There have been very few judicial interventions, and there will never be ones as significant as the judgment delivered by the Supreme Court on July 11, 2024, on the Local Government (LG) autonomy suit filed by the country’s Attorney General and Minister of Justice, Mr. Lateef Fagbemi, SAN, in May 2024. In an article on this on May 31, which was widely published in both traditional and social media in Nigeria, I sought to alert the nation to the profound implications of a scenario in the context of the much-anticipated judgment.
The argument made in that article can be summarised as follows. The litigation had the potential to be disruptive with respect to Nigeria’s outlook on federalism; because it would move the country further in the direction of centralisation, which is in line with the unitary model of government. It was a veiled attempt to weaken state governments, while strengthening the central government, thereby moving the country away from the goals of devolution of powers to the states, which are the federal units in Nigeria’s evolved federal system. If the federal government’s position was affirmed by the Court, in practical terms it would mean that the average state and its LGAs would, in most likelihood, begin to work at cross purposes. That is, the state would move in one direction, while the LGAs, who were supposed to supervise under the Constitution, would move in the other; and this would be the basic recipe for major governance crises. The letter called on the President to order the Attorney-General to withdraw from the litigation process; and concluded, “The consequences of a Supreme Court decision in favour of the Federal Government are too grave to be contemplated. We must stand in favour of the Federal Government and against a unitary Nigeria.” Several newspaper editorials published afterwards clearly incorporated the arguments made in the article.
Decision
The Supreme Court’s judgment has since been delivered; and it fully agrees with the Attorney-General’s position. Stating that its authority to decide on the relationship between the central and state governments is unlimited, the Court categorically declared that “the justness of the case demands that local government (LG) allocations should henceforth be paid directly into the accounts of the LGs”; and that governors will not exercise the power to dissolve elected LGAs, nor interfere with the operation of the latter. In this respect it is clear that the judgment has, in its key elements, confirmed our worst fears. This is the point to which this article is directed. Having researched and taught courses on federalism and comparative political economy to undergraduate and postgraduate students in Nigeria and elsewhere, once again, it is my duty to share my views on the wider implications of the Supreme Court’s judgment for Nigeria’s governance structure going forward; and this in as simple a manner as possible.
I have closely followed the various analyses on this subject. One thing is clear from this that most commentators do not understand the real meaning of this judgment and its implications for jurisprudence and governance in the country. They marginalise the historic nature of the judgment and its inevitable consequences on the organisation of relations between the spatial constituencies that make up the nation. While there may be momentary or short-term (political) gains on the part of litigators and contingent LG practitioners, my concern is that these important stakeholders may not be fully aware of the broader implications of the judgment for federalism and good governance in Nigeria, despite their advertised commitment to these twin concepts. On air and in print, we hear a lot of rhetoric from pundits whose analyses are largely driven by the usual populism and based on emotions rather than rational conclusions. But we must move beyond this emotion-laden analysis and make another attempt to clarify the issues. In doing so, I attempt to highlight the implications of the judgment; discuss the possible follow-up actions expected of proponents of the LGA autonomy initiative; and draw attention to the (hidden) consequences for governance in Nigeria. I had the opportunity to do so in a webinar a day or two after the decision, the video clip of which, I understand, is already in circulation.
Implications, in seven chapters
First, it is clear that the July 11 decision is completely at odds with the principle of federalism, to which Nigeria professes commitment, and by which the country is named the Federal Republic of Nigeria. Acknowledging some minor variations, the position in the federalism literature is clear that a federation “denotes a method of dividing powers so that general and regional governments are coordinated and independent within an area.” KC Whicher, considered the father of the federalist idea, described it this way in his seminal work, The Federal Government, first published in 1963. The same applies to the founding fathers of American federalism, whose treatises on the subject were published as The Federalist Papers, described by the US Library of Congress as “a series of 85 essays written by Alexander Hamilton, John Jay and James Madison between October 1787 and May 1788” aimed at persuading the people of New York “to ratify the proposed federal Constitution, … which was drafted in Philadelphia in the summer of 1787.” While the contextual specificities of these sources are not in doubt, all essentially informed by the nature of the American experience, they nonetheless represent a crucial starting point in any informed discussion of federalism. Crucially, they all agree that federalism is about the division of governmental powers between a central government and federal units. None imagined the concept of ‘federal units’ to go beyond its general meaning; And thus, no one has suggested that municipalities and LGs could in any way qualify to be referred to as 'federal units'. This is why no constitution, including the US Constitution, dares to mention counties, municipalities or LGs by name, as the case may be. In Germany there are 16 federal units called 'Länders'. In the Swiss federal system, they are 'cantons', and of course, both Nigeria and the US have, among others, states. There is no suggestion in any of these that municipalities are anything close to federal units; because they are not.
In the Swiss federal system, there are actually about 2,300 municipalities, which are so small that they are basically governed through referendums, in a manner reminiscent of the era of direct democracy. But the federal foundation of the Swiss system is underpinned, firstly, by the principle of subsidiarity, that is, any power exercised by a lower level of government is not delegated to a higher one; and secondly, that the membership of the executive branch at the central government level is made up of representatives of the federal units, the ‘cantons’, whose head (the presidency) rotates from one ‘canton’ to another every two years. This clearly highlights one of the more significant inconsistencies in the Nigerian 1999 Constitution (as amended), which includes a list of about 774 LGAs. Yet, the Constitution did not make the mistake of claiming that the LGAs were federal units. Rather, Section 2(2) states that “Nigeria shall be a federation consisting of the States and a Federal Capital Territory.” This is why the governance structure of the LGAs is not only located within the State domain, but is, in fact, made an adjunct to the same throughout the document. The Supreme Court judgment referred to here has made a total nonsense of this theory, and declared LGAs to be federal units for all intents and purposes. This is not fair.
.gif)
Second, the idea of clamouring for LGA autonomy and transferring the LGs’ share in the Federation Account directly to them is not historical. It negates the fact that before 1999, when LGs received funds directly from the Federation Account, many of them, especially the more cosmopolitan and more populous ones, which had more staff and a wider range of infrastructure challenges, found it practically impossible to survive. They were not paying salaries to their primary school teachers, and their administrative staff were due several months’ salary. To imagine then that we think sending funds directly to LGAs is all that is needed to advance the cause of good governance is some complex idea that negates the fact of history. In fact, the whole idea of the State Joint LG Account Committee was an initiative to solve this problem.
Third, it is clear that the Supreme Court’s decision on this subject of revenue allocation is completely at variance with the provisions of the 1999 Constitution (as amended). In Section 162 (6), the document makes it clear that “Each State shall maintain a special account to be called the State Joint Local Government Account into which shall be paid all allocations to the local government councils of the State from the Union Account and from the State Government.” And in subsection 8, it delves deeper into the matter by clearly stating that “money credited to the account of the local government councils of a State shall be distributed among the local government councils of that State on such terms and in such manner as may be determined by the Legislature of the State.” So, in the face of these clear provisions, where did the Supreme Court find the basis for its decision according to which money from the Union Account starts flowing directly and outside the purview of the State to the LGAs? There is no such basis.
• Mimiko is a Professor of Political Science at Obafemi Awolowo University, Ile-Ife, and a member of the National Institute for Policy and Strategic Studies, Kuru (femi.mimiko@gmail.com; @FemiMimiko)
to be continued
Source link
