Appointment of caretaker committees in Oyo: The court and the constitution 

Nigeria would have been a sane country if there exists a strict adherence to the rule of law if opinions are aired without regard to ethnicity, political and religious affiliations, party loyalty in particular, inter alia. The media is very silent on the supposed unconstitutional act of Governor Seyi Makinde on the swearing of the caretaker committees in different local governments and LCDAs in Oyo State.

To put the record straight, Makinde dissolved the democratically elected local government Chairmen, Vice-Chairmen, and Councillors, without alleging them for any criminal acts nor cross misconducts. Let it be known that the democratically elected local government councils were elected under the administration of Abiola Ajumobi.

The electoral victory was not declared as unconstitutional or invalid by any tribunal or court of competent jurisdiction. A similar occurrence happened in Kwara State (though, it was called suspension and was even extended for six months recently, the latter is not for legal analysis for the purpose of this opinion.

The primary duties of the Governors of different states are not limited to the security and the welfare of the people, it includes observance of the rule of law, without any the practice of selective obedience of the court orders and laws, in particular.

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The Constitution places a duty on the governor of a state to ensure that the system of Local Government continues unhindered. In other words, it is the duty of the Governor of a State to ensure the existence of Local Government Councils democratically rather than being responsible for destroying them. The Constitution itself guarantees the existence of democratically elected local government councils, this is crystal clear in section 7 of the Constitution of Federal Republic of Nigeria.

Even in the realm of common sense, it is the practice that persons elected for a fixed term of years can only be removed from office if found to be in breach of the rules governing the office or for infamous conduct. If such a person is removed from office in a manner the court finds to be wrong, he shall be entitled to all his entitlement, to wit: salaries, allowances, among others.

It is not only unconstitutional, illegal and even immoral to sack, remove or dissolve democratically elected local government councils but also against the spirit of the law to so appoint caretakers thereafter. Even the practice of dissolving a democratically elected council and appointment of caretakers had frowned at and totally condemned by the court in a number of judicial authorities.

Per AKAAHS, J.S.C on page 220, paras. C-H, IN EZE V. GOVERNOR OF ABIA STATE (2014) 14 NWLR (Pt. 1426) S.C., reads:

“The frequent dissolution of local governments and appointment of caretaker councils by State Governors in this country is not only illegal but highly undemocratic as section 7(1) of the Constitution of Federal Republic of Nigeria 1999(as amended) guarantees the existence of democratically elected local government councils. It provides:

‘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 each councils.’

If general elections are held every four years to elect the President, Governors, and members of the national and state assemblies, there is no justifiable reason, except where a state of emergency has been declared, for a state governor to dissolve a Local Government and appoint a caretaker council in its place.

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If the State government through a law passed by the State House of Assembly decides that the lifespan of the Local Government Council should be 2 or 3 years, the State Independent Electoral Commission established under section 197 of the Constitution should exercise its mandate as spelled out in Part II of the Third Schedule to organise, undertake and supervise all elections to local government councils within the State as soon as the Local Government councils are dissolved.”

This notable pronouncement of the Supreme Court depicts that it is wrong and totally illegal to remove democratically elected local government officials before the expiration of their tenure and subsequently make a caretaker appointment. This practice is worrisome! The effect of the decision of the court is that under no circumstance should any caretaker committee in any local government be so appointed, even if there are no democratically elected local government officials and the State Independent Electoral Commission fails in its duties, appointing a caretaker committee is not the remedy.

The idea of appointment of caretaker officials is very alien to our law and totally unknown to the Nigerian Electoral and Constitutional Jurisprudence. In other words, a governor’s act of dissolving Local Government Councils and replacing them with caretaker Committees amounts to the Governor acting on his whims and fancies, unknown to Nigerian laws and clearly illegal- EZE V. GOVERNOR OF ABIA STATE (SUPRA).

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The Supreme Court position was not different in the case of GOVERNOR OF EKITI STATE V. OLUBUNMO (2017) 3 NWLR (Pt. 1551) p. 1. In this case, the Supreme Court declared the provisions of Section 23B of the Local Government Administration (Amendment) Law 2001 of Ekiti State which empowered the Governor of Ekiti State to abridge the tenure of office of the respondents, as unconstitutional and therefore null and void. In the words of the Supreme Court:

“Section 4(6) of the Constitution of the Federal Republic of Nigeria, 1999, vests the legislative powers of a state of the Federation in the House of Assembly of the State. So, the Ekiti State House of Assembly has the power to make laws for Ekiti State. However, in this, case, in enacting section 23B of the Local Government Administration (Amendment) Law, 2001 of Ekiti State which empowered the first appellant (the Governor of Ekiti State)) to abridge the tenure of office of the respondents, it overreached itself. In other words, the provision of the section violates and is in conflict with section 7(1) of the Constitution of the Federal Republic of Nigeria,1999. Hence, it is bound to suffer the fate of all laws which are in conflict with the Constitution as stated in section 1(3) thereof” NIGERIAN ARMY V. YAKUBU (2013) 8 NWLR (PT. 1355) 1, AMADI V. INEC (2013) 4 NWLR (PT. 1345), 595; KALU V. ODILI (1992) 5 NWLR (PT. 240) 130, I.N.E.C. V. MUSA(2003) 3 NWLR (PT. 806) 72, A.G. FEDERATION V. A.G. LAGOS (2013) 16 NWLR (PT. 1380) 1380, A.G. ANAMBRA STATE V. A.G. FEDERATION (2007) 12 NWLR (PT. 1047)4.

In reaction to the above laws, one wonders If the office of the Attorney General of Oyo State is occupied with a person with no vast knowledge of law or Is the occupant of the office an ignorant of the existing laws and principles? Or Is Makinde so deaf not to listen to the pieces of legal advice? Or Does Makinde feel he is above the law? These questions are necessary for the just evaluation of Makinde’s administration on the ground of observance of the rule of law. By strict and appropriate application of the law, the action of Governor Seyi Makinde was wrong, unconstitutional and totally foreign to the Nigerian Law.

In a society where there are laws in practice, not on paper, we should have seen sincere people condemning this unconstitutional act and giving Makinde, being the people’s governor as he claims, a strong warning to revise his decision. Ordinarily, when a governor takes the oath of office, the governor swears to protect, not to supplant, the Constitution of the Federal Republic of Nigeria. Hence, any action of the governor which has the capacity of undermining the Constitution is tantamount to executive recklessness which would not be condoned. It is not an error to conclude that Makinde’s act amounts to executive recklessness and flagrant abuse of the law.

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I am cocksure that those negatively affected by the decision of Makinde has a remedy in law. Where there is a violation of a right, there must be a remedy. Thus, the Latin maxim- ubi jus ubi remedium, which means that where there is a right, there is the remedy. I enjoin the affected and aggrieved parties to seek relief in a court of competent jurisdiction.

Olasupo Habeebulah M., a Lagos-based legal practitioner, and the Managing Partner of Rights Chambers, he can be reached on olasupohabeebulah@gmail.com

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