Prof. Itse Sagay is a Senior Advocate of Nigeria and a former Chairman of the Presidential Advisory Committee Against Corruption. In this interview, he speaks on the recent judgement of the Supreme Court that granted financial autonomy for the local governments and the political crisis in Rivers State, among other issues. Excerpts:
Can the Supreme Court suo motu repeal a section of the Constitution as in the case of the financial autonomy granted the local governments?
The decision of the apex court came in the face of section 197 (1) (b) of the same constitution, which established State Independent Electoral Commissions (SIECs).
Yes, I agree that the judgement seems to have ignored the provision that there has to be a State/Local Government Joint Account by ordering direct payment to local governments. So, by ordering direct payment to the local governments, the judgement is completely ignoring that provision of the Constitution.
I don’t know the basis on which it was being done. I haven’t read the judgement but I heard that the Supreme Court has raised an issue, which we call ‘progressive interpretation.’
Maybe that needs to be read. I need to read the basis. What is progressive interpretation? Is it a form of judicial activism, which allows the Supreme Court to interpret laws and constitutions in a manner that is not completely consistent with the written word, but more consistent with the spirit? Maybe that is what they are trying to say. I don’t know.
On the establishment of SIECs and whether the National Assembly still has a role to play in the matter, it is not just the National Assembly but the National Assembly and state Houses of Assembly.
They are all involved in alteration of the Constitution. That was why I said that the Supreme Court decision seems to have ignored that provision. I haven’t read the judgement and that is why I don’t want to make any conclusive statement.
“Any reference to local governments, either in terms of naming, payments and allocation of funds to them should be eliminated from the Constitution, leaving how states can create and fund their local governments”
But, could it be in the spirit of this progressive interpretation, which is a new form of judicial activism?
One needs to read it and see whether it can be justified. To pronounce something that is not consistent with the Constitution, you have to justify such pronouncement on the basis that what the Constitution means to convey is what you are interpreting, which may be higher than the exact written word; something that is added to it because that is the objective of the Constitution.
Maybe that is what they want to say. They need to say it very clearly. I keep on saying that I have not read the judgement, so that is why I cannot be a good judge in this matter.
Some state governments are said to be planning to approach the Federal High Court for a judicial interpretation of some sort. Does the law allow such action?
I’m not aware of that. Maybe, they should go back to the Supreme Court for the interpretation rather than the Federal High Court because the Federal High Court cannot interpret what the Supreme Court has said. The interpretation could be contrary to what the Supreme Court intended. It will be contrary to the whole judicial set up. So, I think the best thing is to go back to the Supreme Court.
I don’t want to disagree with the Supreme Court, but my main fear is from my experience as a Nigerian that local governments tend to do very little in the running of primary schools, construction of roads and other major constructions and so on. They do very little. If we have a situation in which the money goes directly to the local governments, the states can say ‘okay, in that case, carry out your responsibilities to the full.’
We may find that development will be retarded because they do very little. Roads will not be constructed; flyovers in local governments will no longer be where they are necessary as well as so many other things that the state governments do for them because the state governments are doing a lot for them. The state governments may withdraw and you may find that the impact of the judgement may have a negative effect in the long run.
Number two is that I want to stress something. In a federation, you cannot have three tiers of government. Local governments cannot form a tier of government in a federation; there are only two tiers in a federation – federal and states. Local government is completely subsumed under the states. It is not a federal thing.
It is an anomaly in Nigeria that we have local government in the Constitution. It is a gross anomaly; it is never done. That is why I have never been impressed with the alteration of the Constitution being done by the National Assembly since 2000. They have not touched anything substantial.
One of the first things they should do is to remove local governments from the Constitution and make it a subject matter of the states, so that the states will create their own local governments and fund them. It is wrong for the funding of the local governments to come from the Federal Government. There should be no such thing. It is a state matter.
There is no reason at all for funds to be coming from the centre to the local governments. It is contrary to the whole concept of federalism. So, there should be no mention of local government in the Constitution, and there should be no funding of local governments from the centre. The states should create their own local governments; the number they want and fund them.
That was why we had that clash between Lagos State and the Federal Government early in this dispensation. Lagos State wanted more local governments but it couldn’t go through all the processes. It tried but it wasn’t concluded. Then it went ahead and created its local governments. That is the result of a wrong constitutional situation. It is a major error in introducing local governments to the Constitution. It is 100 per cent a state matter.
All references of local governments in the Constitution amount to a great aberration. If you say that we have federalism; it is an aberration. So, the long term thing we should be doing now is how to remove local governments from the Constitution. Any reference to local governments, either in terms of naming, payments and allocation of funds to them should be eliminated from the Constitution, leaving how states can create and fund their local governments.
Would you say the Attorney General of the Federation and Minister of Justice’s approach of the apex court on the local government matter was a right decision?
I think it was a very commendable move because when you have a critical issue, which is creating so much dissention, confusion, friction and problems all over the country, it is a matter which the federal Attorney General should be able to take up in order to resolve it and bring peace and order in the country. For example, an issue that has been resolved now is that appointment of caretaker committees is illegal.
So, I think we should commend the Attorney General of the Federation for bringing this issue forward because it has clarified so many matters; that governors cannot sack local government executives. That is another issue because the local governments are democratically elected. Those are major achievements of the Attorney General of the Federation bringing up this matter before the Supreme Court.
In the eyes of the law, are the 25 members of the Rivers State House of Assembly, who defected from the People’s Democratic Party to the All Progressives Congress still lawmakers?
I’m not going to say anything about that because, in my view, that is a matter that is now before the Supreme Court because I am sure the state government has signaled its intention to go to the Supreme Court. And my view is that the judgement of the Court of Appeal should be stayed pending the conclusion of appeal at the Supreme Court. It should not be implemented until the Supreme Court finally decides exactly the status of those men.
If you ask me; when you have made a pronouncement, you go on television, something that is recorded, I don’t see how they can now retract and say that what they did was no longer valid. If I say I’m no longer a member of a party and I go to the television and announce it for the whole world to see, I think I should be taken seriously. I understand one court said they have not been registered with the APC. Well, they are in limbo in that case. It means they are neither in PDP nor in APC. So, it is my view that at the very least, they don’t belong to the PDP anymore.
What is your reaction to reports that those involved deposed to an affidavit in court to that effect?
There you are; that confirms what I am saying that they are definitely no longer members of the PDP. So, whether the APC has done enough to make them members, that is the business of the APC. The question we have to ask is if they are no longer members of the PDP, can they be in the House? That is a question the court has to answer. But it is for sure that they are no longer in the PDP. Can they retain their seats? That’s a question the courts have to answer.
