Prof Mike Ozekhome is a constitutional lawyer and human rights activist. In this interview monitored on Channels Television, he speaks on the Supreme Court judgment that granted financial autonomy to local governments, among other issues
Are you cautious or celebrating over the recent judgement granting financial autonomy to the local governments?
I’m not cautious, I’m celebrating. I did a write up about it which has gone viral celebrating the Supreme Court on this judgement. I’m surprised about the raucous and brouhaha generated from certain quarters over a judgement that shredded everything. It’s simply saying, local governments do have your independence back.
I always like to discuss in an attempt towards nation building, issues by situating from historical perspective. Remember that there were three regions in Nigeria; the Western Region, Northern Region and Eastern Region. By August 10, 1963, the Midwest Region was created out of Western Region through a popular referendum for the people, thus having four regions.
Under section 140 of the 1963 Republican Constitution, all the regions shared from proceeds of products produced in their respective regions – cocoa in the West; cotton, hides and skin as well as Kano groundnut pyramid in the North; oil palm produce in the East, and rubber and timber in the Midwest. Fifty per cent was paid to the region that had that product, 20 per cent was paid to the Federal Government and 30 per cent was paid to a distributable account from which all the regions, including the region that has already taken its 50 per cent share.
That was the situation until the military putsch of January 15, 1966, led by Major Chukwuma Nzeogwu and other young military officers. General Yakubu Gowon later created 12 states. Today, we have 36 states and 774 local government areas. But by 1976, a system of local government was established in Nigeria, which has been given imprimatur – constitutional recognition.
Section 7 of the 1999 Constitution provides that a democratically elected government shall be ensured and that state governments can only make laws that ensure that these local governments are democratically elected in terms of their structure, finances and functions. The question is: how many tiers of government do we have by this historical background that I have given? We have three tiers of government – the federal government, the state governments and the local governments.
In 2014, we fought frantically to make it two tiers, so that states which are the federating units will be the second tier. But of course, over 600 recommendations of the 2014 National Conference are all being looked into except things like the National Anthem, which I humbly also with all respect, spearheaded.
Section 162 of the 1999 Constitution provides for how monies are to be received and distributed. Section 5 declares that money or allocations, standing to the credit of local government councils shall be paid to the states. What was that for? It is for the benefit of the local government areas. Then sub-section 162 says there shall be a joint state/local government accounts into which these monies shall be paid.
In other words, the states were just being made vehicles, messengers, post agents to send this money to the local government councils, but that has not been the case. What has been happening is that, after the Federal Government takes its own, the states take theirs, but because this money is being paid into a joint account, warehoused by the states, they again waylay the one meant for the local governments.
In an article I wrote on October 17, 2020, I declared that the states waylay like bandits, allocations meant for the local governments. I wasn’t a fantastic fan of President Muhammadu Buhari’s government style, but that was one instance I praised him for issuing Executive Order 10, which said money standing to the benefit of federal and state courts, which is supposed to be paid to the National Judicial Council, but which were being waylaid by the governors concerning state courts, should be paid directly to the heads of these state courts. So, substitute states courts for local government councils.
I think this is a judgement that is salutary and actually be celebrated because like the Attorney General has said, it has led to the emancipation of local government councils from the grip of states. The local government councils are nearest to the grassroots being in charge of culverts, maternities and dispensaries, among others.
There is too much money at the centre and these monies should be distributed to states and local governments
Implementation is a question here; what happens to local government chairmen installed by the governors?
Don’t you think the governors would be by the corner to get the money through one way or the other? Well, it is for the local government chairman to now stand. In fact, I see the judgement as empowering local government chairmen by taking some powers from the state governments.
The state governments send their commissioners for finance to Abuja at the end of every month to go and share money for the states, coming from a distributable account. Don’t forget that in Nigeria, we only know how to share, we don’t care to know how the cake is baked.
What it means is that council chairmen have been empowered by the judgement to also travel to Abuja, where we all go to and sit down with the state governors and ask the ministers: What is our own share? Instead of their fate being decided by proxy by the state governors, who will take the money and then cease part of it at source, remitting to the local government councils what they feel.
By the way, I thought we should be celebrating on the ground that this is so good to cede away from the past, from the allocations of the Federal Government because the chairmen can now sit or argue that what you are saying that is due to us is not actually due to us.
It’s not what we should have. What is the Federal Government doing with the kind of money it’s having, 62.68 per cent of national revenue, and all the 36 States are having 26.72 per cent, while all the 774 LGAs get 20.60 per cent of our national revenue.
I think what we have is an over bloated Federal Government that has been over pampered with too much money. That is why everybody fights and dies to go to the centre rather than staying in the states or local government areas. There is too much money at the centre and these monies should be distributed to states and local governments.
If the Federal Government does not have too much money, why are crying that it should even shed its weight, its behemoth and elephantine weight? Why are we creating a new Ministry of Livestock? Livestock could just be made a department of the Ministry of Agriculture because when you create a Ministry of Livestock, we are going to have permanent secretaries, special advisers and senior special assistants, who will have special assistants and personal assistants.
You have different layers of government building up, instead of shedding. A Ministry of Livestock should not be an autonomous ministry. It should just be an arm, just a department of Ministry of Agriculture. You can even collapse the Ministry of Agriculture with Water Resources and Livestock and Forestry, so that we have one ministry.
You can see what is going on in Kenya. After the people took their destinies in their hands, their president has dissolved his entire cabinet, including the Attorney General, leaving only the Foreign Affairs minister and one or two others he’s going to reconstitute because the people said his government is too expensive.
He has stopped budgetary allocations to the office of the first lady, second lady, third lady, whatever you call them, foreign travels, purchases of new vehicles, refurbishment of infrastructure because the people were being taxed, following the $2.7 billion excessive finance bills act which was meant to even tax bread.
What now happens to caretaker chairmen?
The judgement is clear. The Supreme Court is trying to rescue the local governments, which are supposed to be democratically elected under section 7 of the Constitution..
Have we not witnessed it since 1999; governors dissolving local governments that were duly elected by the people and putting their minions as caretaker chairmen? There is nothing like caretaker chairman in the constitution, it’s an aberration.
What the Supreme Court is saying is that henceforth, we only pay money directly to local government chairmen, but they have to be democratically elected, not handpicked by governors as caretaker chairmen. In fact, the Supreme Court gave injunctions, restraining governors from further dissolving democratically elected council chairmen and then appointing their own.
What it means is that governors who presently have caretaker chairmen should go to the drawing board by ensuring that elections are held to bring in democratically elected council chairmen and not handpicked ones.
They are the ones that will enjoy this largesse from the federation account. What it means is that those for the local governments that are not democratically elected should be warehoused until they get democratically elected council chairmen.
What happens to the Joint Account Allocation Committee (JAAC)?
The law is not what is on the paper until it’s interpreted. The prophecies of what the court will do are nothing more pretentious; it is what I mean by law. That was how it was interpreted by the great jurists. The Supreme Court has its progressive interpretation of the law to cure a mischief that has been there.
So, we now know what section 162(3,4, 5 and 6) are saying. So, the question of amendment to me becomes otiose and superfluous. I don’t think you need any amendment except that judgements of the Supreme Court themselves can also be overridden by the National Assembly because they have the power to make laws for the peace, order and good governance of Nigeria.
So, the National Assembly may decide to amend the Constitution going through section 9 of the Constitution as to how to amend, and if they do want to amend it or remove certain sections or insert certain sections, that is okay, but you cannot use an Act of Parliament out of the National Assembly to amend the provisions of the Constitution. Only the Supreme Court can through progressive interpretation, remove certain mischiefs and say what the law has declared.
Don’t forget that the Supreme Court is the apex court in the land and it is clear that it is final not because it is infallible; it is infallible because it is final. So, it has made the judgement clear. Those who are not satisfied cannot go to another Supreme Court because we don’t have a second Supreme Court.
All that they can do now, perhaps, is to go to the National Assembly to say we don’t like what has gone on, we want an amendment to again override the decision of the Supreme Court. But I think there is something to override; it is a good judgement to me with all humility as a constitutional lawyer.
What would the relationship between the states and local government be like?
Well, there would be some muscle flexing. Before now, governors have been treating the local governments as their minions, their appendages.
When they say ‘jump’, the local government chairman would only ask, ‘how high should I jump’? When the governor says ‘run,’ the local government chairman would ask, ‘how fast you want me to run?’ But now you can’t do that. Now, a local government chairman knows his own sphere of influence.
The state governors now know their own limitations. So, a local government chairman can now tell a governor, excuse me sir, this money is meant for us, we are to use it on behalf of the people, so you can’t tell us to give you part of it, I’ll be responsible and accountable to the people. The people themselves can go to the local government chairman and say ‘we know
The Supreme Court judgment is clear. If you want local governments in your state to receive money from the Federation Account, then ensure that they are democratically elected
you have such an amount. We want you to use it for us. In other words, the three tiers of government which was brought in power since 1976, has now come into play, no longer two tiers. We have been seeing three tiers in theory, but actually two tiers of government in practice – federal government and state government.
What the Supreme Court has said is that these three tiers of government should actually play out not only in theory, but in practice. So, local government chairmen have been energized and empowered, no doubt about that, while the powers of state governors have been whittled down.
I can also say that the power of the Federal Government, contrary to arguments, are thereby being whittled down because hitherto, that the small local government chairmen can also come to Abuja and hold that joint allocation meeting with the Federal Government to know what is coming to them not negotiation being done on their behalf.
Like MKO Abiola would say, ‘if it takes a man 20 years to learn madness, how many years will it require to practice it. If we have been practicing something since 1999, it is not working out and we didn’t know where to go, and the apex court now decided to show us the way to go, I think it calls for celebration.
That is why in my write-up recently, I said I feel the Supreme Court and I’ve seen it, I’m not mincing words about it, that it has not made the Federal Government an over lord over the local government and over the states contrary to what people are saying.
Rather, the Federal Government has now been told, this is your sphere of influence, stay there; local governments, this is your sphere of influence that has been clouded over the years, you now have it. I don’t see anything to worry about that at all. I don’t see how this judgement would empower the Federal Government to now become something else against the local governments.
What happens to states where there are more local governments than as contained in the Constitution?
The judgement is clear. Incidentally, it was done under President Bola Tinubu as governor of Lagos State that development councils were created because a state like Lagos that is the most populous in Nigeria with over 25 million people was still having 20 local governments.
So, he creatively decided to create development council but what this judgement is saying is that if you are not a democratically elected local government council, you cannot have this money under sections 162(5 and 6) of the 1999 constitution. It means that money should now be ploughed to those local governments that are in existence democratically, but I can tell you that politicians have a way for being creative.
All they can do is if there are development council areas not recognized by the Constitution, neither by section 7 nor by the latest judgement of the Supreme Court and they are still in existence, all they would do for example, let’s say, Alimosho LGA under which I lived for many years until some years ago when I came to Abuja, if there are development council areas created under it which is not recognized in section 3 of the Constitution, what they can do is money should be sent to those constitutionally recognized local Government Areas. They can now meet to say, look, you know that this money has come to you directly, but don’t forget that we also now have a development councils.
They can do that internally to share; that is your internal business. Nobody can control that. But for now, the money can only go to those local government areas named by the Constitution. Don’t forget that they’re even named in the Constitution the 774 local government Areas. Their names are there, from alphabet A to Z,. Those are the local governments that the money will go to.
What should be the time frame to conduct local government elections for those with caretaker arrangement?
It’s left to them. I have said it again and again. The Supreme Court judgement is clear. If you want local governments in your state to receive money from the federation account, then ensure that they democratically elected, whether you do it tomorrow or in January next year is left for you.
Whether you don’t want to do it at all, it’s left for you, nobody will force you. But the important thing is that if what you have in place is caretaker local government council, be sure that it will not have money from the Federation account.
Are you not worried that there would possible backdoor influence despite the judgement? Have we not been clamouring for restructuring?
What is the business of the Federal Government having 67 items on the Exclusive Legislative List? What is the business of the Federal Government licensing your vehicles? What is the business of the Federal Government having the so-called unity schools; secondary schools which should be a matter for states and local governments?
We have been clamouring for restructuring. It’s not this judgement that is making it centric, rather the government is actually breaking it down.
The three tiers of government recognized since 1976 and under section 7of the Constitution, and under sections 2 and 3 of the Constitution, have actually been made to come into effect, a local government chairman can now challenge the Federal Government by saying, I’m entitled to X amount and you are giving me A amount, that is not my due. Before now, they could only do that through the states, but they can now cry out.
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