The Courts and Local Government Administration

In this article, Festus Okoye discusses Local Government Councils, and how the State Governments are undermining all efforts to reform them and make them relevant, citing the recent Edo and Osun State examples, even after the landmark decision of the Supreme Court last year following the suit instituted by the Attorney-General of the Federation against the 36 States, which affirmed previous decisions that the State Governments and the Houses of Assembly have no power to constitute, appoint, or determine a Local Government, nor does  the Governor of a State have the power to constitute, appoint, or determine a democratically elected Local Government Council 

Revisiting Issues

We must, as a matter of national interest and the survival of democracy, revisit the issue of the place, relevance, and survival of Local Government Administration in Nigeria. We are creating a cyclical caricature of local government administration, and finding comfort in undermining all efforts to reform and make it relevant. The time has come for the country to decide whether we need local governments as they are currently structured and constituted, or whether we should become more creative, innovative, pragmatic, and decisive regarding the role and place of local governments in Nigeria. This is against the backdrop of recent events in various local government areas and the numerous reforms that have occurred, or been suggested by previous governments, which did not address the central issues troubling them.  

The Attorney-General of the Federation, Prince Lateef Fagbemi, SAN, confronted the issue head-on, and went to the Supreme Court of Nigeria to express the concerns of local governments, the Federal Government, and the Nigerian people, regarding local government administration and the excessive influence of State Governments. In a bold move and acting as a policy court, the Supreme Court ruled in favour of the Federal Government, and issued several declarations and impactful orders. 

We thought the Supreme Court judgement struck at the central nervous system, as the Joint State Local Government Account and direct disbursements of funds to the local governments formed the crux of the challenge of local government administration. The Supreme Court’s Declarations and Orders led to a flurry of local government elections in the country, and Nigerians thought that the judgement had finally solved the financial predicament of the local governments, restored their dignity, and severed them from the stranglehold of the State Governments. 

Edo and Osun State Governments 

The Edo State Government and the State Assembly, think differently. In an apparent affront to the authority and finality of the Supreme Court and the office of the Attorney-General of the Federation, the Governor and the State Assembly suspended the Chairmen and Deputy Chairmen of the 18 Local Governments for insubordination for two months. The State Governor wrote a petition to the State Assembly over their refusal to submit financial records of their local governments to the State Government. The Government termed the action as insubordination and gross misconduct. 

The Attorney-General of the Federation weighed in, and described their action as null and void. The aggrieved Chairmen and their deputies rushed to Court, and the Courts halted their suspension. Some are returning to their duty post, and some have yet to resume. The battleground has now shifted to Osun State. The Osun State Government dissolved elected Local Governments, the Court of Appeal quashed the suspensions, and an attempt by the Chairmen to resume led to mayhem in several Local Governments. 

But, the issues are deeper. The audacity of the State Governments to return to the trenches so soon, is surprising to most Nigerians. Why have we returned to the trenches, and why have the various reforms in the system not worked? These are germane questions, if we must get to the root of the challenges and stop the cyclical rigmarole of rushing to the courts, securing judgements, and rendering the judgements nugatory. Is it that the State Governments and the State Assemblies are not conversant with the various court judgements, on the powers of the State Governments over their local governments? Does the rule of law and due process, mean nothing to them? Is it that they enjoy the aggrieved going to court, and remaining in court till their tenure expires?

Case Law

In 2002, the Court of Appeal in the case of Akpan v Umah (2002) 7 NWLR (Pt. 767) 701; (2002) FWLR (Pt. 110) 1820 at 1840 – 1841 held that the dissolution of Ini Local Government Council and setting up of the Caretaker Committee by the Governor of Akwa Ibom State, is a violation of Section 7(1) of the Constitution. It held that since Section 7(1) of the 1999 Constitution guarantees a system of Local Government by democratically elected Local Government Councils, the dissolution of Ini Local Government Council by the Governor of Akwa Ibom State and the appointment of a Caretaker Committee is inconsistent with Section 7(1) of the Constitution and therefore, null and void. The Court held further that in exercising his executive powers, the Governor must act within the Constitution and any law validly made by the House of Assembly, and does not have blank and arbitrary power to act outside the Constitution; such a power if exercised will lead to executive lawlessness and recklessness, which have often been decried and condemned by Nigerian society. The Court held that the legal position is that the Governor as the Chief Executive of a State is by the 1999 Constitution vested with executive powers of the State, which extend to the execution and maintenance of the Constitution and all laws made by the State House of Assembly, and to all matters with responsibility to which the State House of Assembly has powers to make laws and these executive powers must be exercised by the Governor under the provisions of the Constitution and the law. 

In 2007, the Court of Appeal, in the case of AG Benue State & Ors v Umar & Ors (2007) delineated the powers of the State Government under Section 7 of the Constitution of the Federal Republic of Nigeria. The Court stated that the action of the State Government in dissolving elected Local Government Councils based on Section 154(1) of the Benue State Local Government (Establishment) Law 2000 (as amended) is void, illegal, and unconstitutional.  The Court held that the major thrust of the appeal, is whether the Executive Governor is vested with the powers to dissolve Councils with their duly elected Councillors in Benue State. The Court stated that the Respondents are Councillors elected by their various Communities, to represent them in their various Legislative arms of the Local Government Councils. “The Councillors derive their mandate from the people who voted them in, and are accountable to them.” The Court held that only the people who voted them in can or may abridge their tenure in office, as the peoples’ votes are their voices and cannot be treated in a manner devoid of its sacred nature. 

In 2010, the Court of Appeal returned to the same issue and delivered judgement in Eze & Ors v Governor of Abia State & Ors (2010) LPELR-4133(CA) on the dissolution of local governments. The Court stated that the powers conferred on the Government of every State by Section 7(1) of the 1999 Constitution to ensure the existence under a law which provides for the establishment, structure, composition, finance and functions of a local government, can only be executed within the confines of the provisions of the Constitution. It held that the power of the State House of Assembly under Section 4(7) of the Constitution, cannot extend to truncating the tenure of a democratically elected Local Government Council. The Court held that the Constitution only recognises elected members of the Local Government Council, and it is ultra vires the Constitution for any State Legislature to make a law which has the effect of dissolving a local government council made up of elected Chairmen and Councillors, and replacing it with members of a Caretaker Committee selected by the State Government. 

In 2024, the Supreme Court of Nigeria, the Apex Court, the final court, intervened in the case of the Attorney-General of the Federation and the 36 States of Nigeria. The Supreme Court decried the unlawful and unconstitutional dissolution of democratically elected Local Government Councils, and their replacement with Caretaker Committees. It held that State Governments and the Houses of Assembly have no power to constitute, appoint, or determine a Local Government. It held that a State Government or the Governor of a State has no power to constitute, appoint, or determine a local government that Section 7(1) of the 1999 Constitution has prescribed can only be by Local Government Councils democratically elected by persons in a local government area. The Supreme Court stated that, only democratically elected Local Governments can receive distributable amounts standing to the credit of Local Government Councils in the Federation Account. It held that it amounts to grave misconduct to use a State Law or Administrative directive to dissolve or cause the dissolution of democratically elected Local Government Councils, as the State Governments have no power to keep, control, or disburse allocations from the Federation Account to Local Government Councils. 

It granted an order of injunction restraining the State Governments by themselves, their privies, agents, officials, or howsoever called, from further collecting, receiving, spending, or tampering with Local Government Council funds from the Federation Account for the benefit of Local Government Councils. It also ordered that the Federation or Federal Government of Nigeria, through its relevant officials, should commence the direct payment to each Local Government Council of the amount standing to the credit of each of them in the Federation Account.

Conclusion 

We must return to the basics, and truly ask the pertinent questions. Can we continue like this? Is there nothing that can be done? Has it always been like this? Why should State Governments continue to disobey the judgements and orders of courts, including the Supreme Court? 

The Executive, the Legislature, and the Judiciary wield the powers of the Federal Republic of Nigeria, and none is permitted to sabotage these powers derived from the Supreme law of the land. All the organs of government must submit to the rule of law and due process, and avoid luring people to the use of force and self-help that is antithetical to democratic norms and governance. The Supreme Court cannot be the guardian of the Constitution, only when their judgements and orders are in our favour. We must internalise the democratic spirit, and obey court orders in good and bad times. 

Festus Okoye, Legal Practitioner, former INEC National Commissioner