By Abel Leonard/ lafia
Gov. Abdullahi Sule of Nasarawa State, before now has shown great commitment toward ensuring the conduct of local government election in the state.
This was evident when he met with the chairmen of the Local Government Areas (LGAs) to ascertain the level of preparedness for the supposed council election earlier scheduled for February 2021.
Sule reinstated his administration commitment to ensure the peaceful conduct of Local Government election in Wamba Local Government Area of the state when the governor flagged off remodeling of an over 50-year old L.G.E.A Primary School at Mararaba Gongon by Sustainable Development Goals (SDGs), Nasarawa State.
Sule asserted that his call for ruling party (APC) to ensure that competent hands with innovative ideas secure the ticket of the party in the forthcoming council poll is only predicated on the sincere desire to move the state ahead and to be less dependent on monthly subvention.
The governor revealed that, though the local government election was expected to hold in the month of February, 2021, he needed to meet with the chairmen regarding the issue of funds for the conduct of the election.
According to the governor, “the local government election is expected to hold by February 2021, but there is need for me to meet with the council chairmen regarding the issue of funds to be used in conducting the election
On the December 8, 2020 the Inter-Party Advisory Council IPAC, Nasarawa State had called on the state government to commence preparations for the conduct of Local Government Election in the state without further delay.
Chairman of IPAC in the state, Mr Cletus Ogah made the call while briefing newsmen at the end of an emergency meeting held in Lafia.
Mr Cletus Ogah said any attempt by the state government to impose leaderships at the third tier of government in the state following the expiration of the tenure of office of the council Chairmen is tantamount to violation of law.
He called on the state government to release funds to the state Independent Electoral Commission to allow timely preparations for the smooth conduct of the local government election.
Surprisingly, 27 days to the expiration of the Council Chairmen, Gov Sule still silence, that made people to believe that the body language of the governor is suggestive of not holding Council election.
The scenario was more compounded by the valedictory session of the joint Account Allocation Committee (JAAC ) meeting with the Local Government Chairmen at the conference Hall of the Ministry of Local Government, Community Development and Chieftaincy Affairs, Wednesday, 3rd May, 2021.
It is now clear beyond reasonable doubt that the the administration of Governor Abdullahi Sule of Nasarawa State do not intend to conduct local government elections before the expiration of the tenure of the incumbent members.
During the valedictory session, Commissioner for Local Government, Community Development and Chieftaincy Affairs Alh. Yusuf Aliyu Turaki said the purpose of the meeting was to distribute money for the payment of salaries for April 2021, adding that anytime salaries are to be paid they usually converge to have JAAC meeting.
Mr Aminu Maifata, the State Chairman of the Association of Local Government of Nigeria (ALGON) and Chairman of Lafia Local who spoke on behalf of Council Chairmen during the JAAC meeting, appreciated the Commissioner and the Permanent Secretaries of various ministries for the smooth running of council.
Some pundits are of the opinion that in order not to create a vacuum in Local Government, the governor Sule led administration will be forced by the doctrine of necessity to adopt any of these three infamous options, either to extend the tenure of the incumbent chairmen when their tenure expire, hand over the administration of local Government Councils to civil servants like DPMs or appoint politicians and / or technocrats outside the local government system to manage the affairs of the local government councils until elections are conducted to produce democratically elected chairmen and Councillors.
It is emphatically clear that one of these three options are in conformity with the Constitution, which by virtue of the clear and unambiguous provisions of section 7, recognises only democratically elected local government Councils.
the position of the Supreme Court has severally and repeatedly declared the constitution of TMCs, IMCs and Caretaker Councils no matter by what name called or under which guise constituted, as illegal, unconstitutional, null and void and of no legal consequences whatsoever.
It is also important to note that the Nasarawa State House of Assembly lacks the legal right to enact any legislation to give legal effect to constitution of TMCs, IMCs or Caretaker Committees. The creation of which constitute a legal aberration or an illegal contraption inconsistent with the provisions and spirit of the constitution.
Such a law If enacted by the House of Assembly, will be in clear violation of the Constitution and the Court will not waste any time in shutting it down being inconsistent with section 7 of the constitution and the general principles of constitutional democracy.
Paradoxically, there is a perceived lingering drama about to unfold in the state in the next 27days when the tenure of the incumbent Local Government councils will expire.
The task before governor Sule is how to ensure the continuous smooth functioning and operation of the Local Government system without violating the constitution of the Federal Republic of Nigeria.
Speaking with the Human Right Activist, Bar. John Otanwa, explained that the appointment of Caretaker Chairmen in Local Government is unconstitutional.
“Constitutionally it has implications, because, if you look at it constitutionally in the first place the local government are the creation of the Constitution, because the Constitution itself provided that the local government shall be of democratically elected local government councils under the Constitution.
“It went on to guarantee that the government of every state shall subject to the Constitution to ensure the existence of the local government in all the states under a law that provides for the establishment of their structure, composition, financing and functions,” he explained.
“Now if at all the Constitution says that the state government shall ensure the existence, it means the state government are not in anyway suppose to undermine the existence of the local government and not just undermining the local government but democratically elected government structure, according to the Constitution.
” Another way of looking at it, already we talked about the first tier, second tier and third tier of government, if you look at the first and second tier which is the federal and state executive government, they already have a timeline for election and when it is time for the election we all know and get prepared, I think the entire problem with the local government is that constitutionally it has not been provided that local government election shall be held at a particular period”.
He further stressed that the state government is suppose to make provision for that in accordance with me the law, that is why in some states the Local government tenure is three years as we operated in Nasarawa state and in another state it is two years.
” you will discover that in Nigeria, even those people who say three years don’t make arrangement so that at the end of that three years another democratically elected Local government council commences, unlike in the federal, where we all know that INEC is already making provision for those who will take over power in 2023, the processes have already commence, now in the local government the state don’t actually follow this strick census in the sense that sometimes they consider the local government as an appendage of the state if part of the constitutional independence that the Constitution has granted: he explained.
Explaining further on the doctrine of Necessity, the legal luminary said the doctrine of necessity, actually end the state in a situation where there is no provision, this time around the Constitution says that the local government structure and everything about it will be in accordance with the Constitution.
“Now I think what we really need to talk about is, is there anyway whether either through legislative process whereby the judiciary can enact a law that all local government tenure will be the same and all local government election shall be conducted at the same time so that there will be a seem less word you know when the local government election will be conducted but in the interim, when you are talking about doctrine of necessity, I think it is not actually doctrine of necessity per say but the various House of Assembly they need a little pressed on various Houses of Assembly to ensure that Local government election are conducted before the expiration of the current tenure, so at expiration of the current tenure, the next council can commence immediately just as it is in the presidential election”.
Already in respect to that of Nasarawa, where they will be vacuum come 28, of may 2021, the governor may say all Director of Personnel’s in the various Local government should take over the management till election is conducted or he will say all the Directors of Personnel will take over the management of the local government affairs until he is able to constitute a caretaker committee.
However, he emphasized that the Constitution is against the Constitution of a caretaker committee to manage the affairs of a local government council, saying it is abnormal and therefore if at all there is any attempt to say he will constitute a caretaker committee, since it is abnormal and unconstitutional, it is null and void and any money that is appropriated under a caretaker Committee it is a null appropriation, such appropriation, the authority that appropriated such money should be hold responsible and return it to the state coffer.
Speaking with a former law maker representing Akwanga Gudi constituency in the state Hon. Muhammed Kassim Muhammed, said “Whether it is constitutional or not, but when there is already a lacuna where election cannot hold, the state house of Assembly is still there and have the power to make rules and also one of the law they are empowered to make is that of the local government and the local government law is very clear whether the tenure is coming to an end it is stated here clearly in the Local government law that they are to spend three (3) years and their three years will come to an end by the special grace of God 28 of this month, this year 2021”.
He stressed on the fact that the State House of Assembly is clear in the local government law that where there are no elected council on board, the Governor is empowered to constitute caretaker Committee, it is stated clearly in the Constitution.
Hon kassim reemphasized that the committee will be given a duration of not less than six (6) months to one year to enable the Nasarawa state Independent Electoral Commission, NASIEC, conduct the local government election, saying it is written in the local government law and what is in the local government law is constitutional because the 1999 Constitution as amended has empowered the state house of Assembly to make local government laws and local government are guided by those laws and it’s written in that law.
In a similar view, a former counselor representing Agwantashi Community in Obi Local Government Area of Nasarawa state Hon Osuza Osude revealed that “since the 1999 Constitution was amended, the local government is suppose to be democratically guaranteed but since their tenure is expiring on the 28 of this month, and the inter party advisory council have met and deliberated on it because of the lack of fund and equally lack of preparation from the NASIEC to conduct the election then definitely the local government will not leave the vacuum, the state assembly will now invoke a doctrine of necessity by way of making a know that there is going to be caretaker lead transition management committee or whatever, so to my opinion it is politicians opposing integrity that are suppose to be appointed to mount such taking time before the election properly”.
He quoted the Constitution of 1999 section 7 which empowered the State House of Assembly for the administration, finance and otherwise of the local government since the election in the local government in Nigeria is not consistent. He gave instance saying since the coming of democracy state like Anambra have not had election in the local government. He noted
He also stressed on the fact that it is wrong not to have conducted election before the expiration of their tenure but some on for seen circumstances have diverted the attention of government especially the present insecurity situation prevailing, challenges in the state and the country at large holding on the fact that if elections where conducted some people will be disenfranchise.
By this assertion, constituting, creating or forming a committee, overseer is purely a political fraud, it is to foist one illegality on the other and eventually try to justify it, by weak and unconvincing reference to the doctrine of necessity which was for seen but not heeded to avert it’s occurrence.
However, having found the councils in this quagmire by design or neglect, should the affairs of the local governments be left at large, without purpose, direction or leadership?
The expiration of the tenure of the elected Councils will certainly create a vacuum in all the thirteen Local Governments Areas across the state, and because nature abhors a vacuum, the leadership void created must be filled somehow, even for the local government Councils to be able to perform their constitutional mandate as the third tier of government.
The question now is, can the local Councils execute their mandate without a leadership?
Investigation also revealed that going by strict legal argument, it means that the government must shut down the local government on the expiration of the incumbent members, since the constitution does not permit or recognize any other way of constituting local government except through democratic election and the tenure has expired without an election conducted to fill the vacancy created by the expiration.
But, is this a wise, reasonable or viable alternative he asked, Will it not translate into depriving the citizens of the affected local government areas of their legal right to Political representation?
He however mentioned that the action of the Government by its failure or refusal to conduct the local government elections as required by the law has deprived the people of their franchise to vote leaders of their choice to govern their affairs at the local government level.
More so, analytically it will be counter productive to shut down the local governments because of the failure or inability of the state government to conduct elections to fill the positions of the Chairman and Councillor’s order to resolve this problem and move out of the dilemma, there must be solution that must create a balance between the law and factual reality.
In reality, the state Government should be blamed and heavily criticised or even impugned for violating both it’s own electoral laws and the constitution by its failure, refusal or neglect to arrange for the conduct of election into the local government Councils when it was clearly aware that the expiry of the tenure of the incumbents were imminent and legally foreseeable.
However, should the citizens of the local government areas be punished for the sins of the State Government on an issue over which they have no power or control?
I think the solution lies not in shutting down the local government, it also lies not in failing to take any of the three options stated earlier in the post because of the fear of running foul of the law.
The solution should be predicated on a balance between illegality and the need for the continued existence and operation of the local government to diver the dividends of democracy either through elected or appointed leadership. There should not be a vacuum in the management of the affairs of the local governments.
This is where the doctrine of necessity may come into play. It is no doubt a foreseen or foreseeable “necessity” which was not addressed as at when due. It has now transformed into “a no option” situation and must be addressed in the context and effect of it’s present manifestation.
The non democratic appointment to the local government Councils is the only practical option for the government and the people at this stage because it’s a lesser evil than shutting down the local government Councils on account of a breach of the law.
It is however not a desirable option but a state of affairs foisted on the people, by “avoidable necessity” solely and deliberately created by the state government
From the state of the law governing local government elections in the state, the election can not be conducted so soon as the law requires a statutory ninety days notice to be given by the Nasarawa State Independent Electoral Commission preparatory to other time bound processes provided in the enabling electoral law
Having analysed the strength and weaknesses of the deliberate denial of franchise of the people of the Local Government Councils it only remains to be determined for how long should the local government councils be under the appointed and undemocratic leadership without a basis or support in the law.
It is therefore very necessary to emphasis that the interim or transitional management to be foisted on the local governments, should not be in place for a period beyond six months because the extant by law requires the state electoral Commission to give a statutory notice of six months before the commencement of the polls.
For any extension beyond six months manifest intention on the part of the state government to perpetuate its already repugnant breach of the Constitution and as it is now a common expression in the political lexicon, “put Nasarawa Democrat position under threat, ” he said.