BY Daniel A. Noah Osa-Ogbegie, Esq., PNM, FCAI
INTRODUCTION
The cornerstone of any vibrant democracy rests upon the principle of self governance. Local Governments, as the closest tier of government to the people, are meant to be the fulcrum of this principle, responsive to the unique needs and aspirations of their communities. However, a disturbing trend has emerged across Nigeria, one that threatens to erode this crucial foundation: the steady encroachment upon the autonomy of local governments. This insidious erosion manifests in various forms: from undue interference by state governments to the outright suspension of democratically elected council chairmen.
The recent suspension of local government council chairmen in Edo State by the State House of Assembly acting upon the petition written by the Governor of the state, serves as a stark reminder of this alarming reality. This drastic measure, while ostensibly aimed at addressing perceived administrative lapses, raises serious concerns about the erosion of democratic principles and the centralization of power. It highlights a pattern of state overreach that undermines the very essence of local governance- the ability of communities to determine their own destinies and manage their own affairs.
This article delves into this erosion, analysing the Edo state local government council chairmen’s suspension as a case study. It examines the legal and constitutional frameworks governing local government autonomy in Nigeria and how it affects the suspension and removal of democratically elected Chairmen and Vice Chairmen of these local governments. By shedding light on this critical issue, this essay aims to foster a deeper understanding of the challenges facing local governance in Nigeria and advocate for a renewed commitment to the principles of decentralization and participatory democracy.
LEGAL AND CONSTITUTIONAL FRAMEWORK OF LOCAL GOVERNMENTS IN NIGERIA.
Local Government in Nigeria is a government at the grassroot level that is responsible for the administrative and regulatory functions of a local area. Nigeria has 774 local government areas (LGAs), each with a local government council that is administered by a chairman and elected councillors. LGAs are further divided into wards, with a minimum of 10 and a maximum of 20 wards per LGA.
The modern local government system in Nigeria began in 1976 with a reform of the local government. Local governments are subordinate to both the state and the federal governments.
Local Governments are responsible for a variety of functions including organizing social assistance and services; welfare services for the elderly, youth work, housing and utilities, water supply and sewage waste management, spatial planning and public transport.
Local Government is constitutionally entrenched as an order of government alongside the federal and state governments. The Constitution requires all states to enact legislation providing for the establishment, structure, composition, finance and functions of local government councils. The legitimacy of the local government councils as a tier of government is derived from Section 7(1) of the 1999 Constitution which 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, subject to section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”
Local Governments are thus creations of statute. While the creation and establishment of local governments is the function of the State, authority for recognising their creation is given to the National Assembly. The Constitution provides for the procedure for the creation of new local governments. The rationale for the constitutional recognition arose out of the need to make it obligatory on the state governments to ensure the existence of democratically elected local government councils, to guarantee their functions and to direct the allocation of funds to them from federal revenue. This was the position of the law in Eze v. Gov., Abia State (2014) 14 NWLR (Pt. 1426) 192 wherein the Court held that:
“Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 imposes a duty on the Governor of a State to ensure that the system of Local Government continues unhindered…”
Local governments in Nigeria operate a presidential system of government with two political institutions: the legislature and the executive. The Legislature is composed of councillors, who are elected to make laws. The legislature makes all the laws for the proper administration and good governance of the local government area. The executive consists of the Chairman, and Vice Chairman. As an institution of development, local government powers could be inferred, from Section 7(3) of the 1999 Constitution as an organ of government to “participate in economic planning and development” in its area of jurisdiction. Local governments can exercise their powers to enact bye laws through the councillors, for the economic planning and development of the local government area.
While core functions of local government are defined in the Constitution, individual states may augment their responsibilities through legislation.
The functions of local government are provided for in Schedule 4 of the 1999 Constitution. In A.G Lagos State v. A.G Federation (2013) 16 NWLR (Pt. 1380) 249, the Supreme Court in commenting on the constitutional functions of the Local Government Council held that:
“The functions of a Local Government Council are governed by Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 and as enumerated in the Fourth Schedule thereto. It also includes such other functions as may be conferred on the Council by the House of Assembly of a State”
LEGAL FRAMEWORK FOR THE SUSPENSION/REMOVAL OF LOCAL GOVERNMENT COUNCIL CHAIRMEN IN NIGERIA.
By the provisions of Section 7 of the 1999 Constitution, the administration of the Local Government system in Nigeria thrives on democracy. The officers of the Local Government Councils are democratically elected to their various offices, which also mean that their removal or suspension must also be through democratic means.
Each State has their various local government laws. Section 19 of the Edo State Local Government Law 2000, as amended in 2002 provides that it is the legislative arm of the local government (councilors) who has the power to suspend or remove a local government council chairman or vice chairman.
Section 7 of the 1999 Constitution implies that the Local Government Councils are autonomous and as such independent tier of government different from the State Government. Therefore, a State Governor or House of Assembly of any state lacks the power or authority to remove or suspend any democratically elected Chairman or Vice Chairman of any Local Government Council. This was the position of the Nigerian Supreme Court in the case of Governor of Ekiti State v. Olubunmo (2017) 3 NWLR (Pt. 1551) 1, where the Court held that the Governor of Ekiti State cannot dissolve, suspend or remove democratically elected Loal Government Councils. Similarly, in Ajuwon v. Gov. Oyo State (2021) 16 NWLR (Pt 1803) 485, the Supreme Court in commenting on the constitutional guarantee of democratic Local Government system held that:
“A democratically elected Local Government Council does not exist at the pleasure, whims, and caprice of either the Governor or the House of Assembly. The intendment of the Constitution is to vouchsafe the inviolability of the sacred mandate which the electorate, at that level, democratically donated the Local Government Chairman and Councillors. The misconception by the State authorities that the Constitution does not intend to grant and guarantee autonomy to the Local Government is only a brain wave nurtured by sheer aggrandizement and megalomaniac instinct to conquer and make the Local Government mere parastatals of the State. That is the mischief section 7(1) of the Constitution has set out to address, and it must be so read and construed purposefully. In the instant case, the Court of Appeal was wrong not to follow and be bound by the authoritative pronouncements of the Supreme Court in Governor of Ekiti State v. Olubunmo”
In the same case above, EKO JSC also held thus:
“I will not conclude this appeal without commenting on the disturbing ugly face of impunity displayed by the Governor of Oyo State, 1st Respondent herein, on 29th May 2019, tantamounting to executive lawlessness, outrightly and vehemently condemned by these unwholesome democratic tendencies. These tendencies no doubt endanger democracy and the rule of law. It is almost becoming universal phenomena that the democratically elected Governors have constituted themselves a specie most dangerous to democracy in this country.
They disdainfully disregard and disrupt democratically elected Local Government Councils and appoint their lackeys as caretaker committees to run affairs of the Local Governments”
Further, in Eze v. Gov., Abia State (Supra), the Court held that:
“…accordingly, a Governor’s act of dissolving or suspending Local Government Chairmen and replacing them with Caretaker Committees amounts to the Governor acting on his whims and fancies, unknown to Nigerian laws, and clearly illegal. In other words, it is the duty of the Governor of State to ensure the existence of Local Government Councils instead of being responsible for destroying them. In this case, the Court of Appeal was right when it found that the 1st respondent lacked the legal competence to dissolve or suspend the Elected Local Government Chairmen and that the 1st respondent’s dissolution of the elected Local Government Councils was illegal and of no effect whatsoever”
Recently, in a landmark decision delivered by the Supreme Court of Nigeria, on July 11, 2024, in Attorney General of the Federation v. Attorney General of Abia State & 35 Ors (2024) LPELR-62576 (SC) the Court reinforced the autonomy of Local Governments in Nigeria, affirming their status as a distinct third tier of government, thereby supporting their financial and administrative autonomy wherein it emphatically obliterate the powers of the 36 State Governors/Houses of Assembly or those acting through their privies to dissolve, or interfere with Local Government administration or management, using state powers derivable from laws enacted by the State Houses of Assembly.
Therefore, relying on the above arguments, it is submitted that Local Government Councils in Nigeria are independent and democratic tier of government, with their own autonomy, and therefore the removal, suspension or dissolution of Local Government Council Chairmen by the State Governor or House of Assembly is unconstitutional, null and void. Only the Councillors who serve as the legislative arm of the Local Government councils have the power to remove and suspend a Local Government Chairman or Vice Chairman and such removal or suspension by the Councillors must as a matter of fact and law be in strict accordance and adherence to the law.
SUSPENSION OF LOCAL GOVERNMENT CHAIRMEN IN EDO STATE BY THE STATE HOUSE OF ASSEMBLY
On Tuesday, December 17, the Edo State House of Assembly in response to the request from the state governor, Senator Monday Okpebholo, suspended the 18 local government council chairmen, vice chairmen for what the governor termed insubordination. Same day, the Edo State House of Assembly in its sitting announced the suspension of the 18 LG chairmen/vice chairmen in Edo State. The suspension was premised on a petition of gross misconduct and insubordination against the leadership of the 18 LG Councils dated December 16, 2024 from the governor of the state, wherein he premised his petition on “act of gross insubordination by the Chairmen of 18 LGCs of Edo State pursuant to the provision of Section 10(1) of the LG Law of Edo State, 2000.
It is argued that the purported suspension of the Local Government Chairmen in Edo State by the House of Assembly, at the instance of the Governor of the state is unconstitutional, null and void. The Governor cannot rely on the provisions of Section 10 of the LG Law of Edo State as it conflicts directly with the provisions of section 7(1) of the 1999 Constitution. This principle of law was further enunciated in Ajuwon v. Gov. Oyo State (2021) 16 NWLR (Pt 1803) 485, where the Court held that:
“The existence and administration of Local Government Councils in Nigeria are guaranteed by section 7 of the Constitution and their functions enumerated in the Fourth Schedule thereto and such other functions as may be conferred on the council by the House of Assembly of a State. Any law therefore which seeks to limit the full exercise of powers provided under section 7 of the 1999 Constitution is in contravention of the Constitution and is to the extent of such contravention, void. In the instant appeal, sections 11 and 21 of the Local Government Council Law of Oyo State purported to empower both the Oyo State House of Assembly and the Governor of Oyo State to truncate the tenure of democratically elected Local Government officials. They were inconsistent with the provisions of section 7(1) of the Constitution and therefore void to the extent of such inconsistency. Consequently, the act or contemplated act of the Governor, relying on those void provisions to dissolve democratically elected Local Government Councils before the expiration of their tenure was a nullity. The Supreme Court could not allow it to stand”
Therefore, relying on the above arguments, it is submitted that Local Government Councils in Nigeria are independent and democratic tier of government with their system, with their own autonomy and therefore the removal, suspension or dissolution of Local Government Council Chairmen by the State Governor or House of Assembly is unconstitutional, null and void. Only the Councillors who serve as the legislative arm of the Local Government councils have the power to remove and suspend a Local Government Chairman or Vice Chairman and such removal or suspension by the Councillors must as a matter of fact and law be in strict accordance and adherence to the Law.
PROCEDURE FOR REMOVAL OF LGA CHAIRMAN AND VICE CHAIRMAN
Section 19 of the Edo State Local Government Law 2000 as amended in 2002 provides for the procedure and processes that needs to be followed by the legislative arm of the local government (the councillors) for the removal and suspension of Local Government Chairman and Vice Chairman. The section provides that the Local Government Chairman or Vice can be removed from office in accordance with the provisions of this section if they committed misconduct. It further provides that even in the commission of misconduct, a notice of allegation in writing signed by not less than two thirds of the members of the legislative council is presented to the leader of the legislative council stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his or her office, detailed particulars of which shall be specified. Within 14 days of the presentation of the notice to the leader of the legislative council, the legislative council shall resolve by motion without any debate whether or not the allegations shall be investigated. A motion of the legislative council that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two thirds majority of all the members of the legislative council and within seven days of the passing of a motion under the foregoing provisions of the section, the legislative council shall set up a 7 man panel which shall be composed of people of proven integrity from outside the council and not being members of any public service, legislative council or political party to investigate the allegation as provided in the section and the holder of the office whose conduct is being investigated under this section shall have right to defend himself in person or be represented before the panel by a legal practitioner of his own choice and the panel report to the legislative council shall come in after four weeks and when the report of the panel is that the allegation against the holder of the office has been proved, then within seven days of the receipt, the legislative council shall consider the report and if by resolution supported by not less than two thirds of all members of the legislative council the report of the panel are adopted, such resolution shall be forwarded to the State House of Assembly that may re-examine the findings of the panel and asses the merits of the resolutions of the legislative council. The House of Assembly shall within four weeks return same to such legislative council with approval or disapproval by a resolution supported by not less than two thirds majority of all the members of the House. The holder of the office under investigation shall not be suspended from office within the period of investigation.
The above present the procedures that need to be followed strictly by the legislative council of a local government in other to effect the suspension or removal of a local government chairman or vice chairman. Any act relating to the removal or suspension of a local government chairman or vice outside the ambit of the above provisions of the law is null and void and the act illegal, unconstitutional and of no moment.
The above would therefore mean that the Gestapo styled impeachment of the Chairman and Vice Chairman of Uhunmwode Council by five councilors out of ten in the dead of the night within an hour, without following section 19 above is void and of no moment.
CONCLUSION
The Local Government Council as a third tier of government is a creation of the constitution and is autonomous and independent, both administratively and financially. The removal and suspension of the heads of the local government who were democratically elected can only be done by the legislative arm of such local government, i.e the councilors. The State Governor or the House of Assembly lacks the constitutional power to suspend or remove democratically elected leaders of the local government. This is premised on Section 7 of the Constitution and a plethora of supreme court cases which affirmed the autonomy of the Local Government Councils.
The suspension of the 18 Local Government Chairmen of Edo State by the House of Assembly based on a petition written by the Governor of the State is a gross abuse of power and such act is unconstitutional, null and void as they lack the power to so do.
The Councillors on the other hand who have the constitutional power for such removal must exercise such power in strict adherence to the law, making sure that the laid down rules and procedure governing the removal and suspension of the Chairmen and their vice is followed, any act contrary to it is considered illegal, null, void, unconstitutional and of no effect whatsoever.
DAN Osa-Ogbegie, an Apostle of Edo renaissance, statesman and lawyer, is founder of Noah Attorneys, a firm of Legal Practitioners with head offices in Benin City, Nigeria.
dogbegie@gmail.com
www.noahattorneys.com.ng
