BY MUSA ADAMU ESQ
The Nasarawa state House of Assembly at its emergency session held on Monday, the 8th of August, 2020, resolved to suspend the Chairman, Muhammed Sami Otto, and Deputy Chairman,
Lawal Yakubu Karshi, of Nasarawa and Karu Local Governments Council respectively.
Announcing the resolution of the House, Speaker Ibrahim Balarabe Abdullahi, said the two elected LGC officials engaged in misconduct, sabotage and insubordination when they went to Court in Akwanga to solidarize with Ex- SSG Ahmed Tijani, in his suit challenging his indictment by the House for alleged financial mishandling.
The resolution of the House was sequel to a Motion on Public Interest moved by the Chairman, House Committee on Local Government, Barrister Mohammed Alkali.
The Motion further accused the two officials of insubordination for “abandoning their official duty” to be in Akwanga.
With respect to Nasarawa LGC boss, the House said by being in Akwanga at the material time failed in his duty “to assist the security agents in ensuring peaceful Nasarawa Central constituency bye-election.”
The House rationalized its action by invoking its inherent powers to make Local Government Laws of the state and the state Independent Electoral Commission (NASIEC).
In other word, the House submits that since it is responsible for the birthing of the local administration framework upon which local officials superintends it reserves the power to snuff out their life.
Succinctly put; power to appoint presumes power to terminate the appointment.
But, in this piece, we will see that the House erred in Law to hold such opinion and that any action taken by it pursuant to such opinion is ultra vires and is of no consequence.
First, the House, like any other state House of Assembly in the country, derives its powers to make Law for the administration of Local Government Councils from the Constitution of the Federal Republic of Nigeria 1999 (as altered), particularly, S. 7(1).
Pursuant to this section of the Constitution, the state House is empowered to make Law for the establishment, structure, composition, finance and functions of the Local Government Councils.
For the avoidance of doubt, this section provides: “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.”
The operating word here is “guaranteed.” This means, the existence of Local Government as the third tier of government in Nigeria is already recognised as is the Federal Government and its National Assembly and States and their Houses of Assembly. The task of the state Houses therefore, is nothing beyond putting up the framework upon which the realisation of this constitutional “guaranteed” may rest.
This task handed the House by the Constitution does not in any turn our local governments into agencies of the state governments nor their elected officials appointees of such state governments.
To drive home this point, our Courts wasted no time in upholding any suit challenging arbitrary dissolution of local government councils and appointing sole administrators in their place.
One of such commendable efforts of our Courts is as recent as last year (2019) where the Supreme Court sided with the 16 Local Government Officers sacked by Kayode Fayemi led government of Ekiti state.
In the instant Case between Governor of Ekiti state & ORS V. Prince Sanmi Olubunmo, (2019) 3 NWLR (Part1551), the Supreme Court held that the provisions of the state law relied upon to remove the elected local government officers was in violation of Section 7(1) of the 1999 Constitution and cannot stand by virtue of Section 1(3), declaring the act null and void and of no effect to extent of its inconsistency with that section of the Constitution.
S. 1(3) of the Constitution sates that: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
The Supreme Court in a five man panel headed by Justice Olubolade – Joe in a unanimous judgement delivered on December 11, 2019 stripped state Governors of the power to sack elected local government (LG) Chairmen and Councillors.
It went further to outlaw the appointment of caretaker Chairmen by state Governors.
To be sure that the effect of its judgement was not limited to the actions of the Governors alone, it further declared that henceforth “the act giving legislative powers to state Assembly members to undertake the process of sacking elected Local Government Chairmen is null and void.”
The panel of Justices unanimously upheld that only the Legislative arm of a Local Government Council is empowered with the residual Constitutional backing to sack Council Chairmen that maybe found blameworthy of any gross misconduct or violations of rules guiding public servants.
Justice Olubolade Joe led panel also directed that a copy of the judgement should be served to all 36 state Houses of Assembly and the Minister of the FCT on or before the December 30, 2019.
To be clear, the apex Court in the instant case mince no word in emphasizing that the system of local government by democratically elected Local Government Council conferred sacrosanctity on the election of such officials whose electoral mandates stemmed from the will of the people and cannot be arbitrarily taken away by the Governor or state machineries.
Before the Ekiti case, the Supreme Court also had opportunity in 2014 in that case Eze V. Governor of Abia state. 4 (2014) NWLR (PT 1426) 192.
It then follows that if the state Governors, whose job it is to implement Laws made by their state Houses lack powers to interrupt, suspend, remove and or abridge local council tenures, the state Houses cannot be heard to exercise such powers.
This still holds true even if any state House arrogate such powers to itself in its own Law since it would offend the spirit and letters of Supremacy Clause in S. 1(3) of the CFRN 1999 (Supra).
This is because no where in S. 7 (1) gives the state Houses the power to “appoint, suspend, remove and or discipline” any duly elected official of the Local Government Council.
As expected, not, even in the Local Government Laws of Nasarawa state would you find any enabling provision that gives the House the teeth to bite any erring local government Chairman, Deputy and or Councillors.
These powers are vested in the Legislative Council of the LGCs as exercises by their Councillors as states in S. 27 of the Local Government Laws of Nasarawa state, 2009.
The Law says even the Councillors are to exercise this power in accordance with the laid down procedures and not in accordance with their whims and caprices.
The argument by the House that since it makes Laws for the “establishment, structuring, composition, financing and functioning” of Local Government Councils and the establishment of NASIEC it acted within the Law to so carry out the suspension sounds hollow since, like a mother who gave birth to a baby lacking the right to kill such child, the letters and spirit of S. 7 (1) of the CFRN 1999 (supra) did not grant it that powers.
This scenario is called “functus officio.” The section envisages that having made the Law establishing the local government framework, it operation it gains its own life which cannot be snuffed out at will.
It is therefore, here submitted that the state House of Assembly has acted ultra vires (beyond its powers) because it has given and or arrogated powers that it does not have to itself in flagrant assault on the Constitution of the Federal Republic of Nigeria. Hence, this purported suspension cannot hold and the Commissioner of Police should be well guided not to carry out the directive of the House in this circumstance.
Adamu Esq lives in Keffi and can be reached on: 08060844261, firstname.lastname@example.org