Monday, September 21, 2009

Looming or Impending Constitutional and Political Crises Over Local Government Creation

Looming or Impending Constitutional and Political Crises Over Local Government Creation
Written by Paul I. Adujie
New York, United States

Creation of more local government areas is desirable for many, if not all the state of Nigeria.

And Lagos state can probably accommodate 100 local government areas instead of the current 20 local government areas. The worthiness of more local government for Lagos state is an argument for another day.

The business at hand is the looming constitutional and political chaos which is quietly brewing and to which millions of Nigerians are notoriously oblivious. President Umaru YarAdua has written a letter to Governor Babatunde Fashola, intimating him of the desire by the federal government of Nigeria to enforce the law and in particular, the true, correct and proper interpretation of Section 8 subsection (3) and (5) of the constitution of Nigeria 1999 which provides in part, that states are empowered to create additional local government areas through their Houses of Assembly. But, however, such new local government areas must not and cannot become operational until they are ratified by the National Assembly as contained in section 8(5) of the same 1999 constitution.

Asiwaju Bola Tinubu erstwhile governor of Lagos state created 37 additional local governments in addition to 20, which were then the existing numbers of local government areas in Lagos state. Apart from Lagos, some other states had engaged and pursued the creation of additional local government areas, but without recourse to the constitutionally laid down formalities. There are currently only 774 local government areas in Nigeria and they are listed accordingly, in schedule four of the constitution of Nigeria, 1999.

It is beyond any legal dispute that Lagos and every other of the 36 federating states of Nigeria possess the constitutional rights and power to create additional local government areas, provided of course, that such state, scrupulously complies with all constitutional and statutory formalities. Lagos state, under the administration of Asiwaju Bola Tinubu, then a member of Alliance for Democracy or AD before Action Congress or AC was formed, Lagos state under Tinubu, in an opposition party to the central government leadership under a different political party, the Peoples Democratic Party or PDP, chose to disregard these constitutional stipulations. He rather provocatively, created 37 additional local government areas, without liaising with the Nigerian National Assembly. Omitting to synchronize the exercise with the National Assembly appear to have been in bad faith, most probably motivated by fact that Lagos state was at the time administered under a different political party separate, apart and different from the People Democratic Party or PDP. Lagos it will be recalled was not a PDP state. This single fact may very well have created a chasm between Lagos state and the Nigerian federal government in many ways.

There is an impending threat to national security in Nigeria due to the schism between Fashola and YarAdua over the vexation created and foisted by Bola Tinubu for creating 37 additional Local Government Areas in Lagos state. President YarAdua wrote a letter recently to Governor Fashola, demanding that Fashola disband and dismantle the37 additional local government areas, which were improperly, inappropriately if illegally created by Lagos state. My information is that, Lagos state has replied to the president, with thanks, but no thanks! Lagos state is adamantly insisting that Lagos was constitutionally right and therefore protected in indulging in the creation of the additional 37 Local Government Areas which has since made Lagos state a state with 57 local government areas.

Supporters of Lagos state’s arguments for creating additional local government areas, make the revenue allocation arguments, in which part of the federal revenue is allocated per capita of local government areas and these supporters have therefore argued that Lagos with her oversize population deserves additional local government areas. The creation of additional local government areas will in effect, attract additional federal revenue. Lagos state and her supporters have also argued that Lagos state actually have larger population and demands on her resources, in comparison to some other state, which also engaged in unilateral creation of additional local government areas as Lagos state did.

This crises was engendered by Bola Tinubu. And it will be recalled as well, that Bola Tinubu and Orji Kalu of Abia state were among those with whom there was no love lost between them and the then Preident Olusegun Obasanjo; Those familiar with the pro and cons of this debate will recall that Mr. Bola Tinubu took Mr. Obasanjo and or the federal government to courts over the creation of additional local government areas by Lagos state and Lagos subsequently secured a pyrrhic victory at Supreme Court of Nigeria. Pyrrhic victory because, Nigeria Supreme Court ruled in favor of Lagos state in a very narrow and limited sense and it is quite clear that not many Nigerians are familiar at all, with the specificities of the legal or constitutional “victory” by Lagos State over the federal government.

Lagos state created additional local government areas without bothering to comply with the exactitudes of specifications as laid out and spelled out in section 8 (3)(5) of the constitution of Nigeria 1999. Such creation of additional local government areas is constitutionally void ineffectual, void ab initio, until and unless rectified by Nigeria’s National Assembly and this was not done before the creation, during the creation, after the creation and has still not be done, even after the so-called victory at the Supreme Court of Nigeria. The Supreme Court actually spelled out the proper procedure and constitutional methodologies for creating additional local government areas under the relevant sections and subsections of the 1999 constitution of Nigeria. Lagos state has failed, neglected and refused to take any steps to rectify her constitutional lapses. Lagos state has not cured her constitutional blunder. The public misunderstand and misinterprets the “victory” which was awarded to Lagos state by the Supreme Court of Nigeria.

Governor Tinubu started this constitutional mess and Mr. Tinubu was one of those, who seemed to have enjoyed his confrontational attitudes directed at Mr. Obasanjo and in the process garnered very bad press for Mr. Obasanjo, as Mr. Obasanjo was portrayed as not following or implementing the court “victory” for Lagos state. Lagos state obtained a pyrrhic “victory” which was actually limited to the detained federal allocations and nothing whatsoever to do with resolving the constitutional lapses, noncompliance or even violations by Lagos state. Eventually, both Mr. Tinubu and Mr. Obasanjo terms of office expired in which case, Governor Fashola as chief executive of Lagos state inherited the assets and liabilities of Lagos state just as President YarAdua inherited the assets and liabilities of the Federal Republic of Nigeria, as the chief executive of our federation.

The Supreme Court of Nigeria never at anytime resolved the constitutional noncompliance, lapses and breaches in favor of Lagos state. The Supreme Court merely stated in their verdict, that the central government had no right to detain Lagos state legal share of federally statutorily allocated revenue based on Lagos state constitutional breaches when Lagos state created the additional 37 additional local government areas, without obeisance to constitutional order. The Supreme Court did not and never at any time, resolved the underlying dispute of the breach of constitution by Lagos state, which is, creating additional local government areas without following constitutional procedural processes.

Our constitution of 1999 does say that all federating states in Nigeria, can initiate creations of additional local government areas, but that, as a precondition for legality, such state or states, must engage in the creation, in consonance and even in concert with the National Assembly. In plain English, it simply means that states can, may or shall have right to create additional local government areas, so long as, such state or states, follow the procedural process of … taking the additional and or subsequent constitutional step, of ensuring that Nigeria’s National Assembly approves of what the states are otherwise authorized to do. It is similar to saying, the president has the right to appoint a minister or ministers and such other members into the executive branch or cabinet… but, with the consultation, approval and consent of the national assembly or just the senate. There is a step A and B or a step 1 and then, 2. Lagos got the first step right, but did not, and never took the constitutionally mandated second step of seeking and obtaining or receiving a rectification by and from the National Assembly.

That is the prologue. Governor Fashola and President YarAdua entered the picture in May 2007 and the new chief executives of Lagos state and our federal republic respectively. Most people probably assumed that the matter was or would be resolved amicably, particularly so, following pronouncements by the president and then, the release of rest of the revenues allocated to Lagos state which were still detained by the federal government at the time. President Obasanjo, following the “victory” by Lagos state had released some of the funds, but not all.

Usually reliable sources, has informed that President YarAdua has written a letter to Governor Fashola, in which the president has urged Lagos state to obey the constitution, because the law is the law. And to this, Governor Fashola is said to have responded Lagos state does not feel nor see the need to reverse the creation of the vexed additional 37 local government areas, which Lagos state now coyly and slyly refer to as Local Council Development Areas or LCDAs as if to skirt the illegalities and unconstitutionalities imbued and still embedded in the creation, arising from the failure, neglect and refusal by Lagos state, then and now, to have sought or now seek, the rectification of the exercise by the National Assembly.

It is understood that Governor Fashola and President YarAdua are in a constitutional duel with huge political implications for Lagos and our entire federation. We all should be concerned, because we know, that when elephants fights, the grass necessarily suffers, bearing the brunt of big falls. An ultimatum is ominous. An ultimatum has issued and 14 days will expire. Will the gladiators and matadors in this constitutional, but politically laden battle reach a compromise? Or would Lagos seek to secede from Nigeria?

President YarAdua is determined to enforce the law and the relevant portions of the constitution of Nigeria pertaining to local government creation and has intimated Lagos state his intentions through the fourteen day ultimatum. I cannot fault the president for seeking to defend our federal constitution. Governor Fashola is said to have responded in intransigence contained in a strongly worded letter to the president that Lagos would not oblige!

Governor Fashola is a lawyer and a Senior Advocate of Nigeria or SAN at that… this is the second time in a couple of months, during which I am having to wonder about this fact about a senior lawyer who seem to be always willing to jettison the constitution of Nigerian for whatever is politically expedient! Governor Fashola has to know that the constitution of Nigeria was not followed by Lagos state, when she engaged in the creation of the vexed additional 37 LGAs or what Lagos state now terms LCDAs!

Governor Fashola has to know, ought to know, must know that the Supreme Court of Nigeria did not resolve and never intended to resolve the underlying dispute, which is the unconstitutionality of Lagos state acts, in creating additional local government areas. The Supreme Court made pronouncements only in relation Lagos state right to her statutorily allocated federal revenue. Lagos state should be beseeched by all, implored and urged by all, to seek, immediately, a rectification of the aberrantly created 37 local government areas. This matter can be resolved in a bipartisan manner and amicably.

Our nation does not need a head-on collision between Lagos state and the federal government, such collisions seem imminent and Nigeria does not need such distraction in our public space. There is so much needful things in public policy formulations and implementations crying for the attention of Lagos state and the federal government in every area and every facets of life in Nigeria. There is high rate of unemployment, poverty and hopelessness in the land. A Fashola-YarAdua collision will be a dissipation of energy needed for Nigeria’s progress. After fifty years of political independence, we deserve better!

Nigeria needs and deserves peace, security, prosperity, development and greatness

No comments: