By L. G Jamala, Esq

In recent times, the actions of the Rivers State government with respect to the handlings of Local Government affairs in the state has generated must debates. While some are of the view that the government is acting within the confines of the enabling law governing Local Government Administration in Rivers State, that is to say, the Rivers State Local Government Law No.5 of 2018, many are of the view that the said law is in itself, inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended (hereinafter “The Constitution”).

The Local Government System is a creation of the Constitution. By Section 7(1) of the Constitution, the system of Local Government by democratically elected local government councils is under the Constitution guaranteed; and accordingly, the Government of every State shall, subject to section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils with its functions as provided for in the Fourth schedule of the Constitution.

By the provisions of Section 4(6)(7) of the Constitution, the legislative powers of a state are vested and exercisable by the States’ House of Assembly and it is in the exercise of these powers conferred on the State Assembly that the Rivers State House of Assembly enacted the Rivers State Local Government Law No.5 of 2018.

The general statement of purpose of the said law provides, “A law to repeal Rivers State Local Government Law No.2 of 2012 and Rivers State Local Government Amendment Law No.4 of 2016, and re-enact the Rivers State Local Government Law to make provisions for the establishment, structure, finance and functions of Local Government Councils of Rivers State and incidental matters.”

On the power of the Governor to dissolve a Council or suspend erring Council official, Section 64(2)(3) (4)& (5) of the Law states;

(2) Where the Governor is satisfied that any Local Government Council is in default of the provisions of this Law or the Council engages in any activity that is detrimental to the corporate existence of the state or Local Government, he shall submit details of the default to the Rivers State House of Assembly with a request for the dissolution of that Council,

Provided that where the House of Assembly is not in session, the Governor may where he is satisfied that the issues raised in this subsection are of serious nature and likely to cause a breach of the peace or public order, dissolve the affected Local Government Council and within 7 days of the resumption of sitting of the House send the notice of dissolution of Council to the House of Assembly for approval and ratification.

(3) Where the issues in subsection (2) against a Local Government Council are of serious nature but not likely to result to a breach of the peace or public order, the Governor may suspend the affected Local Government Council or Chairman or any other erring official of the Council and send the notice of suspension to the House of Assembly for approval and ratification, pending when the substantive issues against the Council or erring official are finally determined by the House,

Provided that where the:

  • Chairman of Council is suspended alone, the Vice Chairman will act;
  • Chairman is suspended with the Vice Chairman, the Leader of the Legislative Council will act: or
  • Entire Council is suspended; the Head of Local Government Administration will act.

(4) The Rivers State House of Assembly shall consider the request in subsection 2, and if approved by 2/3 majority of the members, the Council shall immediately stand dissolved from the date of the approval.

(5) Where a Local Government Council is dissolved in accordance with this section, the Governor shall appoint a caretaker committee of not more than seven persons from that Local Government Area to oversee the affairs of the Council for a period not exceeding 3 months.

It is important to state here that this piece is not intended to discuss whether or not the powers of the Governor to dissolve an elected Council on grounds of  default of any of the provisions of the Local Government Law or acts the Governor perceives to be detrimental to the corporate existence of the state. This is so because the Supreme court in a couple of cases such as the case of Hon. Chigozie Eze & Ors v. Governor of Abia State (2014) LPELR-23276 SC, (2016) 3NWLR (1551) have  held that; “S.7(1) of the Constitution states that the system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils. On a careful reading of the above, it becomes clear that it is the duty of the Governor to ensure that the system of Local Government continues unhindered. Dissolving Local Government Councils and replacing them with Caretaker Committee amounts to the Governor acting on his whim and fancies, unknown to our laws, clearly illegal. It is the duty of the Governor to ensure their existence rather than being responsible for destroying them. It amounts to Executive recklessness for a Governor to remove from office democratically elected Chairmen, and Councilors and replace them with unelected Chairmen and Councilors under whatever guise…. such acts should on no account be ever contemplated. It is illegal, and wrong.”

Again in Governor of Ekiti State & Ors v. Prince Sanmi Olubunmo & Ors in Appeals No. SC/130/201, the Supreme court in voiding the law enacted by the Ekiti State House of Assembly which allows the Governor to dissolve elected Local Government Chairmen, the court held;

“…there can be no doubt, as argued by the appellants’ counsel, that the Ekiti State House of Assembly is empowered to make laws of Ekiti State. However, the snag here is that, in enacting sections 23(b) of the Ekiti State Local Government Administration (Amendment) Law, 2001, which empowered the first appellant to abridge the tenure of office of the respondents, it overreached itself.

In other words, section 23(b) is violative of, and in conflict with section 7(1) of the Constitution. Hence, it is bound to suffer the fate of ill laws which are in conflict with the constitution, section 1(3) thereof. The system of local government by democratically elected local government councils and conferred sacrosanctity on the elections of such officials whose electoral mandates derived from the will of the people freely exercised through the democratic process. The implication, therefore, is that section 23(b) of the Ekiti state Local Government Administration (Amendment) Law, 2001, which was not intended to ensure the existence of such democratically elected councils, but to snap their continued existence by their substitution with caretaker councils, was enacted in clear breach of the supreme provisions of section 7(1) of the Constitution. To that extend, it cannot co-habit with section 7(1) of the Constitution and must, in consequence, be invalidated.

The reason is simple. By the oath of office, the governor swore to protect and not to supplant the Constitution. Hence, any action of his which has the capacity of undermining the same Constitution (as in the instant case where the Governor dissolved the tenure of the respondents and replaced them with caretaker) is tantamount to executive recklessness which would not be condoned…”

The above authorities therefore puts to rest the question as to whether or not, a Governor can dissolve an elected local government Chairman before the expiration of its tenure. If this is settled and generally agreed on, the next question that comes to mind is whether by the existing law which has not for now been challenged in Rivers State, because it is a common principle of law that the law remains the law until set aside by a court of competent jurisdiction, can a Governor suspend an elected Local Government Chairman, if this is answered in the affirmative, are there procedures?

In answering this question therefore, may I for ease of reference reproduce section 64(3) of the Rivers State Local Government Law No.5 of 2018 which provides, Where the issues in subsection (2) against a Local Government Council are of serious nature but not likely to result to a breach of the peace or public order, the Governor may suspend the affected Local Government Council or Chairman or any other erring official of the Council and send the notice of suspension to the House of Assembly for approval and ratification, pending when the substantive issues against the Council or erring official are finally determined by the House.

The Local Government Law of Rivers State No.5 of 2018 empowers the Governor to suspend a Council Chairman or any other erring official of the Local Government  where;

  1. the Chairman or Official is in the default of the provisions of the Local Government law, or
  2. Chairman or Official engages in acts detrimental to the corporate existence of the state or Local Government.

It is important to note that the law did not define or explain what act or acts, amounts to being detrimental to the corporate existence of the State and Local Government thus, creating an omnibus ambiguous ground for the arbitrary suspension of Local Government Chairmen in Rivers State.

The Governor, in suspending a Chairman on alleged suspicion of any of the grounds provided for in section 64(2) & (3) of the law, must send a notice of the suspension within 7 days to the State House of Assembly for approval and ratification.

On the 6th day of April, 2020 the Governor of Rivers State, suspended the Executive Chairman of Abua/Odual Local Government Area for a specific period of one month for acts the Governor christened “failure to demonstrate commitment in the fight against Covid-19”. In announcing the said suspension, the Governor did not state further what the Chairman did or failed to do thus suggestive of a lack of commitment. It is not also in the know that the Governor did forward the details of the alleged acts of the Chairman to the State House of Assembly for approval and ratification.

Again, on the 23rd day of July, 2020, the Rivers State Government whilst announcing the suspension of another elected Local Government Chairman of Port Harcourt City Local Government for alleged collection of illegal tax from traders of a particular market, reaffirmed the earlier suspension from office of the Chairmen of Abua/Odual and Degema Local Government Areas, their suspension having not been lifted. One is for the obvious reason may ask, is the suspension of these local government Chairmen in perpetuity?

Assuming without conceding that the Rivers State Local Government Law to which the Governor solely relied in suspending these elected Chairmen is not violative of and can co-habit with section 7(1) of the Constitution and thus rightly empowers the Governor to so do, has the Governor met the requirements for doing so as provided for by the said enabling law? This, in my mind and to which I so humbly hold, cannot be answered in the affirmative. This is so because section 64(3) of the Law provides for the Governor sending a notice within 7 days to the House of Assembly for approval and ratification.

I have stated earlier that it is a general principle of law that a law, no matter how bad the society sees it, remains the law until set aside by a court of competent jurisdiction. A law or a part of a law can only be set aside, declared and void if its perceived inconsistencies are challenged in the court of law.  It will be in the general interest of the society to seek before a court of law an interpretation as to whether the entirety of the provisions of section 64 of the Rivers State Local Government Law No.5 of 2018 is not inconsistent with section 7(1) of the Constitution. Until this is done and section 64 of the Law is set aside by a court of law, it remains the law in Rivers State and we must live with same no matter how draconian we perceived it to be.

L. G Jamala, Esq.,Port Harcourt.,08069306983

Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, www.damilolaolawuyi.com. & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),www.eduardogpereira.com   

Book information For more information or to order your copies, please contact Mr. Keji Kolawole: info@ogeesinstitute.edu.ng , Tel: +234 81 40000 988

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