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THE POWER ABOUNDS THE PRESIDENCY TO REMEDY EXCESSES OF STATE GOVERNORS OVER LGC WITHOUT NEED TO AMEND THE CONSTITUTION, 1999 OR QUEST BY THE ATTORNEY-GENERAL OF THE FEDERATION FOR THE SUPREME COURT TO INTERVENE

The Presidency needs only to modify the Financial Memoranda for Local Government as an Existing Law of the Federation in its custody, and also the Allocation of Revenue (Federation Account, etc.) Act in force, then make the Code of Conduct Bureau and Code of Conduct Tribunal as Federal Executive Bodies domicile in the Presidency to be adequately vibrant to exploit the constitutional powers abound them to checkmate and punish any public officer including a serving State Governor who breaches the Constitution, 1999, and not to wait until he leaves office in the public service, thusly, notwithstanding the immunity clause.

2. Lest we forget, as of on the 29th day of May, 1999 when the Constitution comes into force, the establishment, finances and functions of the existing 768 Local Government Councils have been entrenched under Section 3 (6), 7 (6) (a) (b) 162 (2) (3) (5) (6) (7) (8), 162 and 164 (1) of the Constitution, 1999 (as amended) and the Fourth Schedule to the Constitution, 1999 and accordingly, their, structure, composition, procedural of exercising the executive and legislative powers, financial duties and responsibilities are provided under Chapter 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 15, 21, 22 and 36 of the Financial Memoranda for Local Government as an existing law of the Federation in the custody of the Presidency and binds all the States of the Federation with such modification as may be deemed necessary by the Presidency as the appropriate authority who holds the power and possession of it on the account of Section 315 of the Constitution, 1999.

3. Thus, the Local Governments are constitutionally meant to freely operate, collect their internally generated revenue (IGR) by themselves, and carry out such functions with autonomy as the third tier of Government, not as agencies or departments domicile in the office of a State Governor. The Presidency provides Memorandum 1.3, 1.4, 1.9, 1.11 (2) and preambles of Chapter 6, 12 and 36 of the Financial Memoranda for Local Government as the enabling Law from which the State Governments derive power to make Local Government Administration Laws, which is a leverage by the President, not a right of the State Governments, but which the Governors have grossly abused.
4. By Section 162 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the State Government is to only maintain a special account to be called ‘‘State Joint Local Government Account’’ into which shall be paid such allocations to the Local Government Councils of the State from the Federation Account and from the Government of the State, and for the benefit of the Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly, not a State House of Assembly or State Government, as follows:-

162 (3) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly.
Any amount standing to the credit of local governments in the Federation Account shall be allocated directly to the States for the benefit of their local government councils on such terms and in such manner as may be prescribed by the National Assembly.

Each State shall maintain a special account to be called ‘‘State Joint Local Government Account’’ into which shall be paid such allocations to the local government councils of the State from the Federation Account and from the Government of the State.

Each State shall pay to the local governments in its area of jurisdiction such proportion of its revenue on such terms and in such manner as may be prescribed by the National Assembly.

The amount standing to the credit of the local governments councils of a State shall be distributed among the local government councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.

For the purposes of subsection (1) of this section ‘‘revenue’’ means any income or return accruing to or derived by the Government of the Federation from any source and includes-
any receipt, however described, arising from the operation of any law ;
any return, however described, arising from or in respect of any property held by the Government of the Federation ;
any return by way of interest on loans, and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body.

5. Section 162 of the Constitution, 1999 above provide the operation of the “State Joint Account” shall be on such terms and in such manner as may be prescribed by the National Assembly and accordingly, the provision of Section 3 and 4 (1) (2) of the Allocation of Revenue (Federation Account, etc.) Act by the National Assembly pursuant to Section 162 of the Constitution, 1999 is too scanty and therefore needs to be invigorated with more of such terms and such manner by the National Assembly with a view to addressing the excesses of the State Governments:-

“3. Subject to the provisions of this Act, the amount standing to the credit of Local Government Councils in the Federation Account shall be distributed among the States of the Federation for the benefit of their Local Government Councils using the same factors specified in this Act.

4 (1) In addition to the allocation made from the Federation Account under section 1 of this Act to Local Government Councils, there shall be paid by each State in the Federation to the State Joint Local Government Account (as specified in subsection (5) of section 162 of the Constitution of the Federal Republic of Nigeria) in each quarter of the financial year, a sum representing 10 per cent of the internally-generated revenue for that quarter of the State concerned.

(2) The 10 per cent of each State’s internally-generated revenue payable to the Local Government Councils in the State, under provisions of subsection (1) of this section, shall be distributed among the Local Governments in that State on such terms and in such manner as the State House of Assembly may prescribed.”

6. In view of the above, it is verifiable that neither the Constitution, 1999 (as amended), any National Assembly Act, nor the Financial Memoranda for Local Government conferred power for a State Government to withhold, deduct, manage, expend, control, dabble into, or utilize the allocation or any finance due to the existing 768 Local Government Councils of the Federation.

7. For the avoidance of doubt, and further clarification, take the second stanza of the provision of Section 7 (1) of the Constitution, 1999 as underlined hereunder, which is not self-fulfilling, but subject to Section 8 of the Constitution, and only confers a State Government with limited power, as follows – “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.”

8. Such power by which the Government of every State shall ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils is upon a situation where Local Government Councils happen to be newly created either due to creation of new State or boundary adjustment respectively as the properties of Section 8 of the Constitution entail, and making it condition precedent to be fulfilled to enable the provisions of Section 7 (1) to be rightly activated.

9. Thus, Section 7 (1) of the Constitution, 1999 is not inviting the Government of every State to make Law which provides for the establishment, structure, composition, finance and functions of the existing 768 Local Government Councils established under Section 3 (6) of the Constitution, 1999 whose functions have already been outlined in the Forth Schedule to the Constitution and their structure, composition, procedural of exercising the executive and legislative powers, financial duties and responsibilities clearly entrenched in the Financial Memorandum for Local Government, and the field already covered by the superior Laws to a State Government Law.

10. Lack of proper utilization of the constitutionally enshrined mechanisms and instruments by the Presidency makes some of the State Governors and other public officers of the State and Local Government to freely breach the provisions of the Constitution, 1999 and applicable laws in force, thereby hindering the Local Government Councils from enjoying their existing autonomy as the third tier of Government. Thus:-

The Constitution, 1999 (as amended) readily defined a “misconduct” by a public officer of any cadre and level of either the Federal, State or Local Governments as – “breach of the Oath of Allegiance or Oath of Office of a member or breach of the provisions of this Constitution or a misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities.”

12. Section 209 of the Constitution, 1999 provides that – “A person in the public service of a State shall observe and conform to the Code of Conduct.”

13. Paragraph 3 (d) (e) (g) of Third Schedule to the Constitution, 1999 confers the Code of Conduct Bureau domicile in the Presidency power, as follows: –
“3. The Bureau shall have power to –
(d) ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct or any law relating thereto;
(e) receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal;
(g) carry out such other functions as may be conferred upon it by the National Assembly.
14. Paragraph 12, 13, 18 (1) (2) (a) (b) (c) (3) (4) (5) (6) (7) & 19 of the Fifth Schedule to the Constitution, 1999 confer the Code of Conduct Bureau and Code of Conduct Tribunal power not to spear even a State Governor among all other State and Local Governments Public Officer responsible to ensuring the operation of the provisions of the Constitution, 1999 and all Laws made thereunder, as follows:-

“12. Any allegation that a public officer has committed a breach of or has not complied with the provisions of this Code shall be made to the Code of Conduct Bureau.

A public officer who does any act prohibited by this Code through a nominee, trustee, or other agent shall be deemed ipso facto to have committed a breach of this Code.”

18 (1) Where the Code of Conduct Tribunal finds a public officer guilty of contravention of any of the provisions of this Code it shall impose upon that officer any of the punishments specified under sub-paragraph (2) of this paragraph and such other punishment as may be prescribed by the National Assembly.

(2) The punishment which the Code of Conduct Tribunal may impose shall include any of the following –
vacation of office or seat in any legislative house, as the case may be ;
disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years: and
seizure and forfeiture to the State of any property acquired in abuse or corruption of office.
The sanctions mentioned in sub-paragraph (2) hereof shall be without prejudice to the penalties that may be imposed by any law where the conduct is also a criminal offence.
Nothing in this paragraph shall prejudice the prosecution of a public officer punished under this paragraph or preclude such officer from being prosecuted or punished for an offence in a court of law.
The provisions of this Constitution relating to prerogative of mercy shall not apply to any punishment imposed in accordance with the provisions of this paragraph.

19. In this Code, unless the context otherwise requires –

“misconduct” means breach of the Oath of Allegiance or Oath of Office of a member or breach of the provisions of this Constitution or a misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities.”

PUBLIC OFFICERS FOR THE PURPOSES OF THE CODE OF CONDUCT:
1. The President of the Federation.
The Vice-President of the Federation.
The President and Deputy President of the Senate, Speaker and Deputy Speaker of the House of Representatives and Speakers and Deputy Speakers of Houses of Assembly of States, and all members and staff of legislative houses.
Governors and Deputy Governors of States.
Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the Court of Appeal, all other judicial officers and all staff of courts of law.
Attorney-General of the Federation and Attorney-General of each State.
Ministers of the Government of the Federation and Commissioners of the Governments of the States.
Secretary to the Government of the Federation, Head of the Civil Service, Permanent Secretaries, Directors-General and all other persons in the civil service of the Federation or of the State.
Chairman, members and staff of local government councils.
Chairman and members of the Boards or other governing bodies and staff of statutory corporations and of companies in which the Federal or State Government has controlling interest.
All staff of universities, colleges and institutions owned and financed by the Federal or State Governments or local government councils.
Chairman, members and staff of permanent commissions or councils appointed on full time basis.

15. Meanwhile, having the Supreme Court earlier determined and held in various and subsisting decisions to the effect that it is a breach to the Constitution, 1999 for a State Governor to dissolve a democratically elected Local Government Council or to impose a caretaker committee or sole administrator to manage the affairs of such Local Government Council Nigeria, it is upon the Code of Conduct Bureau to brandish such Judgment/Order of the apex Court against any future State Governor who go the same way of breach of the Constitution, and to refer the matter to the Code of Conduct Tribunal to invoke any of the appropriate punishments cited above; need not to say that a refusal by such a State Governor to enforce the subsisting decision of the Supreme Court is also a clear breach on Section 287 (1) of the Constitution, 1999, which ought not to be condoned by the Code of Conduct Bureau and Code of Conduct Tribunal.

“287 (1) The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Supreme Court.”

Dated the 01st day of June, 2024
Yahaya Ibrahim Shinko FICEN