Fidelis O. Okpata
Department Of Political Science & Public Administration,
Ebonyi State University,
Abakaliki
Abstract
This article examines the legal basis of local government in Nigeria. It notes that local government derives its existence, functions and powers from the law and constitution. The article contends that there is a contradiction about the establishment and control of the local government under the 1999 constitution. It further opines that the legal basis of the existence of local government system in Nigeria, has made it loose its autonomy as the third tier of government due to constant interference, arising from constitutional relationships -with the other tiers of government,
Introduction
It may be stating the obvious, if not outright naive to say that local government is inconceivable without national or state government in federations like United States of America and Nigeria, hence the socio-economic and political peculiarities of a nation have implicit influence on the legal existence of the subordinate units of the government. Local government exists and functions precisely because it fills a gap, which the federal or state government seems too far removed to fill. This again informs the importance of local government as the link of the people with other tiers of government in a federation. In other words, local government brings nearer to the rural populace, the presence and impact of the national or state government. In Nigeria, the establishment of local government was informed by British inspired values of local self-government, hence local government administration in Nigeria was as old as colonial administration. This is why it is said that the fortunes of local government in Nigeria is tied willy-nilly to the apron strings of the colonial and post-colonial success in Nigeria. Following the end of World War II in 1945, the British officials realizing the socio-economic and political role of the local government system in developing Africa, perceived the system as a basis for social and economic development. This laid various regional government to make attempts to include on the means of attaining the new objectives of local government system in the 1950s hence, the legal existence of local government from 1950s till date was subjected to the whims and caprices of regional/state administrations. Consequently, in an attempt to evolve a stable and uniform system of local government in the country, the federal military government embarked on a nationwide reform of the local government system in 1976, which could be aptly described as the inception of modern local government system in Nigeria. The reform was a deliberate re-organization initiated by the military administration, which led to the recognition of the local government as a third tier of government in the 1979 Nigerian constitution.
The History And Existence Of Modern Local Government System In Nigeria
Local government as it is known today is different from the forms of local administration that existed both before and during the colonial periods in Nigeria. The concept of “government” is a strong label attached to what was traditional or local administration. However, as political subunits, local government after 1914 became constituted as national structure in Nigeria (Bello-Imam, 1996).During 1950s the Eastern regional local government ordinance ushered in a three tier council system of government known as the county council, the district council and the local council.Consequently, in an attempt to correct the inadequacies and abuses of the 1950 ordinance, the local government law of 1955 was promulgated which was further modified in 1958 and another local government law which coincided with the Nigerian political independence was also promulgated in 1960. This ordinance brought into being, adult franchise and vested certain powers on the state ministry of local government including the power to create local government with the approval of the state executive council. This tightened the grip on the control of the local governments by the regional (state) government. To cap it up, in 1976, following the local government Reform, the existence of the local government as a third tier of government was entrenched in the 1979 Nigeria constitution. The origin of modern local government in the development of Nigerian politics, indeed dates back to the colonial era. During the colonial period, local administration was vested on officers appointed by the colonial administrators.
Local government was first tried out in Northern emirate by Sir Frederick Lugard who found the existing traditional institutions suited to the experimentation of ruling the people through their emirs. The indirect rule system of administration was well suited to the circumstance of the time consequently, the British government gradually introduced changes in order-to make the system more efficient. This same system was easily assimilated in the West but not so easily in the Eastern province. In spite of all the difficulties encountered in the system, it was eventually accepted in all parts of the country. Commenting on the progress in local administration, T.O Elias (1963), said:
“One of the most significant events in the administration of the country since World War II, has been the conversion of the traditional native authority rule into a system of local government local. government in Nigeria became modernized as the years rolled back especially in 1976, when a deliberate re-organization was initiated by the federal military administration of General Olusegun Obasanjo, this then led to the recognition of local government as a third tier of government. Consequently, modern local government became a veritable instrument of the National Government for grass-root development. Its features were also entrenched in the 1979 constitution and subsequently in the 1999 constitution too. The provision of the 1979 constitution made it clear that although local governments in Nigeria have some functional and structural relationship with the state and national governments, their existence is a constitutional issue. By convention however, local government is not established by constitution but rather had always been established through normal process of state legislation.
Legal Basis of Local Government Existence
Okoli (1985) posited that the 1979 Nigerian constitution broke tradition … on local government, being the first on modern history to expressly prescribe the existence and functioning of local government. Local governments the world over, are therefore creations of the state laws including structure; functions; finance and powers, are all provided for by the law … (Ezeani 2004).
Historically, the legal basis for the creation of local government varies from one country to another. For instance, in federations like USA, the constitution; recognized two tiers of government only. Thus, the state becomes the basic constitutional unit of local government because the 10 amendment to the American constitution reserves to the state, the power to determine for itself the nature, scope and functioning of local government within its jurisdiction. In Britain and France for example, the local government as agent of the national government comes into existence through parliamentary legislation and thus exercises such powers and functions as are allowed it by the parliament (Okoli, 1985). Meanwhile, the legal instruments for the existence of local government system in Nigeria include:
- The Constitution of the Federal Republic of Nigeria, 1979 & 1999
ii. The 1976 local government Reform guidelines and
iii. The State local government laws.
The 1976 Local Government Reform Guidelines
Following the 1976 local government Reforms, which provided for a uniform, single tier all purpose local government councils throughout the federation, each local government council have self contained budget and was responsible for all statutory and public service functions of the council. The local government with its statutory powers became a legal entity, a corporate existence of government at the divisional level. Accordingly therefore, it made bye laws, generated revenues and carried out specified functions. By its structure, the local council authorities were single-tier, they did not have subordinate councils or super-ordinate one. However, they could have subordinate units to which they could delegate some of their powers but does not mean that there subordinate units constitute themselves into another tier of government.
The Reform also provided for the introduction of chief executive system of management and increased the functions of local government councils. To be specific, the administrative organization of each local government revolved around the local government council Secretary, who was the chief executive of each council. Each local government council has boards and committees as part of its structuring which included four main standing committees:
i. Finance and General Purpose Committee;
ii. Education committee;
iii. Works committee; and
iv. Health committee.
Section 33 of the Reform guideline, provided that all departmental heads in the local government council were responsible to the chief executive (Secretary to the local government) who was also responsible for the implementation of all council decisions as well as responsible to the councilor its committees and not specifically to the chairman. Furthermore, section 35 of the Reform Guideline states:
“Each state through its local government service board, should set up a combined local government service commission for the more highly trained cadres … “.
The significance of the above provision is that it is for the first time in the history of Nigerian local government, that there existed a unified local government service board, charged with the responsibility for appointment, promotion, discipline, posting and controlling of staff in the senior salary grade level.
Meanwhile, the same Reform Guideline provided for the structure of the local government council in relation to the state who establishes them. For instance, the Reform provision is that “A local government by structure and capacity is to serve a population figure between 150,000 and 800,000 … “However, there is a clause that “where a state government proposes to establish a local government with a total population or less then the stipulated figure, clearance should be sought for. ..11 The same 1976 Reform provided rl.lr the membership or the councils to be predominantly elected either by direct or indirect elections from the local communities. The normal life span or a council according to the Reform shall be three years and that state governors are given the powers to order the dissolution or a local government council at any time after due inquiry as defined ill the state edict/law establishing such council if it is found that the council is incapable or discharging its functions effectively.
The exclusivity or the functions or the local government in the Reform were however, not in doubt as they were clearly listed in Part A or the Fourth schedule or the 1999 constitution. There are in the successive part, Functions concurrently performed by the local government, the state and other organizations. ‘I he same is true or the sources or revenue for the II. local government which were categorized into internal and external sources to include, property rate community tax, miscellaneous licensing, user fees ranging from barrows bicycles and cannon, for the internal source while statutory allocations r(‘(lm the state and federal government grants and loans covered both recurrent and capital requirement for the external source.
The State Local Government Law
The state law as a legal foundation of the local government slammed from the felt that local governments arc state government creation through laws passed by their various I louses or Assembly especially in a federal system or government as practice by Nigeria and America thus Emmete Redford et al (1958) observed succinctly;
“the first property or local governments to be understood is that they are legally creatures or the states. Cities, the local government that carryout most or the programmes and deal with most or the conflicts in urban areas are legally established as municipalities chattered by either general or special act or the state legislature: … aiding the cities with a Legal personality… “‘
Within the context of the 1999 Nigerian constitution, section 7 (i) states: “The system of local government by democratically elected local government councils is under this constitution guaranteed, and accordingly, the government of every state shall ensure their existence, under a law which provides for the establishment, structure composition finance and functions of such councils”.
The state laws establishing the existence or local governments in states also deal broadly with such matters as:
Incorporation of the local government Areas and boundaries Composition of councils, election … etc (Bajela, 1986). In accordance with State Local Government law and in pursuant of section 7 (1) or the 1999 constitution, the I louses or Assembly of states are expected to enact Jaws for “the establishment, structure, composition, finance and functions … “of the local government councils as the Fourth Schedule of the 1999 Constitution had gone on to list the main functions of the local government councils. From the above constitutional provision and premise, decisions, action and even in actions of the state governments in matters of the personality of the local governments are bound to have serious legal consequences as they made a parody of the constitutional provision. Even though section 7 (1) of the 1999 constitution provided for the establishment of local government councils, the exact status or local government has not been very clear but rather contradictory. It seems reasonable to conclude right away from the provision that, local government is the responsibility of both the federal and state governments. However, this conclusion is still problematic. In other words, if the state is responsible for local government within its confines, what is the idea of entrenching their existence in the constitution and not in the state legislation like in American federalism (Okoli, 1(81).Meanwhile, the state and local government law serves as legal instrument for the existence of local government, it deals with and provides for specific local government, derives it powers from a national constitutional provision, Approved and signed by the chief executive of the state and is published in the state official gazette. The state and local government laws as enacted by the state House of Assembly, makes provisions in respect of the existence of the local government councils in the following areas: The existence of local government: The functions or the local government council Sources of local government revenue. The legislative powers of the local government council Establishment of local government service commission Dissolution and expiration of the local government council Creation of electoral wards. The executive powers of the council chairman and his vice Appointment of supervisors and executive secretaries and committee of the local government council etc (Ebonyi State Local Government Law No.3 of1999.A few discussions on some of these areas/patterns of relationship between the local government and other tiers of government, will suffice to shade light on the problems associated with both the constitutional provisions and the state laws in their relationship with the local government system in Nigeria. These patterns of relationship include:
- Creation of local government council
ii. Functional relationship
iii. Sources of revenue
iv. Dissolution and expiration of council tenure; and
For instance, in the area of the creation of the local government councils, section 7 subsection (I) of the 1999 constitution provided for the creation of a democratically elected local government system and in section 8 (3-5) the same constitution states the process to be followed by the House of Assemble of each state for the purposes of creating local government councils. This provision that the local Government is the state creation, is supported by American constitution in her lot 1 Amendment which reserves to the state, the power to determine for itself the nature, scope and the functioning of local government within its jurisdiction (Okoli, 1981) Burham posited in discussing what states and local governments do in American federation that;
“Each state can make and unmake its local governments and exclude them from the state legislature as lawyers put it, they are “creatures of the state” (Uduok, 2004).It is the position of this paper that there is an apparent contradiction on who controls or creates local government councils by the constitutional provision because apparently it can be perceived as the powers of both the state and the federal Governments, hence one of the declarations sought by the 36 states of the federation against federal government which is germane in this discussion was as follows:
“A declaration that no law enacted by the national Assemble can validly increase or otherwise alter the tenure of office of elected officers or as councilors of local government in Nigeria” (Ibid).
In granting the said declaration, the Supreme Court said that “the 3 year term prescribed by Decree 36 of the 1998 for elected local government officials was unaffected by the subsequent repeal”.
On the dissolution, expiration and the removal of council chairmen, various Governors and House of Assembly during the life span of the last democratically constituted councils, took decisions which either out rightly resulted in the termination of the life of elected councils through dissolution and in some other cases, suspension of council chairmen.
In the light of the frequent suspension of chairmen by the various states, ALGON went to court to seek a number of declarations but while the Federal High Court Abuja did not have the opportunity of answering the questions in the originating summons taken by ALGON, arising from the issue of court jurisdiction, the Supreme Court in an appeal by ALGON, held that:”By virtue of section 7 (I) of the 1999 constitution, only the House of Assembly could make laws regulating the affairs of local government council” (Uduok,2004).For instance, in a suit between Akwa Ibom versus Umeh (2002) Court of Appeal said inter alia:
“It is true that the word “dissolution” is missing in the provisions of section 7(1) of the 1999 constitution set out above but the House of Assembly that has the powers to make laws to regulate the affairs of local government council can make a law for dissolution of an erring local government council and for a bye election, if not there will be chaos and disorder” (Ibid).
Revenue sources: the Case of the State Joint Local Government Account
In respect of the 1999 constitution, the question of control revolves around finance. Nwankwo (1992) observed that under the new local government system each local government council is expected to have two principal categories of revenue sources: Recurrent revenue and Capital revenue. Meanwhile, section 162 (4 – 6) provided thus:
- The amount standing to the credit of local government councils in the
federation Account shall be allocated to the state for the benefit of their local government councils on such terms and in such manner as may be prescribed by the National Assembly;
ii. Each state shall maintain ‘a special account to be called “state Joint local government Account” into which shall be paid all allocation to the local government councils of the state from federation Account and from the government of the state;
- The amount standing to the credit of the local government of a state shall be distributed among the local government councils of that state on such term and as prescribed by the House of Assembly of the state.
From the above provisions, it is clear that even: though government shall make statutory allocations to local governments, such allocations must be passed to them through the state governments. However, one thing appears to have escape termination of the life of elected councils through dissolution and in some other cases, suspension of council chairmen.
In the light of the frequent suspension of chairmen by the various states, ALGON went to court to seek a number of declarations but while the Federal High Court Abuja did not have the opportunity of answering the questions in the originating summons taken by ALGON, arising from the issue of court jurisdiction, the Supreme Court in an appeal by ALGON, held that:
“By virtue of section 7 (I) of the 1999 constitution, only the House of Assembly could make laws regulating the affairs of local government council” (Uduok,2004).For instance, in a suit between Akwa Ibom versus Umeh (2002) Court of Appeal said inter alia:
“It is true that the word “dissolution” is missing in the provisions of section 7(1) of the 1999 constitution set out above but the House of Assembly that has the powers to make laws to regulate the affairs of local government council can make a law for dissolution of an erring local government council and for a bye election, if not there will be chaos and disorder” (Ibid). Revenue sources: The Case of The State Joint Local Government Account
In respect of the 1999 constitution, the question of control revolves around finance. Nwankwo (1992) observed that under the new local government system each local government council is expected to have two principal categories of revenue sources: Recurrent revenue and Capital revenue. Meanwhile, section 162 (4 – 6) provided thus:
i.The amount standing to the credit of local government councils in the
federation Account shall be allocated to the state for the benefit of their local government councils on such terms and in such manner as may be prescribed by the National Assembly;
ii. Each state shall maintain ‘a special account to be called “state Joint local government Account” into which shall be paid all allocation to the local government councils of the state from federation Account and from the government of the state;
iii. The amount standing to the credit of the local government of a state shall be distributed among the local government councils of that state on such term and as prescribed by the House of Assembly of the state .-..
From the above provisions, it is clear that even: though government shall make’ statutory allocations to local governments, such allocations must be passed to them through the state governments. However, one thing appears to have escape control, influence and flout with impunity, the good intentions of the provisions of the constitution.
CONCLUSION
The legal basis of the existence of local government system in Nigeria indeed, has made the local government system loose autonomy in their existence as a third tier of government due to the regular interference, arising from contradictory constitutional relationship, thus system has not been able to achieve the purpose of its constitutional existence in Nigerian federation. It is therefore true to say that the local government as the third tier of government in Nigeria is euphemism.
References
Adedeji, A., and Rowland, L. (1979), Local Government Finance in Nigeria: Problems & Prospects; Ile-Ife: University Press.
Dahl, Robert, A. The City in the Future of Democracy” American Political Science Review, vol.LXI, No.4.
Emezie, C.(1984) “Nigeria Local Government in Historical Perspective” Nigeria Journal of Public Administration & Local Government vol I -2 No.2.
Federal Republic of Nigeria: Decree No.36 of 1998 (Basic Transitional & Consequential Decrees).
Federal Government of Nigeria (1976) Guidelines for Local Government Reform. (1999) The Constitution of the Federal Republic of Nigeria. 1988 Implementation Guidelines on llle Application of the Civil Service Reform in the Local Government Service.
Burham W. Dean (1983) Democracy in Making: American Government & Politics. New Jersey, Prentice Hall.
Emmete, S Redforth (1968) Politics & Government in the United States. New York.
Emmete S. Redforth (1958), Idea and Practice 111 Public Administration. University of Albania press.
Duana, Lockard (1959) New England Politics Prenceton Unit ress.
Daniel 1. Elazar (1972) American Federalism A view from the States. New York.
Charles R. Adian (1977) State and Local Government, New York, McGraw Hill.
Herbert Jacob and Kelmeth N. Vines (1965) Politics in American States. A comparative Analysis, New York.
John C. Bollen and Henry 1. Schmandt (1965) The Metropolis. Hamper& Row. New York.
John C. Bollen et al (1956) The States and Metropolitan Problem, Chicago.
James A. Stever (1950) Diversity & Order in State and Local Politics. University of South Caroline press, Columbia.
Sorkaa, A. P. “Local Government and the Power Structure in Nigeria. Paper Presented at a Seminar for Top L.G. Functionaries, Benue Hotel.
Bajela, H.S. (1986) Handbook for Local Government Administration. John West Pub. Ltd. Lagos.
Federal Republic of Nigeria (1999) “Handbook on Local Government Administration”
OlllarMassoud and Bello Oluani (1998) “The Challenges of Local government as a third tier of Government Under the Sole Administrator/Caretaker Committee System” ABU Zaria.
Okpata, F.O (2004) Contemporary Issues & Practices in Nigeria LOC31 Government Administration. Jones Communication, Enugu.
Ezeani, E.O (2004) Local Government Administration, Zik-Chuks Press. Enugu.
Bello_Imam, l.B (1996) Local Government in Nigeria: Evolving a Third tier of Government.
Mackenzie, WJ.M (1961) Theories of Local Government, Greater London Carper NO.2 L.S.E.
Okpata, F.O. (2004) Public Administration: Theory and Practice, Cheston Agency Ltd. Enugu.
Okoli, F.C and Ikejiana Clark (ed.) (1995) Local Government Administration in Nigeria: Current Problems and future Challenges. Lagos: Academy Press.
Ebonyi State Local Government Law No.3 of 1999.
Laski, 11.J (1984) A Grammar or Politics, London: Allen and Unwin.
Marshal, A.H. (1965) Local Government in Modern World, London; Althone Press.
Okoli, F. C. (1981) Local Government As A Third Tier of Government:
Relationship between Federal-State-Local Governments: Paper Presented at the National Conference on Local Government Administration at Hotel Presidential, Enugu.
Sharpe, LJ. (1982) Theories of Local Government. Quoted in Lionel D. Fieldman (cd) Politics and Government in Urban Canada, Toronto: Methuen.
Okoli, F.C. (19840 An Introduction to the Theory and Practice of Local Government Administration in Nigeria: A Nigerian Perspective.
Nwankwo, B.C. (1998) The Local Government Relations in Nigeria: Control and supervision by the State Government Lecture Mimeograph UNN.
Okoli, F.C. (1985) The Local Government As A Third Tier. What did the Constitution Say?
Uduok, E.A (2004) Legal Implications of Actions of Federal and State Governments on Local Government: A Paper presented on workshop for Local Government Chairman and Treasurers by Ebonyi State Local Government Service Commission, Abakaliki.