The renewal by President Yar’adua of the quarrel which his PDP predecessor Olusegun Obasanjo started with Asiwaju Bola Tinubu and the AC government of Lagos State presents another opportunity for us to review the defects of our so-called federal constitution. Beginning with the 1979 Constitution, our constitutional order has essentially been dictated by whichever soldiers were in charge of the departing military regime. In the 1979 example, then General Obasanjo and his colleagues made pretences as to allowing Nigerians write their constitution but at the end of the day, the final outcome reflected the wishes of the soldiers. The soldiers appointed the initial Constitution Drafting Committee led by Chief Rotimi Williams and nominated many members of the Constituent Assembly that debated the draft the CDC came up with.
When trouble erupted in the Constituent Assembly over Sharia and other contentious issues, the soldiers exercised their veto power and later inserted provisions (such as the Land Use Act and NYSC) into the Constitution, a severe aberration of constitution-making that remains a problem for the nation till date. Subsequent attempts at constitution-making were worse. In the Babangida regime, the process was so completely micro-managed that it was clear that whatever would emerge would reflect IBB’s Nigerian world view rather than the will of Nigeria’s peoples, communities, ethnic groups and federating units. The 1999 Constitution can in no way be attributed to the will of the people either. Indeed the Abdulsalam Abubakar regime in a mockery of the political class delayed release of the “Constitution” until the elections were concluded; the equivalent of releasing the rules of a football competition after a winner has emerged.
During the period of military rule, between 1966 and 1999, (with only a short civilian interlude under Alhaji Shehu Shagari), the soldiers bastardized every notion of federalism as we went along. All mineral revenues went to the federal government and were then distributed to the states, rather than the other way round; the federal government appointed governors or administrators (often non-indigenes) and posted them to the states like garrison commanders; occasionally the military high command re-shuffled the governors and re-posted them according to their whims and caprices; the federal government created states without reference to the indigenes of those states often lumping together people into states which they had no desire to be a part off; the federal government legislated on matters which ought to be the preserve of states; and the federal government assumed responsibility for creating local governments.
That is the true background to the several problems confronting the Nigerian state today-whether resource control as sought by the Niger-Delta; fiscal federalism in tax and other matters; the Sharia issue (which remains unresolved with several Northern State governments in effect confronting the Nigerian Constitution, extending Sharia into criminal law and setting up “Hisbah”-the Sharia Police); the debate over state policing; the excessive concentration of powers and responsibilities at the federal level; and the constitutional bottleneck over local government creation which re-erupted into the exchange of letters by Yar’adua and Governor Babatunde Fashola of Lagos. This issue (as well as Sharia which “Boko Haram” forcefully restored to our consciousness, and the unending crisis in the Niger-Delta) reminds us that the defects of our constitution can not be wished away or solved by intimidation and stonewalling! Nigerians would have to sit down and dialogue on the structure of our federal system and agree to a system that all federating units can be comfortable with.
With particular regard to the Local Government issue, it is clearly erroneous in the first place for a federal constitution to descend to the level of listing local governments in each of the constituent states. Yet even in spite of that error, it is still clear that the 1999 constitution intends the creation and operation of local governments to be within the province of the state legislature. Section 7 of the constitution asserts that “…the government of every state shall, subject to section 8 of this Constitution, ensure their (local governments) existence under a law which provides for the establishment, structure, composition, finance, and functions of such councils”. Section 8(3) which deals with creation of local governments involves only the local government councils, House of Assembly and a referendum of the residents in the council. It is clear from the explicit wordings of the Constitution that once the provisions of section 8(3) are complied with, a local government has been “created”. That is why section 8(5) only talks about the National Assembly making “consequential provisions” and section 8(6) says that “…each house of Assembly shall, after the creation of more local government areas pursuant to subsection (3) of this section, make adequate returns to each House of the National Assembly”. It is clear from the wordings of section 8(6) that the House of Assembly exclusively creates local governments while the National Assembly only makes consequential provisions.
That I believe is why the Supreme Court, as Governor Fashola pointed out in his reply to the President’s ultimatum, affirmed that the Lagos State Laws-Creation of Local Government Areas Law No 5 of 2002 and the Creation of New Local Governments Areas (Amendment) Law of 2004 were validly created and constitutional. The Supreme Court’s view that the creation of the new local governments is “inchoate” does not operate to nullify their existence. It only notes that there are procedural steps which a third party is still required to take. The President should encourage that party, the National Assembly to take the required procedural steps!
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