By Onyekachi Umah, Esq
Politics is the collection of processes and activities for the acquisition, consolidation and retention of power. Simply, politics leads to powers. In Nigeria and other countries with weak institutions, politics has nothing to do with authority, governance and the morals of democracy. No wonder the popular saying in Nigeria, “… it is better to be in power than in government”. Hence, there are really no just or unjust means for the acquisition, consolidation and retention of power in Nigerian politics.
This ugly fact is seen when legislatures and executives, connive to enact laws that are draconic, demonic, anti-national, anti-people and rather selfish. For example, imagine where democratically elected members of the legislature and executive, conspire to enact laws that will permit the unconstitutional removal of democratically elected members of local government authorities. This work analyses the Igbo theory of “Ekere Oru Eke” vis-a-vis the illegality of state laws that permit the removal of elected members of local government authorities in Nigeria and the position of the Supreme Court of Nigeria.
The Theory of “Ekere Oru Eke”, Illegal Laws and the Constitution of Nigeria:
A popular saying in Igbo communities, says; “Ekere Oru Eke” (there is division of labour) hammers on the separation of power and the rule of law. To avoid confusion and abuse of power, the constitution of Nigeria clearly created three (3) arms of government (the Legislature, the Executive and the Judiciary). The Legislature is to listen to the people of Nigeria and make laws that will promote Nigeria and Nigerians. The Executive is to implement the laws of the people made by the legislatures. The Judiciary is to interpret the laws of the people made by the legislatures. Also, the constitution of Nigeria went further to create three levels of governments (the Federal government, State government and the Local government) with clear functions and powers because “Ekere Oru Eke” (there is division of labour).
By the constitution of Nigeria, legislatures and executive arms of governments (in all the 3 levels of government) are to be filled and manned by democratically elected Nigerians. And, such elected Nigerians are not to be removed from office, except in accordance with the constitution (by impeachment and recall). So that, any removal or attempt to remove elected persons, contrary to the provisions of the constitution of Nigeria, is unlawful, illegal, invalid and unconstitutional.
To ensure that the impact of government is felt around all parts of Nigeria, the constitution of Nigeria created 744 local government authorities across Nigeria. That is the government that sits closest to families in Nigeria, with families being the smallest institutions in Nigeria. However, the constitution of Nigeria gave some powers to the states’ governments (the states’ legislatures) to make laws that empower/allow the operations of local governments in states across Nigeria.
Some states’ governments have sworn to frustrate their local government authorities, squander local government resources and to control elected members of the local governments. To achieve such unconstitutionalities, state executives and state legislatures enact obnoxious state laws that allow state executives (especially, the Governor) to dissolve local government authorities, sack local government executives and to appoint new persons as local government executives. Such state laws are often the basis for the notorious crippling of the local governments.
By section 7 of the Constitution of Nigeria, all members of a local government council must be democratically elected. This clear provision means that there cannot be any appointment of members of a local government council (including chairmen, vice chairmen, councilors and other elected members). To this, the Supreme Court of Nigeria, has added its voice to decry the illegality of laws that dismiss local government authorities or that sack local government executives. Below are the golden words of the apex court of Nigeria;
“Section 7(1) of the Constitution states that: “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.” On a careful reading, of the above it becomes clear that it is the duty of the Governor to ensure that the system of Local Government continues unhindered. Dissolving Local Government Councils and replacing them with Caretaker Committee amounts to the Governor acting on his whims and fancies, unknown to our laws, clearly illegal. It is the duty of the Governor to ensure their existence rather than being responsible for destroying them.” Per OLABODE RHODES-VIVOUR ,JSCÂ (Pp. 22-23, paras. E-C) in the case of HON. CHIGOZIE EZE & ORS v. GOVERNOR OF ABIA STATE & ORS (2014) LPELR-23276(SC).
The Supreme Court of Nigeria is not alone on this, as the second highest court (the Court of Appeal) has this to say;
“Indeed, the powers conferred on the Government of every State by S.7(1) of the 1999 Constitution to ensure the existence under a law which provides for the establishment, structure, composition, finance and functions of a local government can only be executed within the confines of the provisions of the Constitution. Thus, the power of the State House of Assembly under S.4(7) of the Constitution cannot extend to truncate the tenure of a democratically elected local government council.
The Constitution only recognizes elected members of the local government council. It is ultra vires the Constitution for any State Legislature to make a law which has the effect of dissolving a local government council made up of elected chairmen and councilors and replacing it with members of a Caretaker Committee selected by the State Government. As said earlier the law under scrutiny affected only tenure and is thus not illegal even if retroactive. It is the subsequent action of the State Governor in dissolving democratically elected local government councils and replacing them with undemocratic ones that is outside the contemplation of S.7 of the Constitution which states specifically that-
“The system of local government by democratically elected local government councils is under this Constitution guaranteed”
The 1999 Constitution does not recognize Transition or Caretaker Committees for the local governments and it is ultra vires any State Governor to appoint Caretaker Committee to replace elected Local Government office holders. After the expiration of the tenure of office, it was the duty of the State Governor to arrange speedily for fresh local government elections pursuant to S.197(1)(b). Third Schedule Part II (B) paragraph 4 of the 1999 Constitution. The Government cannot set up administration for the local government unrecognized by the Constitution except when there is a clear State of Emergency calling for extraordinary action.
The Constitution provides for the democratic election of the three tiers of government. Under the Federal System of Government, the States are fully autonomous of the Federal Government within the provisions of the Constitution Section 7(1) provides that the State Government exercises democratic but not autocratic control of the local governments within its territorial jurisdiction. Yes, the State Government has the power to regulate the tenure of office of the local government elected officials, but in a democracy, the State Government has no legal or moral right to pass a retroactive legislation to shorten the lifespan of a democratically elected council in order to replace it with non elected members. In this particular case, the Governor dissolved the local government council even before the expiration of the shortened two year tenure. It is a slap on the face of the electorate. Any attempt to short circuit democracy for whatever reason by any tier of government will be vehemently resisted by the Courts.” Per OGUNWUMIJU ,J.C.A (Pp. 35-38 paras. E) in the case of ETIM A. AKPAN & ORS v. HON PETER JOHN UMAH & ORS (2002) LPELR-7099(CA).
Ahead of 2020 and the election of President Biden of United States of America, many people had argued that the black man is naturally selfish and power drunk. However, the “we die in power syndrome” which was assumed to affect only African leaders, seem to have shown its color in the White House in the portraits of former President Trump. Hence, it is obvious that man (men and women of all colours, race and location) is naturally power dunk, selfish and pretentious, and only gets saved by personal discipline, rule of law (public discipline) and strong institutions.
This explains why democratically elected state legislatures and executives will spend months planning and executing the enactment of illegal laws, just to remove members of another tier of government (the local government). And, as usual, most politicians are eager to be unlawfully appointed into the local government authority via the illegal state laws. The shameful acts of the states’ governments are contrary to the sprits of “Ekere Oru Eke”, since they act over and beyond their powers.
Above all, the state laws that remove elected officers or that sack local government authorities are invalid, unlawful, unenforceable, unconstitutional and undemocratic. All actors (including Governors that have immunities) in enactment of such unlawful laws and sacking of elected officers should be investigated and prosecuted. The immunity of a governor is not forever and criminal cases can be filed at any time, it cannot expire. No one is above the constitution of Nigeria.
My authorities, are:
1. Sections 1, 2, 3, 4, 5, 6, 7, 318 and 319 as well as Schedule 4 to the Constitution of the Federal Republic of Nigeria, 1999.
2. Judgment of the Supreme Court of Nigeria (on the unconstitutionality of dissolution of local government councils) in the case of HON. CHIGOZIE EZE & ORS v. GOVERNOR OF ABIA STATE & ORS (2010) LPELR-4133(CA)
3. Judgment of the Supreme Court of Nigeria (on the definition of “Government”) in the case of THE GOVERNOR OF KWARA STATE & ORS v. JEROME OLADELE DADA (2011) LPELR-8132(SC)
4. Judgment of the Court of Appeal (on whether the State Government has the power to dissolve a Local Government Council) in the case of ETIM A. AKPAN & ORS v. HON PETER JOHN UMAH & ORS (2002) LPELR-7099(CA)
5. Onyekachi Umah, “Constitutional Powers and Functions Are Not Enough Powers for Any Local Government Council In Nigeria to Act And Exercise” (LearnNigerianLaws.com, 22 May 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-106-constitutional-powers-and-functions-are-not-enough-powers-for-any-local-government-council-in-nigeria-to-act-and-exercise/> accessed 12 February 2021.
6. Onyekachi Umah, “Radio, Television And Communication Mast License Fee By Local Governments In Nigeria” (LearnNigerianLaws.com, 5 March 2020) <https://learnnigerianlaws.com/radio-television-and-communication-mast-license-fee-by-local-governments-in-nigeria-daily-law-tips-tip-519-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 12 February 2021
7. Onyekachi Umah, “List and Details of Approved Local Government Levies, Rates, Fees and Charges for Edo State” (LearnNigerianLaws.com, 27 April 2019) <https://learnnigerianlaws.com/list-and-details-of-approved-local-government-levies-rates-fees-and-charges-for-edo-state-daily-law-tips-tip-423-by-onyekachi-umah-esq-llm-aciarb-uk-2/> accessed 12 February 2021.
8. “Free Copy of “Edo State Local Governments Uniform and Harmonised Levies, Rates, Fees and Charges Law, 2017” (LearnNigerianLaws.com, 25 September 2019) <https://learnnigerianlaws.com/free-copy-of-edo-state-local-governments-uniform-and-harmonised-levies-rates-fees-ad-charges-law-2017/> accessed 12 February 2021.
9. Onyekachi Umah, “State Governments Cannot Collect Tenement Rates In Nigeria” (LearnNigerianLaws.com, 6 March 2019) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-282-state-governments-cannot-collect-tenement-rates-in-nigeria/> accessed 12 February 2021
10. Onyekachi Umah, “No Person/Firm Can Collect Tax/Levy On Behalf Of Any Government In Any Part Nigeria” (LearnNigerianLaws.com, 2 March 2019) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-279-no-person-firm-can-collect-tax-levy-on-behalf-of-any-government-in-any-part-nigeria/> accessed 12 February 2021.
11. Onyekachi Umah, “Latest Developments On Liquor Licenses In Karu LGA, Nasarawa State” (LearnNigerianLaws.com, 28 February 2020) <https://learnnigerianlaws.com/latest-developments-on-liquor-licenses-in-karu-lga-nasarawa-state-daily-law-tips-tip-515-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 12 February 2021.
12. Onyekachi Umah, “Any Appointment of Local Government Chairmen Is Unlawful” (LearnNigerianLaws.com, 12 February 2021) <https://learnnigerianlaws.com/any-appointment-of-local-government-chairmen-is-unlawful/> accessed 25 February 2021.
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