Reflections On Supreme Court’s Judgement On LG Autonomy (1) – Independent Newspaper Nigeria

Not too many judicial interven­tions have been, and will ever be as consequential as the July 11, 2024, Supreme Court ruling on the Local Government (LG) autonomy lit­igation, filed in May 2024, by the nation’s Attorney General and Minister for Jus­tice, Mr. Lateef Fagbemi, SAN. In a write-up on it on May 31, widely published in both the traditional and social media in Nigeria, I made an attempt to alert the nation to the profound implications of one scenario vis-a-vis the much-awaited judgement.

The argument made in that piece can be summarized in this form. The litiga­tion had the potential of toppling the apple cart vis-a-vis Nigeria’s outlook on federalism; as it would move the country further in the direction of centralization, consistent with a unitary model of gov­ernment. It was a thinly veiled attempt to undermine the State governments, while strengthening the central government, thereby moving the country further away from the goals of devolution of powers to the States, which are the federating units in Nigeria’s evolving federal system. If the position of the Federal Government was affirmed by the Court, it would, in practical terms, mean that the average State and its LGAs, in most probability, would begin to work at cross purposes. That is, the State would drive in one di­rection, while the LGAs, which it was supposed to superintend under the Con­stitution, would drive in another; and this would be the very recipe for major governance crises. The paper called on the President to get the Attorney-General to back off from the litigation process; and concluded thus, “The consequences attendant upon getting a ruling favour­able to the Federal Government at the Supreme Court are too grave to be con­templated. We must stand up for a federal, and against a unitary Nigeria.” A number of newspaper editorials, which came up later, evidently drew from the arguments made in the article.

The judgement

The Supreme Court judgement has since been given; and it is totally in agreement with the Attorney-General’s position. Asserting that its right to adju­dicate on relations between the central and State governments was unlimited, the Court proclaimed unequivocally that “the justice of the case demands that the Local Government (LG) allocations should henceforth be paid directly to LG accounts”; and that Governors shall nei­ther exercise the power to dissolve elected LGAs, nor interfere in how the latter were run. It is obvious in this regard that the judgement, in its key elements, has con­firmed our worst fears. This is the point to which this piece is directed. Having researched on, and taught courses on Fed­eralism, and Comparative Political Econ­omy, to both undergraduate and gradu­ate students, in Nigeria and elsewhere, for years, it behoves me to, once again, share my thoughts on the wider implica­tions of the Supreme Court judgement, on Nigeria’s governance structure going forward; and this in as simple a manner as possible.

I have followed keenly, the various analyses on the subject. One thing that is clear therefrom is that most commen­tators do not seem to understand the real meaning of the ruling, and its im­plications for jurisprudence, and gover­nance in the country. They marginalize the ahistorical nature of the ruling, and the inevitable consequences thereof, on the organization of relations between the spatial constituencies that make up the nation. While there could be momen­tary, or short-term (political) advantages going the way of the litigants, as well as transient LG practitioners, my concern is that these critical stakeholders may not be fully acquainted with the wide-ranging implications of the judgement for feder­alism and good governance in Nigeria, in spite of their advertised commitment to these twin concepts. On air, and in print, we got a whole lot of verbiage from pun­dits, whose analyses are largely driven by banal populism, and predicated upon emotions, rather than rational inferences. But we must transcend this emotion-lad­en analyses, and make yet another at­tempt to clarify the issues. In doing this, I try to highlight the implications of the judgement; discuss the probable follow-up actions expected of the protagonists of the LGA autonomy initiative; and draw attention to the (hidden) consequences for governance in Nigeria. I had availed myself of the opportunity to do this at a webinar a day or so after the judgement, which video clip, I understand is already in circulation.

Implications, in seven chapters

In the first instance, it is evident that the July 11 judgment is completely at vari­ance with the principle of federalism, to which Nigeria pledges commitment, and by which the country is named, as Feder­al Republic of Nigeria. While admitting of some minor variations, the position is clear in federalism literature that a feder­ation speaks to “The method of dividing powers so that the general and regional governments are each within a sphere co-ordinate and independent.” This is how K. C. Wheare, regarded as the father of federalist thought, described it, in his seminal work, The Federal Government, first published in 1963. Same goes for the founding fathers of US federalism, whose treatises on the subject were published as The Federalist Papers, described by the US Library of Congress as “a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788,” directed at persuading New Yorkers “to ratify the proposed federal Constitution, … drafted in Philadelphia in the summer of 1787.” While the contextual specificities of these sources are not in doubt, all being essentially informed by the nature of the American experience, they nevertheless represent the critical starting point in any informed discussion of federalism. Significantly, they all agree that federal­ism is about division of governmental powers between a central government, and the federating units. None imagined the concept, ‘federating units,’ to go be­yond its ordinary meaning; and thus, none suggested that municipalities and LGAs could in any way qualify to be ref­erenced as ‘federating units.’ This is why no constitution, including the American, ventures to mention by name, counties, municipalities, or LGs, as the case may be. The federating units, 16 of them in Germany, are called ‘Landers.’ In the Swiss federal system, they are ‘cantons,’ and of course, States, in both Nigeria and the US, among others. In none of these is any suggestion made that the municipal­ities are anything near federating units; because they are not.

In the Swiss federal system, there are actually about 2,300 of these municipali­ties, so small that they are basically gov­erned via referenda, in a manner reminis­cent of the era of direct democracy. But the federalist foundation of the Swiss sys­tem is underscored, first, by the principle of subsidiarity, to wit, that no power exer­cisable by a lower level of government is allowed a higher level; and secondly, that membership of the executive branch at the central government level is made up of representatives of the federating units, the ‘cantons,’ the headship (presidency) of which is rotated every two years, from one ‘canton’ to the other. This puts in bold relief one of the more critical anomalies in the Nigerian 1999 Constitution (as amended), which involves listing of some 774 LGAs. Even so, the Constitution did not make the mistake of asserting that the LGAs were federating units. Rather, it says, in Section 2(2), that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory.” That is why the governance structure of the LGAs is not only located within the rubrics of the State, but indeed, made a subsidiary of same, throughout the document. The Supreme Court judgement in reference here has simply made nonsense of this principle, and surreptitiously proclaimed the LGAs, to all intents and purposes, as federating units. This is not appropriate.

Secondly, the idea underscoring the clamour for LGA autonomy, and direct transference of LG share of the Federa­tion Account to them directly, is ahistori­cal. It denies the fact that prior 1999, when LGs got their funds directly from the Fed­eration Account, many of them, especial­ly the more cosmopolitan and populous ones, which also paraded more staff, and a broader range of infrastructural chal­lenges, found it practically impossible to survive. They were not paying their primary school teachers, and owed their administrative workforce several months of salaries. To then imagine that we feel that sending monies to the LGAs directly is all that is required to advance the cause of good governance, is some convoluted thought that denies the fact of history. Indeed, the whole idea of State Joint LG Account Committee was an initiative put in place to address this problem.

Thirdly, it is evident that the judge­ment of the Supreme Court is completely at variance with provisions of the 1999 Constitution (as amended) on this subject of revenue allocation. In Section 162 (6), the document makes it explicit that “Each State shall maintain a 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 Account and from the Government of the State.” And in Sub-section 8, it drills down on the matter by stating unequivocally that “The amount standing to the credit of local government councils of a State shall be distributed among the local government councils of that State on such terms and in such man­ner as may be prescribed by the House of Assembly of the State.” Whence, therefore, in the face of these unambiguous provi­sions, did the Supreme Court find the basis of its ruling, to the effect that funds from the Federation Account begin to go direct­ly, and outside of the rubrics of the State, to the LGAs? There is none.

• Mimiko is Professor of Political Sci­ence at Obafemi Awolowo University, Ile-Ife and member, National Institute for Policy and Strategic Studies, Kuru (femi.mim­iko@gmail.com; @FemiMimiko)

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