NBA State Of The Nation Discourse 2025: Keynote Address – By Justice Ejembi Eko, JSC (rtd)

Let me, firstly, appreciate and thank the organisers of this auspicious talk shop on a theme; very dear and crucial at this very important moment in our nascent democracy. The theme of the 2025 discourse is: STRENGTHENING LOCAL GOVERNMENT AUTONOMY IN NIGERIA: A DIALOGUE ON THE IMPACT AND IMPLEMENTATION OF THE THE SUPREME COURT JUDGMENT.

It is assumed, albeit erroneously, that a particular judgment of the Supreme Court of Nigeria, the cynosure of this year’s theme, is known to all,including the organisers and the participants. My guess is that the particular judgment, we have in mind, is the one said to have declared the financial autonomy of the Local Governments in Nigeria. That is; the judgment of the Full Court of the Supreme Court in the suit : SC/CV/343/2024- Attorney-General of The Federation v. Attorney-General of Abia State & 35 other State Attorneys-General, delivered on 11th July, 2024. The Supreme Court ruled in favour of financial autonomy for the local government. I shall come anon to the issue without undertaking any critique of the judgment. Ours, today, rests only on matters arising therefrom.

Autonomy presupposes independence, freedom, liberty, self-determination, self-government, self-rule or sovereignty. The antonym of autonomy is dependence, appendage or the state of being subservient. Hitherto the recent decision of the Supreme Court on financial autonomy of Local Government in Nigeria; the issue had been whether the State functionaries can exercise powers to suspend, dismiss or dissolve a democratically elected Local Government Council, including the Chairman, Vice Chairman or Councillor. That question had always turned on the interpretation of Section 7(1) of the extant 1999 Constitution, as amended, that provides:

7.(1) The system of democratically elected local government councils is under this Constitution guaranteed; and accordingly the Government of every State shall, …., ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.

The Supreme Court had consistently struck down the provisions of the Local Government Law enacted in any State empowering State Governor to suspend, dismiss and/ or dissolve a democratically elected Local Government Council; and in its stead appoint transitional or caretaker committee to run the affairs of the the Local Government. For instance, the Supreme Court, in Ajuwon & ors v. Governor of Oyo State (2021) LPELR-55339-SC, the struck down sections 11 &21 of the Local Government Law, 2001, that empowered the State Governor, on the recommendation of the State House of Assembly, to dissolve and dismiss elected Local Government Councils, including the Chairmen,Vice-Chairmen and Councillors, and replace them with his handpicked men to run the affairs of the affected Local Governments. The Courts took similar stance in A.G,Benue State v. Umar (2008) 1NWLR (pt.1068) 311-CA; AG, Plateau State v. Goyol (2007) 16 NWLR (pt.1059) 94 SC; Eze v. Governor, Abia State (2014) 14NWLR (pt.1462) 192 SC; Governor, Ekiti State v. Olubunmo (2019) 3 NWLR (pt.1551) 1 SC. In all the above cases, the courts took the position, in effect, that the existence of the provisions, like sections 11&21 of the Local Government Law,2001 of Oyo State, posed real and existential threat to the system of democratically elected local government, guaranteed by the Constitution, in section 7(1) thereof; the intendment of which is to vouchsafe the inviolability of the sacred mandate which the electorate, at the local grass root level, democratically donated to the Local Government Chairmen and the Councillors. In Ajuwon v. Governor,Oyo State (supra) at pp.36F-37, it was stated, poignantly, that local governments are neither mere appendages nor parastatals of the State, as State functionaries think they are in their erroneous misconception of section 7(1) of the Constitution.

The elected Local Government Chairman and the Councillors are elected democratically, like the State Governor and the State Legislators. Neither of these personae are employees of anybody, except the electorate that voted and elected them. The question: Why are these our democratically elected Governors constituting themselves into a body of anti-democracy specie most dangerous to the Constitution and democracy in the country?.

NBA and our jurists must find an answer to the question: Why, are the Governors,notwithstanding the avalanche of decisions of our superior courts (including the Supreme Court), still adamantly recalcitrant and unyielding to upholding the Constitution and the rule of law- a major covenant in the Oaths of Office they subscribed to before taking up their various offices?

What do we do to the Attorneys General who counsel the Governors to flout the Constitution and desecrate the rule of law?

Financial Autonomy of Local Government

In the aforesaid suit: Attorney General of the Federation v. Attorneys General of Abia State & 35 other States (supra), the Plaintiff, the Attorney General of the Federation, raised 15 issues for the determination of the Supreme Court. Eight (8) of these issues posed (issues 1,2,3,4,5,6,8 &9)sought the court, in substance, to hold that the failure of the States to organise elections and put in place a system of democratically elected local government councils, in the respective States, was act of dereliction of constitutional duty; and that the the system of self-serving caretakercommittees, put in place to administer the local governments, was unconstitutional and illegal. The Court had no difficulty in answering the questions in agreement with him, particularly, in view of the subsistence of some of its earlier decisions, including the above mentioned. It may also be added that it amounts to dereliction of his constitutional duty for a Governor or any other State functionary to refuse to perform a constitutional duty imposed on him. It amounts also to abuse of office, contrary to paragraph 1& 9 of the Code of Conduct for Public Officers in Part 1 of the Fifth Schedule to the Constitution, for a public officer, including the Governor, to do or direct to be done any arbitrary act prejudicial to the rights of any other person, knowing that such act is unlawful and contrary to government policy.

Paragraph 18(2) of the same Fifth Schedule provides, inter alia, that ” the punishment which the Code of Conduct Tribunal may impose”, for abuse of office in violation of the Code of Conduct For Public Officers, “shall include..

vacation of the office or seat in any legislative house, as the case may be; (b) disqualification from membership of a legislative house and from

any public office for a period not exceeding ten years;…

Issue 7 posed by the Plaintiff is: whether a State in breach of Sections 7 and162(5) &(6) of the Constitution is entitled to receive and spend funds meant for the local government councils while in breach of the Constitution for not putting in place a system of democratically elected local government councils? The answer was emphatic NO by the Supreme Court.

The substance of issues 11,12,13,14 &15 posed by the Plaintiff includes whether, on account of the State failing or refusing to put in place a system of democratically elected local government councils; the said State has unbridled and unrestricted discretion to operate State Joint Local Government Account whimsically to the disadvantage of the local governments; whether by virtue of section 162(6) of the Constitution the State is not agent of the Local Government in the collection of the amount standing to the credit of the Local Government from the Federation Account and is not obligated to pay same directly to the respective Local Governments?

The Supreme Court did not mince words in its declaration that all amounts standing to the credit of the local government from the Federation Account and the State belong to the local government and is, therefore, entitled to be paid. The point was further reiterated, in the judgment that: by Section 162(3) thereof, the Constitution does not intend joint ownership of any amount standing to the credit of the local government from the Federation Account and the State; that the State and the local government are, each, entitled to the amounts standing, respectively, to their credit from the Federation Account; that the Constitution does not intend that the State shall retain the money distributed to the local government constitutionally, as the third tier government, and that the State’s unilateral retention of money meant for the local government from the Federation Account is illegal and unconstitutional. In other words; the State, by virtue of Section 162 of the Constitution, has no right to withhold, hold or retain any money belonging to the local government. This judgment, therefore, has stated the position of the financial autonomy of the local government qua the State poignantly beyond any doubt.

Much as we hail the Supreme Court for this Local Government “financial autonomy” judgment; the next pertinent question that needs be asked is: whether the the learned Justices of the Supreme Court had not, unwittingly, amended or rendered moribund and/or inoperable section

162(5) &(6) of the Constitution providing:

162(5) Any amount standing to the credit of the local government in

the Federation Account SHALL BE ALLOCATED Directly

to the State for the benefit of their local government

councils on such terms and in such manner as may be

prescribed by the National Assembly.

(6) Each State shall maintain a special account to be called

“State Joint Local Government Account” into which

shall be paid such allocations to the local government

councils of the State from the Federation Account…….

If indeed the Supreme Court had unwittingly or inadvertently amended the Nigerian Constitution by the subject ” Local Government financial autonomy” judgment, will this judgment not be a kill-joy on a simple fact that the Supreme Court had outrageously “assaulted” the Constitution: a malfeasance that it is forbidden of the court to do?

Nothing in our Constitution permits the Supreme Court to legislate.

It is ultra vires the Supreme Court to amend the Constitution or any other statute, or by its decisions render inoperable any statutory provisions. There is nothing like “Judicial legislation” or “legislative judgment” in the judicial powers vested in the Supreme Court, like any other court of law, under the Constitution.

Issue 10, raised by the Plaintiff, is to the effect: whether the Governor or any other State official who may have illegally caused or directed the dissolution of a democratically elected local government council could be liable to be prosecuted either during or at the end of his tenure, as the case may be, for criminal offences bordering on breach of the Constitution and/ or contempt of court, or any other criminal or penal laws was not answered.

And that was because it was hypothetical; just as it was seeking the court’s advice. Nigerian courts do not entertain hypothetical questions. They also have no advisory jurisdiction, unlike the Supreme Court of India.

I had earlier in this paper stated, and it was not in the subject judgment of the Supreme Court, that abuse of office is a serious public service offence in the Fifth Schedule to the Constitution- Code of Conduct For Public Officers. The jurisdiction to try any person for the offence resides in or is vested in the Code Of Conduct Tribunal. It appears it does not avail the Governor to plead his immunity under 308 of the Constitution. Does it not sound unreasonable for the man violating the Constitution to plead its cover in its shredded form? St.Paul of Tarsus, in the New Testament of the Holy Bible, had reasoned: He who does not acknowledge the law shall be adjudged without it. The Supreme Court of Nigeria, in Asari Dokubo v. FRN (2007) LPLER-958SC at p.38 per I.T Muhammad,JSC, appears to concur in this jurisprudence,while dismissing the bail application of Asari Dokubo who was standing trial for treason, thus: where national security is threatened or there is real danger of it being threatened human rights or individual rights of those responsible must take second place. Human rights or individual right must be suspended until national security can be protected or well taken care of. This is not new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than the citizen’s liberty or right. Once the security of the nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.

It follows, therefore, that State Governor, whose fiscal banditry, being the ulterior purpose of his violating the constitution; as well as renouncing the Covenant in his Oath of Office to eschew corruption and to protect the Constitution, cannot and should not be heard invoking his immunity under Section 308 of the Constitution if and when he is charged and arraigned before the Code of Conduct Tribunal for trial, upon information of abuse of Office contrary to Paragraph 9 of the Code of Conduct for Public Officers in the Fifth Schedule to the Constitution. Is it not time we limited the scope of the constitutional immunity for the State Governors, since it is not serving any useful purpose, as incumbents are abusing it and/or resorting to its umbrage to commit all manners of maliciously criminal malfeasance, including unbridled corrupt practices that undermine the interests of their subjects or citizens? For how long will our constitutional law remain an ass, doing nothing to prevent and punish the malignant evil to the society it was erected to guide, guard and protect?

For now; the bad boys are the State Governors, who waylay and misuse funds of the Local Government coming from the Federation Account. Is it not early to shout eureka? Since power corrupts and absolute power corrupts absolutely; we should now be thinking ahead on how we check the fiscal powers of the so called “Executive Chairman” timeously, if the financial autonomy of the local government is anything worth celebrating.

And what about the lawyers whose humongous bills for election petitions are, to your knowledge, paid by the Governor, through the office of the Attorney General, from moneys stolen from the local government account?

Are you not in pari delicto in this sordid and unwholesome practice? A person who is a participes criminis should also share in the guilt and punishment for an offence committed, at least as a conspirator. As Jesus Christ scribbled on the sand and told the lynch party: only he who hath no sin should cast the stone on the adulterous woman. My learned friends, we cannot effectively fight this cause unless we inculcated in ourselves the principle of equity, insisting that we cannot come to equity with soiled and unclean hands. This should be my last word.

I appreciate your patience, having bored you, this far, with nonsense and sense.

Thank you

NBA Secretariat

Abuja

February 19, 2025