Nigerian Law Resources

Nigerian Law, Nigerian Legal Articles, Legal eBooks & Books on Nigeria

Nigerian Law Resources Search Engine

Legislative Powers of Local Governments under the 1999 Nigerian Constitution: The Need for Amendment

Legislative Powers of Local Governments under the 1999 Nigerian Constitution: The Need for Amendment By Leesi Ebenezer Mitee

Copyright © Leesi Ebenezer Mitee

Section 4 of the Constitution of the Federal Republic of Nigeria 1999 defines the legislative powers of the Federal Republic of Nigeria and those of each State of the Federation as follows:

4.  (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.

(4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say –

(a) any matter in the Concurrent legislative List set out In the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.

(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.

(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say –

(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;

(b) any matter included in the Concurrent Legislative List set ant in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law, and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law, which shall have retrospective effect.

Unfortunately, there is no constitutional provision on the legislative powers of Local Governments under the Constitution of the Federal Republic of Nigeria 1999, just like its predecessor – Constitution of the Federal Republic of Nigeria 1979. Local Government Legislative Councils operate under Local Government Laws enacted by each State of the Federation. The Constitution only provides for the establishment of the local government system in section 7, which also specifies the functions of Local Governments as outlined in the Fourth Schedule to the Constitution.

Section 7 of the Constitution of the Federal Republic of Nigeria provides for the establishment of the Local Government system as follows:

7. (1) The system of local government by democratically elected local government councils is under this Consideration 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.

(2) The person authorised by law to prescribe the area over which a local government council may exercise authority shall –

(a) define such area as clearly as practicable; and

(b) ensure, to the extent to which it may be reasonably justifiable, that in defining such area regard is paid to –

(i) the common interest of the community in the area,

(ii) traditional association of the community, and

(iii) administrative convenience.

(3) It shall be the duty of a local government council within the State to participate in economic planning and development of the area referred to in subsection (2) of this section and to this end an Economic Planning Board shall be established by a law enacted by the House of Assembly of the State.

(4) The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to a House of Assembly shall have the right to vote or be voted for at an election to a local government council.

(5) The functions to be conferred by Law upon local government councils shall include those set out in the Fourth Schedule to this Constitution.

(6) Subject to the provisions of this Constitution –

(a)  the National Assembly shall make provisions for statutory allocation of public revenue to local government councils in the Federation; and

(b)  the House of Assembly of a State shall make provisions for statutory allocation of public revenue to local government councils within the State.

Functions of a Local Government

The Fourth Schedule to the Constitution of the Federal Republic of Nigeria provides for the main functions of a Local Government as follows:

1. The main functions of a local government council are as follows –

(a) the consideration and the making of recommendations to a State commission on economic planning or any similar body on –

(i) the economic development of the State, particularly in so far as the areas of authority of the council and of the State are affected, and

(ii) proposals made by the said commission or body;

(b) collection of rates, radio and television licences;

(c) establishment and maintenance of cemeteries, burial grounds and homes for the destitute or infirm;

(d) licensing of bicycles, trucks (other than mechanically propelled trucks), canoes, wheel barrows and carts;

(e) establishment, maintenance and regulation of slaughter houses, slaughter slabs, markets, motor parks and public conveniences;

(f) construction and maintenance of roads, streets, street lightings, drains and other public highways, parks, gardens, open spaces, or such public facilities as may be prescribed from time to time by the House of Assembly of a State;

(g) naming of roads and streets and numbering of houses;

(h) provision and maintenance of public conveniences, sewage and refuse disposal;

(i) registration of all births, deaths and marriages;

(j) assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the House of Assembly of a State; and

(k) control and regulation of –

(i) out-door advertising and hoarding,

(ii) movement and keeping of pets of all description,

(iii) shops and kiosks,

(iv) restaurants, bakeries and other places for sale of food to the public,

(v) laundries, and

(vi) licensing, regulation and control of the sale of liquor.

2. The functions of a local government council shall include participation of such council in the Government of a State as respects the following matters –

(a) the provision and maintenance of primary,  adult and vocational education;

(b) the development of agriculture and natural resources, other than the exploitation of minerals;

(c) the provision and maintenance of health services ; and

(d) such other functions as may be conferred on a local government council by the House of Assembly of the State.

As noted above, we consider most unfortunate, the fact that there is no constitutional provision on the legislative powers of Local Governments under the Constitution of the Federal Republic of Nigeria 1999, just like its predecessor – Constitution of the Federal Republic of Nigeria 1979. Consequently, Local Government Legislative Councils operate under Local Government Laws enacted by each State of the Federation. The Constitution only provides for the establishment of the local government system in section 7, which also specifies the functions of Local Governments as outlined in the Fourth Schedule to the Constitution.

Professor Nwabueze (one of the chief makers of the Constitution of the Federal Republic of Nigeria 1979) in his book, The Presidential Constitution of Nigeria (1982, pp. 58 – 59), defends the limited extent of constitutional provisions in the Constitution of the Federal Republic of Nigeria 1979 on Local Governments in Nigeria in the following words:

“Except for certain aspects of it shortly to be mentioned, local government is not specified in the body of the Constitution or in the legislative lists as being within federal competence. It is there- fore a residual matter, and as such lies within the exclusive competence of the state governments. The authority of a state government over local government derives thus from the fact that it is a residual matter, and not, as is commonly supposed, from the provision of the Constitution requiring every state government to ensure the existence of democratically elected local government councils under a Law which provides for their establishment, structure, composition, finance and functions (s. 7[1]). That provision is not a grant of power. It assumes that a state government has power over local government under some other provision of the Constitution. Its purpose is, by imposing a mandatory directive on how this power is to be exercised, to restrict it. With the restriction implied in this mandatory directive, a state government cannot, as hitherto, conduct local government as it pleases; it is bound to conduct it through local government councils democratically elected under a Law that provides for their establishment, structure etc. The concern is to ensure that a state government will not abuse its power, by, for example, using its own appointed agents to conduct the business of local government. The effect of the provision is thus to take away from a state government the discretion normally implied in a power. Instead, it obliges a state government not only to enact the necessary legislation to provide for the establishment, structure, composition, functions and finances of local government councils, but, more importantly, to ensure the existence of democratically elected local government councils under such law. Whether the duty thus cast upon a state government can be compelled raises an interesting question into which it is not necessary to go here.

But the really significant point for our present purposes is not the basis of a state government’s authority over local government, but rather the fact that its authority is not exclusive in respect of every aspect of the matter. In this, our Constitution marks an innovation from the normal pattern of the distribution of powers under federalism. For local government, being an example par excellence of a matter of local concern, is universally recognised to be the exclusive responsibility of the state governments in accordance with the underlying principle of federalism which requires that, within the frame-work of a central government, matters of local concern should be managed by regionalised governmental units free from interference by the central government. Federal government involvement in local government is thus a contradiction of the very idea of federalism. The innovation of our Constitution has come as a concession to the extreme demand that local government should be established in the Constitution as a third tier of government, with powers and resources derived directly from the Constitution in exactly the same way as the federal and state governments.

The compromise adopted by the Constitution is to make it obligatory on a state government to ensure the existence of democratically elected local government councils, to prescribe criteria for delimiting the areas of authority of such councils, and the minimum functions to be assigned to them under state laws and to guarantee to them direct allocation of funds from federal revenue. As regards allocation of federal revenue, the national assembly is required, as a matter of duty, to make provisions for statutory allocation of public revenue to local government councils (s. 7[6][a]). A state house of assembly is under a similar duty (s. 7[6]b]).”

With the greatest respect, we submit that the foregoing defence of the absence of comprehensive constitutional provisions on the actual structure of Local Governments in relation to their legislative, executive, and judicial powers has only led to a dangerous situation which has incapacitated Local Governments in Nigeria. This is largely because their structure lacks uniformity, and constitutes a miserable spectacle of official conjecture and manipulation, being left at the usually unkind mercy of overzealous legislative and executive arms of State Governments.

We insist that the confusion surrounding the structure and operation of Local Governments in Nigeria can only be eliminated when it is defined fully in the Constitution, just like Federal and State Governments. We should be more concerned with the workability or practical reality of proposals and policies, than with so-called universally recognised trends in this type of situation. What is wrong with evolving a unique, autochthonous (native) system that adequately meets the peculiar needs of the Nigerian situation?

The said “compromise adopted by the 1979 Constitution,” which the Constitution of the Federal Republic of Nigeria 1999 has swallowed hook, line, and sinker, is a major flaw in these Constitutions, since it has perpetrated confusion. A most welcome attempt at addressing this issue was made in the ill-fated, stillborn Constitution of the Federal Republic of Nigeria 1989, [1] which the military administration of General Ibrahim Babangida, most unfortunately, denied the light of day. Sections 283 – 310 (Chapter VIII) of the said Constitution of the Federal Republic of Nigeria 1989 regulated aspects of Local Government structure and administration, which included the following:

(a) Establishment of Local Government Councils;

(b) Division into Wards;

(c) Election and Removal of Chairmen and Vice-Chairmen;

(d) Election of Councillors;

(e) Supervisory Councillors;

(f) Sittings of Local Government Councils; and

(g) Public Service of a Local Government Council.

However, the provisions of the Constitution of the Federal Republic of Nigeria 1989 fell short of being comprehensive vis-à-vis those on Federal and State Governments, as earlier indicated.

Happily, there are concerted moves to amend the present Constitution of the Federal Republic of Nigeria 1999, and it is hereby strongly proposed that the issue of comprehensive provisions on Local Governments equivalent to those on the Federal and State Governments should be adequately addressed. Local Government structure and administration in Nigeria should not be left at the whims and caprices of State Governments.

……………………………………………

[1] It is the Schedule to the Constitution of the Federal Republic of Nigeria (Promulgation) Act 1989, Cap. 63 of The Laws of the Federation of Nigeria 1990. The Constitution was to have come into force on 1 October 1989 by virtue of section 331 thereof, but General Babangida refused to hand over power to a democratically elected Government.

Facebooktwittergoogle_pluslinkedinrssyoutube

Sharing

Facebooktwittergoogle_plusredditpinterestlinkedinmail

Leave a Reply

Copyright © 2016 Nigerian Law Resources | All Rights Reserved | Privacy Policy