Local government autonomy: Supreme Court’s perverse ruling won’t work

By Olu Fasan

This intervention goes against the flow of current popular opinion in Nigeria. There’s a herd mentality, whereby many prominent people are hailing the recent Supreme Court ruling on local government autonomy without thinking about its implications. But as Socrates said, the correctness of an opinion cannot be determined by whether it is held by a majority or by important people. Without a doubt, I absolutely abhor the crippling of local governments by state governors. However, I viscerally reject the way the Supreme Court addressed the issue by turning the Constitution on its head and ripping up the veneer of federalism in Nigeria.
Here’s what the Constitution says unambiguously. Section 162(5) says the amount due to local governments from the Federation Account “shall be allocated to the State for the benefit of their Local Government Councils.” Section 165(6) states that: “Each State shall maintain a special account to be called ‘State Joint Local Government Account’ into which shall be paid all allocations to the Local Government from the Federation Account and from the Government of the State.” Then, section 162(8) provides that: “The amount standing to the credit of the Local Government Councils of a State shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.” The word “shall” leaves no room for alternatives.
Clearly, the framers of the Constitution wanted to achieve two objectives. First, they wanted to uphold a principle of federalism by making local governments the responsibility of state governments, hence they, a) used the words “their Local Government Councils”; b) said local government allocations should be paid to the states through the State Joint Local Government Account; and c) mandated the State House of Assembly to prescribe how the funds should be “distributed among the Local Government Councils of that State.” These provisions accord with the spirit of federalism. But the framers’ second objective was to ensure the financial viability of local governments, hence they required States to pass on the allocations “for the benefit of their Local Government Councils.” Unfortunately, state governors have betrayed that second objective by refusing to pass on the federal allocations “for the benefit of their local governments”, as the Constitution requires, thereby strangulating them financially.
The task before the Supreme Court, therefore, was to correct that anomaly to achieve the dual intentions of the framers of the Constitution. But the Supreme Court tilted the balance the other way; it granted financial autonomy to local governments but upended the Constitution and destroyed the principle of federalism. The Supreme Court said the constitutional arrangements were not working. To address the mischief, the apex court adopted an expansive interpretation of the Constitution, saying that: “Demands of justice require a progressive interpretation of the law.” It added: “Since paying [the local government allocations] through states has not worked, justice of this case demands that local government allocations from the Federation Account should henceforth be paid directly to the LGAs.”
Basically, the Supreme Court indulged in judicial constitution-making. Indeed, the court admitted doing this by saying that it adopted “a progressive interpretation of the law” to address an “injustice”. But how many injustices in Nigeria has the Supreme Court addressed through a “progressive” interpretation of the law? Did it address injustices in elections through a “progressive” interpretation of the law? Absolutely not. Rather, it often puts technicalities above substantive justice.
But here’s the key question: Can the Supreme Court change the Constitution through the back door, bypassing the constitutionally prescribed process? Those provisions of section 162 are still there; they have not changed. But the Supreme Court says they don’t mean what they literally mean. So, there’s no more State Joint Local Government Account; there’s no more role for the State House of Assembly in prescribing how federal allocations are distributed among local governments in the state. What the Supreme Court should have done was to declare what the intentions of the drafters of the Constitution were and order state governors to adhere to them. Instead, the court replaced the words of the Constitution with its own.
Yet, a judge’s task is to make decisions that are justified by the law as it is. As Justice Sydney Kentridge said in the judgement of the South African Constitutional Court in State v Zuma, “if the language used by the lawgiver is ignored in favour of a general resort to ‘values’, the result is not interpretation but divination.” What the Supreme Court did in the local government autonomy case is divination by hiding behind “demands of justice” to change the Constitution and undermine the principle of federalism.
Forgive my cynicism, but I suspect that just as Bola Tinubu, Nigeria’s power-grabbing president, corralled the National Assembly to change the national anthem, he got the Supreme Court to reach this perverse decision. I mean, just two years ago, in 2022, the Supreme Court quashed President Buhari’s Executive Order 10 that empowered the Accountant General of the Federation to bypass state governments and disburse federal allocations directly to local governments on the basis that it violated the principle of federalism. So, how come the same Supreme Court now empowers the Accountant General to do the same thing, thus eviscerating the little semblance of federalism existing in Nigeria?
In any true federal system, local government is a matter of state law as it is in the US under the Dillion Rule. The US Federal Government will never sue state governors on any local government matter. True, the relationship between state and local governments is not working in Nigeria. However, the solution is not judicial constitution-making but a negotiated political and constitutional settlement, leading to restructuring Nigeria to create proper relationships between its constituent units.
Tinubu said the Supreme Court judgement is “a resounding affirmation” that Nigeria can be restructured through “legitimate means of redress.” Wrong! Nigeria cannot be restructured through judicial activism; it can only be restructured through political and legislative processes. Judicial constitution-making won’t endure; only a restructuring, underpinned by a negotiated political and constitutional settlement, will endure.

Olu Fasan is a Public Policy Analys