Anambra local councils: Between constitutionality and supreme court ruling

Governor Charles Soludo’s endorsement of the new Anambra State Local Government Administration Bill 2024 has ignited a fresh twist in the local government autonomy debate. The new law, which leverages the provisions of the 1999 Constitution (as amended) on joint account, apparently exploits the unresolved logjam between the grund norm and the Supreme Court’s intervention, further setting a dangerous precedence for antagonists of local council autonomy, LAWRENCE NJOKU reports.

Amid opposition, the signing into law of the Anambra State Local Government Administration Bill 2024 is an indication of no respite yet for the emancipation of the third tier of government.

Speaking shortly after signing the bill, the Governor Charles Soludo said that section 7 of the 1999 Constitution empowers state governments to enact laws for the administration of local government areas, insisting that, “absolute autonomy to the 774 local government areas in the country is impossible. In fact, it is a recipe for humongous chaos. The attendant challenges before the issue of local government autonomy are such that would certainly deepen the fate of the system and spell doom for the expected beneficiaries of the process if not well planned.”

He also explained that the new legislation “aims to ensure consistency, transparency, and collaboration among different tiers of government. Soludo stressed that the new laws by the Anambra House of Assembly are therefore, “consequential to give operational life to the Supreme Court judgment and not to undermine it”, adding that, “if the State House of Assembly abdicates this constitutional duty, the local government will then have no law on the use and management of its finance.”

A perusal of the new law revealed a good focus on how resources accruing to the local governments would be managed. Sections 13, 14 and 16 sought to compel the local governments to pay their federal allocation into an account to be established by the state government.

Section 13 specifically stated that the state shall maintain a “state joint local government account”, where all federal allocations to the local governments must be paid in, while section 14, insisted that the allocations must be paid into the joint account within two working days of their receipt.

It went further in Section 16 to empower the state government to deduct some percentages from the allocation should it receive it on behalf of the councils before handing the remaining to the local governments.

Voices had risen against the state government when the bill was presented and passed by the state House of Assembly. Those who commented against the bill then, insisted that it was a move to circumvent the judgment of the Supreme Court, which granted full financial autonomy to the local government areas as a way to breathe fresh air into the system and liberate them from the stranglehold of state chief executives.

The apex court, which granted financial autonomy to the 774 local government areas in July this year, directed the Accountant General of the federation to pay allocations directly to their accounts.

In response to this, the federal government had empowered a 10-man inter-ministerial committee to implement the ruling of the Supreme Court. Few days after the judgment, however, state governors, especially those without elected council executives, had asked for a three months moratorium to enable them conduct elections. This is to avoid being denied allocations, since there is a provision in the judgment empowering the federal government to withhold allocations to councils without elected executives.

In order to be counted among those with elected council executives, the state governors resorted to all manner of mechanisms to achieve them. These included jettisoning party primaries and hand picking the candidates, who stood elections for their parties in the states, as well as churning out laws to give credence to other means of financial control of the councils.

Anambra State for instance, which never held council elections for 10 years under various administrations including Chris Ngige, Peter Obi, and Willie Obiano, amended the state laws three times within August and September 28, when it held the exercise.

They had at first expunged all sections and clauses relating to conduct of elections in the local government, amended tenure of elected council executives to two years and nomination of candidates to be conveyed to the Commission can only be entertained if it was signed by the Anambra State chairman and secretary of the political party elected at the congress monitored by the Independent National Electoral Commission (INEC).

This negates the earlier practice where the right and responsibility to present candidates for election in the local governments were bestowed on the national chairman and secretary of political parties.

Soludo’s government had abolished this practice through its state law to boost his hold on a faction of the All Progressive Grand Alliance (APGA), as well as his rejection of the Edozie Njoku led national leadership of the party. The scheme worked well for him as his party had won all the seats in the election.

It was almost a similar scenario in other states such as Ebonyi, Enugu, Akwa Ibom, Plateau, Oyo and Kogi where council elections were held. The ruling parties won all the seats.

In some of these states, the governors gave out nomination forms for the elections to the candidates without asking them to pay. Some of these candidates did not undergo party primaries. In some states with a semblance of party primaries, money paid for the forms were refunded to members of the ruling party who failed in the exercise. It is being viewed that the “free forms” to contest and win the election is a weapon of control by the chief executives.

Meanwhile, moved by the discontent that arose over the planned new law on the finances of her local governments, the senate had last week asked the state governors to perish the idea of making the councils to remit allocation into a joint account. It stated that the councils should be allowed to flourish.

The senator representing Anambra North (Labour Party), Tony Nwoye, had brought the matter before his colleagues alleging moves by the state governors to circumvent the judgment of the Supreme Court by passing counter laws through their respective Houses of Assembly.

Nwoye, who cited the case of Anambra State, explained that some governors were pushing bills to their state Assemblies to enact laws on remittance of the allocations to joint accounts contrary to the ruling of the Supreme Court, stressing that the trend was dangerous to the progress and entrenchment of rule of law should it be allowed to fester.

With Governor Soludo assenting the bill, Anambra Civil Society Network, has declared that it was recipe for anarchy and destabilisation, stressing that the governor’s action was an affront on the Supreme Court judgment as the state government had no power to keep, control, or disburse allocations from the federation account to the local government areas.

Leader of the group, Chris Azor, while acknowledging the need for collaboration with local government administration in addressing common issues around salaries, emoluments, pensions, and gratuities of primary school teachers, local government staff, primary healthcare officials, argued however, that they could be achieved without an overarching law that negates local government autonomy.

“The governor should deploy his expertise and intellect to further entrenching transparency and accountability structures in local government administrative architecture and ensure integrity in its governance standards rather than control of allocations,” he stated.

An Enugu lawyer, Nonso Ogbe, also faulted the action of Soludo as “undermining and ridiculing” the judgment delivered by the Supreme Court on financial autonomy for local governments. He argued that the apex court took into consideration the inability of state governments to discharge their financial responsibilities towards the local governments before passing the judgment.

Ogbe told The Guardian: “What the Supreme Court did is what we refer to as judicial activism. What this means is that at times in trying to give life to a given law, the courts may embark on some proactive measures or judgment that may circumvent some hurdles on the way of achieving the objectives of a given law.

“If you had gone through the judgment delivered by the Supreme Court in July, you would see that it was never ignorant of the provisions for local and state governments’ joint account, but that most state governments have failed to honour the various constitutional provisions that would have ensured that funds meant for local governments are utilised judiciously for development. So, the Supreme Court now embraced judicial activism in making a direct order that these funds should be disbursed directly from federation account to local government accounts

“Now going back to make a law against it is a mockery of the Supreme Court judgment. Let me make something clearer here, when there is an issue about judicial pronouncement and there is a new law in place, that new law may alter the judicial pronouncement. The Supreme Court is the highest court of the land and if the House of Assembly should go back and make a law that is at variance with Supreme Court law is an attempt to undermine the Supreme Court of Nigeria and to a great extent it will be deemed contemptuous.”

Asked about the implications of the current development, Ogbe said: “This decision was made in the original powers of the Supreme Court on constitutional interpretation when the federal government took the various state governments to court to interpret the workings of these provisions and the court has made pronouncement. It is a serious issue but if the law is implemented in Anambra State, will make the federal government withhold funds meant for the state because it is a contemptuous act.”

But a Professor of Constitutional Law, Prof. Achara, disagreed. To him, what the Anambra State House of Assembly did in passing the local government bill and its assent by Governor Soludo was in order and did not in any way undermine or contravene the judgment of the Supreme Court on financial autonomy for the third tier of government.

He said: “What the Supreme Court ruled in July over financial autonomy is wrong. But that is the limit because you should only criticise the Supreme Court, you don’t disobey it. What the Anambra State House of Assembly did through the local government is to give life to the Supreme Court ruling. The state government went to the House of Assembly that comprised all representatives of the local government and got them to agree on how they want the funds to be managed. It is within their constitutional right to do so, and not just undermining the apex court.

“The state government is saying that the local government money, which the Supreme Court said should be sent directly to the local governments, should be sent to them. But what the state government is adding is that as a people, who have created the local governments by section 7 of the Constitution, that the House of Assembly has a right to pass a law to regulate that local government and they have done it by saying that for joint services, local governments should, once any money come to them from federal account, they should pay a percentage into the joint account created by the House of Assembly. Constitutionally speaking, it is not open to any reasonable criticism. It is not unconstitutional for the House of Assembly to have passed such a law.

“What the National Assembly should do if they do not like that law is to amend the Constitution and remove that issue of joint account and go one step further by passing a law to say that no state should use any federally allocated amount sent directly to the local government for any joint purposes. But what they have done now in my view is lawful until the Constitution is amended”, he argued.