LG Autonomy: NASS Failed Despite Supreme Court Judgement – Izinyon

Renowned Senior Advocate of Nigeria, Dr Alex Izinyon, has called on the National Assembly to make enabling laws to adequately implement the Supreme Court’s judgement on local government autonomy in the country.

He accused the National Assembly of failing to live up to expectations despite the Supreme Court’s efforts to ensure that the right thing is done in local government administration in the country.

On July 11, 2024, the Supreme Court, in a landmark judgement, declared that funds accruing to the country’s local government areas should be directly paid into their accounts for smooth LG administration.

According to Dr Izinyon, the decision attracted several accolades from laymen, jurists, scholars, legal pundits, and legal practitioners. He said that, as expected, there is the other side of the divide that differs entirely.

“Their contention primarily is that it amounted to judicial legislation and pronouncements against the principle of federalism. Even politicians also had their day and say”, he said.

In a lengthy write-up, Dr Izinyon, in his view on the judgement, looked at the judgement from another dimension, that is, the Supreme Court being a court of law and policy in the course of balancing the socio-economic and political issues, in reaching the final decision in the interest of justice.

“The Supreme Court of Nigeria indubitably and constitutionally remains the final court of the land. They are final in all ramifications of finality in any dispute brought before it. This is because there are no other appeals after their judgment, except to God Almighty, where no mortal can file processes, argue the same, and return to us mortals alive. This brings to mind the words of the famous Jurist and legal icon Hon. Justice Oputa, JSC of blessed memory, quoting the American jurist Hon. Justice Robert Jackson in ADEGOKE MOTORS LTD V. ADESANYA & ANOR (1989) 3 NWLR (PT.109) 250 AT 274, PARA G on the finality of the Supreme Court’s Judgment where he puts it pungently thus: We are final not because we are infallible; rather we are infallible because we are final.”

“The Supreme Court of Nigeria as a court of law and policy, over time, even though final, has taken into consideration social, economic and political factors or called it the reality of time in arriving at certain decisions as a policy court. These decisions have a larger impact on society as a whole, like the Nigerian citizens.

“The Supreme Court of Nigeria had given laudable Judgments as a policy court over the years. These can be found in books and articles, which are not the task of this space. I shall, however, pick a few to drive home this issue – the Supreme Court as a policy Court”, he said.

He said thankfully, with providence, since 1999, the boat of democracy is still on course at the high sea despite its shortcomings, adding that among the three tiers of government, the federal, the state governments and the local government areas, the federal and the state governments are visible so to speak in many respects.

He said, “The Constitution provides 774 local government areas under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in the First Schedule, and they are expected to be autonomous. It is no longer news that apart from the few state governors who had kept to this autonomous nature of the Local Government, others have swallowed them up as part of their departments and, in most cases, dissolved the democratically elected Local Government Area Councils and appointed Caretaker Committees. Are we not, as Nigerians, eyewitnesses to these happenings in the last 25 years of democracy? No soothsayer or Prof. Peller of blessed memory is needed to tell us so.

“Have we forgotten so soon that apart from some few states, no election has been held in many of the local government areas, but it has been run by Caretaker Committees in Nigeria for over 10 years? Indeed have we forgotten the case of A-G LAGOS STATE VS A-G FEDERATION (2004) 18 NWLR (PT. 904) 1 where despite the clear provision of Schedule 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which listed out 20 local government areas for Lagos State, the then governor of Lagos State created additional local government areas which prompted the then President to withhold the entire Lagos State allocation, which included the constitutionally 20 local government councils and the additional created area councils? The Supreme Court, in that case, on the ground of policy as a policy court, held that the President had no power to withhold the state allocation or suspend it and that the state was entitled to the said allocation to be so released but tied to the 20 Local government councils created by the Constitution and not the additional Local Government Areas created. The decision was unanimous on this issue.

“The court from 1999 has never kept quiet on this.

“Indeed, under the Constitution of the Federal Republic of Nigeria, 1999, the courts have never hidden their disdain for the unconstitutional acts of the State Governors dissolving democratically elected Local government chairmen and appointing Caretaker Committees in their stead. The cases are numerous.”

The learned silk said the state governors never heeded the apex court’s numerous pronouncements despite their respective states being manned by Attorneys-General and Commissioners of Justice.

He said the National Assembly has failed to play its role effectively despite the Supreme Court’s many judgements on the issue.

He called on them to live up to their duties.

“In all these years, where is the National Assembly after the Supreme Court decision in A-G LAGOS STATE VS. A-G FEDERATION (SUPRA) to correct by legislation or amendment that the joint account referred to are for the State and the local government areas, created by Schedule 1 of the 1999 Constitution. Despite the pronouncements of the Supreme Court on the unconstitutionality of the Governors sacking duly elected local government chairmen and their counsellors in the cases just cited over these years, has the National Assembly risen to the challenge urgently to remedy this situation? They did not and may never.”

He said the Supreme Court has always risen to the task when it involves policy. As a policy court, it makes decisions in the interest of justice by adopting a more purposive approach to interpreting any provision of the law, especially the Constitution.

He said, “The Supreme Court as a policy Court in this particular case went into their legal archive and decisions where they had declared that the dissolution of a democratically elected Local Government Council by a Governor of a State is unconstitutional and illegal. It was not, therefore, surprising that the Supreme Court went into detail to review the antecedent of what had been happening. It interpreted the provision of Section 162(3) of the 1999 Constitution and that it cannot mean that the State Governors would hold and disburse the funds on behalf of the Local Government Council the said money coming from the Federation Account, as sub-sections (6), (7) & (8) of the said the Constitution stipulates that all funds belonging and due to local government council from the Federation Account, should be distributed to the local government council in the state. This view is to cure the mischief by judicial fiat as a policy court, the incurable injury done to the Local Government Area Councils for two decades without the National Assembly doing the needful.

“The Supreme Court eloquently re-echoed its long line of decisions on the provision of Section 7(1) of the Constitution that expressly provides for democratic elected Local Government Council, and if that is the case, it should be Local Government Council that should control and manage this fund including allocation from the Federation belonging to the said local government council for the wellbeing and development of the said Local Government Area. It was on this platform that the Supreme Court referred to its earlier decisions where they held that a governor of a state cannot dissolve a democratically elected local government council.

“Let it be said that the Supreme Court has always risen to the task when it involves policy as a policy court, to decide on the interest of justice by adopting a more purposive approach in the interpretation of any provision of the law, especially the Constitution. In 1979, the Supreme Court in AWOLOWO VS SHAGARI (1979) 6-9 SC 51 adopted a more liberal and purposive approach in statutory interpretation by adopting the pronouncement of Lord Reid in JONES V. DPP when it said.

“In 2022, when Nigerians were groaning under harsh economic hammer following the redesign of the Naira by the Central Bank of Nigeria as ordered by the Federal Government of Nigeria, the Supreme Court of Nigeria as a court of law and policy came to the rescue and made notable pronouncement having regard to the economic situation of the hour. That is the case of ATTORNEY GENERAL OF KADUNA STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2023) 12 NWLR (PT. 1899) 537.