By Justice Usman Bukar Bwala
DEMOCRACY could be unitary, federal or otherwise. Where a federal democracy is adopted such federating units will have the composition, functions, powers, etc., clearly spelt out in a law. In Nigeria where we practise a federal system of democracy, each federating unit vis-a-vis federal, state and local government, have powers and functions spelt out: sections 4-12, 176-196 and Schedule 4 of the 1999 Constitution as amended.
The local government is a third tier of the Federal Government. Its establishment and functions are contained in Section 7 and Schedule 4 of the Constitution. Section 7(1) reads as follows: “The system of local government by democratically elected local government council is under this constitution guaranteed, and accordingly, the government, of each and every state shall, subject to section eight of this Constitution, ensure their existence under a law which provides for establishment, structure, composition, finance and functions of such council.”
The Constitution has guaranteed only one form of local government council: a “democratically elected local government council”. Local governments are independent entities and can sue and be sued. There are a plethora of cases to this effect. Not even the President can withhold payment of allocation from the federation account to a local government: A. G. Lagos vs A. G. Federation 2005 2 WRN 1 at 69-70.
Any local government council, therefore, which is not democratically elected is an unknown entity and cannot perform any function as it is in violation of section seven of the Constitution. The practice of state governments selecting or nominating local government councils are acts of rape upon section seven of the Constitution supra.
While states can pass a law which provides for local governments, such state law cannot deviate from the operating words of section seven supra of having a “democratically elected local government council”. The word “shall” is used in section seven of the Constitution donating mandatoriness as “shall” in law means mandatoriness: Udo vs The State 1988 6 S.C. 181. The constitution is a supreme law of the land and any law contrary to it shall be null and void to the extent of the inconsistency Section 1 (3) of the Constitution.
States which have failed to have democratically elected councils are violators of section seven of the Constitution and are weakening the democracy of Nigeria, in which state governors are beneficiaries of the democratic principles they are violating. Any legislative or executive act which violates the Constitution is amendable and should be corrected by law: Okereke vs Sunday Dike 2003 44 WRN 68 at 72.
Though democratically elected local government councils have been guaranteed under section seven supra, which body is to conduct the election is silent, while state and federal elections are conducted by INEC. This vacuum has led states to establish their respective state INEC which conducts elections into local government councils.
The act of having local government council elections not conducted by INEC but by state INEC has weakened the equality of local governments as the grass root third tier of government in Nigeria. This is because inter alia State INEC is easy to manipulate by a state government. To show fairness and equality, all elections into elected offices must be conducted by one body INEC. As of now INEC has no power to conduct local government council elections.
Another issue with local government councils is their tenure of office. Federal and state elective offices have four years tenure(See sections 135 and 180 of the Constitution as amended). Each state has to fix the tenure of the local government council as the Constitution is silent about it. Wisdom demands that the local government councils have a tenure of office fixed by Federal Act like the other two tiers of government. The Constitution appears to be skewed against a democratically functional local government.
The issue whereby local government councils are dissolved at will and reconstituted at will by some state governments run counter to section 7 supra. It should not only be discouraged but stopped. It amounts to executive lawlessness to disobey a provision of the Constitution. An abuse of the Constitution by any authority should not be allowed. Few states have complied with section seven of the Constitution, thus rendering local governments as not autonomous but are under state control.
In most states, democratically elected local government council is a myth. Where local government elections are held, there is nothing to write home about. They are sham. We want true local government elections supervised by INEC.
An election petition tribunal is set-up at least 14 days before elections into Federal and state offices are held to hear election petition cases: section 133 of the Electoral Act 2010 as amended. The Constitution is silent about tribunals for local government elections. This again puts such local government elections at the mercy of state governors to set-up state election petitions tribunals to hear cases arising from local government elections.
Autonomous or democratically elected local government councils is a myth and not a reality in most states. More needs to be done to local governments to enable them stand as a third tier of government. As of now few states would want strong and viable local governments, they are preferred to be weak so that they can be easily manipulated.
*Bwala is a retired judge of Borno State High Court.