Afrigather This intervention goes in opposition to the stream of present standard opinion in Nigeria. There’s a herd mentality, whereby many distinguished persons are hailing the current Supreme Court docket ruling on native authorities autonomy with out eager about its implications. However as Socrates stated, the correctness of an opinion can’t be decided by whether or not it’s held by a majority or by essential folks. Surely, I completely abhor the crippling of native governments by state governors, as I wrote beforehand on this column. Nevertheless, I viscerally reject the way in which the Supreme Court docket addressed the problem by turning the Structure on its head and ripping up the veneer of federalism in Nigeria.
Right here’s what the Structure says unambiguously. Part 162(5) says the quantity attributable to native governments from the Federation Account “shall be allotted to the State for the good thing about their Native Authorities Councils.” Part 165(6) states that “Every State shall preserve a particular account to be known as ‘State Joint Native Authorities Account’ into which shall be paid all allocations to the Native Authorities from the Federation Account and from the Authorities of the State.” Then, part 162(8) gives that “The quantity standing to the credit score of the Native Authorities Councils of a State shall be distributed among the many Native Authorities Councils of that State on such phrases and in such method as could also be prescribed by the Home of Meeting of the State.” The recurring phrase “shall” leaves no room for various interpretations.
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Clearly, the framers of the Structure wished to realize two goals. First, they wished to uphold a precept of federalism by making native governments the duty of state governments, therefore they a) used the phrases “their Native Authorities Councils”; b) stated native authorities allocations ought to be paid to the states by means of the State Joint Native Authorities Account; and c) mandated the State Home of Meeting to prescribe how the funds ought to be “distributed among the many Native Authorities Councils of that State.” These provisions accord with the spirit of federalism. However the framers’ second goal was to make sure the monetary viability of native governments, therefore they required States to move on the allocations “for the good thing about their Native Authorities Councils.” Sadly, state governors have betrayed that second goal by refusing to move on the federal allocations “for the good thing about their native governments”, because the Structure requires, thereby strangulating them financially.
“Nevertheless, I viscerally reject the way in which the Supreme Court docket addressed the problem by turning the Structure on its head and ripping up the veneer of federalism in Nigeria.”
The duty earlier than the Supreme Court docket, subsequently, was to appropriate that anomaly to realize the twin intentions of the framers of the Structure. However the Supreme Court docket tilted the steadiness the opposite manner; it granted monetary autonomy to native governments however upended the Structure and destroyed the precept of federalism. The Supreme Court docket stated the constitutional preparations weren’t working. To handle the mischief, the apex court docket adopted an expansive interpretation of the Structure, saying that: “Calls for of justice require a progressive interpretation of the regulation.” It added: “Since paying [the local government allocations] by means of states has not labored, justice of this case calls for that native authorities allocations from the Federation Account ought to henceforth be paid on to the LGAs.”
Principally, the Supreme Court docket indulged in judicial constitution-making. Certainly, the court docket admitted this by saying that it adopted “a progressive interpretation of the regulation” to handle an “injustice”. However what number of injustices in Nigeria has the Supreme Court docket addressed by means of a “progressive” interpretation of the regulation? Did it deal with injustices in elections by means of a “progressive” interpretation of the regulation? Completely not. Relatively, it typically places technicalities above substantive justice.
However right here’s the important thing query: Can the Supreme Court docket change the Structure by means of the again door, bypassing the constitutionally prescribed modification course of? These provisions of part 162 are nonetheless there; they haven’t modified. However the Supreme Court docket says they don’t imply what they actually imply. So, there’s no extra State Joint Native Authorities Account; there’s no extra function for the State Home of Meeting in prescribing how federal allocations are distributed amongst native governments within the state. What the Supreme Court docket ought to have completed was to declare what the intentions of the drafters of the Structure had been and order state governors to stick to them. As a substitute, the court docket changed the phrases of the Structure with its personal.
In a paper titled ‘The scope of judicial law-making in constitutional regulation and public regulation’, Lord Hodge, Deputy President of the UK Supreme Court docket, stated that “a choose’s process is to make choices which are justified by the regulation as it’s.” And Justice Sydney Kentridge stated within the judgement of the South African Constitutional Court docket in State v Zuma that “if the language utilized by the lawgiver is ignored in favour of a basic resort to ‘values’, the end result is just not interpretation however divination.” Certainly, what the Supreme Court docket did within the native authorities autonomy case is divination by hiding behind “calls for of justice” to vary the Structure and undermine the precept of federalism.
Forgive my cynicism, however I believe that simply as Bola Tinubu, Nigeria’s power-grabbing president, corralled the Nationwide Meeting to vary the nationwide anthem, he acquired the Supreme Court docket to succeed in this perverse choice. That is evident from the Supreme Court docket’s inconsistent rulings on the Federal Authorities’s function in native authorities affairs.
In 2022, the Supreme Court docket quashed President Buhari’s Government Order 10 that empowered the Accountant Normal of the Federation to bypass state governments and disburse federal allocations on to native governments on the idea that it violated the precept of federalism. Practically twenty years earlier, in 2004, the Supreme Court docket dominated that the Federal Authorities, then led by President Obasanjo, had no proper to withhold native authorities allocations to Lagos State, then led, sarcastically, by Tinubu as governor. The Supreme Court docket agreed with Lagos State’s argument that, beneath part 162 subsections 5-8 of the Structure, state governments, not the Federal Authorities, had been the channels by means of which federal allocations to native governments ought to be handed to them. So, how come that the identical Supreme Court docket that, in 2004 and 2022, protected the hyperlinks between state governments and their native governments now, in 2024, severs these hyperlinks, thus eviscerating the little semblance of federalism current in Nigeria?
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Fact is, in any real federal system, native authorities is a matter of state regulation as it’s within the US beneath the Dillon Rule. The US Federal Authorities won’t ever sue state governors on any native authorities matter. Sure, the connection between state and native governments is just not working in Nigeria. Nevertheless, the answer is just not judicial constitution-making however a negotiated political and constitutional settlement, resulting in restructuring Nigeria to create correct relationships between its constituent models.
Tinubu stated the Supreme Court docket judgement is “a powerful affirmation” that Nigeria may be restructured by means of “reputable technique of redress.” Flawed! Nigeria can’t be restructured by means of judicial activism; it will possibly solely be restructured by means of political and legislative processes. Judicial constitution-making received’t endure; solely a restructuring, underpinned by a negotiated political and constitutional settlement, will endure.
However think about Tinubu’s hypocrisy. Twenty years in the past, as governor, he sued the Federal Authorities, arguing that native governments had been solely state affairs; now, as president, he sued state governors, asserting the Federal Authorities’s “proper” to intervene in native authorities affairs. Moreover, how autonomous had been native governments in Lagos State beneath Tinubu as governor, and later godfather? Zilch! But, he’s now masquerading because the defender of native authorities autonomy in Nigeria. Crass hypocrisy!
Fact is, the Supreme Court docket ruling received’t work. It is because native governments could have “monetary autonomy”, they received’t have administrative and political autonomy. Governors will nonetheless handpick these “elected” as native authorities chairmen, even councillors, and not directly management the councils’ purse strings.
