By B. Olayinka, Esq.

Can the President of the Federal Republic of Nigeria validly know the needs of Afoke, the sachet water hawker in Ogunpa market, in Ibadan far away from the federal capital territory? Can the Governor of Kano State know and adequately take care of the needs of Felgore Village in Bebeji Local Government Area or the needs of Ese in Okpela in Edo State? The answers are certainly a capital NO…

We are not to celebrate democracy day without reflecting on our choice of democracy and justice and reiterate the need to protect, nurture and develop them in Nigeria.

Prior to independence till date, the objectives and target of every government is national development and good governance. It is also the will of Nigerians that they be governed in the best way that will enhance national development and progress.

It is in furtherance to this that our constitution has clearly outlined what should be the dreams and aspiration of every government by stating the fundamental objectives and directive principle of state policy as enshrined in Chapter 2 of the constitution.

Whether these objectives and principles are being rigorously pursued by successive government is an issue for consideration in another piece.

A federation relies heavily on two major concept/principles, that is, democracy and separation of power which both when enhanced would stimulate national development.

The purpose and end for which the objectives and principles are made is primarily to achieve national development. At this juncture, it will be necessary to remind ourselves of what Democracy, National Development and Good Governance means.

Democracy in my own words is the system of government where the people govern themselves by proxy.

I shall also adopt the word of Abraham Lincoln in reference to democracy as ‘government of the people, by the people and for the people’. Though spoken at Gettysburg in honour of soldiers that sacrificed their lives to protect democracy, the words carry the entire meaning and purpose of democracy.

National development basically means progressive improvement of the people’s welfare and wellbeing through increased and improved infrastructure, security, employment, good standard of living, peace and good governance.

Good governance simply means public institutions and officers are efficient and they carry out their functions in accordance with the desire of the people or in their best interest.

A good government does not have to do all that the people desire, this is because the people’s desire which may sprout from sentiments may sometimes be detrimental to them and in that situation, a reasonable government is expected to deny its people such detrimental desire in their interest and for their benefit. In essence, the goal or the end is national development while democracy and good governance are the means to that end.

If national development means the progressive improvement of the people’s welfare and wellbeing as I earlier said, who is in the better position to determine what will improve the wellbeing and welfare of the people if not the people.

Can the President of the Federal Republic of Nigeria validly know the needs of Afoke, the sachet water hawker in Ogunpa market, in Ibadan far away from the federal capital territory? Can the Governor of Kano State know and adequately take care of the needs of Felgore Village in Bebeji Local Government Area? The answers are certainly a capital NO.

It is not that the President or a Governor would not desire to take care of the needs of these people, but the problem is that they are far from these people and the yearnings and cries of these people may never get to their hearing due to the distance and the myriad self imposed protocols government officials have placed around them.

One distinctive feature of Nigeria is its large population and diverse ethnic groups within its territory. A peculiar circumstance which must have informed the decision of the founding fathers of Nigeria to adopt federalism made up of 3 tiers of Government. i.e. Federal Government, State Government and Local Government.

The Local Government was created as the 3rd tier of government in view of the necessity to have government close to the people who are the shadow government.

It is also pursuant to this that the 3 tier system of government is entrenched, encapsulated and enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In EDO STATE AGENCY FOR THE CONTROL OF AIDS v. COM. AUSTIN OSAKUE & ORS(2018) LPELR-44157(CA) his lordship OSEJI, J.C.A. describing the concept of federalism stated thus: “To properly address this issue it will be expedient to embark on forage of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 2 (1) and (2) provides:- 2 (1) Nigeria is one indivisible and indissoluble Sovereign State to be known as the Federal Republic of Nigeria. 2 (2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory. From the above provision, Nigeria operates a federal system of government. Federalism is defined as the mixed or compound mode of government, combining a general government i.e. (Central or ‘Federal government’) with regional governments i.e. (States, provincial, cantonal or other sub-units of governments) in a single political system. It can thus be defined as a form of government in which there is a division of powers between two levels of government. In modern terms, it is a system based upon democratic rules and institutions in which the power to govern is shared between the Central and State provincial governments in accordance with the terms and conditions proscribed by the subsisting Constitution. (see Wikipedia). In Nigeria as in a number of other countries, the Constitution provides for a three tiered system of government. That is to say, the Federal, the State and Local governments. Hence Section 3 (b) of the 1999 Constitution provides for Local Governments as follows:- 3 (b) “There shall be seven hundred and sixty eight local government areas in Nigeria as shown in the Second Column of Part 1 of the First Schedule to this Constitution and six area councils as shown in Part 11 of that Schedule.” Per OSEJI, J.C.A. (Pp. 13-14, Paras. D-F)

It is worthy to note that the 3 tiers of government have always been part of our Constitution since Nigeria adopted the Federal System of Government. Sections 5 and 7 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for the 3 tiers of government.

Section 7 specifically guarantees the systems of Local Government by democratically elected Local Government Councils. The said Section mandates the enactment of laws by State Government to ensure their existence.

In furtherance to Section 7, each States of the Federation are divided into Local Government areas as provided in Part 1 of the First Schedule of the Constitution of the Federal Republic of Nigeria, 1999. Also, the fourth Schedule of the Constitution also provides for the functions of Local Government Councils in Nigeria.

Separation of power is not limited to the 3 arms of government but includes separation of power of the 3 tiers of government with each tier having its powers and functions which should be guarded from any form of intrusion by other tiers of government.

The democracy adopted in our republic is not, should not and cannot be limited to two of the three tiers of government but must be operational in all the tiers of government.

The local government requires democracy for it to be functional and should not be a mere appendage of the state government.

Over the years it has become a practice by state governments to treat the local government as one of its departments or as its appendage and as such deprive the 3rd tier of government all the character of democracy by intruding into its affairs/operation and usurping its power contrary to the purport of democracy and constitutional intent. This practice was condemned by the court of appeal in the case of ATTORNEY-GENERAL OF PLATEAU STATE & ORS V. HON. CHIEF ANTHONY GOYOL & ORS (2007) LPELR-12875 (CA) where the court stated thus:

“Although the House of Assembly has power to make laws, such laws must be in accordance with the provisions of the Constitution; The House of Assembly has no power to make any law giving the Governor power to truncate a democratically elected Local Government Council. This explains the rationale which preserves the tenure of a Local Government Council when the Law under which the Local Government Council has been amended or repealed. Since the respondents are public officers they are bound to observe and conform to the Code of Conduct and if they breached any law in the performance of their duty as public officers, they could be referred to the Code of Conduct Tribunal or be prosecuted under the Penal Laws which have been enacted for that purpose.The penchant by State Governors in dissolving Local Government Councils is clearly undemocratic.” Per AKAAHS, J.C.A (P. 44, paras. D-E)

A local government must be manned by democratically elected individuals whose election will come from the people within the local government areas in a state in a fair election which is free from the influence whatsoever of any of the other tiers of government and their removal should also be democratic in nature. In Attorney General Benue State v. Umar (2008) 1 NWLR (Pt. 1068) 311 at 354 – 358 the court of appeal while elucidating on the import of democracy which as election as its prominent feature stated that:

“Elections like in any other country should be held sacrosanct. Representatives of the people through an election (at whatever level) cannot just be removed or their Councils dissolved at the pleasure of other elected office holders. However, the courts are poised to chaperon the many contenders through the straight and narrow of democracy….”

The local government must be financially and administratively autonomous, free from intrusion, usurpation and subjugation by any of the other tiers of government.

A local government should be financially autonomous, the councils should be free to draw a budget and spend on project as they deem fit and not to be subject to the state government. Their share of the national revenue should be paid directly into their accounts and be accessible to them.

The local government is in the best position to interface between the masses and the state government. Since the local government is closer to the people, it is in the best position to know the yearnings of the people, to cater for them and where the yearnings and needs are beyond its capacity, communicate these yearnings to the state government which will model its policies, programmes and projects to meet the needs of the people.

We must shift from the lawless practice of usurping, sacking and truncating the democratic system of local government if we truly seek and wish to achieve national development.

The wishes and desires of the people in the choice of their political leaders can only be expressed and manifested by the conduct of a fair election. It is expected that the state would provide its local government areas a fair election just as it demands a fair election into the state government from the federal government.

Before jumping to talk of restructuring, it is pertinent to state that an independent and democratic local government can be achieved when the state governments are disciplined, responsible and law abiding and by making few amendments to the constitution.

If the state governments would be disciplined and responsible enough to recognize, respect and uphold the democratic system of local government guaranteed by the constitutional and required by good reasoning in the strife for national development, then we shall have independent and democratic local government councils which shall be responsible and accountable for bringing government to the masses and identifying and addressing the basic needs of the masses.

It must also be stated that while restructuring may be desired, the first step is for all political office holders to adhere and comply with the provisions of the constitution and other laws, be responsible and own up to their shortfalls.

It will be hypocritical and a waste of time to be talking about restructuring if political leaders are acting in a lawless and irresponsible manner and have not in the barest minimum complied with the constitution. Not even when they abide by the law only when it suits them. These set of individuals would do nothing different or perhaps would do worse if the system of government is restructured.

For instance what do you expect from a governor who dissolves democratically elected local government council or that which fails to disburse funds meant for local governments in his state and diverts it to his personal use or for the state government or a governor who unilaterally removes the chief judge or the one that sacks duly employed staff of the state civil service because the recruitment process was done by his predecessor in office etc. when some of the powers now vested in the federal government devolves on him? There is hardly any state governor in Nigeria that is not guilty of this lawlessness without specific reference.

I believe that the first step to national development and a condition precedent to restructuring is to ensure that all office holders abide by the constitution and other laws of the country and be sanctioned for any breach and disregard of laws and court orders.

A breach of the constitution is an impeachable offence and detraction from the oath of office of political office holders for which they ought to bear the wrath if we are truly interested in national development.

I will end this piece by saying that the voices of fools and the ignorant would be louder when the intellectuals fail to educate them. Evil prosper when the good people fail to speak up for justice in any way they can.

God will not change the condition of Nigerians until we change what is in ourselves.

B. Olayinka, Esq.

Dip. Law (Kano), LL.B (Benin), BL, LL.M (Ibadan)

Solicitor and Advocate of the Supreme Court of Nigeria