The misunderstanding between the Federal and the Lagos State governments over the legality or otherwise of the 37 ‘local council development authorities’ (LCDA), formerly known as ‘new local government areas’ (LGAs) of Lagos State raises fundamental questions about Nigeria’s peculiar form of federalism and constitutionalism.There is ample evidence to posit that Nigeria has in fact been operating a unitary state, rather than federalism in many respects, either because the Constitution made it so or the operators of the document wilfully do so. Sometimes the operators conspire or accede to such unitary set-up. A good example was when the National Assembly and the presidency conspired to pass the Electoral Act 2001 which smuggled in the provision of tenure of local government elected officials, something that is the exclusive right of the various state houses of assembly to legislate on. Then President Obasanjo, in signing the law, asked those who were aggrieved to go to court. Thankfully the Supreme Court later shut down that provision of the law. Similarly, the government of Akwa Ibom state was at one point arm-twisted to abandoning its duly-passed and operated Local Government Law which provided for parliamentary system of government at that level. To the extent that that law was consistent with section 7 of the Constitution, it was valid. That section states: 7. (1) 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. It was disheartening and a disservice to constitutionalism and the principle of federalism for the Federal Government and the ruling Peoples Democratic Party to pressure the PDP government of that state to change to the presidential system, as practised in the rest of the country. The argument was simply that one state could not be different from all others in the federation. Even the argument of Akwa Ibom that its adopted system was inexpensive (compared to the presidential system) and more effective at that level was considered. More importantly, the parliamentary system qualified as a “government by democratically elected local government council” and thus met the constitutional requirement.In an ideal federal system, the responsibility for the creation or division of LGAs resides in the state government. But ours is not an ‘ideal’ federal structure. Our pseudo-federal Constitution provides for local government area creation by state governments, but limits such power by making the creation subject to “ratification” by the National Assembly (NASS). We should also note that the federating states in Nigeria do not have their individual Constitution, as you would expect in a true federal structure. In the case of Lagos State’s 37 ‘new’ LGAs, the Supreme Court held that the process followed in their creation was legal but that until the National Assembly made the consequential order (which many have described as “ratification”), the said creations remained inchoate. The dictionary defines “inchoate” as: “not yet completed or fully developed; rudimentary; just begun; incipient; not organised; lacking order” etc.Some commentators have drawn an allusion between the Lagos LGA creation and childbirth. They opine that the child has already been born and that what the federal legislature was required to do was merely a naming ceremony. If that be the case, then we could argue that when the Supreme Court referred to the LGAs as inchoate, it meant, using the example of a baby, that the baby is ill-formed, maybe premature! In such a situation, the baby must be kept in an incubator until it is properly formed and ready to face the real world. But it seems the health officers (in this case, NASS) have refused to provide the necessary support and medication needed to guarantee life for the baby.No doubt, Lagos, for its mere population and resources, deserves more local government areas, but that is no reason to support a short cut approach to the creation of the new areas.One equally agrees that NASS should not unduly withhold the ratification of any LGA duly created. But parliamentary actions, including ratification, are more than legal issues. They also touch a lot, if not more, on politics. It must be further noted that once the National Assembly ratifies the creation of the new LGAs, the new LGAs take up equal status with all the existing 774 LGAs and must be taken into account when money from the Federation Account is distributed to the states, which are the federating units. The argument that Lagos can generate its own resources to maintain the new LGAs is not enough reason because by the Constitution, all LGAs must be allocated funds from the Federation Account.It seems likely that the reluctance of NASS to ratify may be hinged mainly on the fear of a deluge of returns from several states for similar ratifications. Recall that virtually all the states had previously “created” more LGAs in the last 10 years and only backed down when they were confronted by federal authorities. The way to cure this concern again takes us to the fundamentals of true federalism. If each federating unit (the state) depended on its generated resources to fund its operations and not from the largess of federation account allocation, fuelled by oil rentier system, nobody would bother about how many LGAs a state decides to create. What any aggrieved party to the failure/refusal/negligence of NASS to ratify the creation of new LGAs needs to do is (unfortunately) to keep lobbying and appealing to NASS to ratify. Were the ratification a mere administrative action to be taken by the executive arm of government, an aggrieved party could have resorted to approaching the court to issue an order of mandamus directing such authority to carry out a duty it is obliged to. Unfortunately, we cannot obtain such an order against the legislature. Merely changing the appellation of the “new LGAs” to “local council development authority” is no cure for the situation, especially when the new creations still have the full components of LGAs – an elected chairperson who heads the executive arm, the legislative council made up of elected councillors, local authority secretariat, marriage registries etc. Those who say the “new LGAs” have already come into being should also consider another provision of the Constitution which says that any amendment to the Constitution by NASS shall be subject to ratification by two-thirds of state houses of assembly. Would we therefore argue that once NASS passes a resolution to amend the Constitution, such amendment would become effective even before ratification by the states? What all these mean is that our present Constitution needs immediate amendment, if not a total overhaul to save us from logjams as this.
Effanga, a lawyer, is Parliamentary Advisor with ActionAid Nigeria in Abuja
*Published in the Law page of Thisday newspaper of August 4, 2009 under the rider, “National Assembly cannot be compelled to ratify LCDAs”