Can the local councils now breathe?

There are drumbeats; and there is a muted gnashing of teeth. President Bola Ahmed Tinubu and the All Progressives Congress (APC) are celebrating the July 11 Supreme Court decision granting financial autonomy to the local governments. They see it as a major victory for, you guess it, democracy. None of us should be surprised that […]

There are drumbeats; and there is a muted gnashing of teeth. President Bola Ahmed Tinubu and the All Progressives Congress (APC) are celebrating the July 11 Supreme Court decision granting financial autonomy to the local governments. They see it as a major victory for, you guess it, democracy. None of us should be surprised that state governors are not beating the drums but gnashing their teeth. It will be rather foolish of them to celebrate the judgement targeted at them. Now, the local governments and development areas can breathe. Or can they?

The attorney-general of the federation had sued the 36 state governments on behalf of the federal government over the lingering demands for financial autonomy for the local governments. Under the revenue allocation formula, the local governments have shares in the funds accruing to the federation account and are duly allocated their shares monthly by the federation accounts allocation committee which disburses the fund to the federal, state and local governments. 

The funds are first domiciled in the local government joint accounts committee in each state from where it is parcelled out, at the alleged whims of their excellencies, to the local councils. Their excellencies, I presume, are not unaware of rumours about their itchy fingers. Allegations that they starve the local governments ring loud and clear. The federal government believes this is wrong and that the only way to keep hands of the state governors out of the cookie jar is for the FAAC to directly pay the monthly share of each local government to it.

The case went before the Supreme Court. A seven-man panel of the apex court looked into the matter and were persuaded that financial autonomy will save the local councils. Six of the justices said yes to that but the seventh justice said no. He dissented.

• Tinubu turning Nigerians to beggars with palliatives – Afe Babalola
• In search of greener pasture, many Nigerians sleep in cars, abandoned buildings in Abuja

The Supreme Court’s supreme pronouncement will end all that in one fell swoop, right? Not so fast. It is easy to see why the president and his acolytes believe the judgement is an uncommon achievement for the administration. If the local government system functions as it should, Tinubu dons a new cap as one president with the courage and the commitment to the full flowering of our kurukere democracy. It is something – and something worth rolling out the drums, absent Sunny Ade.

In a nation famous for occasional flashes of what passes for the sensible, the apex court pronouncement is insanely celebrated as a landmark achievement in our constitutional government – evidence, I believe, that both democracy and federalism are losing their shackles. The drummers believe that the Supreme Court decision is a judicial step towards the ultimate institution of a third tier of government in law and in fact – except that the constitution does not recognise the local government system as a third tier of government. The Supreme Court seems to have floated its decision on the winds of falsehood that attends the belief that if the local governments are funded by the centre, it must be accorded the unconstitutional status of a third tier of government. It is not that clean cut. But the loud celebrations of victory deafen us to the wider implications of the judgement and what will confront us the day after. 

I do not think anyone will be foolish enough to disagree with the right legal and constitutional resolution of the financial autonomy for the local governments, but the judgement has a k-leg. The apex court has violated the process by which a constitutional government corrects itself in errors of the head and the heart. It moves us from a constitutional government to a government legislated by the judiciary. I make the point, not as a lawyer but as an old labourer in the vineyard of a nation quite often given to shooting itself in the foot with problematic solutions that complicate problems.

By its ruling the apex court went beyond its constitutional brief and assumed the right to make laws and determine how a government should be run. This is not the way of a constitutional government. Law-making is the business of the legislature. The business of the judiciary is to interpret the laws and ensure that the players play by the rules stipulated by the constitution. That is the way of a constitutional government with the separation of powers. If one arm usurps the powers of another arm, it deviates from the principles and the practice of the separation of powers. And invites wahala.

The framers of the current 1999 constitution, the whipping boy of the idle national assembly, treated the local governments as administrative units of the states and stipulated the mode of paying them from the federation account. They decided, as per section 162, subsection 6, that “Each state shall maintain a special account to be called ‘State Joint Local Government Account’ into which shall be paid all allocations to the local government councils of the state from the federation account and from the government of the state.” 

The committee was created by the constitution, not by the state governors. That provision has not been amended and, therefore, does not empower the apex court to make a pronouncement that ignores a valid constitutional provision. The decision by the highest court in the land cannot over-ride the constitutional provision. I believe that is the law as it stands. Financial autonomy for the local governments is important, very important. But a constitutional government in which each of the three arms of government scrupulously adheres to its sphere of constitutional responsibility is much more important. 

 The section of the constitution under reference has defeated all attempts so far to treat it with ignominy. Two former presidents, Obasanjo and Buhari, butted their heads against that constitutional wall of granite. Obasanjo made a law to permit the account-general of the federation to look over the shoulders of the local councils to see what they were doing with their allocations. Abia State promptly challenged the law. The Supreme promptly struck it down. 

It dismissed the federal government as a busy body and ruled that it had no right to know what the local governments did with their money. President Buhari’s executive order empowering the auditor-general of the federation to audit the accounts of the local councils suffered the same fate. So did a proposed constitutional amendment that would have removed section 162 and pave the way for financial autonomy for the local councils.

What has changed? Nothing. Section 162 stands as it is. Why will the apex court over-ride that constitutional provision in its decision? Beats me. The highest court in the land has critical and enormous responsibilities to protect and defend the constitution, not some of the time but all of the time. Their lordships might have been persuaded that financial autonomy will make some sense of the local government system and bring governance nearer the people. They might be right, but they probably gave in to sentiments at the expense of constitutionality. There is no such thing as breaching the law for a good cause. If the apex court feels inclined to dance to the drumbeats of political sentiments, it imperils our system of government. A breach of the constitution by the court at any level is a tear in the fabric of our constitutional government and the rule of law.

The state governors have not challenged the ruling because they cannot appeal the judgement of the apex court. Still, the law permits them to ask the court to review its decision in the name of equity and justice. Our right to question judicial decisions is a given and must be exercised in order to expand the frontiers of legality and constitutionality. 

I applaud Justice Habeeb Abiru, the lone dissenting voice in the Supreme Court ruling. He acted to save the constitution, the rule of law and prevent the courts at all levels from taking it upon themselves to act beyond their constitutional brief. I have read part of his dissent. It is sound and sensible. It is an argument against the court permitting itself to be used by the politicians to pursue a political prize in violation of the supreme law of the land. I am going to quote him at length here because he put it as it should be.

He wrote: “Section 162 (5) and (6) of the 1999 constitution stipulates the mode of payment of the funds due to the local government areas of states from the Federation Account.

“These provisions are explicit and self-explanatory. They do not admit, accommodate or concede the direct payment of the funds due to the local government councils from the Federation Account to the local government councils. “It is my understanding, on reading the provisions of Section 7 of the constitution along with those of Section 162 of the constitutional together, that the essence of the mode of payment of the funds due to the local government areas of a state through the state provided for in the constitution is in recognition of the fact that the local government areas are constituent parts of and are subordinate to the state and to protect the concept of federalism contained in the constitution. 

(To be concluded)