In defence of local government autonomy 

In recent time, politicians have contracted prominent lawyers to denounce, in strong terms, the agitation for local government autonomy being championed mainly by the Nigeria Union of Local Government Employees (NULGE).

It is argued by the forces against local government autonomy that:
those who advocate local government autonomy lack a proper understanding of the concept of “true federalism”.
In a “true Federal system”, there are only two tiers of government – the national or central government and the States. The local government is not a tier of government, and
Calling for local government autonomy and challenging governors for not giving local governments a free hand to operate depict ignorance of the state of the law.

In this paper, we set out to examine the key arguments of the antagonists of local government autonomy with a view to furthering the cause of local government autonomy.

Is there “true federalism”?
The first issue to deal with is the claim of “true federalism”. The question is: is there anything called “true federalism”?

My direct response is that it is delusional to argue that there is “true federalism” anywhere in the world. An avalanche of studies exists to dispel the illusion of the existence of “true federalism”. In reality, there is no ideal or true federalism just as there is no false or fake federalism. The theoretical conceptualization and practice of federalism vary across the world on account of historical, political, economic, socio-cultural and legal contexts.

It has been posited that the core value of federalism is the management of conflicts over who gets what powers, where, when and how, with a view to promoting inclusiveness and preventing exclusiveness and arbitrariness in order to deepen democratic management of society. Within this core concern, societies should interrogate the governance system with a view to deepening democratic practices.

Are there only two tiers of government in a “true federal system”?
The antagonists of local government autonomy argue that only the Federal and State Governments are the tiers of government in a Federal system.

I humbly submit that it is false to say that there are only two tiers of government in a “true federal system” of government. First, we have argued that there is no “ideal” federal system. Conceptually, some scholars have defined “federalism” as a political system where there are at least two levels of government, the central or federal government and other territorial, sub unit governments, which may be variously called, as states, regions, province, republics, unions, etc. See for example, https://www.idea.int/news-media/media/what-federalism (accessed on 29/11/22). We therefore submit that a federal system of government may have more than two tiers of government, and that does not make Nigeria’s Federalism fake where there exist more than two tiers of government. In the case of Nigeria, there are three tiers of Government, and this is by constitutional provision.

Is the local government not a tier of government in a federation?
Again, we need to reiterate that there is no “standard” established anywhere with which to measure the structure of a federal system. In the history of Nigeria, for example, the making of Nigeria was not a product of any “federating units”. Nigeria is a product of foreign military powers merging “protectorates” together. Regions, States, local council authorities, by appointment and later through some level of election, followed by local governments/Councils/Areas, and the Constitution of Nigeria are products of proclamations by military Decrees. So, how valid or sustainable is the argument that “in a true federalism, the local government is not a tier of government”? Indeed, the formation of the Nigerian state has not followed any “true” state formation pattern. The emergence of the Nigerian state is peculiar to Nigeria, even though it may share certain similarities with some other nations.

However, within the context of the Constitution of Nigeria and the interpretation of the same Constitution by appellate Courts, including the apex Court of the land, the local government is recognized as a tier of government.

In AG Abia State & Ors V. AG Federation (2003) LPELR-610(SC), the Supreme Court held as follows:
“I think one thing that stands clear from our decision In Attorney General Of The Federation V. Attorney General Of Abia State & 35 Ors (Supra) [i.e (2002) 6 NWLR (Pt. 764) 542 delivered on Friday 5th April, 2002] is that, if any of the three tiers of Government decides to form, create or constitute new bodies, or things whatsoever, the tier and that tier of Government alone, must be prepared to fund such things or bodies from its own share of allocation and not any more directly from the Federation Account.” Per KUTIGI, JSC (Pp. 39-40, paras. E-A)

Similarly, in Tabwasa & Ors V. Adamawa State Govt & Ors (2019) LPELR-47326(CA), the Court of Appeal held:
“The system of democratically elected government gained prominence with the coming into force of a constitutional democracy founded on the Constitution of Federal Republic of Nigeria 1999 (as amended). By this, all tiers of government starting from Federal, through the States to the Local Government Council/Areas, are from the date of commencement of the 1999 Constitution, are to be managed, governed, and administered by persons or officials who are/were democratically elected by the people hence Section 7(1) of the Constitution (as amended) is the guiding constitutional provision for the structure of governance at Local Government levels. In other words, the Constitution, under Section 7(1) guarantees the existence of a democratically elected government at that local level.”

In Governor Ekiti State V. Olubunmi (2017) NWLR (Pt. 1551) 1, 35, the apex Court held: “…. any action of the governor which has the capacity of undermining the Constitution (as in the instant case where the 1st Appellant purportedly ended the tenure of the Respondents Councils, dissolve them and replace them with Caretaker Committees) is tantamount to executive recklessness which will not be condoned…”

Therefore, any suggestion that the local government is not a tier of government within the context of Nigeria’s fons et origo, the fundamental law of the land, is a suggestion that undermines the Constitutional democratic arrangement of Nigeria.

Is it correct that calling for local government autonomy and challenging governors for not giving local governments a free hand to operate depict ignorance of the state of the law?
Conceptually and legally speaking, where Nigeria’s Federal system is constitutionally donated, it amounts to arbitrariness and executive rascality for State Governors to seek to curtail the freedom of local governments to operate, as held in Governor Ekiti State V. Olubunmi (supra) by the Supreme Court.

In the literature, two types of federalism have been identified – the asymmetric and symmetric. Though, in reality, a combination of elements of the two tends to operate. Under the symmetric federalism, power sharing between the federating units is as defined in the Constitution without any unit attempting to unduly infringe on the powers of the other units. In an asymmetric federalism, while federating units enjoy equal constitutional status, some enjoy greater levels of autonomy more than others. This suggests that it is legitimate for those units enjoying less autonomy to seek to deepen the degree of their autonomous existence.

The major problem of a typical Governor is the perception that the local governments and their funds are the direct personal property of the Governor. It is the desire to have absolute, unrestrained control over the funds of the local government that the Governors tend to assault the provisions of Section 7(1) of the Constitution that guarantees the existence of a “democratically elected local government” by dissolution of councils and appointment of caretaker committees and/or rigging elections into the Councils.

To be continued tomorrow

Aborisade is a lawyer.