ADMINISTRATION OF LOCAL GOVERNMENT COUNCILS THROUGH CARETAKER COMMITTEES: HOW CONSTITUTIONAL?


This article would not have been necessary in view of the clear provisions of the 1999 Constitution of the Federal Republic of Nigeria [as amended] in relation to the administration of Local Governments Councils in Nigeria. However, operation and administration of local government Councils through transitional/caretaker committees by some State Governors have become rampant and worrisome and a fragrant violation of the Constitution. Example of some States of the Federation running Local Government Councils with Caretaker or Transitional Committees are Anambra, Imo and Edo States just to mention but a few. The Edo State House of Assembly had passed a motion dissolving all the Transition/Caretaker Committees set-up by Comrade Adams Oshiomhole in all the 18 local Government Areas of the State. Governor Peter Obi of Anambra State has since becoming Governor of the State refused to conducted election into the Local Government Council despite agitation from all quarters of the State. Governor Peter Obi spent his first tenure in office administering Local Government Councils in the State with Caretaker Committees and has not shown any sign of conducting election in his second tenure.
The administration of Local Government Councils based on caretaker or transitional committees has become a norm in Nigeria despite the constitutional duty imposed on the States to ensure the existence of democratically elected Local Government Councils so as to ensure the enthronement of true democracy at the grass roots. Section 7 (1) of the 1999 Constitution (as amended) provides thus;
‘’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.’’
When the words of a statute are clear and unambiguous, the court is bound to give it their ordinary and grammatical meaning without any decorative interpretation. Please see the cases of SPEAKER, K.S.H.A. V ADEGBE (2010) 10 NWLR (pt.1201) 45 and F.R.N. V OSAHON (2006) 5 NWLR (pt. 973) 361. The above constitutional provision is clear and unambiguous as to the system of Local Government Council in Nigeria which must be democratically elected and the State is constitutionally mandated and implored to ensure their continued existence.
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The constitutional provision does not provide that the Local Government Councils in Nigeria be administered by caretaker committees or transitional committees. It ought to or should be noted that any state government which has truncated the democratically elected local government council in Nigeria by appointing caretaker or transitional committees is in breach of section 7 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The 1999 Constitution (as amended) only recognises democratically elected members of a Local Government Council and it is unconstitutional for any State Government to dissolve a Local Government Council made up of democratically elected chairmen and replaced it with members of a caretaker committees or transition committees selected or appointed by the Governor.
Section 1(1) of the 1999 Constitution provides that the ‘’Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria’’. The supremacy and binding force of the provisions of the Constitution is beyond doubt. The Constitution is the grundnorm and the basic law of the land and failure to observe its provisions renders whatever is done contrary to it null and void, unconstitutional and of no effect. See the case of EZE & ORS V GOVERNOR OF ABIA STATE & ORS (2010) NWLR (pt 1216) 324. In a democratic system of government with a supreme Constitution as the 1999 Constitution (as amended), all laws made by the Legislative House/Body must flow and take their validity therefrom and must kowtow to the Constitution. All laws must dance to the rhythm of the Constitution irrespective of the cacophony of the ‘’Constitutional lyrics’’ and any law inconsistent with the Constitution is to the extent of the inconsistency void. It is conceded that the State Legislative Houses possess the powers and competence under section 4 (7) to make laws for the peace, order and good governance of the State or any part thereof. However, the said State Legislative Houses cannot under the above provision enact law truncating a democratically elected local government council in the State nor can the Governor run the Local Government Councils through transition or caretaker committees. In the case of AKPAN V UMAH (2002) 7 NWLR (pt. 767) 701, the Court of Appeal held that;
‘’Although it is within the legislative power of a State House of Assembly to make a law to regulate a Local Government Council in the State plague with crisis or to make a law to prescribe for an event upon which happening a Local Government Council is dissolved or the chairman or vice-Chairman of a Local Government Council is removed or vacates his office, any law
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made by the House of Assembly which provides for nomination of membership of a council or appointment of an administrator or caretaker committee to replace a democratically elected council is inconsistent with the clear and unambiguous provision of section 7(1) of the 1999 Constitution which guarantees democratically elected Local Government Council and is therefore unconstitutional to the extent of the inconsistency.’’
The 1999 Constitution (as amended) does not recognise caretaker or transitional committees for the Local Government Council. The Governor is saddled with the constitutional duty to immediately conduct fresh Local Government elections upon the expiration of the tenure of the Local Government Council Chairmen and not to truncate its existence by caretaker or transition committees as often witnessed in Nigeria. The Governors should be reminded that they sworn to protect, preserve and respect the Constitution and not otherwise. Section 1 (2) of the 1999 Constitution provides that ‘’The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution’’, however, running the Local Government Councils by caretaker or transitional committees is governing a part thereof otherwise than in accordance with the provisions of the Constitution. It is argued that the appointment of caretaker or transitional committees is taking control of a part of the Federal Republic of Nigeria, i.e. the Local Government Councils in the State, in fragrance violation of the clear Constitutional provision. There is no reason or excuse that a Governor will advance as to why elections into Local Government Councils have not be conducted about two years after the illegal dissolution of the democratically Local Government Councils.
The concerned State Governors should note that their refusal to conduct elections into the Local Government Councils is tantamount to denying the people of their rights to vote and be voted for which is constitutionally guaranteed. Their refusal to conduct elections into these Local Councils is contrary to section 7(1), 14(1) (c), of the 1999 Constitution [as amended) and Article 13 of the African Charter on Human and Peoples Right (Ratification & Enforcement) Act. Section 39 of the Constitution guaranteed every citizen freedom of expression. It is submitted that freedom of expression includes freedom to participate freely in the government of his or her country, either directly or through freely chosen representatives in an election in accordance with the provisions of the law. The constitutionally guaranteed way of
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ensuring participation of the citizenry in governance or the democratic process is by the relevant authorities conducting elections into the various offices which serve as the only process in which the general will of the people is expressed. They should be reminded that they became Governors of their States through election in which the people of the States voted for them massively and stood to defend the same mandate. Therefore, refusal to conduct local government elections by the State Government is denying the people of the same opportunity to now elect whom to govern them at the Local level. It is also denying the people’s right to make positive and useful contribution to the advancement, progress and well-being of the community where they reside in accordance with section 24 (d) of the 1999 Constitution (as amended). They have forgotten that sovereignty belongs to the people from whom they derived their mandate and legitimacy as Governors. It could best be imagined what the State Governors’ argument will be if the Federal Government was to dissolve the State Executives and set up a caretaker/transitional committees or administrators. They would simply say ‘’it is unconstitutional’’.
Benedict Oregbemhe
Partner
Benfield Attorneys and Solicitors
b.oregbemhe@benfieldattorneys.com
www.benfieldattorneys.com
+234 8036986158

The Mandatory Use of the National Identification Number Regulation 2017:How Constitutional? By Okhuofu Benedict Oregbemhe

Introduction:
The National Identity Management Commission (“the Commission”) was established by the National Identity Management Commission Act2 (“the Act”). The Commission is a body corporate with perpetual succession and a common seal and may sue and be sued.3 The operations of the Commission is run by the governing board, with representatives from various offices, agencies and commissions4.
The Commission is charged with the following statutory functions:5
(a) create, manage, maintain and operate the National Identity Database established under section 14 of the Act including the harmonisation and integration of existing identification databases in government agencies and integrating them into the National Identity Database;
(b) carry out the registration of citizens of Nigeria into the National Identity Database;
The Act empowers the Commission to make regulations for the effective operation of the Act and the due administration thereof. In the exercise of these powers6, the Commission has made the “Mandatory Use of the National Identity Number Regulations, 2017.”7 (“the Regulations”). This regulation has such broad and extensive reach, that in our view its scope exceeds the powers of the commission to legislate upon. We examine a few of these provisions and explain why we hold the view that the Commission has exceeded its authority under its enabling law and under the 1999 Constitution
The Constitutionality of Some Provisions of the Regulations
The Constitution is supreme and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria.8 The legislative power of the Federal
1 LL.B., (University of Benin), B.L. (Nigeria), LL.M., (University of Lagos): Partner, Benfield Attorneys and Solicitors, Lagos, Nigeria.
2 Section 1(1), Cap. N154, Laws of the Federation of Nigeria 2004
3 Section 2 ibid.
4 Section 2 ibid.
5 Sections 5 ibid.
6 Sections 27 and 31 ibid.
7 The Mandatory Use of the National Identity Number Regulations, 2017, Gazette No. 121, Vol. 104 of 13th November 2017.
8 Section 1(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
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Republic of Nigeria is vested in the National Assembly which consists of the Senate and a House of Representatives.9 The power of the National Assembly to enact laws for the peace, order and good government of the federation is with respect to the matters listed in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution and the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution.10
The legislative power of the National Assembly to enact laws for the peace, order and good government of the federation with respect to the matters contained in the Exclusive Legislative List is to the exclusion of the State Houses of Assembly.11 The National Assembly is also empowered to enact laws with respect to any matter in the Concurrent Legislative List12 and if any laws enacted by a State House of Assembly in respect of such matters is inconsistent with any law validly enacted by the National Assembly, the law made by the National Assembly shall prevail, and the State law shall to the extent of its inconsistency be void.13
The Exclusive Legislative List has 68 items for which the National Assembly has power to make laws for the peace, order and good government of the Federation or any part thereof to the exclusion of the State Houses of Assembly. The Concurrent Legislative List contains 30 items for which both the National Assembly and the House of Assembly of a State have concurrent legislative power to make laws for the peace, order and good government of the Federation and the respective States. Any items not listed in the Exclusive and Concurrent Legislative Lists are within the exclusive legislative competence of the State Houses of Assembly.
The National Assembly lacks the constitutional competence to make laws outside its legislative domain which are by implication residual matters reserved for the State Houses of Assembly. The National Assembly cannot, in the exercise of its powers to enact some specific laws, take the liberty to confer power or authority on the Federal Government or any of its agencies to engage in matters that ordinarily fall within the responsibility of the State Houses of Assembly, a State Government or its agencies. This would be to allow the National Assembly, the Federal Government or its agencies to encroach upon the exclusive constitutional authority conferred on the State Houses of Assemblies under their residual legislative power.14
9 Section 4(1) ibid.
10 Section 4(2) ibid.
11 Section 4(3) ibid.
12 Section 4(4)(a) ibid.
13 Section 4(5) ibid.
14 AG Federation v. AG Lagos State (2013) 16 NWLR (Pt. 1380) 249 at 303, paras.C-D, per Galadima, J. S. C.
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We are of the opinion that some of the items listed in the Regulations15 for which mandatory use of the national identification number is required are items over which the State Houses of Assembly have exclusive competence to legislate on to the exclusion of the National Assembly, the National Identity Management Commission or any other agency of the Federal Government of Nigeria. For example, hospitality services16, save for tourist traffic,17 are within the exclusive legislative competence of the State Houses of Assembly18 and not for the National Assembly to make laws neither does the Commission have the constitutional vires to make regulations for the registration provision and use of hospitality services in Nigeria.
The Regulation requires a mandatory use of the national identification number in an application for the adoption of an infant, child or person under applicable laws.19 Adoption of an infant or child is neither listed in the Exclusive nor Concurrent Legislative Lists of the 1999 Constitution; thus, it remains a residual matter within the exclusive legislative competence of the State Houses of Assembly. The National Assembly or the Commission cannot legislate or make Regulations on the practice and procedure of adoption in Nigeria. It is ultra vires the National Assembly and the Commission to make provisions for the mandatory use of the national identification number for applications with respect to adoption of an infant or child under the relevant State enactments.
By virtue of the Regulation, filing and registration of criminal and civil actions in court or other arbitration processes20 requires the mandatory use of the national identification number. The National Assembly has the legislative competence to legislate for the practice and procedure of the federal courts or such other courts and tribunals established by an Act of the National Assembly or for which the National Assembly has power to make laws. Thus, the National Assembly would in the circumstances, have legislative competence to enact laws regulating the practice and procedure of the Federal High Court, National Industrial Court of Nigeria,
15 Regulation 1(1) ibid (n 8).
16 See Regulation 1(a) ibid. The hospitality industry is a broad category of fields within service industry that includes lodging, event planning, theme parks, transportation, cruise line, and additional fields within the tourism industry. … Usage rate, or its inverse “vacancy rate”, is an important variable for the hospitality industry. It involves the regulation, registration, classification and grading of hotels, motels, guest inns, apartments, restaurants, cafeterias, fast foods outs, tour operating outfits, travel agencies and other tourist related establishment within a State.
17 Item 60(d) of Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended. “Tourist traffic applies to any person who moves from one place to another for sightseeing, relaxation and possibly cultural purposes. Such travel may not necessarily be from one country to another but from one town to another within a country. The word also refers to the movement of persons into and within a designated place for visitation or pleasure. But within the context of item 60(d) it connotes that a tourist is an international traveler who travels to another country for purpose of sightseeing etc, and who must thus obtain visa to visit the said other country… ” See AG Federation v. AG Lagos State ibid (n 14).
18 Ibid (n 9).
19 Regulation 1(1)(c) ibid (n 8).
20 Regulation 1(1)(u) ibid (n 8).
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High Court of the Federal Capital Territory, Abuja, National or Federal Tribunals, Court of Appeal, and Supreme Court.
However, the National Assembly does not have the constitutional competence to legislate for the practice and procedure of State High Court or such other courts or tribunals as established by a State House of Assembly. In the same vein, the Commission cannot make Regulations requiring the mandatory use of the national identification number in courts established by the law of a State House of Assembly. In recognition of this fact, the Commission has deliberately defined the court in which the mandatory use of the national identification number is required for filing criminal and civil actions to mean the Federal High Court.21
Furthermore, the Regulation requires the mandatory use of the national identification number in arbitration processes in Nigeria. Arbitration is a private dispute resolution mechanism. Arbitration in Nigeria is regulated by the Arbitration and Conciliation Act22 and the Lagos State Arbitration Law 2009.23 Arbitration being a private dispute resolution mechanism, party autonomy is vital. In the view of this writer, if parties decide to arbitrate under the Arbitration and Conciliation Act, being a federal enactment, then, the mandatory use of the national identification numbers may become mandatory, imperative and binding. Since the Regulation requires the mandatory use of the national identification number in filing civil actions at the Federal High Court, it therefore follows that any application for the enforcement of any arbitral awards at the Federal High Court must contain the national identification number of the legal practitioner that signs the processes. However, if parties choose to arbitrate their dispute under the Lagos State Arbitration Law 2009 which is a State law, the use of the national identification number becomes optional and not mandatory, binding or compulsory for the parties.
The Regulation requires mandatory use of the national identification number with respect to filing, processing and obtaining of probate documents.24 Filing, processing and obtaining of probate documents is within the exclusive legislative competence of the State Houses of Assemblies and not the National Assembly. Filing, processing and obtaining of probate is neither listed in the Exclusive nor Concurrent Legislative Lists of the 1999 Constitution; therefore, it is a residual matter for the State Houses of Assembly to legislate upon.
The pedestal upon which the Regulation is anchored is sections 27 and 31 of the Act. The National Assembly or the Commission does not have constitutional or statutory competence to enact laws or regulations with respect to filing, processing and obtaining of probate
21 Section 8 ibid (n.8).
22 Cap. A18, Laws of the Federation of Nigeria 2004.
23 Cap. A11, Laws of Lagos State of Nigeria 2015.
24 Regulation 1(1)(qq) ibid (n 8).
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documents in the States. Having regard to the fact that filing, processing and obtaining of probate generally is a residual matter, the requirement for a mandatory use of the national identification number in filing, processing and obtaining documents in the State High Court Probate Registry becomes unconstitutional and ultra vires the Commission.
The constitutionality of any enactment by the National Assembly or any government agencies must be measured against the backdrop of section 4(6) and (7) of the 1999 Constitution. In light of the above, the power of the National Assembly or any government agencies to legislate on a given matter must be traceable to the 1999 Constitution, either the Exclusive or Concurrent Legislative Lists. If the National Assembly or any government agencies legislates on any matter not within its legislative competence or outside the ambit of the said constitutional provisions, such enactment is null and void.25
Conclusion
In conclusion, we submit that some provisions of the Regulations, to the extent that they seek to regulate areas within the exclusive legislative competence of the State Houses of Assembly as argued hereinbefore, are null and void.
25 Section 1(3) ibid (n 9).