In a recent interview with Vanguard’s Law & Human Rights, Professor Awa Kalu, a renowned constitutional lawyer, respected member of the Bar and former Attorney General of Abia State, raised several fundamental questions about the Supreme Court’s decision of July 11, 2024 granting financial autonomy to the country’s 774 local government councils.
Since its pronouncement on July 11, 2024, the Supreme Court’s decision on local government council autonomy has been widely lauded by stakeholders. However, almost three months after the decision, it appears that it remains a paper tiger. How do you react to this?
It is true that many people who did not grasp the constitutional basis of the decision have praised it. This praise is based on their understanding of the decision and the constitution. They can praise it as much as they like. You mentioned that the decision appears to be a paper tiger. Yes, it must be, insofar as it purports to override what the 1999 Constitution of the Federal Republic of Nigeria expressly provides. It will remain a paper tiger if it has already become one.
What I do not agree with in the decision is the attempt to bifurcate the entire intention of the framers of the constitution in Article 162 of the 1999 Constitution. For what the Supreme Court has done in its decision is to degrade the word “shall” in the sections of the constitution that concern the State, while retaining the “shall” in the sections that concern the Federal Government.
To illustrate, Article 162 (1) provides that the Federation shall maintain a special account to be known as the “Federation Account” into which shall be paid all revenues received by the Government of the Federation, except revenues from personal income tax on members of the Armed Forces of the Federation, the Nigeria Police Force, the Ministry or Department of Government responsible for foreign affairs and residents of the Federal Capital Territory, Abuja.
Article 162 (3) provides that any amount credited to the Federation Account shall be distributed among the Federal Government, the States and the Local Councils in each State in such manner and by such procedure as the National Assembly may determine.
Article 162 (4) states that any amount credited to the States in the Federation Account shall be distributed among the States in such manner and by such procedure as may be prescribed by the National Assembly, while Article 162 (5) provides that “the amount credited to local councils in the Federation Account shall also be distributed to the States for the benefit of their local councils in such manner and by such procedure as may be prescribed by the National Assembly.”.
Article 162 (6) states that “each State shall maintain a special account to be called the Local Councils Common Fund” into which shall be paid all allocations to the local councils of the State from the Federation Account and the State Government.
The Supreme Court, in its decision, upheld “shall” as mandatory in the sections relating to the Federal Government, but did not do the same for the subsections applicable to the State Governments.
What do you think the Supreme Court should have done?
The Supreme Court should have interpreted Article 162 consistently. In other words, it should have interpreted “shall” in respect of the subsections affecting the State Governments in the same manner as it interpreted it in respect of the subsections affecting the Federal Government.
In other words, Article 162 is concerned with the appropriation of revenue to the Federal Government as well as the State Governments. In seeking to separate the federal government from the states, the decision attempts to treat the federal government as a separate government and to look at the state governments differently in terms of the use of the word “shall”. The word “shall” is mandatory. So, the “shall” in respect of the subsections relating to the federal government has been separated from the “shall” applying to the subsections relating to the states.
Whereas the Supreme Court itself has said that in interpreting any section of the constitution that contains subsections, the subsections must be interpreted uniformly. So, if you look at Article 162, it has subsections. Some of them (subsections) relate to revenues belonging to the Federal Government, while some of the subsections, particularly from subsection 5 onwards, relate to revenues belonging to the states. And the Supreme Court interpreted the sections that apply to the Federal Government as “shall” and said you can use “shall” instead of “may” or interpret “shall” as “may” in the subsections that apply to the states. So they created this dichotomy, and that’s where I disagree.
To put it plainly and without challenging the authority of the Supreme Court, it is crucial to examine thoroughly the constitutional principles that underlie this decision and to ensure that the interpretation of the statutes is consistent and uniform. This is a central issue that legal and political actors must pay close attention to in order to ensure the rule of law and institutional stability in the nation.
In the current context, it is imperative that the constitutional issues raised by this decision be examined thoroughly in order to promote transparency, accountability, and fairness in the management of public resources