Effective Local Government System in Nigeria

EFFECTIVE LOCAL GOVERNMENT SYSTEM IN NIGERIA: THE NEED TO FURTHER
AMEND THE 1999 CONSTITUTION
Hagler Okorie*

Introduction

Having considered and seen the inefficiency and rot that
characterize the entire 774 Local Government and the Local
Government system in Nigeria, it will be safe to conclude that
this tier of government have performed abysmally. This failure
cannot be unconnected with the provisions, practice and
application of the country's grund norm-the Constitution of the
Federal Republic of Nigeria.[1] A careful and decent reading of
relevant constitutional provisions of the 1999 Constitution (as
amended) relative to the operation and existence of the Local
Government in Nigeria reveals an intentional and carefully crafted
corporate and legal conspiracy to arm-twist this system into utter
malfunction and ultimately herding or riding it into extinction.

The extant Constitution as presently constituted portends and
contains calamitous ingredients which negative the continual
existence, effective and efficient democratic service delivery, by
the Local Government, to the forlorn and abject citizens of this
country at the countryside. The present constitutional
dispensation consigned and condemned the Local Government system
to the whims and caprices of the state and expectedly the state
(that is the Governor and House of Assembly) plays ludo with the
destiny of this arm and the mass of our rustic citizens whose well-
being and hope largely depend on the goodness of this system.

Local Government system, being the last type of government very
close to the people at the grassroots, need to function optimally
without let and hindrances and without state organized plundering
and looting of its economy and resources. The present practice
where the state governors in concert with the members of the State
Houses of Assembly strip local government of their monthly federal
allocations and criminally hijack their internally generated
revenue and other means or mechanisms of generating same must be
addressed immediately through the instrumentality of the amendment
of the 1999 Constitution relative to the relevant provisions on
local government. This work shall articulate these constitutional
provisions that require urgent review now that the National
Assembly has embarked on another constitutional alteration
exercise.

Meaning of Local Government
The ordinary meaning of local government is as the name denotes; a
government at the rural area for the rural people who reside at
the rural area. However, there have been various definitions given
by several scholars and agencies. According to Halim and Adelabu,
the concept of local government administration,

involves a philosophical commitment to
democratic
participation in the government process at the
grassroots
level. This implies legal and administrative
decentralization
of authority, power and personnel by a higher level of
government to a community with a will of its own,
performing specific function in relation to the needs
and
expectation of the people at the local level. A local
government council is an institution whose operation
address
the needs and aspiration of the citizenry and also
extends the
administrative and political control to the
community.[2]

In the same vein, Adeyemo defines the concept as
A political subdivision of a Nation or Regional
Government
which performs functions which in nearly all cases
receives
its legal power from national or regional government
but
possesses some degree of discretion on the making of
decisions and which normally has some taxing power[3]

On the other hand, the United Nations office for Public
Administration sees Local Government as:

A political subdivision of the Nation (in a federal
system)
which is constituted by law and has substantial control
of
local affairs including the power to impose taxes or to
exact
labour for prescribed purposes. The governing body of
such
an entity is elected.

Finally, the Guidelines for Local Government Reform of 1976 define
Local Government as:

Government at the local level exercised through
representatives councils established by law to exercise
specific powers within defined areas. These powers
should
give the council substantial control over local affairs
as well
as the staff and institutional and financial powers to
initiate
and direct the provision of services and determine and
implement projects so as to complement the activities of
state and federal government in their areas, and to
ensure,
through devolution of functions to these councils and
through the active participation of the people and their

traditional institutions, that local initiative and
responses to
local needs and conditions are maximized.

Based on these motley definitions, it shows that local government
is a multi-dimensional concept. These definitions depict that
local government council is a government at the grassroots level
of administration meant for meeting peculiar grassroots needs of
such a people. According to Lask, H. J;

We cannot realize the full benefit of democratic
government
unless we begin by admitting that all problems are not
central problems, and that the result of problems not
central in their incidence requires decision at the
place and
by the person, where and whom the incidence is most
deeply felt[4]

Therefore, local government system, as a third tier of government
and based on the people's culture and expectations are usually
created so as to draw government closer to the people.

The Murtala/Obasanjo Military regime of 1976-1979 became a
watershed in the local government system annals in Nigeria. This
regime set up the Dasuki Committee on the Reformation of the local
government system across the country. The Dasuki blue print became
known as the "Local Government Reform of 1976".[5] This reform
marked the evolution and turning point of the modern development
of local government system in Nigeria. This reform was achieved
after extensive consultations at all the levels of the country.
The reform conceptualized the local government as a third tier of
government with its statutory share of allocation direct from the
federation account and to exercise control over its spending. More
importantly, the Dasuki Reform provided for democratically elected
local government councils. This reform produced or created a
uniform local government system across the country.

The Babangida administration (1984-1993) introduced some
additional reforms to supplement the Dasuki reform.[6] The main
thrust of Babangida anchored reform was to accord greater autonomy
to the local government system in Nigerian. Some of the reforms
included the abolition of the Ministry of Local Government, the
establishment of executive and legislative arms in the councils
and the direct federal allocation to the local councils without
passing through the state government. Also, the statutory
allocation of the local government was increased from 15 percent
to 20 percent.[7] Nevertheless, later the Abacha Administration of
1993-1996 revised some of these reforms of IBB regime.[8]

The Dasuki Reform was contained in the 1979 Constitution of
Nigeria. At the preparatory final exit of the military, the
Justice Niki Tobi Committee was constituted to draft a
constitution towards the enthronement of the democratic government
in 1999. It was expected that this committee would have merged the
1976 reform and the IBB reform in order to have a perfect
provision regarding local government system. That was not to be at
last.[9] The 1999 Constitutional provisions relating to local
government administration in Nigeria created so much squandering,
thievery and squalor both in context and practice on the local
system. There are huge contrarieties and total confusion in the
constitutional application and operation in this regard.




The Constitutional Provisions Relating To Local Government In
Nigeria Under The 1999 Constitution
The local government system in Nigeria was created by the combined
rhythm of Sections 7, 8 and the Fourth Schedule to the 1999
Constitution of the Federal Republic of Nigeria (as Amended). The
Constitution provides thus:

The system of local government by democratically
elected
local government councils is under this constitution
guaranteed; and accordingly, the Government of every
state shall subject to Section 8 of this constitution,
ensure
their existence, under a law which provides for the
establishment, structure, composition finance and
functions
of such councils[10]

On the other hand, the Fourth Schedule to the Constitution
provides for three functions, namely, the main functions of local
government council,[11] functions to be exercised in conjunction
with the state[12] and additional functions as may be conferred by
the House of Assembly of the state.[13] The Court of Appeal
interpreted the above provisions in paragraph 2 item D above in
the case of UAC of Nigeria PLC VS. Att. Gen. of Lagos State[14]
and held that
The provision of Section 7 (5) of the constitution of
the
Federal Republic of Nigeria, 1999 is not exhaustive.
The
section says that the functions to be conferred by
law upon
Local Government councils shall include those set out
in
4th Schedule to this constitution. This clearly shows
that the
state can give more functions to the Local Government
and
these powers could include even ones being handled by
the
state. If the constitution had intended to prohibit
the state
from performing those functions enumerated under the
Schedule Four of the constitution, it could have
clearly say
so, as it will be dangerous to import into the
constitution
that which is not included.

The above case is an appeal from the High Court of Lagos State.
One of the issues for determination before the trial court was
whether the Lagos State House of Assembly can prescribe for the
Local Government in Lagos State functions that derogate from or
lesser or fewer than those prescribed by the Constitution of the
Federal Republic of Nigeria 1999 in its section 7 (5) and spelt
out in the Fourth Schedule.
The trial court held that the constitution did not give the Local
Government the function of controlling the structure for signage
and advertisement. Aggrieved the Plaintiffs appealed to the Court
of Appeal. The defendants filed a preliminary objection
challenging the competence of the appeal. One of the issues before
the court was whether the Lagos State structures for Signage and
Advertisement Law, 2006 is inconsistent with Section 7 (5) of the
Constitution read together with paragraph 1(k)(i) of the Fourth
Schedule to the Constitution.

On Public Revenue, the Constitution provides that:

Each state shall maintain 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 and from the
Government
of the state[15]
Further, section 162 (7) and (8) provides that state shall pay to
the local government councils in its area such proportion of its
total revenue on such terms and in such manner as may be
prescribed by the National Assembly and that any amount standing
to the credit of the local councils shall be distributed among the
councils of that state on such terms as prescribed by the State
House of Assembly. This section came under legal attack and the
Supreme Court held that under the provision of section 162 of the
constitution, it is the State Government that distributes the
funds that have been allocated to the councils in a state by the
National Assembly. The conclusion to be arrived at is that the
National Assembly is only to formulate the data or criteria
required to determine the quantum of allocation due to the local
government councils in each state. The National Assembly also
directs the payment of the amount due to the State Government who
thereafter proceeds to distribute the funds to the Local
Government in the state.[16]

Section 197 (1) (b) of the Constitution provides thus:
"There shall be established for each state of the
Federation
the following bodies, namely… (b) State Independent
Electoral Commission…
Corollary to the above provisions are the contents of items 3 and
4 of Part II of the Third Schedule to the Constitution which deals
with State Executive Bodies. These items provide for the creation
of state Independent Electoral Commission, its membership, power
and functions. Importantly, section 8 (3) and (4) empowered the
State House of Assembly to create local government councils if it
complies with the condition precedent contained therein as well as
embark on boundary adjustment in any existing local government
within the framework of the exercise of the creation of the said
local government council. When the conditions prescribed by the
constitution are met and local government council is created, the
Act of the National Assembly passed in accordance with the section
shall make consequential provisions with respect to the names and
headquarters of the local government areas as provided for in
section 3 and parts I and II of the First Schedule to the
Constitution[17]. However, for the purpose of enabling the
National Assembly to exercise the power conferred upon it by
subsection (5), each House of Assembly shall after the creation of
the local government areas, pursuant to subsection (3) make
adequate returns to each House of the National Assembly.[18]

These provisions above got judicial approval in the case of A.G.
Lagos State VS. A.G. Federation.[19] The Supreme Court per Uwais,
CJN held thus:

Now for the purpose of creating new local government,
it
is necessary to read together and interpret all the
provisions
of the constitution mentioned above namely section 3
subsection (1) (2) and (6) together with part I of the
first
schedule; section 8 subsection (3), (5) and (6) of the

constitution… When those sections are together what
emerge is that the passing of a bill by a Hose of
Assembly
creating a local government area in accordance with
section
8 sub (3) is not enough, the state will have to go a
step
further by submitting returns to the National Assembly

which in turn will amend section 3 (6) of the
constitution for
the new government area to be accommodated by the
constitution. I therefore come to the conclusion that
the
passing of the Local Government Area Law No. 5 of
2002 by
the Lagos State House of Assembly was not sufficient
to
give life to the new Local Government Areas until the
National Assembly passes the consequential Act
amending
Section 3 subsection (6) and Part I of the First
Schedule to
the Constitution.

Objectionable Constitutional Provisions Requiring Alteration
Having considered some of the constitutional provisions relative
to local government councils in Nigeria it is paramount to do an
expose on the provisions in the constitution on local councils
which have prohibitively attacked the efficiency and effective
running of administration at that level. These are provisions
which have glued the local government councils to the compulsive
monstrous body of the state government and which have empowered
some Governors and members of the State Houses of Assembly to
wreck the local councils into ruins and utter wretch. The first
injustice stunned on the local government council areas by the
1999 constitution is the provisions in section 2 subsection (2)
that "Nigeria shall be a federation consisting of states and a
Federal Capital Territory."

The import of this section is that the component unit in Nigeria
is simply two; the federal and state governments without the
inclusion of the local government areas. That is the reason for
not specifically mentioning the name "local government" in this
section. So the contemplation of the constitutional federal
arrangement is between the central and the states. This revelation
is that regrettably, the constitution expressly demarcates the
functions and powers of the federal Republic of Nigeria between
the federal government and the states. By the tenor of the
constitution, the component states do not play the role of errand
boys to the central government. This position was given judicial
nod in the case of A.G. Abia State Vs. A.G Federation,[20] Where
the court held that:

By the doctrine of federalism which has been adopted
by
virtue of section 2 (2) of the 1999 constitution, the
autonomy of each government which presupposes its
separate existence and its independence from the
Federal
Government, is essential to federal arrangement.
Therefore
each government exists not as an appendage of another

government but as an autonomous entity in the sense
of
being to exercise its own will in the conduct of its
affairs,
free from direction by another government. It
follows that
both the general and regional governments must each
have
under its own independent control, financial
resources
sufficient to perform its exclusive functions.

In order to realize the much desired three tier of government
envisaged by the 1976 Local Government Reform, it is of a
paramount importance that section 2 subsection (2) be amended to
read that Nigeria shall be a federation consisting of states,
Federal Capital Territory and Local Government council areas. This
constitutionalization of local government council areas in this
nature shall give that level of government that well thought out
autonomy as held by the Supreme Court in A.G. Abia State Vs A.G.
Federation.[21] The local council shall no longer function as a
appendage and errand boy of the state. Also the State Governors
shall cease to see it as a private estate or enterprise they can
manipulate and predate at will.

Again, Sections 7 and 8 need material alteration in order to
delete from their provisions the clause every government of a
state" and "House of Assembly of a state. The essence of this
alteration is to remove the state from legislating and overseeing
all activities or governance of the local government areas. The
idea here is that the constitution should create the local
government system to be independent and autonomous deriving its
power and functions directly from the constitution without and any
form of derivative powers from the state. If this is achieved, it
then follows that paragraphs I (f), (J) and 2 (d) of the Fourth
Schedule will automatically be amended consequentially.

In view of elections, item 22 of the Exclusive Legislative List in
the Second Schedule Part I must be amended. The item provides
thus:

Election to the offices of President and Vice-
President or
Governor and Deputy Governor and any other office to
which a person may be elected under this constitution,

excluding election to a local government council or
any
office in such council.
This provision is as it relates to election wherein Independent
Electoral Commission (INEC) is empowered to conduct general
elections on all the positions enumerated except offices for local
government council. We therefore propose the deletion of the word
"excluding" to add the word "including" which will mandate INEC to
conduct election for local government council areas. In the same
vein, paragraph 15 (a) of Part I of the Third Schedule should also
be amended with regard to elections in the local government areas.
This provides that:

The Commission shall have power to organize, undertake,

and supervise all election to the offices of the
President
and Vice-President, the Governor and Deputy Governor,
and to the membership of the Senate, the House of
Representatives and the House of Assembly of each State
of Federation.
This provision is silent on local government. Here we propose an
amendment to read thus: The commission shall have power to
organize, undertake and supervise all elections to any office in
Nigeria.

Following from above, item 12 of the Second Schedule of Part II of
the Concurrent Legislative List should be completely deleted from
the Constitution since item 11 thereof has taken care of our
contention. Item 11 provides that: The National Assembly may make
laws for the federation with respect to the registration of voters
and the procedure regulating elections to a local government
council.

Similarly, section 197 (b) which establishes the State Independent
Electoral Commission and items 3 and 4 of Part II of the Third
Schedule to the Constitution which provides for the membership,
powers and functions of the Commission should all be deleted from
the Constitution. This is because of the patent and manifest abuse
and misuse of this body by State Governors. Members of this body
are mere kitchen cabinet of the state government and election
results are already determined before even the electoral processes
commence. Under this regime, elections are not free, fair and
credible. More so, the masses do not have confidence and faith in
that body and in the outcome of the process they conduct. Our
humble view is that allowing INEC to conduct all the exercises
shall redeem the local council areas.

On the issue of tenure of elected local government council
officers, it is highly regrettable that the Constitution of the
Federal Republic of Nigeria 1999 provides for four-year tenure for
federal and state political office holders but remain silent on
the tenure of the local council areas. The result of this lacuna
is the ridiculous tenural laws made by different states for their
local government council political office holders. In some states,
it is one or two years, in others three years while other states
refused even to fix tenure. The officers are elected and enjoy
their tenure at the pleasure of the Governors and members of the
State Houses of Assembly. This issue was canvassed in Adamawa
State House of Assembly Vs. Tijani.[22] The facts of the case here
is that the Adamawa State House of Assembly passed a law: The
Adamawa State Local Government System Establishment and
Administration (amendment) Law No. 6 of 2008, which reduced the
tenure of Local Government Council in Adamawa State from two and
half years to one year. The Local Government Chairmen were
dissatisfied and filed an action in the High Court of Adamawa
State. That court granted their relief and the defendants
appealed. The Court of Appeal dismissed their appeal.[23]

We therefore propose that the constitution be amended to include
in a clear, precise and unambiguous term for local government
political office holders. Our contention is that the same four
year tenure enjoyed by other political office holders be accorded
to this level of politicians. Also, that local government election
be held on the period of general elections and to be conducted
first or simultaneously with that of the House of Assembly.

On the issue of revenue allocation, we propose the total excision
of section 162 (b) and (7) of the Constitution. Subsections (5)
and (8) need alterations to delete the words State and State House
of Assembly respectively. When this is done, what will be left in
that provision will infer and denote autonomy for the local
government councils. The implication is that all revenue belonging
to the local government councils will automatically be remitted
into their account directly without any intermediary in the form
of a state. The National Assembly will directly make allocation to
the councils without any form of interventions by the states. Also
requiring deletion from the constitution is section 7 (6) (b)
which provides that:

The House of Assembly of a state shall make provisions
for statutory allocation of public revenue to local
government councils within the state.

These are all constitutional provisions which have persistently
functioned as a cancer on the local government system in Nigeria
to the detriment of the rural populace.
Conclusions
In conclusion, the provisions in the 1999 Constitution as
identified in this work are the virus that have eaten deep into
the system and functioned as a malady towards the vacillation of
the concept of local government system in Nigeria. Constitutional
provisions should serve for egalitarianism and functionality in a
nation. If our local government system in Nigeria should survive,
a state of emergency should be declared on the 1999 Constitution
of the Federal Republic of Nigeria so as to urgently address these
areas we have identified. This also will tremendously attack and
reduce corruption on the part of the State Governors. Again,
eighty percent of corruption charges by EFCC against former
Governors hinge on misappropriation, misapplication and fraudulent
handing of revenue allocated to local government in their
respective states. The reason is because these Governors find
these Local Government "booties" highly irresistible and since
nobody will question them at that moment in office, they feast on
them with impunity. Let us save the Local Government System from
collapse and falling into extinction. Let us act now.















-----------------------
*LLM, Ch.Arb. Med-Con., Notary Public & Justice of the Peace, is a
lecturer in the Faculty of Law, Abia State University, Uturu.
[1] 1999 as amended.
[2] Halim, S. K and Adelabu, S. A; "Modeling Local Government System in
Nigeria," Kuwait Chapter of Arabian Journal of Business and Management
Review, Vol 1, No 1, September 2011, P. 38
[3] Adeyemo, D. O., "Optimizing Local Government Finance through Public-
Private Partnership in Grassroots Development", paper presented at National
Workshop on the Local Government Structure and Potentials for Socio-
Economic Development, Ibadan 28th – 30th July 2010.

[4] Laski, H. J., A Grammar of Politics, London, Allen and Unwin
Publishers, 1982, p. 138
[5] Adeyemo, D. O. p. 8 supra
[6] Ibid.
[7] Asaju, K, "Local Government Autonomy in Nigeria: Politics and
Challenges of the 1999 Constitution", International Journal of Advanced
Legal Studies and Governance, Vol.1 No. 1, April 2010, P. 106.
[8] Adeyemo, D.O. supra
[9] Articlebase, "Local Government Administration and the Challenges of
Rural Development in Nigeria", March 5 2008 assessed at
www.articlebase.com/leadership
[10] Section 7 (1) of the 1999 CFRN
[11] Paragraph 1 (a-vi)
[12] Paragraph 2 (a-c)
[13] Paragraph 2 item D of the Fourth Schedule to the 1999 Constitution (as
amended)
[14] (2011) ALL FWLR (Pt 591) 1540
[15] Section 162 (6)
[16] A.G. Abia State VS. AG. Federation (2006) 16 NWLR (Pt. 1005) 265
[17] Section 8 (5) of the 1999 constitution
[18] Section 8 (6)
[19] (2005) ALL FWLR
[20] Supra
[21] supra
[22] (2012) ALL FWLR (Pt 515) 330
[23] See also Dogari vs. Att. Gen. Taraba State (2011) ALL FWLR (Pt. 603)
1786 where the plaintiffs were elected as chairman and councilors of Karim
Lamido Local Government of Taraba State for a term of 3 years. Two years
into the tenure, the 2nd defendant dissolved the council based on gross
misconduct and by the amended Local Government Law, No 2 of 2000 which
empowered the Governor to dissolve the council on grounds of misconduct.
The court held that to dissolve a democratically elected local government
council and replace it with appointment of caretaker committee is
inconsistent with the clear and unambiguous provisions of section 7 (1) of
the constitution.