If the Constitution does not allow a State to create LCDAâ€™s under what authority do they exist and operate?? There have been many references made to some laws of the Lagos State House of Assembly which purport to give legal teeth to the existence of LCDAâ€™s but it is trite law that all laws are inferior to the Constitution and that where a law is inconsistent with the Constitution that other law is to the extent of itâ€™s inconsistency void.
Another legal oddity in the existence of the LCDAs is the elections that were conducted into the LCDAâ€™s by the Lagos State Independent Electoral Commission (SIEC). The SIEC is a creation of the 1999 Constitution not a creation of the Lagos State House of Assembly and under Part II (b) section 4(a) of the 2nd schedule to the 1999 Constitution and the only election that the SEIC is empowered to conduct is that of the LGAâ€™s there is no constitutional provision that empowers SEIC to conduct elections into LCDAs. If thus a State House of Assembly seeks to pass a Law which clothes the SIEC with powers not allowed it under the Constitution, that law stands void to the extent of itâ€™s inconsistency with the Constitution.
One must agree that the Lagos state Government has gone through a lot of frustruation in itâ€™s attempts to create new LGAâ€™s. But Lagos has no other option than to abide by the Constitution. That is our Supreme Law for now. The ineptitude or inaction of another body is not a defense for Unconstitutional Acts!! The analogy I always make here is the provisions for a Law Student to become a Lawyer!
Under the relevant laws, a law student can ONLY become a lawyer if he passes his degree exams, then passes Bar exam and is deemed a fit and proper person to be called to the Nigerian Bar by the Privileges Committee. It follows thus that a student can score 1st class Honors in his LLB exam and 1st class in his Bar Exams but he would not be a lawyer until found fit and proper by the Privileges Committee to be called to the Bar.
A law student cannot thus say well I got 1stÂ class in LLB and Bar exams but the Privileges Committee have failed or omittedÂ to do their duty and as such I will go on and start practicing as a lawyer?