Awa Kalu
12 September 2008
opinion
Lagos — The decision of the Supreme Court indicating that the new Local Government Areas created by the Lagos State House of Assembly are inchoate or in abeyance is a shorthand way of saying that in the eyes of the law, they are as yet, not in existence.
This conclusion did not receive concurrence from all the Justices of the Court who sat on the dispute. Accordingly, Justices Uwaifo and Akintan dissented on this point and it would appear instructive to quote both of them in extenso. In the words of Uwaifo JSC (as he then was):"I think it is helpful to read subsection (6) before Subsection (5). It must be noted that it is after the creation of more local government areas that a House of Assembly shall make adequate returns to each House of the National Assembly.
In other words, the creation has been concluded and the relevant local governments areas have been brought into being by the action taken by a House of Assembly through its bill before returns thereof are made to each House of the National Assembly.
In relation to local government areas affected or involved, the National Assembly shall then pass an Act, based on the returns so furnished to it, to make consequential provisions with respect to the names and headquarters of the said local government areas. I strongly hold the view that the only purpose of the consequential provisions is to update the local government areas "as provided in section 3 of the Constitution and in Part I and II of the First Schedule to this Constitution".
It is like birth registration under the provisions of an Act. The delay in the formality of registration of any particular birth cannot ignore the fact that there has been a child born who is living. To my mind, it does not confer supervisory authority on the National Assembly which it may use to delay, direct, control or frustrate the effect of a Law duly enacted by a State. It is a simple process for a simple formal consequence; it is a process different from that of passing an Act for the alteration or amendment of a provision of the Constitution as laid down in section 9 of the Constitution.
In my opinion, there is nothing, therefore, special about it that ought to postpone the coming into force of the Law constitutionally passed by a State to create local government areas in its domain". On his own part, Akintan JSC noted that: "the above constitutional provisions clearly show that the process of creation of new local government councils is entirely a State affair.
This is why it is provided in section 8 (5) that the National Assembly is only required to make "consequential provisions" with respect to the names and headquarters ...I have no doubt that none of the definitions of the word "consequential" or "consequence" given above could lead to the inference that the role which the National Assembly has to play in section 8(5) of the Constitution is part of the process of creation of new local government councils.
I believe that the process of creating the new local government councils has been completed before the National Assembly is called upon to perform its own role under section 8(5) of the Constitution. It is therefore not correct to say that the process of creating the new local government councils by the Lagos State was incomplete or inchoate until the National Assembly carries out its role under section 8(5) of the Constitution.
Similarly, I also hole that, in the absence of any Act of the National Assembly passed under section 162(5) and 162(7) restricting or prohibiting the newly created local government councils from benefiting from the revenue accruing from the Federation Account, it will be totally unconstitutional to withhold such funds from the newly created local government councils.
I therefore, for the reasons given hereof, hold that there is merit in the four legs of the plaintiff"s claim and I accordingly grant them". Another eminent constitutional Lawyer of repute, Professor Ben Nwabueze, SAN, also disagrees with the Judgment of the majority of the Justices who sat on the case, Attorney-General of Lagos State v. Attorney-General of the Federation, supra.
In his new book, "How President Obasanjo Subverted Nigeria"s Federal System", the learned Professor, after reviewing the case and after a careful examination of the provisions of the Constitution with regard to the procedure prescribed therein for the creation of new local government areas, submits that "Given that the role of the National Assembly to make a supplementary law merely changing names presupposes a constitutionally valid, effective and operative state law that has completely accomplished the creation of new local government areas, it is, with great respect, an abuse of language to describe the state law in question as "inchoate", meaning, according to the definition of the word in New Webster"s Dictionary of the English Language, "incomplete".
There is certainly nothing incomplete about the state law concerned or about the creation of th
e local government areas". All that needs to be done now, (having regard to the background to the political bickering arising from the avowed policy of the Lagos State Government to conduct elections into all the Local Government Councils) is to weigh the situation in order to see whether there is a legitimate way out of the imbroglio. In that connection, it appears that there are a handfull of questions that will assist our inquiry.
The first of such questions relates to whether the Lagos State Government has purview over local government elections. The second relates to the first and is whether it is illegal or unlawful to conduct elections into the 37 Local Government Development Areas newly created by the government of Lagos State. There is no scintilla of doubt that it is the State Governments that have complete control over the affairs of Local Government Areas including the Councils.
In Attorney-General of Abia State v. Attorney-General of the Federation, (2002) 6 N.W.L.R (pt. 763) 264, the Supreme Court was unequivocal when it declared that save and except for laws for the Federation with respect to (a) registration of voters, and (b) the procedure regulating elections to a Local Government Council, it is the House of Assembly of a State and not the National Assembly, which has the power to make laws with respect to matters relating to or connected with elections to the office of chairman or vice-chairman of Local Government Councils in that state or to the Councillors therein. In the words of Ogundare JSC, "... by the combined effect of section 7(1) and 197 and item 22 of the second schedule Part I, the constitution intends that everything relating to Local Government be in the province of the State Government rather than in that of the Government of the Federation". (emphasis, ours). Consequently, we have no hesitation in affirming that local government elections are within the purview of State Governments.
The second question is tricky. For the avoidance of doubt; it is whether it is illegal or unlawful to hold elections into the 37 Local Government Development Areas created by law made by the Lagos State House of Assembly. There are two ways to look at this matter. The first is simpler and that is to submit that if the election is conducted as an election into the 57 new Local Government Councils, then such an election would be contrary to the letter and spirit of the Judgment of the Supreme Court which treated the 57 new LGAs inchoate.
It would be wrong for the judgment of the Supreme Court to be treated with ignominy. However, if the election is into the Local Council Development Areas properly so called, then I do not conceive of any law which forbids the creation of LCDAs simpliciter. In that regard, it must be admitted that the Governor of Lagos State would be acting lawfully if he simply appointed Administrators to superintend and manage the affairs of the LCDAs as has been the case in other states. Should this position be correct, it would then appear magnanimous for the Governor to prefer elections to his executive fiat.
The other political parties would then have the right to contest the election into offices that are available within the LCDAs. An election, according to Black"s Law Dictionary (8th edn.) p.557 is the process of selecting a person to occupy an office ... a public office). The Webster"s Encyclopedic Dictionary defines election in similar terms -- i.e. the act or process of election, esp. of choosing by vote. It is beyond dispute that the 37 LCDAs created by the State House of Assembly are to be administered for the overall benefit of the people of Lagos State .
Having been created by law, the LCDAs cannot be appropriated as private estate and are therefore public entities. It is necessary to emphasize that by a strict construction of the constitution, a Local Government Area is different from a Local Government Development Area. One is not unmindful of the controversy generated by the decision of the Supreme Court in A.G. Lagos State v. A.G. Federation, supra in which the Court held that the Lagos State Government had taken the mandatory steps provided for in the constitution for the purpose of creating new Local Government Areas. The only cog in the wheel of those new Areas arose from the failure of the National Assembly to make consequential provisions for their existence.
It ought to be recalled that the Supreme Court was not unanimous in holding that the Lagos State Law which created the LCDAs is inchoate. In support of his disagreement the Learned Professor submits that "There is certainly nothing incomplete about the State law concerned or about the creation of the new Local government areas".
What seems to be forgotten by those opposed to the elections is that elections had been conducted in those new Areas before the dispute in the Supreme Court. On the propriety of holding elections into the 57 Local Government Councils on that occasion, Uwaifo JSC held that "As the fifty-seven Local Government Councils were established by Law, conducting elections into them by the plaintiff was acting in furtherance of the provisions of Section 7(1) and (4) of the Constitution, 1999. It has given life to domestic principles of representative Local Government Councils". In summary, the preachment here is that no disrespect should be intended for a subsisting judgment of the Supreme Court.
Therefore, the Lagos State Government ought simply to maintain the dichotomy between the 20 Local Government Areas named in the Constitution and the 37 new Areas created by the Law of Lagos State. The National Assembly, wittingly or unwittingly, should not frustrate the will of the people of Lagos State as expressed by their representatives in the House of Assembly in a Law validly enacted pursuant to the Constitution.
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