By Collins Okeke
The local government is the closest level of government to the people in Nigeria. The Nigerian Constitution in the Fourth Schedule lists out the many functions of local governments, some of which include: construction and maintenance of roads, streets, street lightings, drains, public highways, parks, markets, gardens, open spaces, amongst others. These functions show that local governments are essential to the advancement of the welfare of the people. Unfortunately, the local government system is often abused and neglected by states. The result is that the impact of local governments is not felt by the people.
The Nigerian Constitution provides for a Democratically Elected Local Government Council. Section 7 (1) of the Nigerian Constitution provides 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 the establishment, structure, composition, finance and functions of such councils.”
The effect of Section 7(1) above is that local governments must be administered by persons elected by the people and state governments must work to establish a framework for democracy. This, however, is not the case in many states in Nigeria. Democratically elected local government councils are routinely removed by state governors with the support of state houses of assembly and replaced with un-elected local government interim, caretaker or transition committees before the expiration of their tenure. An example is the case of Governor, Ekiti state & Ors. V. Prince Sanmi Olubunmo, Executive Chairman Ido-Osi LGA & Chairmen Association of Local Government of Nigeria (ALGON) Ekiti State Chapter & 13 Ors. (2017) 3NWLR (Pt. 1551) 1 SC.
In the case, the state governor relying on the Local Government Administration (Amendment) Law, 2001 of Ekiti State removed and replaced elected local government councils in the state with un-elected caretaker committees before the expiration of their tenure. In a lawsuit brought against the state governor by the removed local government chairmen, the Nigerian Supreme Court declared the action of the governor unconstitutional. The Supreme Court held that Section 7(1) of the Nigerian Constitution provides for democratically elected local government councils and any law enacted by the State House of Assembly must be in accordance with the Constitution.
Despite this decision of the Nigerian Supreme Court, state governors have continued to arbitrarily remove and replace democratically elected local government councils with unelected interim, caretaker or transition committees. In Oyo State, Governor Seyi Makinde on the assumption of office on May 29, 2019, immediately dissolved democratically-elected local government councils and replaced them with unelected caretaker committees. Local governments in Katsina, Borno, Yobe, Kwara, Kogi, Bauchi, Taraba, Benue, Anambra, Imo and Ogun states are administered by caretaker committees.
Dr. Olisa Agbakoba, SAN, took steps to stop this unconstitutional practice by state governors by instituting: Olisa Agbakoba v Federal Ministry of Finance & Ors FHC/L/770/13 where he asked the Federal High Court to stop the Federal Government from allocating funds from the Federation Account to unelected local government interim, caretaker or transition committees. Regrettably, the court declined his prayers as it held that it is the local governments that are entitled to statutory allocation from the Federation Account and not local government officials.
The Attorney General of the Federation, Abubakar Malami, also tried to end this unconstitutional practice via a letter titled: “Unconstitutionality of Dissolution of Elected Local Government Councils and Appointment of the Caretaker Committee: The Urgent Need for Compliance with Extant Judicial Decisions,” addressed to the Oyo State Governor. The Attorney General directed the state governor to dissolve the Oyo State local government caretaker committees and restore democratically elected government councils in compliance with the Constitution and the Supreme Court decision. Unfortunately, the state government refused to heed his directive.
There is now a growing call on President Muhammadu Buhari to issue an Executive Order enforcing democracy at the local government level. The legal basis for the call is the President’s inherent powers to enforce the Constitution and decisions of the Supreme Court. If the President heeds this call, it will be vigorously challenged by states that have constitutional powers to put in place a democratic system for local governments but have failed to do so.
Notwithstanding, it is imperative to restore democracy at the local government level in Nigeria as it is crucial to bringing development close to people in Nigeria.
*Okeke is Head, Development Law Group Human Right Law Service, HURILAWS