Let me, firstly, appreciate and thank the organisers of this auspicious talk shop on a theme; very dear and crucial at this very important moment in our nascent democracy. The theme of the 2025 discourse is: STRENGTHENING LOCAL GOVERNMENT AUTONOMY IN NIGERIA: A DIALOGUE ON THE IMPACT AND IMPLEMENTATION OF THE THE SUPREME COURT JUDGMENT.
It is assumed, albeit erroneously, that a particular judgment of the Supreme Court of Nigeria, the cynosure of this year’s theme, is known to all,including the organisers and the participants. My guess is that the particular judgment, we have in mind, is the one said to have declared the financial autonomy of the Local Governments in Nigeria. That is; the judgment of the Full Court of the Supreme Court in the suit : SC/CV/343/2024- Attorney-General of The Federation v. Attorney-General of Abia State & 35 other State Attorneys-General, delivered on 11th July, 2024. The Supreme Court ruled in favour of financial autonomy for the local government. I shall come anon to the issue without undertaking any critique of the judgment. Ours, today, rests only on matters arising therefrom.
Autonomy presupposes independence, freedom, liberty, self-determination, self-government, self-rule or sovereignty. The antonym of autonomy is dependence, appendage or the state of being subservient. Hitherto the recent decision of the Supreme Court on financial autonomy of Local Government in Nigeria; the issue had been whether the State functionaries can exercise powers to suspend, dismiss or dissolve a democratically elected Local Government Council, including the Chairman, Vice Chairman or Councillor. That question had always turned on the interpretation of Section 7(1) of the extant 1999 Constitution, as amended, that provides:
7.(1) The system of democratically elected local government councils is under this Constitution guaranteed; and accordingly the Government of every State shall, …., ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.
The Supreme Court had consistently struck down the provisions of the Local Government Law enacted in any State empowering State Governor to suspend, dismiss and/ or dissolve a democratically elected Local Government Council; and in its stead appoint transitional or caretaker committee to run the affairs of the the Local Government. For instance, the Supreme Court, in Ajuwon & ors v. Governor of Oyo State (2021) LPELR-55339-SC, the struck down sections 11 &21 of the Local Government Law, 2001, that empowered the State Governor, on the recommendation of the State House of Assembly, to dissolve and dismiss elected Local Government Councils, including the Chairmen,Vice-Chairmen and Councillors, and replace them with his handpicked men to run the affairs of the affected Local Governments. The Courts took similar stance in A.G,Benue State v. Umar (2008) 1NWLR (pt.1068) 311-CA; AG, Plateau State v. Goyol (2007) 16 NWLR (pt.1059) 94 SC; Eze v. Governor, Abia State (2014) 14NWLR (pt.1462) 192 SC; Governor, Ekiti State v. Olubunmo (2019) 3 NWLR (pt.1551) 1 SC. In all the above cases, the courts took the position, in effect, that the existence of the provisions, like sections 11&21 of the Local Government Law,2001 of Oyo State, posed real and existential threat to the system of democratically elected local government, guaranteed by the Constitution, in section 7(1) thereof; the intendment of which is to vouchsafe the inviolability of the sacred mandate which the electorate, at the local grass root level, democratically donated to the Local Government Chairmen and the Councillors. In Ajuwon v. Governor,Oyo State (supra) at pp.36F-37, it was stated, poignantly, that local governments are neither mere appendages nor parastatals of the State, as State functionaries think they are in their erroneous misconception of section 7(1) of the Constitution.
The elected Local Government Chairman and the Councillors are elected democratically, like the State Governor and the State Legislators. Neither of these personae are employees of anybody, except the electorate that voted and elected them. The question: Why are these our democratically elected Governors constituting themselves into a body of anti-democracy specie most dangerous to the Constitution and democracy in the country?.
NBA and our jurists must find an answer to the question: Why, are the Governors,notwithstanding the avalanche of decisions of our superior courts (including the Supreme Court), still adamantly recalcitrant and unyielding to upholding the Constitution and the rule of law- a major covenant in the Oaths of Office they subscribed to before taking up their various offices?
What do we do to the Attorneys General who counsel the Governors to flout the Constitution and desecrate the rule of law?
Financial Autonomy of Local Government
In the aforesaid suit: Attorney General of the Federation v. Attorneys General of Abia State & 35 other States (supra), the Plaintiff, the Attorney General of the Federation, raised 15 issues for the determination of the Supreme Court. Eight (8) of these issues posed (issues 1,2,3,4,5,6,8 &9)sought the court, in substance, to hold that the failure of the States to organise elections and put in place a system of democratically elected local government councils, in the respective States, was act of dereliction of constitutional duty; and that the the system of self-serving caretakercommittees, put in place to administer the local governments, was unconstitutional and illegal. The Court had no difficulty in answering the questions in agreement with him, particularly, in view of the subsistence of some of its earlier decisions, including the above mentioned. It may also be added that it amounts to dereliction of his constitutional duty for a Governor or any other State functionary to refuse to perform a constitutional duty imposed on him. It amounts also to abuse of office, contrary to paragraph 1& 9 of the Code of Conduct for Public Officers in Part 1 of the Fifth Schedule to the Constitution, for a public officer, including the Governor, to do or direct to be done any arbitrary act prejudicial to the rights of any other person, knowing that such act is unlawful and contrary to government policy.
Paragraph 18(2) of the same Fifth Schedule provides, inter alia, that ” the punishment which the Code of Conduct Tribunal may impose”, for abuse of office in violation of the Code of Conduct For Public Officers, “shall include..
vacation of the office or seat in any legislative house, as the case may be; (b) disqualification from membership of a legislative house and from
any public office for a period not exceeding ten years;…
Issue 7 posed by the Plaintiff is: whether a State in breach of Sections 7 and162(5) &(6) of the Constitution is entitled to receive and spend funds meant for the local government councils while in breach of the Constitution for not putting in place a system of democratically elected local government councils? The answer was emphatic NO by the Supreme Court.
The substance of issues 11,12,13,14 &15 posed by the Plaintiff includes whether, on account of the State failing or refusing to put in place a system of democratically elected local government councils; the said State has unbridled and unrestricted discretion to operate State Joint Local Government Account whimsically to the disadvantage of the local governments; whether by virtue of section 162(6) of the Constitution the State is not agent of the Local Government in the collection of the amount standing to the credit of the Local Government from the Federation Account and is not obligated to pay same directly to the respective Local Governments?
The Supreme Court did not mince words in its declaration that all amounts standing to the credit of the local government from the Federation Account and the State belong to the local government and is, therefore, entitled to be paid. The point was further reiterated, in the judgment that: by Section 162(3) thereof, the Constitution does not intend joint ownership of any amount standing to the credit of the local government from the Federation Account and the State; that the State and the local government are, each, entitled to the amounts standing, respectively, to their credit from the Federation Account; that the Constitution does not intend that the State shall retain the money distributed to the local government constitutionally, as the third tier government, and that the State’s unilateral retention of money meant for the local government from the Federation Account is illegal and unconstitutional. In other words; the State, by virtue of Section 162 of the Constitution, has no right to withhold, hold or retain any money belonging to the local government. This judgment, therefore, has stated the position of the financial autonomy of the local government qua the State poignantly beyond any doubt.
Much as we hail the Supreme Court for this Local Government “financial autonomy” judgment; the next pertinent question that needs be asked is: whether the the learned Justices of the Supreme Court had not, unwittingly, amended or rendered moribund and/or inoperable section
162(5) &(6) of the Constitution providing:
162(5) Any amount standing to the credit of the local government in
the Federation Account SHALL BE ALLOCATED Directly
to the State for the benefit of their local government
councils on such terms and in such manner as may be
prescribed by the National Assembly.
(6) Each State shall maintain a special account to be called
“State Joint Local Government Account” into which
shall be paid such allocations to the local government
councils of the State from the Federation Account…….
If indeed the Supreme Court had unwittingly or inadvertently amended the Nigerian Constitution by the subject ” Local Government financial autonomy” judgment, will this judgment not be a kill-joy on a simple fact that the Supreme Court had outrageously “assaulted” the Constitution: a malfeasance that it is forbidden of the court to do?
Nothing in our Constitution permits the Supreme Court to legislate.
It is ultra vires the Supreme Court to amend the Constitution or any other statute, or by its decisions render inoperable any statutory provisions. There is nothing like “Judicial legislation” or “legislative judgment” in the judicial powers vested in the Supreme Court, like any other court of law, under the Constitution.
