To make headway, the constitution must be amended – Lawyers

Lawyers have explained that based on the constitutional provision that local government elections must be conducted by various electoral commissions in states, neither the Independent National Electoral Commission (INEC) nor the National Assembly can create any other body to do so. Speaking on the issue, Dayo Akinlaja, a Senior Advocate of Nigeria (SAN), said the […]

Lawyers have explained that based on the constitutional provision that local government elections must be conducted by various electoral commissions in states, neither the Independent National Electoral Commission (INEC) nor the National Assembly can create any other body to do so.

Speaking on the issue, Dayo Akinlaja, a Senior Advocate of Nigeria (SAN), said the Nigerian constitution empowered states to conduct local government elections; hence no other commission is permitted to do that.

“To that extent, the calls for State Independent Electoral Commissions (SIECs) to be scrapped and replaced with the INEC, or the alleged move by the National Assembly to establish a commission to conduct election for local councils cannot be in sync with the thrust and tenor of the extant constitution.

“Until there is an amendment to the constitution, the legitimate authority to conduct elections at the local government level is the state government,” he said.

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On his part, Tawo Eja Tawo (SAN), said the National Assembly lacked the power to create a commission for the conduct of local government elections because both the electoral act and the Nigerian constitution stipulate that states should take charge of such matters.

“Strictly speaking, even the Supreme Court judgement is not supposed to have been made, but being a policy court, they would look at what benefits the country, not necessarily the law,” he said.

He said the provision of Section 162 of the Constitution for a state and local governments’ joint account implied that the states would have oversight on local governments, but the arrangement was abused.

“The Supreme Court has seen that the local governments are no longer carrying out their functions at the grassroots and they have decided that grassroots development is important.

“Conduct of local government elections through the SIECS is the law for now until it is amended.

“I think the National Assembly should allow the states to make the laws on local government elections,” he added.

Similarly, Olisa Agbakoba (SAN), said the law provided that INEC should conduct the presidential, governorship, National Assembly and state assembly elections, excluding the local governments, which is for the states.

“It is a no-brainer; I can’t understand why we should be split between who should conduct local government elections,” he said.

Also, according to Abeny Mohammed (SAN), Sections 7 and 8 of the Nigerian constitution provide that states should conduct local government elections.

He added that section 162 also provides for money to be allocated for local governments under states’ supervision to prevent mismanagement.

“The Supreme Court judgement stands Section 7 on its head, but the justices took the decision because of the overbearing nature of the states,” he said.

He added that the autonomy granted to local governments under the constitution still placed them under the states.

In his response, Ikoro N. Ikoro said the counter affidavits filed by states in the Supreme Court during the hearing of the suit on why they don’t have democratically elected local council executives as anticipated in Section 7 of the constitution of the Federal Republic of Nigeria, 1999 (as amended) mentioned lack of fund and other reasons.

He said Section 197(1) (b) of the extant constitution provided the State Independent Electoral Commission (SIEC) with the composition and powers in part II of the Third Schedule.

“The big problem is that the state seems to be the tier of government that may be benefitting from the failures of the SIEC; therefore, a state governor may refuse to fund the body, which will clearly be against the decision of the Supreme Court.

“On one hand will be the punishment of allocation not going to the local government, while the other hand will be a constitutional amendment to delete Section 197(1)(b) of the constitution and the National Assembly would pursue a constitutional amendment to set up an Independent National Electoral Commission for the purposes of local government autonomy.

“However, as the law stands, it is the SIEC that has the sole right to conduct these elections, and failure to conduct same will place a pause on funds for that particular local government.

“Local governments should be allowed to have their chairmen, councillors and make bylaws, while internally generated funds are anticipated by Section 7 of the constitution for grassroots development,” he said.

On his part, Hameed Ajibola Jimoh believes the Supreme Court decision is a legal authority for each local government in Nigeria to claim her outstanding entitlements/funds from respective state governments and the federal government by ‘constructive trusts’ as they could sue their respective states to claim their funds.

“In my humble view, the Electoral Act provides (to the best of my knowledge) that State Electoral Commissions shall conduct the local government councils elections. For the actualisation of true federalism and autonomy, local government councils should conduct their elections per local government council,” he said.