By Kayode Adebiyi
From the early years of Nigeria’s route to into nationhood when Order in Council (London) made laws for it as a Crown Colony, politicians have strived to produce a constitution that meets the citizens’ aspirations.
Right from Clifford Constitution (1922) to Richards (1946), Macpherson (1951), Lyttleton (1954) down to Independence Constitution and the most recent, the 1999 Constitution, agitation for constitution amendment has never ceased.
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Although it is practically impossible to have a perfect constitution however, the more loopholes are noticed in the implementation of any constitution the more the need for its amendment.
Since Nigeria’s return to democracy in 1999, many Nigerians have advocated the review of the 1999 Constitution following observed flaws.
The closest comprehensive effort to that effect was the Goodluck Jonathan administration’s 2014 National Conference whose recommendations were expected to be incorporated into the constitution.
Stakeholders in the political space say this is not unexpected as the constitution is a product of a military regime.
A former Secretary-General of the Commonwealth, Emeka Anyaoku says the implementation of the 1999 so far has thrown up the need for it to be revisited and points to areas that deserve attention.
He said: “The essence of the new constitution should, in recognition of the crucial principle of subsidiarity in every successful federation, involve devolution of powers.
“This is from the central government to fewer and more viable federating units with strong provisions for inclusive governance at the centre and in the regions as was agreed by Nigeria’s founding fathers.
“To arrest the ongoing deterioration of the situation in the country and to achieve the desired transformation for the better, we need a system of government that not only addresses our diversity but is also based on a constitution that can correctly be described as a Nigerian people’s Constitution“.
A Senior Advocate of Nigeria (SAN) Robert Clarke also thinks that the status of local governments is among the three key provisions of the 1999 constitution that should be amended.
Other areas, he said, are membership of political parties and independent candidacy.
On Feb. 14, 2024, the Senate listened to the voices of Nigerians and announced a 45-member Constitution Review Committee on the 1999 Constitution, chaired by the Deputy Senate President, Barau Jibrin.
On its part, the House of Representatives hit the ground running by engaging a 9-man team of experts to facilitate the process.
The Deputy Speaker, Rep. Benjamin Kalu, who is also the chairman of the House Committee on the Review of the Constitution said the experience of members of the team was critical in the constitution review process.
“Among others, they are to analyze and present the data collected in a simple, concise, and organized manner for the committee’s deliberations and consideration to assist in ultimately taking critical and informed decisions.
“Conduct research on bills, measures, and policies referred to the committee and advise on their viability and likely consequences for proposed constitutional alterations.
“They will also advise the committee to arrive at decisions that are fair to all and in accordance with the fundamental objectives and directive principles of state policy,” Kalu said.
Members of the team include legal luminaries and scholars: Mr Clement Nwankwo, Mr Mamman Osuman, Prof. Nuhu Jamo, a Senior Advocate of Nigeria.
Others are Chief Chris Uche, another Senior Advocate of Nigeria, Mr Seni Adio, also a Senior Advocate of Nigeria, Mr Samson Osagie, Prof. Joy Ezeilo, and Prof. Ladi Hammalia.
While issues such as state police and artificial intelligence are said to top the agenda, some stakeholders have said local government autonomy should be on the front burner of the exercise.
Chief Sam Onuigbo, a former member of the House of Representatives, said recently that fiscal autonomy for local government areas should be guaranteed in the amendment to ensure that the three tiers of government get resources to perform their constitutional duties.
He also said without total autonomy for the local governments, it would be difficult for them to have access to funds to perform optimally.
“Many areas of the constitution deserve a second look. I know that we have been taking it bit by bit in ensuring that we amend the constitution to take care of the challenges we have been having.
“We should amend the constitution and grant this autonomy so that we can return to what it was then.
“We need local governments to become fully operational so as to keep the rural people busy and this will go a long way to move governance to the grassroots and reduce criminal activities“, said Onuigbo who is a climate change activist.
He said true autonomy for local governments would ensure that they got their share of national revenue with governors tinkering with its.
Section 7 (1) of the 1999 Constitution clear on local government administration in the country.
“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”, it says.
However, state governors have so far exploited the loopholes in certain provisions in that section to deny local governments fiscal autonomy.
For instance, while the constitution says local councils have to participate in economic planning and development of their areas, it went ahead to state that the state houses of assembly should establish an economic planning board for local councils.
Stakeholders like Oniugbo frown at the provision of the constitution that gives power to the state houses of assembly to make laws for the local governments, saying it had crippled their functionality.
This, they say, has render local governments lame ducks.
However, some stakeholders said it became deep-rooted when Nigeria returned to civil rule in 1999, prompting the then Olusegun Obasanjo administration to establish an 11-man Technical Committee on the Restructuring of Local Government in Nigeria in 2003.
The committee made three major recommendations:
One of its recommendations was the recognition of local government as the autonomous third tier of government in Nigeria.
It also recommended the abolition of the State-Local Government Joint Account; and direct remittance to each council of its share of the Federation Account.
Unfortunately, groundbreaking as they were, the recommendations could not be implemented because they required a constitutional amendment.
When the constitution was eventually reviewed in 2011, state governors blocked attempts to grant full fiscal autonomy to local governments.
The same scenario played out in 2023 when former President Muhammadu Buhari signed 16 constitutional amendment bills into law.
Ironically, one of the amended provisions is Section 121 (3), which now grants explicit financial independence to houses of assembly and state judiciary.
Stakeholders argue that granting autonomy to arms of government while depriving a constitutionally-recognised tier of government is an unacceptable affront by governors.
At a forum on constitutional review process in 2012, the late Mr Ibrahim Khaleel, then NULGE president, said governors were exploiting the contradictions and confusion in Section 7 of the constitution to abort democratic governance.
He said the ambiguity of that section made it possible for governors to suspend council elections and impose caretaker or transition committees, thereby usurping the statutory functions of local governments and plundering their resources.
Indeed, a recent report shows that local government councils in 17 states are being run through transition or caretaker committees, with Anambra not conducting council polls in 10 years!
Strengthening local government administration may not present a simple and seemingly magical solution to the problem of grassroots governance.
However, some stakeholders say being the closest to the people, the lack of fiscal autonomy for the third tier of government is forcing grassroots governance to suffer.
Therefore, some are calling for Section 7 to be repealed and replaced with a fresh chapter on local government administration in order to restore its autonomy status as the third tier of government
They are also calling for the repeal of Section 162 (6) which created the special account called “State Joint Local Government Account” and aids the mismanagement of local government resources by state governments.
Since state governments are reluctant to conduct elections in local councils, some stakeholders are also calling for the removal of the State Independence Electoral Commission from Section 197 (1) (a) and Part II of the Third Schedule.
Instead, they want the power to conduct such elections to be transferred to the Independent National Electoral Commission (INEC).
As usual, it is expected that state governors will resist another attempt at granting local governments fiscal autonomy through stooges in their various houses of assembly.
For such an amendment to sail through, it must be approved by resolutions of the House of Assembly of not less than two-thirds of all the states in the federation – that is about 24 states.
The 9-man expert committee has promised do its best to ensure that Nigerians have a befitting constitution.
Uche, a member of the committee spoke the mind of his colleagues at a meeting chaired by Kalu in Abuja recently.
“We are operating a constitutional democracy and we have seen the hiccups…
“With our wealth of experience in constitutional engagement and practice we are very certain that some of the things we have come across along the way, we will definitely bring them to bear on our work. So, we assure you, we will put in our best“.
The ball is the court of members of the National Assembly history beckons and how they handle this assignment will determine how history will remember them.
Local Government Councils need to be freed from the shackles of governors and only a constitution that will guarantee this will suffice.
News Agency of Nigeria.
