Document18

A native arbitration is therefore not a court of law and its award has nosuch recognition but it is a convenient forum for the settlement of nativedispute which is faster and cheaper without unnecessary technicalitieswhich has infected the court system. Then what is the status of the awardof a customary arbitration?

It has been observed by T.O. Elias that an arbitration award cannot beenforced as a judgement of a court but may be raised as a defence by wayof estoppel by res judicata. It is settled that a native arbitration awardoperates as estoppel against the defendants provided it satisfied all therequirements of a valid customary arbitration. Thus the status of acustomary or native arbitration award is likened with the judgement of ajudicial tribunal which is binding and creates an estoppel.

A customary arbitration will be binding if all the ingredients orpreconditions of a valid customary arbitration are met. They are aslisted below:

“1. that there has been a voluntary submission of thematter in dispute to an arbitration of one or more persons;2. that it was agreed by the parties either expressly or byimplication that the decisions of the arbitrators will beaccepted as final and binding;3. that the arbitration was in accordance with the customof the parties or of their trade or business;4. that the arbitrators reached a decision and published

their award and;5. that the decision or award was accepted at the time it

was made.”

In so far as the above ingredients of a valid native or customaryarbitration are satisfied, the court will treat it as creating an estoppel. Inthe same vein, whosoever is relying on the award of a customaryarbitration has a duty to plead and establish by evidence the above listedingredients to enjoy the necessary legal effect of a conclusive customaryarbitration.

STATUS ORAUTHORITYOFTHEAWARD

CONCLUSION

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SEPARATION OF POWERS AND FUNCTIONS OF LOCALGOVERNMENTS IN NIGERIA'S CONSTITUTIONALDEMOCRACY: EBONYI STATE AS A CASE STUDY

I. INTRODUCTION

H. P. FAGA

The expediency for the creation of local government anywhere inthe world stems from the need to facilitate development at the grass roots.The relevance of local government is predicated on its functions togenerate a sense of belongingness, popular participation, and satisfactionamong its populace. Although these are goals which governments at alllevels strive to achieve. However, the primacy and urgency of these goalsat the grassroot is the very crux of the concept and practice of localgovernment everywhere in the world. Indeed, in many countries, thelocal government has become the only and sure path to nationalintegration, stability and development. This conception of localgovernment has meaning in the context of Nigeria's socio- politicalrealities, with multiplicity of cultures, diversity of languages andgeographically differential needs and means. Thus, the importance ofsuch an organisation in fostering the needed national consciousness,unity and relative uniformity as well as preservation of peculiardiversities cannot be over-emphasised.

Central to the creation of local government, however, is its ability torelate with the people with the minimum friction and facilitate closer tiesbetween the people and government, in terms of time and space. Likemost other administrative political structure, this is more readilyachieved by establishing a system with less role conflict, through theapportioning of roles and designation of structures, essentially among thethree organs of governmental strata: the legislature, the executive and thejudiciary. This paper is an attempt to investigate the tripartite functions ofthe local government in the Nigeria polity, with the view of ascertaininghow the arrangement deepens the process of democracy anddemocratization, and robs off on the established principles of federalismand separation of powers as the hallmark of the Nigerian political system.The remaining part of the paper is therefore divided into five sections.

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* LLM, LL.B B.L.1

Lecturer, Faculty of Law, Ebonyi State University, AbakalikiSee, Cheryl Cran, Local Government Administration and the Challenges of Rural

Development in Nigeria, on-line material FA Lifestyle available at

Ibidhttp://www.floweradvisor.com/lifestyle/business/leadership/51053/2

264 265SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S

50 T.O.Elias, n.18 at 21351 Oparaji V.Ohanu (199) 9 NWLR (Pt.618) 290 at 30452 Okereke V.Nwako (2003) 9 NWLR (Pt.826) 592 at 613

Ayinla,L.A

The first section, part II is a brief attempt to define and do an analysis ofthe key concepts involved in the paper that will help understand the topicunder discussion. Part III takes an historical incursion into theestablishment and evolution of local government administration inNigeria until the advent of the Fourth Republic. Part IV looks at thesystem of local government administration under the currentdispensation, the 1999 constitution of Nigeria and addresses the questionof separation of powers in the constitution in respect of local governmentadministration and the issue of its status and autonomy from the othertiers of government. Part V dwells entirely on the Ebonyi state model oflocal government administration. This part equally deals with the statusof Development Centres established by the state government and closelyexamines the concept of separation of powers under the Ebonyi statemodel of local government administration. Lastly, part VI is theconcluding remarks, which contains some brief recommendations.

As a preliminary step, it is important to clarify the core concepts that mayaid better understanding of the thematic perception of this paper. Thus, itis essential to define and explain the concepts of local government,democracy and democratization, federalism, and separation of powers.

The term “local government in its generic sense refers to the ideas of self-government by a local community. However, in its modern usage, localgovernment is equated with grass root participatory democracy. It refersto “self-government of the local community for local community by itselected local inhabitants”. Viewed from this perspective thus, theconcept of local government in modern societies revolves aroundphilosophical commitments to democratic participation in the governingprocess at the grass root level. Many authors tend to look at the conceptfrom this perspective. In fact, it is within the framework of grass rootdemocracy that the 1976 Nigerian local government reform guidelinesdefined local government as:

II. Definition of Terms and ConceptualAnalysis

A. Local Government

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Government at local level exercised throughrepresentative council established by law toexercises specific powers within definedareas. These powers should give the councilsubstantial control over local affairs as well asthe staff and institutional and financial powersto initiate and direct the provision of servicesand to determine and implement projects so asto complement the activities of the state andfederal governments in their areas, and toensure, through devolution of these functionsto these councils and through the activeparticipation of the people and theirtraditional institutions, that local initiativeand response to local needs and conditions are

maximized.

System of local administration under localcommunities that are organized to maintainlaw and order, provide some limited range ofsocial amenities, and encourage cooperationand participation of inhabitants towards theimprovement of their conditions of living. Itprovides the community with formalorganizational framework which enablesthem to conduct their affairs effectively for thegeneral good”.

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Emezi, on the other hand, perceived local government as a:

The idea of conceptualizing local government as grass root governancelies in the fact that it is usually the lowest governmental arrangement thatis closest to the people and “vested with certain powers to exercisecontrol over the affairs of people in its domain”. A local government isexpected to play the role of promoting the democratic ideals of a societyand coordinating development programmes at the local level. It is alsoexpected to serve as the basis of socio-economic development in thelocality.

5 Guidelines for Local Government Reforms, 1976, p. 16 Emezi, Cleus, “Local Government in Historical Perspective”, Nigerian Journal of PublicAdministration and Local Government 2(2), p. 507 See, S. Lawal, “Local Government Administration in Nigeria: A Practical Approach,” inAjayi K. (ed) Theory and Practice of Local Government, Ado-Ekiti, UNAD, 2000, p. 608 Cheryl Cran, op. cit, note 1, p. 2


3 Kamilu Sani Fage, “Local Government Elections and Democratization in Nigeria”, Sunday TRIUMPHNewspaper, April 29, 2007, p. 17, available at

4 See for instance, Agagu, (defines local government as a government at the grass root level of administ-ration meant for meeting peculiar grass root needs of the people), see, Agagu A.A. “Local Government”,in Kolawole D. (ed) Readings in Political Science, Ibadan, Dekaal, 1997, p. 18. See also, Appadorai,(defines local government as government by the popularly elected bodies charged with administrative andexecutive duties in matters concerning the inhabitants of a particular district or place). Appadorai A, TheSubstance of Polities, London, Allen and Unwin, 1975, p.287

http://www.triumphnewspapers.com/archieve/ST29042007/local2942007.html

Implicit in the modern conceptualization of local government is the issueof devolution of powers in a hierarchical stratum, placing the localgovernment at the lowest level and the federal government at the highest.Between the two levels of government is usually an autonomous unitcalled the state or whatever nomenclature adopted. This perception ofthe modern usage of the term as opposed to the earlier conceptionmentioned above is suitably engrained in different definitions. Forinstance, the United Nations Office for Public Administration defineslocal government as:

Maddick on the other hand, defines local government as:

Another writer, R. Wraith, sees the concept of local government as:

The act of decentralizing power which maytake the form of deconcentration ordevolution.

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A political sub-division of a nation or(in a federal system) state, which isconstituted by law and has substantialcontrol of local affairs including thepowers to impose taxes or to exactlabour for prescribed purposes. Thegoverning body of such an entity iselected or otherwise local ly

selected”.

a sub-unit of government controlled by alocal council which is authorized by thecentral government to pass ordinanceshaving a local application, levy taxes orexact labour and within limit specified by thecentral government”

From the generality of the definitions stated so far, Ihonvbere,concludes that what is deducible from the concept of local government isthat it essentially has to do with increasing power and authority, movingresources to local levels, strengthening the foundations of democraticinstitutions and practice and giving power to those that really matter, thepeople. Local governance also directly relates to the maintenance of lawand order locally, the provision of essential or basic services at the locallevel, promoting holistic and sustainable development and providing aline of engagement and interaction between higher levels of governmentand local interests.

Also four characteristics of local government can be deduced from thedefinitions. First, local government officials are elected. Regularelections at specified periods of time is a feature of local government. Infact, the main distinguishing characteristic that differentiates a localgovernment from a local administration is the fact that while the officialsof the former are elected, those of the latter are appointees of the center toimplement policies of the center. Second, the local government unitsmust have legal personality distinct from the state and federalgovernments. Thirdly, the local government must have specified powerto perform a range of functions, and finally, it must enjoy substantialautonomy, which include among other things, ability to make its laws,rules and regulations, formulate, execute and evaluate its own plans andthe right to recruit, promote, develop, and discipline its own staff.

In a nutshell, Laski summarized the existence and relevance of localgovernment when he wrote:

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We cannot realize the full benefit ofdemocratic government unless we begin bythe admission that all problems are notcentral problems, and that the result ofproblems not central in their incidencerequires decision at the place, and by theperson, where and whom the incidence is

most deeply felt.


9 For instance, the intermediate level of government (second tier) is referred to as Lander in Germany, inAustria, it is called cantons and in Switzerland, it is known as autonomous communities (also Cantons).See, Felix Knupling, Federalism and Multi-level Governance: Comparing the E.U. with other FederalStates, (Check citation online) p. 110 Quoted in F. R. Ola, Local Administration in Nigeria, London, KeganPaul InternationalPlc,198411 Maddick H. Democracy, Decentralization and Development, Asia, Bombay publishing House, 1963(Introductory chapter),cited in National Open University: School of Arts and Social Sciences, Handbookon Local Government Administration and Revenue Generation, 2008, p. 3.(hereinafter National Open

University Handbook) See also the definition given byE. O. Awa, (local government is a political authorityset up by a nation or state as a sub-ordinate authority for the purpose of dispersing or decentralizingpolitical power), E. O. Awa, “The Theory of Local Government”, Quarterly Journal of Administration,vol. xv, No I & II 04/ January 198112 Deconcentration involves delegation of authority to field units of the same department, while devolutionrefers to the transfer of authority to local government units or special statutory bodies, which are lesser

power in a national policy. See generally, D. O. Adeyemo, “Local Government Autonomy in Nigeria: AHistorical Perspective”, J. Soc. Sci. 10(2), p. 77

13 Julius O. Ihonvbere, “Legislative Duties and Responsibilities in a Democracy”, Text of lecture delive-red at the Workshop for Local Government Councilors in Edo State, Benin City, Nigeria, June 19, 2008

1415 Ibid16 See generally, Otive Igbuzor, “Local Government Reform and Constitutional Review inNigeria”, Local Government Reform and Constitutional Review, January 2009, available atwww.gamji.com/NEWS 52675.htm

B. Democracy and Democratization

The term democracy is very vague. It is used in different ways bydifferent people. For instance, while people like Lefort tried to define iton the basis of political practice by an entity, others warned that “it isillogical to define democracy by induction from the practice of any onepolitical unit or any one sub-set of political unit”. This disagreement isjust one of the many reasons that account for the multiplicity ofapproaches in dissecting the meaning of democracy.

In discerning the concept of democracy, Egwu equates it to a “politicalarrangement that approximates to the rule of the people and theexpression of sovereignty which resides in the people”. This accordingto him, was what the ancient Greek city state of Athens practiced.Because, then as is the case now, in democracy “the consent of the peopleis the centre-piece of governance, arbitrary rule is outlawed, there isequality of men before the law, natural rights and sovereignty”. On hispart, Joseph Schumpeter conceptualizes democracy as:

Another school of thought is of the view that public accountability is theessence of democracy. This is the view of Schmitter and Karl who arguethat democracy is a system of governance in which rulers are heldaccountable for their actions in the public domain by citizens actingindirectly through the competition and co-operation of their electedrepresentatives. To some however, democracy is much more thanpolitical competition through periodic elections. It also means muchmore than one-man one vote. It necessitates settling affairs according to

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an institutional arrangement which seeksto realize the common good by making thepeople decide issues through the electionof individuals who are to assemble in order

to carry out their will”.21

known rules of government, toleration towards minority views, regularelections, freedom of speech, and above all, observance of the rule oflaw.

Though diverse, Fage opines that the above definitions areundoubtedly defective. They all conceptualize democracy as a form ofgovernment in which representatives are elected periodically by theelectorate into government in order to direct the state's affairs on behalfof the voters, but fails to take into cognizance issues such as economicrights, social justice, and egalitarianism, issues which are considered byMarxian scholarship to be an integral part of democracy.

On the other hand, the concept of democratization has attracted varioususages, interpretations and categorizations. For instance, while somepeople view democratization as a spontaneous transition from non-democratic to democratic form of government, others see it as adeliberate policy of building the institutional mechanism of democracy,such as the constitution, political parties, electoral commission andombudsman institutions. For Ihonvbere, however, democratization is“the steady and systematic empowerment of the people , theircommunities and constituencies in a direction that empowers them todictate and determine the content and context of politics with emphasison pro-people issues: human rights, social justice, gender rights,environmental protection, basic human needs, accountability,transparency, ethnic and minority rights and popular participation”.

On his part, Bawa, views democratization as a two way process.According to him, democratization is generally regarded as a processinvolving a two-step development mechanism. First, it requires theestablishment of all those crucial political institutions that enhance andstrengthen democratic participation. It also socializes the citizens into ademocratic culture, norms, values and practices, as well as the conductand behaviour of leaders that the institutions seek to engender. Thesecond step involves deliberate, bold and concerted efforts tocontinually evolve, nurture, consolidate and sustain the first initialprocess.

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17 H.J. Laski, A Grammar of Politics, London, Allen and Unwin, 1982, p. 41118 Cluade Lefort, Democracy and Political Theory, (Daivid Macey Translator), University ofMinnesota Press (Minneapolis), 198818 Saward Michael, “Democratic Theory and Indices of Democratization” in Beetham David(ed.) Defining and Measuring Democracy, Sage Modern Politics, London, UK: Sage, 1994, p. 619 S. Egwu, Ethnicity and Nigeria's Democratic Eclipse, Jos, AFRIGOV Monograph Series,No. 5, 2001, p.220 Ibid21 Joseph Schumpeter, “Two Concepts of Democracy”, in A. Quinton (ed.) Political Philos-ophy: Oxford University Press, 1963, p.15322 Philippe C. Schmitter & Terry Karl, “What Democracy is… and is Not”, Journal ofDemocracy vol. 1, No. 3 (Summer 1991), p. 79

23 See, Bello-Imam, 1985:542, cited in Kamilu Sani Fage, op. cit, note 3, p.1824 Ibid25 See, Lenin, 1978:3, Gurkind and Brazier, 1979:88, cited in KamiluSani Fage, Ibid26 Julius O. Ihonvbere, Democratization in Africa, Peace Review, 9, No. 3 (Sept.1997) 371-378

27 H. G. Bawa, (July 2004, p.13), cited in Kamilu Sani Fage, op. cit., note 3, p. 18

Having looked at the various meanings of democracy anddemoralization, it is important to state that these concepts are relevant toour discourse in this paper because the very existence and creation oflocal government in any polity, much less, Nigeria, is to engender theprocess of democracy and political participation at the grass root, as wehave already seen in the notion and definition of local governmentabove. Thus, further discussions in this papers, especially the process ofevolution of the local government system in Nigeria, will clearly showhow the institution of the local government as a tier of governance hasimpacted on the process of democratization in Nigeria, particularly inthe establishment of core political and administrative structures such asthe legislature and executive institutions at that level.

The term 'Federalism' in its classical sense as espoused by leadingscholars in the field presupposes the notion of division of powers amongdifferent levels of government comprised in one single political andgeographic area. It is an expression of multi-level or multi-tiergovernance by which power is shared politically and geographicallyamong constitutionally provided units of authority in a hierarchy.Wheare, notes that federalism refers to the method of dividing power sothat general and regional governments are each, within a sphere,coordinate and independent. Friedrich, further elaborates on the conceptexplaining that federalism is the most suitable term by which todesignate the process of federalizing a political community, which is theprocess by which a number of separate political organizations, be theystates or any kind of association, enter into agreements for working outsolutions, adopting joint policies and making decisions of jointproblems. According to Nwabueze, federalism is not more than:-

C. Federalism and the Notion of Multi-tiered Governance

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an arrangement whereby powers ofgovernment within a country are sharedbetween a national, country-wide governmentand number of regionalized (i.e. territoriallylocalized) governments in such a way thateach exists as a government separately andindependently from the others operating

directly on persons and property within itsterritorial area, with a will of its own and itsown apparatus for the conduct of its affairs,and with an authority in some matters

exclusive of all the others.30

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Indeed, it has been mentioned that the concept of federalism allows forthe coordinated expression of the various diversities of a polity, givingroom for fulfillment of both regional and national goalssimultaneously. Thus, Tamuno, concludes that federalism is “that formof government where the component units of a political organizationparticipate in sharing powers and functions in a co-operative manner,though the combined forces of ethnic pluralism and cultural diversity,among them, tend to pull their people apart”. This is what is commonlyreferred to in the literature as “unity in diversity”. Though some scholarsmaintain that the adage is contradictory and at cross purpose with theinherent idea of federalism. The concept is viewed as the process ofunifying power within a cluster of states and decentralizing powerwithin the unified state.

Many writers tend to equate federalism with democracy.However, the major debates concerning the elements of federalismcentres on two main issues: the vertical arrangement of the federalstructure, in terms of centralization versus decentralization of power andauthority; and the number of federating strata, (that is the level or spheresof tiered governance, in terms of whether a two or three tierarrangement).

The argument in the literature predominantly considers decentralizationas an essential element of federalism. Federalism is expressed asdecentralization of power from the central authority to the lower levels


28 K. C. Wheare, Federal Government, (1963), p.5. cited in Ademola Ariyo, “Theories ofFederalism” Fiscal Policy and Growth in Africa: Fiscal Federalism, Decentralization and theIncidence of Taxation, Economic Commission for Africa, Ad Hoc-Expert Group, October 2003p. 129 Carl J. Friedrich, Constitutional Government and Democracy, 188 (1963).

30 B. O. Nwabueze, Federalism in Nigeria under Presidential Constitution, London, Sweet andMaxwell, 1983, p. 131 See, G.S. Mahler, Comparative Politics: An Institutional and Cross-National Approach,New Jersey, Englewood Cliffs, 1995, p. 31; G. Hollis and K. Plokker, Towards DemocraticDecentralization: Transforming Regional and Local Government in the New Europe, TacisService DG., European Commission, 1995, p. 8432 Tamuno 1998, p. 13, cited in Ademola Ariyo, op. cit, note 28, p.133 See for instance, Kunle Awotokun, Local Government Administration under 1999 Consti-tution in Nigeria, J. Soc. Sci, 10(2) (2005), p. 13034 See Ademola Ariyo, op. cit, note 28, p. 235 See Stephen Lister and Mary Betley, Approaches to Decentralization in DevelopingCountries (Good Practice in Public Expenditure Management, Oxford. U.K, 1999), (Believesthat federalism necessarily goes with decentralization which brings about democracy, goodgovernance, accountability, participation and legitimacy and efficiency in decision making.See also, Litvack et al, “Rethinking Decentralization in Developing Countries”, Sector StudiesSeries: The World Bank, Washington D.C. 1998

of governance. Thus, Litvack define it as “a process of transferringpolitical power, administrative and fiscal responsibilities from centralgovernment to lower levels of government (sub-nationalgovernments). According to Mawhood, decentralization is a principleof federalism which entails the sharing of part of the governmentalpower by a central ruling group with other groups, each having authoritywithin a specific areas or state. Another writer defines the concept as:

Most literature identify four standard types of decentralization based onthe combination of the level of authority and location of accountabilitybetween the central and federating units of government.

Occurs when the central governmentdisperses responsibility for certain services to its regional branch officesthat implement decisions taken at the center. An independent local

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The transfer or delegation of legal andpolitical responsibility for planning,management and resources use and allocationfrom the central government and its agenciesto field organizations of these agencies,subordinate units of government, semi-autonomous public corporations and areas-

wide regional or functional authorities.

(a) Deconcentration:

government does not exist in this type of decentralization, local(regional) branch offices are simply used to improve the efficiency andeffectiveness of service delivery. This is usually seen in unitary countrieslike the U.K.

Refers to a situation in which the centralgovernment transfers some of its responsibility for decision-making andadministration of public functions to local governments that executecertain functions on behalf of the central government. According toLitvack, this form of decentralization can be characterized as a principal-agent relationship.

In this kind of decentralization, centralgovernment transfer substantial authority for decision-making,finance and management to quasi-autonomous localgovernments that are accountable to their constituents. Confortinotes that local governments of a devolved system have clearand legally recognized geographic boundaries over which theyexercise authority and within which they perform publicfunctions. This kind of decentralization is most akin to thefeatures of federalism and our discussion in this paper.

This involves the accountability of localgovernments to their constituents, though central governmentdoes not allow full discretionality or does not transfer enoughresources for decision- making and management.

Notwithstanding the broad exposition of the types of decentralizationmade by different scholars, Treisman identified six additional indicesfor examining the interjacent between the concepts of decentralizationand federalism, based on (i) Five attributes that are distributed among thedifferent tiers within a compound political system (decision-makingauthority, appointment authority, election, fiscal resources, andgovernment personnel), and (ii) The number of tiers in the system. Heidentified the following categories of decentralization:

Simply defined as the numberof tiers that a system contains. For instance, Ethiopia, in

(b) Delegation:

(c) Devolution:

(d) Deregulation:

(a) Vertical decentralization:

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36 See, Conforti et al, “An overview of Decentralization in Sub-Saharan Africa”, a Paperpresented at a Workshop organized by the Economic Development Institute of the World Bank,on “Decentralization and Participation for Sustainable Rural Development in Africa,1998;

Giorgio Brosio, “Decentralization in Africa”, Paper presented at IMF/World Bank FiscalDecentralization Conference November 20-21 2000 (Washington); and Stephen Ndegwa,“Decentralization in Africa: A Stocktaking Survey”, African Region Working Paper Series, No. 40, World Bank (2002)37 Litvack et al, op. cit, note 35, p. 49. Various reasons are given for the adoption of Federal-ism in the form of decartelization. See, Derrese Degefa, “Fiscal Decentralization in Africa: AReview of Ethiopia's Experience, Economic Commission for Africa”, Ad Hoc Export Group onFiscal Policy and Growth in Africa, October, 2003, p. 3 (Mentioning the focus on local

demands, the need to bring economic and political systems closer to local communities,administrative efficiency, local participation and enhance tax effort and sustainability ofservices and increased access to services delivery as the main factors for federalism in theform of decentralization)38 P. Mawhood, “Decentralization: The Concept and the Practice”, in Mawhood P. (ed.)Local Government in the Third World, (John Wiley and Sons, Chichester, UK, 1993), p. 4

39 R. Cameron “The History of Devolution of Powers to Local Authorities in SouthAfrica: the Shifting Sands of State Council”, in Local Government Studies, vol. 21.No. 3, 1995, pp. 396-397

40 See Conforti et al, op. cit, note 36, Lister and Betley, op. cit, note 35, and Litvacket al, op. cit, note 35

41 Litvack et al, Ibid42 Conforti et al, op. cit, note 36, p. 10843 See generally, Derrese Degefa, op. cit, note 37, pp. 6-744 Daniel Treisman, “Defining and Measuring Decentralization: A Global Perspective”,Department of Political Science, University of California, Los Angele, 2002

which government exists at four levels (central, region,zone, and Woreda) is the most vertically decentralizedgovernment system in the world.

Focuses on how theauthority to make political decision is distributed amongdifferent tiers. If authority to decide all questions belongs to thecentral government, the system is maximally centralized. But, ifthe lowest-tier of government has all decision-making rights,then the system is highly decentralized.

Concerns with the level at whichofficials at different tiers are selected and dismissed. The lowerappointment decentralization is the one where the first tier bodyappoints the executive at the second tier. But if the second tieractors select their executive independently, then the system ishigher form of appointment decentralization. This implies thatthe degree of appointment decentralization is related to whetheror not the system is democratic.

Is defined as the proportion of tiersat which direct elections are held to select executives (or thelegislators who then choose an executive from their number), iftwo systems have the same number of tiers, the one in whichofficials at more tiers are selected in direct elections is moreelectorally decentralized one. The concepts of appointmentdecentralization and electoral decentralization overlap.

Deals with how tax revenue and publicexpenditures are distributed among the different tiers. The largeris the share of total tax revenues that sub-national tiers receive,the greater is the tax revenues decentralization.

Focuses on the way administrativeresources are distributed across tiers of government. The higheris the share of administrative personnel at lower tiers, the greateris personnel decentralization.

Having identified the above indices in defining the concept ofdecentralization, Treisman, further correlates these with variouscharacteristics of countries (i.e. their size, in terms of area and

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(b) Decision-making Decentralization:

(c) Appointment decentralization:

(d) Electoral decentralization:

(e) Fiscal Decentralization:

(f) Personnel decentralization:

population, level of ethno-linguistic division, colonial history, economicdevelopment and degree of democracy), he found the following results:

(i) Countries with a large area or population tend to have greatervertical, decision-making, fiscal and personnel decentralizationthough they are not more likely to have local selection ofofficials.

(ii) Countries in which ethno-linguistic minorities make up a largeshare of the population tends to have more tiers of government,but less decentralization of fiscal resources and administrativepersonnel and less local electoral accountability.

(iii) Former French colonies tend to have more tiers of governmentand less likely to have high levels of sub-national autonomy thanothers.

(iv) More economically developed countries tend to have fewer tiersof government, but more decentralization in most other ways.

It is important to note that this paper dwells so much on the concepts ofdecentralization as understood under federalism because of the need toestablish a yardstick from which to measure and assess the Nigerianpolitical system in terms of the stratifications of tiers of governance andthe interrelationship between them, especially the local governmentwith the other tiers of government.

The second area of debate on the fundamental principles of the federalsystem has to do with the number of tiers ordinarily recognizable in afederation. This issue directly bears on our quest to determine theposition and role of the local government in the Nigerian politicalsystem. Scholars are divided on the number of tiers of government in aclassical federal state. The debate revolves around a two or three-tiersystem. Wheare, for instance implied the two-leveled structure. Heidentified the federal system as:An association of state so organized thatpowers are divided between a general government, which in certainmatters is independent of the governments of the associated states, and,on the other hand, state government which in certain matters are in theirturn, independent of the general government. Many other scholars

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45 See, Derrese Degefa, op. cit, note 37


46 Daniel Treisman, op. cit, note 44. See generally Derrese Degafa, ibid, pp. 8-947 K. C. Wheare, op. cit, note 28

favour the two-tier system in a federal arrangement. Oyovbariemaintains that a federal state is one:

On the other hand, scholars such as Gildenhuys and Ariyo amongmany others argue for a three-tier system in a federal state. Gildenhuys,particularly maintains that the two-tier structure is only suitable in aunitary arrangement and that in a federal system the formal stipulation inthe constitution defines the authority of governmental institutions atfederal, state and local levels. It is further argued that in contemporarypolitical systems, the constitution contains provision on the planaccording to which the various units of government are organized, therange of powers allocated to each unit of government and the way inwhich these powers are to be exercised. This way, it is suggested that onecan deduce how many tiers of government there is in any politicalsystem, and whether the system is federal, unitary or consociative.

Even though the third tier of government, that is, the local government isincluded in the constitutions of many countries as a level of

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Characterized by at least two patterns ofcommunities, one all-inclusive and the othercomposed of several mutually exclusivelycommunities. The geographical nature of thecommunity pattern and especially the locationof boundaries among the sub-communities andaround the whole community are crucial to a

federal system”.

governance, it is generally observed that these constitutions seldomconfer it with absolute autonomy or independence unlike the second tier.More often than not, the third tier is clearly tied to the apron string of thesecond tier, in terms of general control and management. However, bethat as it may, such countries are usually considered as operating a three-tier political system notwithstanding that the issue of autonomy of thethird tier (local government) is often problematic.

Aside from the fact that a polity may be arranged in multi-tiered levels ofgovernance, a very fundamental principle of the modern political systemis that the various functions of the state (each tier of government) arerequired to be performed by separate and independent organs ofgovernment. This is what is known as separation of powers.

Separation of powers is an influential concept in modern democracy andit is a liberty sensitive concept. It denotes the practice of dividing thepolitical and legal duties/powers of the government among thelegislature, executive and judicial branches. This means that while thelegislature has the power to make laws, the executive branch has theauthority to administer and enforce the laws so made. The judicialdivision, on the other hand, adjudicates cases brought before the courts

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48 See Kunle Awotokun, op.cit, note 33, p. 130; R. Hague and M. Harrop, Comparative Government andPolitics: Introduction, London, Macmillan Education Ltd, 1987, 169-170 (defined federalism as a system

of government in which legal sovereignty is shared between the central and the other levels of government.Each level or sphere, central and state, has constitutional authority to make some decisions independentlyof the other), Ibid

49 S.E. Oyovbaire, “The Theory of Federalism: A Critical Appraisal”, Nigerian Journal of PoliticalScience, 1979, p. 8250 J.S.H. Gildenhuys, et al, Public Micro-Organizations, Juta and Co. Ltd, Cape Town, 199151 Ademola Ariyo, op. cit, note 28, p. 3 (arguing from an economic perspective, he maintained thatgovernment can be perceived as concerned with the provision of three categories of goods: national,regional (state) and local communities)52 J. S. H. Gildenhuys, op. cit, p. 16553 Ibid, pp. 26-27

54 See for instance the Constitution of Nigeria, 1979 and 1999, s. 7 thereof; the constitution of SouthAfrica, 1993, and 1996 and the Constitution of Ethiopia. A Similar situation exist in the United States,though the Federal Constitution did not make provision for the existence of local governments, the StateConstitutions create local governments which are independent from the states, and recognized by thefederal government through partnership on various issues. See generally, A. Gboyega, “History of LocalGovernment Reforms and the Gains made in Local Government Administration During the Transition

period”, in Aborisade O.& Mundt R. J. (eds), Local Government in Nigeria and the United States:Learning from Comparison, Local Government Publication series, Ife, Nigeria, 1995 p.10; R. Cameron,The Democratization of South African Local Government: A Tale of Three Cities, J.L. Van SchaikPretoria, 1999, pp. 225-226; G.R. Rassel, “Financial Local Government in a Federal System: Selected

Aspects of Local Government Finance in the United States”, in O.Aborisade, and R. J. Mundt (eds), ibid,p. 135

Publisher,

55 See, O. O. Oyelakin, “Implementation of the Executive Federal Presidential System of Government atthe Local Government level: Its Logic, Merits and Constrains” , in O. Aborisade and R.J. Mundt, (eds),

Ibid, pp. 38-39. See also G. Primstone, “The Constitutional Basis of Local Government in South Africa”,Occasional Paper, Johannesburg: Konrad Adenauer Foundation, 1998, p. 3. See also the E.U. Committeeof the Region: “White Paper on Multi-level Governance”, 2008, p. 5; Nico Steyther (ed.) Local Govern-

ment and Metropolitan Regions in Federal Systems A Global Dialogue on Federalism, McGill QueensUniversity press, 2008 (A study conducted on the role of local governments in 12 countries, Australia,Austria, Brazil, Canada, Germany, India, Mexico, Nigeria, Switzerland, Spain, South-Africa and UnitedStates)56 See, Felix Knupling, Federation and Multi-level Governance: Comparing the E.U with otherFederal States, (Forum of Federation) 2008, p. 6; Nico Steytler, ibid; O.O. Oyelakin, ibid; and G.Primstone, ibid; See also, Edwin Madunagu, Governance at the Third Tier, available at

(January 2002)

57 See, Ikenga Oraegbunam, Separation of Powers and Nigerian Constitutional Democracy,Vanguard Newspaper, January 19, 2005, p. 19.

www.nigerdeltacongress.com/garticles/governance_at_the_third_tier.htm

in respect of any matter or dispute, and interprets the laws. It is this latterfunction that constitutes the court's power of “judicial review”. Thisentire arrangement of governmental structure is described as 'horizontalseparation of powers”. In a federal system, the term is also employed toconnote 'vertical' separation of powers whereby governmental powersare shared between the central government and the fringe governments(states and local governments).

The doctrine of separation of powers developed over many centuries.The evolution of the concept can be traced to the British parliament'sgradual assertion of power and resistance to the loyal decrees during the14 century. The English Scholar, James Harrington, was one of thefirst modern philosophers to analyze the doctrine. In his essay,“ (1656), Harrington building upon theworks of earlier philosophers like Aristotle, Plato and Machiavelli,described an utopian political system that included a separation ofpowers. English political theorist, John Locke, gave the separationconcept more refined treatment in his(1690). Locke argued that legislative and executive powers wereconceptually different, but that it was always necessary to separate themin government institutions. Judicial power, however, played no role inLocke's thinking.

The modern idea of the separation doctrine was explored moreprofoundly in the (1748), a study by French politicalwriter, Baron de Montesquieu. He based his exposition on the Britishconstitution of the first part of the 18 century as he understood it. Thecrux of his thesis was embedded in the statement:

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Commonwealth of Oceania”

Second Treatise on Government

Spirit of Laws

If the executive and the legislatureare the same persons, there mustbe a danger of the legislatureenacting oppressive laws whichthe executive will administer to

attain its own ends”.

de facto

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Montesquieu therefore outlined a threeway division of powers inEngland among the parliament, the king and the courts, although such adivision did not exist at the time. Nevertheless, Montesquieubelieved that the stability of English government was due to this practiceeven though he did not use the word “Separation”.

In contemporary context, the doctrine of separation of powers isunderstood to imply that none of the legislative, executive and judicialpowers should control or interfere with the others; (that is to say thejudges should be independent of the executive and the legislature), orthat the same individuals should not hold posts in more than one of thethree branches, (that is to say, executive ministers should not bemembers of the legislature or vice verse), or that one branch ofgovernment should not exercise the functions of another, (for example,that the executive should not make laws). Indeed, a strict case ofseparation of powers among the different governmental organs is one ofthe fundamental feature of modern democracy which ensures thereduction or elimination of arbitrary powers by unchecked andunscrupulous rulers. It also ensures the needed equilibrium in terms of“checks and balance” - the notion that governmental power should becontrolled by overlapping authority internally and by the externalconferment of rights on the citizenry to remove officials from office.

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58 The term 'Judicial review” simply means the act of investigating or reviewing the actionsof the executive and legislative branches of government performed in exercise of the powersconferred on them by the constitution in order to ascertain their compliance or otherwise withthe provisions of the constitution. It is a type of court proceeding in which a Judge reviews thelawfulness of a decision or action made by a public body. See, Judiciary of England andWales: Judicial Review, Guidance Notes on Applying for Judicial Review, available online at

Robert Schutze, “Sharpening the Separation of Powers Through a Hierarchy of Norms?European Institute of Public Administration, Working Paper, 2005/W/01, p.17.V60ictoria Nourse, “The Vertical Separation of Powers”, 49, Duke L. J. 749 (1999).61 See, Jethro K. Lieberman, “Separation of Powers”, Microsoft Student, 2008 [DVD],Redmond WA: Microsoft Corporation, 2007. See also, Adrian Hardiman, The CommonwealthLawyer Vol. 14 No. 3 (December 2005) p. 38.62 Ibid63 See, John Locke, Second Treatise on Government, 1690 cited in Ikenga Oraegbunam, op.Cit, note 5764 Baron de Montesquieu, Spirit of Laws (1748), contained in “Baron de Montesquieu”Microsoft Student, 2008 [DVD], Redmond WA: Microsoft Corporation, 2007

http://www.judiciary.gov.uk/judgment_guidance/judicial_review/index.htm59

65 Ibid66 Ibid,67 F. A. R. Bennion, “The Great Myth of Judicial Independence”, The Times, 13 July 2004.68 Ibid69 See generally, Ikenga Oraegbunam, op. cit, note 57. Though some scholars argue thatcreating an extreme separation of powers can make government less effective, and mayincrease the possibility of governmental paralysis especially where there is disagreement

among members of the different organs. See, Saleh Mohammed, “Separation of Powers inNigeria: A Myth or Reality”, available at

Thus, in real practice, there is no watertight operation of thedoctrine in governmental structure. See, Yusuf O. Ali (SAN), “Separation of Powers Under the1999 Constitution of the Federal Republic of Nigeria: A Critical Review”, available at

(LastAccessed 4/1/2010)70 Francis Bennion Separation of Powers in Written and Unwritten Constitutions, 15 Com L (April 2006)17, p. 21

,

http://dspace.unijos.edu.ng/bitstream/10485/231/1/pg284.pdf

http://wwwyusufali.net/articles/separation_of_powers_under_1999_constitution.pdf

The total absence of separation of powers often progressively leads torepression and anarchy because it is easier for leaders to abuse theirauthority. Few examples can be given of countries like china, the formerSoviet Union and countries under military dictatorship, includingNigeria before the enthronement of democratic rule in 1999. In thesecountries, political authority was concentrated in a few very powerfulministries and other executive agencies. The court and the legislature didnot wield enough power to prevent the military, police and otherexecutive officials from repressing the citizens. Thus, there is nogainsaying the fact that a government of separated powers is less likelyto be tyrannical and more likely to follow the rule of law, engenderdemocratic culture and promote freedom and liberty.

The history of local government system in Nigeria dates back to thecolonial days.Although contact with Europeans dates back to the fifteencentury, it was not until 1861 before the first steps were taken to establishan administration by Britain. The colonial administration that wasestablished was based on indirect rule. This required that theadministration should be carried out through traditional rulers andinstitutions. This led to the establishment of native authorities in theirmost rudimentary forms from the 1890s to the 1930s. The main functionof the native authorities was to maintain law and order.

The first national legislation on local government administration wasenacted two years after the amalgamation of the Southern and Northernprotectorate into one country known as Nigeria, in 1914. The NativeAuthority Ordinance recognized traditional rulers as native authorities.It empowered the Governor-General to appoint a Native Authority forany area, for local administration. This colonial legislation replaced allpre-colonial, indigenous system of local administration. Such systemsvaried from the hierarchical emirate system of the north through themonarchy system of the west and the republican system of the east, to the

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III History and Evolution of Local Government System inNigeria

diffused systems of other areas. Thus, appointment of NativeAuthorities by the colonial administration was easily done in NorthernNigeria, but there was a problem in identifying who those authoritieswere in most parts of southern Nigeria. This necessitated the firstreforms in the 1930s and the 1940s culminating in the establishment ofchiefsin-council and chiefs-and-council in place of sole nativeauthorities. The chiefin-council was made up of the chief and membersof council. The chief presides at all meetings and acts in accordance withthe majority of opinion in the council. But if he disagrees with thecouncil, he would take whatever action he thought best and inform theGovernor of the region. Contrarily, in the chief-and-council, the chiefhas no power to act against the decision or advice of the council. Underthis arrangement, people particularly representatives of missionariesand British trading interests were appointed into the Native Authorities.This meant that nationalists were not appointed to serve on the council,which led to further agitation for reforms in the NativeAuthorities.

These agitations were taken into cognizance in the drafting of theRichards Constitution 1946. The constitution restructured Nigeria intothree regions, which assumed responsibility for the re-organization oflocal governments. Thus, the country abandoned the national localgovernment system. The Eastern, Western and Northern regions eachenacted laws to re-model the local government systems in their domain.By this time, the councils were given a wider range of functionsincluding primary education, health, police, judiciary and the provisionof other basic public services in line with the implementation of thecolonial government's ten-year welfare and development plan (1946-1956). The councils also enjoyed a great measure of autonomy infinancial, personnel and general administrative matters.

Between 1950-55, the first largely elected local government councilbased on the British Whitehall model emerged in Lagos and the formerEastern and Western regions. Traditional rulers constituted not morethan 25 percent of most council in the then Western region and Lagos.After political independence from British rule in 1960, between 1960-

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71 Isawa Elaigwu, “Nigerian Federalism under Civilian and Military Regimes,” Publius: The Journal ofFederalism (winter), vol. 18, no. 1, 1988, pp. 17772 See, Otive Igbuzor, op. cit, note 15. The Native Authorities were empowered to check and prohibitbehaviours that the colonial authorities considered offensive. These include the manufacture anddistribution of local liquors, the holding of drinking bouts, cultivation and supply of noxious plants andcarrying of arms. In addition, they had power to regulate the cutting of timber and to prevent waterpollution, tax evasion and any conduct likely to disturb the peace. See generally National Open UniversityHandbook, op. cit note 11, p. 109

73 Native Authority Ordinance 1916

74 See National Open University Handbook, op. cit, note 11, p. 10975 The Eastern Region enacted the Local Government Ordinance of 1950, which introduceda three-tier representative local government system in the region; the Western Region alsoadopted the representative local government system, which was provided in the local government law of 1952. In the North, the resultant Native Authority Law, 1954 made only moderatechanges in the system of local government administration. See, Oyeleye Oyediran,“The Reform of Local Governments” in Diamond, Kirk-Green, and Oyediran, TransitionWithout End: Nigerian Politics and Civil Society Under Babangida, Boulder and London:Lynne Rienner, 1997.76 See Otive Ogbuzor, op. cit, note 15

66, there was a decline in the prestige and responsibility of localauthorities. In the former Western Region, the Local Government(Amendment) Law 1960 abolished the powers of councils to levyeducation and general rates on the basis of need. The situation was notdifferent in Lagos and the Eastern Region before the outbreak of theCivil War in 1967. In Northern Nigeria, there were gradual changes inthe structure of the council during this time, with increasing numbers ofelected or appointed non-traditional office holders becoming membersof local authorities.

The military takeover of political power in 1966 led to radical changes inthe system of local government administration in the regions and thestates that later replaced them. The initial reforms focused mainly oncorrecting the political abuses perpetrated by local officials. Therefore,the local constabulary, courts and prison were taken over and integratedinto the national police, judicial and prison services. In 1967, followingthe creation of twelve states out of the four regions, all the states began tocarry out reforms of their local government system. The six northernstates expanded the scope for popular participation in the system. Thesouthern state also tried new measures to improve their system of localgovernance. Thus, the East central, South Eastern, Rivers and Mid-Weststates adopted system of local administration (DevelopmentAdministration) which merely deconcentrated powers of the stategovernments to the localities. Under this system of deconcentration, itwas the Resident or Divisional officer who represented the stategovernment in the locality that was vested with the powers of a localgovernment. He consulted and often acted on the advice of a localrepresentative council but he could also ignore it. The Western stateadopted the 'council manager' system under which the council confinedits role to policy formulation only but appointed a manager for day-to-day management.

These reforms were however considered inadequate. Thus, albeit in amilitary era, the military leaders felt there was need to democratize thelower level of governance and provide appropriate development andservice to the people, having emerged from the civil war more united andwith a buoyant economy. This was achieved by the 1976 LocalGovernment Reform. The reform was radical and far-reaching. Itmarked the turning point in the co-ordination and status of local

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government in Nigeria. The reform restored the uniform national systemof local government in the country and introduced substantialdemocratic process at that level of governance. Also, for the first time,the reform conceptualized local government as the third tier ofgovernment operating within a common institutional framework withclearly defined functions and responsibilities. It is observed that thesuccess of the reform generally led to its incorporation verbatim into the1979, 1989, 1995 and 1999 constitutions.

Under the new system, at least seventy five percent of officials of thelocal government were elected, while the rest were made up ofnominated members. Councilors were popularly elected by the people,while they elect their chairman from among themselves, subject to theapproval of the state governor. Supervisory councilors were also electedamong the councilors to serve as political heads of departments of thelocal government. Together with the chairman and at least two-electedmembers, they formed the Finance and General Purpose Committeewhich was the cabinet of the local government council. Traditional rulerswere organized into an Emirate or traditional council under the reform.They were empowered to advise the local government councils or thestate government on matters pertaining to local governance, religion,arts and culture, chieftaincy and customs within their areas.

For a while, these reforms put local government administration inNigeria on a sound footing. However, during the second republic (1979-83) many of the features of the 1976 reform were ghastly violated, evenconstitutional provisions were neglected. Throughout that period, noelections were held in contravention of provisions of the 1979constitution, and Sole Administrators were appointed. The wholesystem of local government collapsed until the pressure of party politics.The second republic did not last long, it was engulfed in crisis whichultimately led to its sacking in 1983 by the military. Thereafter,successive military regime tried to revamp and restructure the system of

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77 See generally, National Open University Handbook, , note 11, p. 111Kamilu Sani Fage, , note 3,p. 18

op. cit

78 op. cit

79 See, the Guidelines for Local Government Reform 1976 (document produced by the ReformCommittee after consultation at various levels with the people). The objectives of the reformwere clearly stated inter alia to make recommendations in order to devolve and delegate

development activities to local representative, to facilitate the exercise of democratic selfgovernment at the grass root; to mobilize human material resources and involvement ofmembers of the public; and to provide a two way channel of communication between the localcommunities and governments (both state and federal)

80Otive Ogbuzor, op.cit, note 1581Kamilu Sani Fage, op. cit, note 3. (stating that the intentions of the 1976 reforms weredebated by the constitution drafting committee and the Constituent Assembly in 1978 beforethey were incorporated in the 1979 constitution)

82 See s. 7(1) of the 1979 constitution, which stated that: “the system of democratically electedlocal government councils is under this constitution guaranteed”.

local government administration. The Babangida administration madeconscious efforts in this regard. A committee was set up to review thesystem, after which the recommendations were implemented. Therecommendations favoured more autonomy for the local governments.As a result, funding of the local governments was removed from beingdisbursed through the state to being disbursed directly to the councils,the states ministries of local government were also abolished andreplaced by departments of local government in the Governor's office,which were only charged with responsibility to advise, assist and guide,rather than controlling the local governments.

Most of the reforms were incorporated into the 1989 constitution.However, to further confer more autonomy on local governments in theaborted Third Republic (1990-1993), the Local Government (BasicConstitutional and Transitional) Provisions (Amendment) Decree1991, extended the presidential system to local governmentadministration. Under this arrangement, the local government councilbecame the legislative arm of government at that level, and chargedwith the following functions (a) Law-making, debating and passinglocal government legislation, (b) debating, approving and amendinglocal government yearly budget, (c) vetting and monitoring theimplementation of projects and programmes in the council's yearlybudgets (d) examining and debating monthly statements of income andexpenditure rendered to it by the executive arm, impeaching thechairman who has committed an impeachable offence, and (e)performing such other functions as may be assigned by the House ofAssembly of the state. In the same vein, the executive authority wasconferred on the local government chairman and his cabinet.

These reforms ensured the expansion of autonomy and substantiallybigger revenues for local governments. However, it is observed thatbecause of the subsequent recklessness and abuse of the newfoundfreedom and autonomy by local government chairmen, in 1995 and 1997new guidelines were issued reverting the system to the 1976 pattern of

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administration. However, the decree preserved the legislativeautonomy of the local governments to make bye-laws. This was thestate of local government administration in Nigeria, before civil rule wasre-introduced in 1999.

Unlike the previous constitutions of Nigeria (1979, 1989 and1995 draft), the 1999 constitution is purely a military contraption. Thatexplains the stiff opposition it has received in the last ten years of itsoperations. However, in terms of its provision in relation to localgovernment administration, the 1999 constitution has wholly preservedthe status and role of local government as the basis of grass rootdevelopment and governance. It has preserved the tripartite system ofgovernment in Nigeria, and the local government as the third level ofgovernment. Interestingly, the constitutional provisions on localgovernment are restricted to guaranteeing its existence as a level ofgovernance, and stipulating its functions only rather than stipulating itsstructure and composition in line with earlier reforms in the sector.

The existence of local government administration in Nigeria is thecreation of the constitution. Its existence is constitutionally entrenchedas an order of government alongside the federal and state governments.The constitution requires all states to enact legislation providing for theestablishment, structure, composition, finance and function of localgovernments within their jurisdiction. Section 7(1) of the 1999constitution states:

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IV. The local Government System under the 1999 Constitutionof Nigeria

The system of local government bydemocratically elected local Governmentcouncils is under this constitutionguaranteed; and accordingly, thegovernment of every state shall, subject tosection 8 of this constitution, ensure theirexistence under a law which provides for theestablishment, structure, composition,finance and functions of such councils”.


83 See D. O. Adeyemo, op. cit, note 12, p. 8184 Ibid85 Decree No. 23, 199186 The executive Chairman ceased to be a member of the council; only elected councilors wereto be in the council as the legislature. Councilors to elect a leader who will act as councilspeaker. Council clerk to head the personnel department. The elected Chairman to become theChief Executive Officer and to appoint supervisors who will assist him as heads of department.The executive arm to generally consist of the Chairman, Vice-chairman, Secretary and theSupervisors87 Ibid

88 Local Government (Amendment) Decree 199789 See, National Open University Handbook, op. cit, note, 11, p. 11590 All the previous Constitutions were a result of popularly constituted Constitutional Confer-ence where delegates debated on the salient previsions to be included. See, Kunle Awotokun,op. cit, note 33, p. 131

A commentator observed that the rationale for the constitutionalrecognition of local government arose out of the need to make itobligatory on the state governments to ensure the existence ofdemocratically elected local government councils, to guarantee theirfunctions and to direct the allocation of funds to them from the federationrevenue. Indeed, to ensure that the local government is entrenched as atier or level of government in Nigeria, the constitution went as far asstating the names and areas of each existing local government council inevery state of the federation, and clearly stipulating the procedure forthe creation of new local government in any state of the federation. Inaddition, the constitution stipulates fairly extensive procedure thatguarantees the allocation of funds from the federation account and otherdistributable sources from the federal and state governments to the localgovernment council. But most importantly, in additional to any otherfunctions that may be conferred on the local government by a law of thestate House of Assembly, the constitution outlines an exclusive andconcurrent list of functions for the benefit of local governments. Section7(5) of the constitution provides that “the functions to be conferred bylaw upon local government councils shall include those set out in thefourth schedule of the constitution”.

Section 7(3) of the constitution provides that it is the duty of localgovernment council to participate in economic planning anddevelopment of the area under its jurisdiction. This is also reiterated inparagraph (1) (a) of the fourth schedule to the constitution. The mainfunctions of the local government includes, collection of rates; radio,television, bicycle, canoe, and carts licensing; establishment,maintenance and regulation of markets, motor parks and public

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conveniences; registration of births and deaths; levying and rates onhouses and tenements; control and regulation of outdoor advertising andhoarding; movement and keeping of pets, shops and kiosks, restaurants,bakeries and Landry; and licensing, regulation and control of sale ofliquor. Other functions which the local government are to performconcurrently with the state government are the provision andmaintenance of primary, adult and vocational education; thedevelopment of agriculture and natural resources, other than theexploitation of minerals; and the provision and maintenance of healthservices.

One interesting fact to note is that the constitution failed to provide forthe law-making powers of the local government, or for that matter, themodalities for the making of such laws. Thus, barring for the provision ofthe existence and function of the local government as a third tier ofgovernment, the constitution is silent on the question of separation ofpowers at that level and the general structure of government at the locallevel. This task is overwhelmingly conferred on the State Houses ofAssembly, which are allowed to choose any structure or composition ofcouncils within their domain. The constitution therefore does not compelthe state Houses of Assembly to maintain the presidential structure ofgovernance stipulated for the federal and state governments at the localgovernment level. Even though, the constitution saves all existing lawsthat were in force before the coming into effect of the constitution, whichincludes the 1991 Local Government (Basic Constitutional andTransitional) Provisions Decree and all other Decrees promulgated withrespect to the structure of the local government system before 1999, allsuch existing laws or Decrees are to apply with such modification andsubject to the provisions of the constitution. In our considered opiniontherefore, the state Houses of Assembly are free to choose any of thestructure of local government administration contained in any of theprevious reforms of the system, whether the 1976 or 1991 reforms.

The above summation leaves us with the question of determining howautonomous the local government system under the 1999 constitution is,in view of the enormous powers conferred on the state government in

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91 See, Habu Galadima “Local Government in Nigeria”, in Local Government Bulletin, vol. 9,issue 3, July 2007 (South Africa) p. 26

92 See s.3 and the First Schedule of the 1999 Constitution. (It is assumed that these provisions will preventthe manipulations of local government boundaries and the unwarranted proliferation of local governmentareas for purely partisan political reasons as was the case in the second republic). See, D. O. Adeyemo, opcit, note 12, p. 83

93 See, s. 8 (3) & (4) of the Constitution (The procedure is a complex one, originating in the relevant stateHouse of Assembly and terminating with the recognition of the new local government by the National

Assembly and consequent adjustment of boundaries stipulated in an Act of the National Assembly)94 See, ss. (7)(6), 162 (2) - (10), and 313 of the Constitution (Federal government most maintain afederation account from which money is shared between the federation, state and local government on apercentage to be determined by the Revenue Mobilization and Fiscal Commission. The formula now standsat 20% for local governments. Each state government must also maintain a “State Joint Local GovernmentAccount” into which all monies standing in the credit of local government from the federal account of anyother federal sources is paid, for onward distribution to the local government. In addition, state govern-

ments are mandated to allocate 10% of their internally generated revenue to local governments within theirjurisdiction). See generally, Habu Galadima, op. cit, note 91, p.27

95 See paragraph (1)(a)-(k) of the Fourth Schedules of the 1999 Constitution989796 Paragraph (2)(a)-(d) of the Fourth Schedule

97 See s. 7(1) of CFRN 199998 For the Presidential System's Separation of Power among the Legislature, Executive andJudiciary at the Federal and State Government Levels, see ss. 4(Legislative), 5 (Executive),and 6 (Judiciary) of the 1999 Constitution99 See s. 315 of the Constitution

respect of the overall control and management of the local governments.Does the local government have enough autonomy especially from thestate government to be independent in the performance of the functionsconferred upon it by the constitution? Unfortunately, the question ofautonomy had generated a lot of heat and controversies during all theprevious reforms . According to Nwabueze, autonomy under a federalsystem means that:

In his contribution on the literature of autonomy, Davey on his ownpart opines that:

From this brief explanation of autonomy, it is submitted thatlocal governments are not autonomous at all under the presentdispensation irrespective of the extensive provisions of the 1999constitution in respect of their existence and function. In practice, stategovernments are reluctant to allow local governments conduct theiraffairs freely, even within the purview of law conferring powers andfunctions on them. The intergovernmental relationship between local

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each government enjoys a separate existenceand independence from the control of theother government. Each government mustexist not as an appendage of anothergovernment but as autonomous entity in thesense of being able to exercise its own will inthe conduct of its affairs free from the

direction of another government.

Local autonomy is primarily concerned withthe question of responsibilities, resourcesand discretion conferred on the localauthorities. As such, discretion andresponsibility are at the core of localgovernment”.

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government and their state counterpart has been totally over-shadowedby conflicts and exercise of overbearing authority. There has beennumerous complains of state government interference in localgovernment's affairs ranging from plot to remove the chairmen beforethe expiration of their tenure, to using the state government's auditpowers to harass the local governments. The recurrent problem areasin the relations between the local government and the other tiers ofgovernment has bordered on finance, functions and staffing. Stategovernments have routinely hijacked varying proportions of theallocations to local governments from the federation Account.Sometimes the federal government itself is guilty of this offence. Inaddition, many state governments usurp local government avenues ofgenerating internal revenues and fail to contribute the requiredproportions of their internally generated revenues into the State LocalGovernment Joint Account, for sharing among the local governments,contrary to the provisions of the 1999 constitution.

All these conflicts have resulted in serious political chaos and threat todemocracy in Nigeria. Most of the problems ended up in court, and thishas immensely enriched the Nigerian jurisprudence on local governmentsystem. For instance, the Supreme Court in

, declared the Local Government Area Law No. 5 of 2002made by Lagos State Government in which 57 local governments werecreated by breaking the existing 20 local government areas recognizedunder the 1999 constitution into 57 local government councils asunconstitutional, null and void. The law in effect abolished localGovernment Areas created under the 1999 constitution by altering theirnames, adjusting their boundaries and dividing them into smaller units.The law further vested the governor with powers to appoint persons toadminister the affairs of the newly created local government areas incontravention of section 7(1) of the constitution. In the same case, theSupreme Court held as null and void the decision of the federalgovernment to withhold statutory allocations due and payable to theLagos State Government in respect of the 20 local governments.

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Federation

104 Ibid105 Joash Amupitan, “The Role of the Courts in strengthening Democracy at the LocalGovernment Level in Nigeria”, available on-line at

(Last Accessed 4/1/2010)See, s. 162(6), (7) & (8) of the 1999 Constitution. See also Habu Galadima, op. cit, note

91. p. 28

107 (2004) 18 NWLR (pt. 904), 1108 It should be noted that despite the decision of the Supreme Court, the Federal

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100 M. A. Odunfa,“Local Government Autonomy and Intergovernmental Relations in Nigeria”,(submitted in partial fulfillment of the requirement for the special Advanced Course in localGovernment Studies, Ile-Ife: Obafemi Awolowo University, June, 1991)101 B. O. Nwabueze, The Presidential Constitution of Nigeria, London, Sweet and Maxwell1983; see also B.O. Nwabueze, “The Presidential Constitution of Nigeria”, Nigeria Journal ofPublic Administration and Local Government, Vol. 2, No. 2, 1984102 K. J. Davey, “Local Autonomy and Independent Revenue”, Journal of Public Administ-ration, Vol. 49 :45, 1991103 Habu Galadima, op. cit, note 91, pp. 27-28

In the case of , theSupreme Court declared the Electoral Act made by the NationalAssembly in 2001 as null and void. The Act purported to legislate on thetenure of the local governments in Nigeria whereas that power wasconstitutionally reserved for the State Houses ofAssembly.Again, in thecase of , theSupreme Court held that the powers of the National Assembly overfunds accruable to the local government councils in Nigeria undersections 7(6) and 162(5) of the 1999 constitution are only limited toallocation of such funds and it did not extend to monitoring such funds.Monitoring is a post-allocation matter and the NationalAssembly had nopower to make such laws. Therefore, the Monitoring of RevenueAllocation to Local Government Act which sought to monitor therevenue allocation to the local government councils was held to beunconstitutional.

Lastly, the Court of Appeal in anddeclared the actions of the Plateau

State Governor and that of Benue State Governor respectively indissolving the local government councils in those states asunconstitutional, null and void. The laws made by the two StatesHouse of Assembly which authorized the governors to impede thesmooth running of the local government councils were also declared tobe unconstitutional, null and void. Very importantly, the Supreme Courtin the earlier cited case of pointedout that the creation of additional local governments in Nigeria wouldamount to an amendment of the constitution. Thus, no State House ofAssembly could on its own create additional local governments withoutinvolving the National Assembly which would then set the necessarymachinery in motion for the amendment of section 3(6) of the 1999constitution.

A. G. Abia State and 35 Ors. v. A. G. Federation

A.G Abia State and 2 Ors v. A. G. Federation and ors

A.G. Plateau State v. Goyol and Ors

A. G. Benue State v. Umar and Ors

A.G. Lagos State v. A. G. Federation

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V. Operational Modalities of Local Government Councils inNigeria: The case of Ebonyi StateAs stated earlier in this paper, the 1999 constitution is silent as to whetherstate governments should adopt the Presidential or Parliamentarysystems of government at the local government level. Section 7(1) of theconstitution empowers the state House of Assembly generally to makelaw which provides for the establishment, structure, finance andfunctions of the local government councils and no more. Consequently,the current system of local government administration in Nigeria variesfrom state to state. This, to a large extent, is determined by the localgovernment law enacted by each state House of Assembly. While somestates tend to favour the fusion of the executive and legislative arms(Parliamentary system), others prefer the full separation of powers asespoused by presidential democracy.

It is observed that those states, which opted for the Westminster model,have anchored their argument on paucity of financial resources and theneed to preserve the available funds for the betterment of the people ofthe grass root. The proponents of the presidential system on the otherhand have argued for the need to sustain the presidential system at locallevels in order to be in consonance with state and federal governments.In Ebonyi State, various laws have been enacted since 1999 to govern theadministration of local governments in the state. These laws haveclearly adopted the presidential system. However, it may seem that thelocal government administrative structure in Ebonyi State is far fromclear. The numerous laws enacted so far tend to have created a sort of dualor two-tier local government system rather than a single system asenvisaged under the 1999 constitution. This situation was foisted on thestate as a result of the failure to maintain an additional 21 localgovernment councils purportedly created by the state in 2001, due toan order by the presidency in 2006 to all states which had purportedlycreated new local governments to wound them up based on the decision

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Government still refused to release to Lagos State the statutory allocations for local government for an onward period of over three years.109 (2002) 6 NWLR (pt. 763) 264110 (2006) 7 SCNJ, 1.111 (2007) 12 NWLR (Pt. 1059) 59112 (2008) 1 NWLR (Pt. 1068) 311113 See generally, Joash Amupitan, op. cit, note 105, pp. 3-4114 (Supra) note 107.

115 See, Kunle Awotokun, op. cit, note 33, pp. 132-133116 Ibid117 See, the Local Government Law, No 3 of 1999, as amended by Law No. 1 of 2002, theLocal Government (Amendment) Law No. 2 of 2004; The Local Government Councils andDevelopment Areas (Amendment) andRelated Matters Law, 2006; the Revenue Distribution to Local Government Councils andDevelopment Areas Law 2006; and the Ebonyi State Local Government Council and Develop-ment Centre (Amendment) Law, 2007118 The New States were created in 2001 by virtue of the Ebonyi State Local Government Area(Creation and Transition Provision) Law, No. 7 of 2001(supra), note 107. See, Wale Ejibunu,“Like Lagos, Ebonyi, Bayelsa, Enugu Run Development Areas” , The Nation Newspaper, 12August, 2004, available on line at

(Last Accessed 4/1/2010) See s.2 of the Local Government Area Creation Lawwww.thenationonlineng.net/web2/articles/13713/1/.../page1

.html

of the Supreme Court in the earlier cited case of.

The initial plan of the Ebonyi State government was to confer the samepowers and functions of the constitutionally created local governmentcouncils on the purported newly created local government areas in thestate. Perhaps, if the plan had succeeded, the same presidentialstructure of governance applicable in the original 13 local governmentcouncils by virtue of the local government law, No. 3 of 1999, would havebeen extended to the newly created councils, thus ensuring a uniformlocal government administrative structure. Be that as it may, the presentstructure adopted in the state dearly distinguishes between theconstitutional created 13 local governments and the now constituted 51development centres.

While the law allows democratic elections to be conducted into the 13local government councils, the Chief Executive Officers (coordinators)and Management Committee of the Development Centres are to beappointed by the Governor, and like the council chairman shall holdoffice for a term of three years. The Development Centres seem to bean appendage of the local government councils from which they arecreated, in terms of overall control and supervision. The functionsconferred on the Development Centres are merely permissive andheavily influenced by the discretion of the local government chairman inwhose jurisdiction it exist. Thus, the functions are nowhere comparablewith the overall functions of the constitutionally created localgovernments. The principle of separation of powers is not adopted at theDevelopment Centres, nor is any form of autonomy granted themexcept for the allocation of revenue, which shall be used for recurrentexpenditure and as directed by the local government chairman fordevelopment purposes.

A.G. Lagos State v. A.G.

Federation119

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The structure, powers, rights and obligations of the Local governmentCouncils in Ebonyi State provided under the Local Government Law1999 were left intact by all the subsequent enactments in respect of localgovernments and Development centres. Thus, the full presidentialsystem applicable under the first initial law is still operational. Under thelaw, the powers of the Local government are divided between thelegislative arm and the executive. These powers are very similar to thedivision of powers under 1991 Local Government (Basic Constitutionaland Transitional) Provisions (Amendment) Decree earlier stated. Thelegislative function is vested in the Council constituted by the Councilorswho are directly elected from the various wards of the Localgovernment. The council is presided over by a leader to be elected fromamong the Councilors by themselves. It is observed that these officers ofthe Council are the equivalent of the speaker and deputy speaker in theState House ofAssembly. The Council shall also have a clerk who shallbe appointed by the Governor of the state.

The Law stipulates that the legislative powers vested in the LocalGovernment, Council shall be exercised by bye-laws passed by theCouncil. The assent of the Executive Chairman of the Local governmentmust be obtained before any bye-law becomes valid. However, if hewithholds assent, the Council can by a two-third majority vote to overridethe chairman's assent and pass the bye-law into force. The entirelegislative procedure at the Local government resembles that which isobtainable in the State House ofAssembly. Aside from law-making, theCouncil is conferred with additional functions, especially the exercise ofoversight functions over the executive by the vetting and monitoring ofimplementation of projects and programmes, debating, approving andamending the annual budget of the local government, and examining anddebating monthly statements of income and expenditure of the localgovernment.

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119(supra), which states that “subject to sections 4 and 16 of this law, the new Local Government Areascreated by subsection of this section shall have the same rights, power and privileges as the local govern-ment areas existing prior to the commencement of this law”. The initial newly created local governmentcouncil were reconstituted and called Development Area. The 2007 local Government and Developmentcentres law, has now designated them as Development centres (hereinafter law No.007 of 2007)120 See s. 8 of Law No. 007 of 2007 s. 10, ibidIbid, s. 11 and 20 s. 12, ibid, provides the functions of the Development Centres: The chairman of the Localgovernment seem to be at the centre of decision-making at these centres, which exist merely for coordina-ting development and advising the local government chairman125 s. 12, ibid, provides the functions of the Development Centres: The chairman of the Local governmentseem to be at the centre of decision-making at these centres, which exist merely for coordinating develop-ment and advising the local government chairman126 The administration of the Development centre is conferred on a management committee comprising ofa coordinator and not more than four members to be appointed by the Governor. (See S. 8, Law No. 007,

2007). The committee does not have any legislative functions127 s. 10 of the Revenue Distribution to Local Government Councils and Development Areas Law No.004,2006, Stipulate that upon receipt of allocation from the State Joint Local Government Account, thechairman of the Local Government must disburse the funds to the Development centres under its jurisdic-tion in accordance with the formula stated in s. 11 of the law.

128 See, s. 21 of Law No.007 of 2007129 s. 27 of the Local Government Law, No.003, 1999 (hereinafter, Law No. 003, 1999)130 E.N. Nnamani, The Application of the Doctrine of Separation of Powers in LocalGovernment Administration in Nigeria: The Ebonyi State Model, in M.A. Ajanwachuku & H.P. Faga (eds.) Contemporary Legal Thoughts: Essays in Honour of Chief Jossy Chibundu Eze,Abakaliki, 2008, p. 241.131 Ibid, s. 37132 Ibid, s. 35133 E.N. Nnamani, op. cit, note 130, pp. 241-242134 s.36 Law No.003, 1999

The executive powers of the local government on the other head, areconferred on the chairman of the local government, which shall beexercised either directly by him or through the vice-chairman, orsupervisors to be appointed by him. A person to be appointed as asupervisor shall not be a member of the Council and his appointmentmust be confirmed by the council. The chairman shall also appoint theSecretary to the local government who shall liaise with the Secretary ofthe Government of the State.

The provisions conferring legislative power on the Council of the localgovernment to make bye-laws seem to be inelegantly drafted. Section 4of the 1999 law confers power on the Council to “make bye-laws inrespect of any of its functions and on matters confer upon it by law.However, the only functions conferred on the Council in section 36 of thelaw are expressly given in addition to the power to make bye-laws, andthey are matters of merely supervision, approval or over sight activities.This is strange, because one would have thought that since the Council isconferred with the legislative powers of the local government, it couldmake bye-laws in respect of all the functions of the local government. Inother words, the entire functions of the local government stipulated inPart IX of the law (ss. 50-54) would automatically serve as the legislativelist of the Council of the Local government. This is common-sensical,more reasonable and in consonance with the practice under the 1999constitution.

At the local government level in Nigeria, the concept of separation ofpowers ends with the division of powers between the executive and thelegislature. Unlike the federal and state governments which are expresslyconferred with judicial powers to be exercised by courts created by theconstitution or the National or State Houses of Assembly, the localgovernments are bereft of this power. Neither the constitution nor anyActof the National Assembly or law of the State Houses of Assembly inNigeria purports to confer any judicial powers on the local government tobe exercised by any local government courts, notwithstanding that they

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are conferred with both executive and legislative powers. In fact, onewriter opines that the local government is obliged to make use of both thefederal and state judicial apparatus

The above notwithstanding, it is our opinion that the time is long overdueto devolve some judicial powers to the local government to be exercisedthrough native courts, under the control of the local government. Thispower was extensively allowed to local council under the colonialadministration and it really revolutionalised the system of justice at thegrassroots, rather than relying solely on English courts. Even though theconstitution has made provision for establishment of customary courts atthe state levels, which would service local government interests,especially with regards to questions bordering on native law and custom,these courts are usually inadequate and often headed by inexperiencedpersons. In Ebonyi state, like most other states of the federation, the localgovernment law makes provision for the establishment of Council ofTraditional Rulers. In view of the role and functions of this body, itwould have provided the needed backbone for a viable native system ofjustice administration if it were allowed to function judicially under anyform of arrangement. On the contrary, this is exactly what the localgovernment law of Ebonyi state seeks to prohibit.

The other aspect of judicial powers, the establishment of a legaldepartment in the local government under which a Chief Legal Officerand counsel will be employed to look after the legal business of the localgovernment, is also very germane.

Having done an extensive survey of the legislative, executive and judicialrole/functions of the local government, especially in Ebonyi state, andhaving compared the current system of local government administrationwith previous forms of governance at that level, it is our consideredopinion that the following modifications should be adopted in Ebonyistate in order to make the system more effective, responsive anddevelopment driven:-

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VI. Concluding Remarks

135 Ibid, s.38136 Ibid, s.25137 Ibid138 Under the 1999, constitution the exclusive and concurrent legislative lists provides for the subjectareas which the National Assembly and State Houses of Assembly have power to legislate. These areasalso automatically become the areas under which the executive powers of the federal and state governm-ents are defined, and invariably the functions of the respective tiers of government. See, s.4 and theSecond Schedule to the 1999 Constitution

139 See generally, s.6 of the 1999 constitution, which confers judicial powers on the federaland state governments and creates Superior Courts of record in Nigeria.

140 Kunle Awotokun, op.cit, note 33, p.131141 See, s.151 of Law No. 003, 1999142 The body is primarily conferred with the function to advise the local government onmatters relating to law, order, customs and traditions of the people of the local governmentamong other functions. See s.151 (iii) (a) of Law No. 003, 1999143 Ibid, s.151 (iii)(g) (A proviso providing that nothing in the section shall be construed asconferring any executive, legislative or judiciary powers on the Council of Traditional Rulers)

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(A) The Development Centres should be granted moreindependence in terms of control and management toenable them generate and implement developmentagenda.

(b) There should be a system of democratically electedofficials in the Development Centres

(c) The Presidential system should be abolished at the localgovernment level and reverted to the Westminster model,where both the legislative and executive arms are fusedtogether. This will reduce cost of governance andencourage more democratic participation.

(d) The state House of Assembly should make law to allowlocal government councils establish native courts, whichwould have the backing of law to dispense justice at thegrassroots where the need is most felt.

(e) The local governments should also establish legaldepartments with full powers to administer the legalbusiness of the local government councils.

STATUS OR AUTHORITY OF THE AWARD

It has been observed by T.O. Elias that an arbitration award cannot beenforced as a judgement of a court but may be raised as a defence by wayof estoppel by res judicata. It is settled that a native arbitration awardoperates as estoppel against the defendants provided it satisfied all therequirements of a valid customary arbitration. Thus the status of acustomary or native arbitration award is likened with the judgement of ajudicial tribunal which is binding and creates an estoppel.

CONCLUSION

A customary arbitration will be binding if all the ingredients orpreconditions of a valid customary arbitration are met. They are as listedbelow:

“1. that there has been a voluntary submission of the matter in disputeto an arbitration of one or more persons;

2. that it was agreed by the parties either expressly or by implicationthat the decisions of the arbitrators will be accepted as final andbinding;

3. that the arbitration was in accordance with the custom of theparties or of their trade or business;

4. that the arbitrators reached a decision and published their awardand;

5. that the decision or award was accepted at the time it was made.”

In so far as the above ingredients of a valid native or customaryarbitration are satisfied, the court will treat it as creating an estoppel. Inthe same vein, whosoever is relying on the award of a customaryarbitration has a duty to plead and establish by evidence the above listedingredients to enjoy the necessary legal effect of a conclusive customaryarbitration.

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