Local government autonomy, governance and outcomes in Nigeria, By Femi Mimiko

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 it, 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. Specifically, the Punch online newspaper, in its May 31 edition, published the piece, titled, “That LGA Autonomy Litigation.” Nigerian Tribune online, also did the same, on June 1. 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 later 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 11 July 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.

What the Supreme Court has done is simply to yank off a clear provision of the Constitution, and replace it with something completely foreign to it. To imagine that some lawyers, some of them quite senior, would endorse this type of dangerous precedent simply because of animus against the governors, is quite difficult to internalise. For, what the Supreme Court has done in the instant case is akin to waking up one day, and on the basis of a nondescript litigation, ruling that the tenure of Governors and the President is no longer four years in the first instance, as provided for in the Constitution, but now – by judicial fiat – 10 or more years! Nobody needs the say-so of any pundit to appreciate that this is a very dangerous scenario; yet, it is something many ordinarily enlightened people are celebrating.  This is the danger in relation to how the Supreme Court may want to begin to exercise what the Court referenced as its “unlimited powers” to pronounce on issues between States and the Federal Government. It thus, technically, treats cavalierly, the very first section of the 1999 Constitution (as amended), Section 1(1), which states in clear terms, that “This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.”

Fourthly, in relation to land, I am persuaded that many Nigerians who are quick to applaud the ruling are completely ignorant of the profound implications of same for the Land Use Act, and our extant land holding patterns generally. Under the current dispensation, State Governors hold all non-urban lands in trust for the citizens in a fiducial form of relationship. This is what has made it possible for State Governments to stave off the intrusiveness, nay, shenanigans of some overbearing federal governments in the recent past, by simply refusing to allocate lands for some very controversial programmes that were highly steeped in exclusivity. Under the emerging dispensation, in which the Federal Government is inputting itself into the scheme as the potentate and, to all intents and purpose, manager of the LGAs, it is going to be like a piece of cake for any overbearing federal government to access land via the LGAs, which are constitutionally placed in charge of non-urban (rural) lands, howsoever defined. Hitherto, the LGAs would not venture out of line to do this, given that they operated within the boundaries of the provisions made by the State House of Assembly. With the Supreme Court judgement, not anymore!

Fifthly, I make bold to assert that what the Supreme Court has done, perhaps unwittingly, is to drill down on injustice and inequity, underlying the creation of LGAs, and indeed, States, perpetrated when Nigeria was under military rule. There are no objective and unimpeachable criteria for the number of LGAs created. The creation was simply done on the basis of the whims and caprices of the military generals that bestrode these climes like a colossus in those years. Two examples that I cite are Osun/Ondo States, and Lagos/Kano States. Whereas Osun and Ondo States have comparable land mass at 14,875 square kilometres and 15,500 square kilometres respectively, and populations of 4.4 million and 5.3 million respectively in 2022, Osun was gifted 30 LGAs, while Ondo has only 18. Lagos and Kano States started off in 1967 with 20 LGAs each. Many years later, in 1991, Jigawa was excised out of Kano, but between them today, both States have 71 LGAs, while Lagos retains its original 20, which anomaly then Governor Bola Tinubu tried to correct by creating 57 LGAs. His effort was shot down by the Supreme Court then, making him to invent the concept of Local Council Development Authorities (LCDA). Significantly, the LCDA initiative has now practically become otiose given that monies are now to pass directly, only to the constitutionally recognised LGAs, which remain just 20 for Lagos State. Meanwhile, number of LGAs in each State is not just one of the bases for sharing revenue from the Federation Account, it also determines the number of seats (representation) in the House of Representatives! My conviction that this could not have been the intention of the President informed my call in the article referenced above that, “President Bola Tinubu, who himself as Lagos Governor, fought this inequity on the status and place of LGAs in our federation, shouldn’t be the one doing this. Rather, he should look at the obstacles that made his attempts at creating new LGAs in Lagos to flounder, and push for the necessary constitutional amendments to take care of the obstacles.”

Methinks rather than seeking to consolidate this arrant confusion, nay injustice, what the Supreme Court should have done was to leave things as they were, pending when the country would be able to find its way around this structural anomaly, which is one of the factors fuelling anger and instability in the system. This, by the way, is one of the bases for the restructuring advocacy, which seeks to move Nigeria further in the direction of federalism, through substantial devolution of powers to the federating units, i.e., the States.

Sixthly, considering that the LG system, just like the presidency and the State governments too, is not peopled entirely by saints, what guarantees do we have that if the Governors were corrupt in the manner in which they tended to manage public funds, that the elected and appointive staffers of the LG system are going to be any different? What structures of control and accountability have we emplaced to ensure that rather than having to deal with 36 theatres of (mis)management of public funds, we are now having a motley of 774 to deal with? None of the pundits trumpeting support for this unusual judgement has weighed in on this primary question well enough.

Seventhly, what the Supreme Court has forced down the nation’s throat by its 11 July judgement, is akin to what Decree 34 of 1966, established. In one fell swoop, that Decree threw out Nigeria’s regional structure, substituting for it what, to all intents and purposes, amounted to a unitary structure. Thus, if in 1966, Decree 34, sent regionalism packing, the Supreme Court judgement of 11 July has now completely flushed the residue of federalism in Nigeria down the drain! The task the military junta under Major-General JTU Aguiyi-Ironsi began, is what the Supreme Court has now completed and consolidated. But it is difficult to imagine that this is the direction in which a President Tinubu would go, given that he was in the vanguard of the advocacy for devolution of powers to the States in order to enable Nigeria have a credible chance of autochthonous development. In practical terms, the ruling has now made nonsense of those long years of advertised commitment to restructuring and devolution of powers. For, if anything, given that the new Federal Government will now practically superintend the LGs, Nigeria has moved almost completely away from, and can now, at best, only exist on the fringes of federalism. Meanwhile, the argument has been made variously that considering that the Nigerian society is itself thoroughly federal in nature, the only workable constitution with which it can be successfully governed is a federal one. The failure to accept this reality – which is already demonstrated beyond any reasonable doubt, both in theory and praxis, is what has continued to make the country’s governance system basically dysfunctional.

The only silver lining in the Supreme Court judgement relates to its ruling on the sacrosanctity of democratic structures at the LGA level. On this, I had argued in my earlier piece, that “The only things that should be of concern, and on which attention should be focused, are first, that governance at the LGA level be by elected leaders, only; and secondly, how to prevent State Governors from wantonly dismissing elected LGA leaders and substituting for them, caretaker committees.” My position was substantially informed by Section 7(1) of the 1999 Constitution (as amended), which proclaims that “The system of local government by democratically elected local government councils is under this Constitution guaranteed ….” The Court should, therefore, have limited itself to the subject of democratic governance at the LGA level, proclaiming as it did that funds may not be accruing to any LG that is not governed by elected officials, for as long as that lasted. This would have been consistent with the Constitution, which at any event, has indicated in Section 14(1) that “The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.”

Beyond the Judgement

Now beyond the foregoing is the inexorable follow up to the Supreme Court judgement, which we should expect. In the frenzy to completely yank off the LGAs from the States, it is evident that moves are going to be made – most likely through the same judicial intervention – to outlaw the States Independent Electoral Commission, constitutionally created and saddled with the organisation of elections into LGs. This would have to be through judicial proclamation too, as the States House of Assembly are not likely to sign on, onto that, thereby making such a change impossible through constitutional amendment. And when this is accomplished, the takeover of the LGAs, and full centralisation of governance structures and powers in the Federal Government would have been complete. But then, no prodding of any pundits is required to know that this, indeed, is the very recipe for crisis. It is not without reasons that a federal system like the US has no central election management body, but relies on each State to organise its own elections, including the presidential, which results are then collated nationally.

By Jove, the federal government has not demonstrated in any serious manner these past 64 years that it is the very representation of effective and efficient governance. Rather, it has existed, especially under the 1999 Constitution (as amended), with all of 68 items on the Exclusive List, and 30 on the concurrent list, as a barracuda, metaphorically dying under its own weight. It is also questionable how effective our election management authorities have been over the years, such that in the search for clean, free and fair elections at the LG level, it is these same agencies that we look up to. Now, rather than finding a way of resolving these institutional challenges, and moving away from centralised governance, we are, with this Supreme Court ruling, racing in that self-same direction.

A core element in the choice made by nations to adopt federalism is the paradox of maintaining unity while preserving diversity. Rather than finding a way of moving away from uniformity in the manner of organising our LGs, by allowing each State House of Assembly to legislate on how many of such a State should have, and the direction in which their administration should be positioned, we have now firmed up on uniformity. A federal government that had to deal with 36 States was overbearing in its attitude vis a vis the latter. Now, we are to have all of 36 States and 774 LGAs scrambling for relevance, and kow-towing to the same Federal Government. The implications of this should be clear.

The only argument that would probably have been tenable is to say that we do not need federalism anyway; but certainly, not that this judgement promotes federalism. Even so, the counterargument would be about how many of the conceptual categories that we parade as a country would we say have served us so well, to deserve being given the thumbs up sign? Certainly, not even democracy – as practised in these climes – would stand tall in this regard. Yet, because of the shenanigans of some governors, we are quick to throw the federalism baby out with the bathwater.

It remains to be seen how these structural bumps, some of them feeding on wrong attitudinal disposition of many Nigerian politicians, are going to be negotiated in the overall interest of Nigeria. But my hunch is, as Obafemi Awolowo once said, that the omens are bad vis a vis Nigeria’s governance structure, and the possibilities of greater responsiveness to the yearnings of the people, even at the grassroots, going forward. When all the facades are off, it would be obvious that what Nigeria is onto is but a systematic descent into concentration of power. What this evokes is the imagery of governance chaos; but it is apposite that the country is put on notice on this inevitable outcome, of the Supreme Court ruling of July 11, 2024, so that no one would be caught napping when its full implications begin to unfold.

New Federalism

Everything considered, I choose to end this intervention on a positive note. Two unique things about the Indian federal system are, first, that State governors, who essentially have only ceremonial roles, are appointed by the President, also ceremonial, “from a panel of four candidates to be elected by the members of the Legislative Assembly of the State …”, usually from the ruling party. Secondly, unlike what you have in most federal constitutions, all residual matters not tracked by the exclusive and concurrent legislative lists are left to the central government, making the system a peculiarly highly centralised one, such that scholars often query whether India is indeed, a federal system. If the evolving, highly centralised system of pseudo-federalism that the Supreme Court is evolving for Nigeria works, and lasts long enough, it may very well be the country’s own unique contribution to the practice, literature, and theory of federalism. Afterall, when subjected to thorough interrogation, no standard federal system exists; not even the US – the first in the category – qualifies to be so called, as every federal system evolves within specific contexts shaped by history, environmental realities, and behavioural orientation of the citizenry. All of these make the concept of ‘true federalism,’ so popularly invoked in Nigeria, a conceptual misnomer. Every federal system comes with its own unique feature, making the focus of analysis to be on functionality; to wit, how functional is a federal system, and what does a people need to emplace to make same more functional? But my hunch is that the profoundly plural and diverse nature of the Nigerian society, in which cleavages overlap and reinforce one another, cannot be marginalised. As well, the predisposition of the Nigerian governing elites, to seeing political power, in the word of Richard Joseph, as prebends, to be firmed out as patronage, and not necessarily a means to dispensing the public good, cannot be disregarded. As I have noted elsewhere, this is a system of state capture, in which rather than “the security and welfare of the people (being) the primary purpose of government,” as indicated in Section 14(b), of the Constitution, power is directed at fostering and festering the particularistic interests of the governing elite, while attendance to issues of concern to the general public is, at best, merely incidental. It would be a miracle, going forward, for the new federalism we are building to deliver on Nigerians’ legitimate aspirations for good governance.

Femi Mimiko is a professor of Political Science, at Obafemi Awolowo University, Ile-Ife; and member, National Institute for Policy and Strategic Studies, Kuru. E-mail: femi.mimiko@gmail.com; @FemiMimiko