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To pay or not to pay
By Ade Ipaye
THE Supreme Court judgment delivered on Friday, December 10, 2004 in the case of A.G. (Lagos) v. A.G. (Federation) has quickly proved extremely controversial. This is not surprising though. In the first place, the decision of Mr. President to withhold allocations due to local government councils in Lagos State was more political than legal. When, therefore, the Supreme Court gave a contrary directive, the ensuing reactions have expectedly been more political than legal. In Lagos State, the suffering has been acute; hence the relief was palpable in a rather dramatic way. Politicians, council workers and residents who had looked on with frustration and anger for the past eight months were suddenly told that they had done nothing wrong. Extreme reactions, it would appear, were in order.
In particular, the relief of Governor Tinubu who had taken such grave risks to keep up the lengthy struggle can best be imagined. He had had been deserted and isolated by fellow Governors with whom he started out. When the Federal Government so brutally cut off the blood supply to local councils in Lagos State, the Governor had stretched all available internal resources to keep the Councils alive. Then everybody else had looked on with bated breath, awaiting the ruling of the Supreme Court.
In the event, the court action initiated by Lagos State succeeded. All the reliefs sought were granted by all the seven Justices. Six reliefs sought by the Federal Government in its counter-claim were unanimously refused. Three were allowed by a majority. Those three reliefs centered on one fact: that the new local government councils created by the Lagos legislature were valid and constitutional. But they were inchoate until the National Assembly makes a consequential Act. For the time being, allocations from the federation account would only be to the original 20 local councils. This reservation should not of course bother the Lagos State Government. At no time did it argue that the 37 newly created Councils were already listed in the Constitution.
Neither did the State Government ever make a claim for allocation to the new local councils. In essence, the judgment established that the President had no power vested in him, whether by executive or administrative action, to suspend or withhold for any period whatsoever the statutory allocation due and payable to Lagos State Government for the benefit of its local government councils. Consequently, the Supreme Court made an order compelling the Federal Government to pay immediately to the State Government all outstanding allocations for the benefit of its local councils. For the future, the Court also issued an order of perpetual injunction restraining the President or any functionaries or agencies of the Federal Executive Branch from doing anything whatsoever calculated to suspend or withhold for any period whatsoever any monies due and payable to the State Government for the benefit of its local councils.
In making these declarations, the Supreme Court unanimously settled, once and for all, the issue of whether the President had coercive or punitive powers over other tiers of government which might disagree with him on the interpretation of the constitution. According to Kutigi JSC, "... nowhere in the Constitution is the President expressly or impliedly authorized to suspend or withhold the Statutory Allocation payable to Lagos State pursuant to Section 162(5) of the Constitution on the grounds of the complaints made against Lagos State by the Federal Government in this action or at all. If the President has any grievance against any tier of Government, he should go to Court. He cannot kill them by withholding their Statutory Allocations. That will be brutal indeed."
As regards the creation of new local government councils, The Chief Justice of Nigeria observed that ". . . the taking of such step or act by Lagos State is not unconstitutional as thought by the President. The Constitution fully recognizes the step taken except that there is still one more step or hurdle to be taken or crossed by the National Assembly (not by the State Government) for the Plaintiff to actualize the creation of new local government areas." On that account, the Supreme Court dismissed any suggestion that a State Government had no power to create new local councils. Instead, the court held that the Creation of New Local Government Areas Law No. 5 of 2002 and its amendment of 2004 were both valid as they were enacted by the Lagos State House of Assembly in accordance with section 7(1) and 8(3) of the Constitution.
Furthermore, all seven Justices of the Supreme Court were unanimous in preserving the elections conducted by the Lagos State Independent Electoral Commission on the 27th March 2004. Aside from technical impossibility of condemning the elections when all parties interested in the elections were not before the court, Justice Uwaifo noted that by conducting the elections, the State had given life to democratic principles of representative local government councils as required by section 7(1) and (4) of the Constitution. However, what is far more important than this important judgment is what the President does with it.
Apparently, those who assured him that withholding statutory allocations to suffocate dissenters was the right thing to do are still there and, perhaps, more vocal than the rest. Well ahead of the Justice Minister, the Minister of Works was first on the field. The ink had hardly dried on the judgment when the Works Minister called a press conference to interpret the court ruling. According to him, AD must revert to the existing 20 local governments. Unless that is done, the allocations remain withheld. In the same vein, the Special Assistant to the President ignored all the admonitions of the Supreme Court and asserted, as usual, that the President has once again been vindicated.
But the most dramatic response thus far came from a learned Senior Advocate. Using an undisclosed mathematical parameter, Chief Gani Fawehinmi asserted that Lagos State lost three quarters of the judgment while the Federal Government lost only a quarter of it. He was further quoted as saying that the chairman and councilors in the 57 LGCs can be regarded as 'fakely' elected. "They have to be thrown out before we can talk about the true 20 local governments." This, of course, can only be understood in a political (hence illogical?) context or on the premise that the learned Chief had not had the benefit of reading the judgment as at the time of his comments. The regrettable aspect of it is that a lot of people still take whatever 'Gani' says as gospel truth.
In all this, one cannot but appreciate the predicament of Mr. President. Under the prevailing climate of contrived confusion, none of his men would openly remind him that (a) he paid local government allocations to Lagos State Government without any difficulty for a continuous period of almost 2 years after the creation of the new councils; (b) under the 1999 Constitution, monies due to local councils in Lagos State are to be paid to the State Government; (c) the terms of distribution among the local councils in the state are to be determined solely by the State House of Assembly; (d) the Supreme Court has declared the Creation of Local Government Law of Lagos Sate valid and constitutional; (d) if the President has a problem with the way local government funds are distributed in Lagos State, he has to go to court, he cannot withhold the allocations on that account or for any other reason. Simple facts, these. But who is to say?
- Ipaye, an attorney, lives in Lagos
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