The issue of the proposed Community Governing Council in Imo State has become one of the most controversial policies by the Owelle Rochas Okorocha-Led Government in Imo State. From the little I have gathered, it is expected to be like the conventional government whereby there will be in every autonomous community in the state, a lawmaking or advisory body manned by the Traditional Ruler who shall work with community-elected Woman Leader, Youth Leader and President General.
The day-to-day affairs and implementation of government directives and programmes are to be done by civil/public servants who shall be deployed to the various communities from state civil service and local government service. The bill for the said council was recently passed into law by the Imo House of Assembly.
Be that as it may, the policy is indeed a new one in the State and has therefore elicited various arguments, mix-feelings, conceptions, misconceptions and the like. Some people are in support of the policies with various reasons while another group is kicking against it also with other reasons. Civil/public servants in the state have also reacted in their own way while another group is saying that the policy is unconstitutional.
I am not going to discuss the merits or demerits of the policy. Rather, I am to consider the legality or otherwise of it.
It is quite trite that the constitution of the Federal Republic of Nigeria expressly provides for Federal, State and Local Governments. These levels of governments have their distinct executive and legislative arms while the judiciary remains the arbiter for all the levels. In law-making, the National Assembly (made up of the Senate and the House of Representatives) make laws for the Federal Government while the State Houses of Assembly and Local Government Legislative Councils make laws for the states and local governments respectively. Incidentally, Section 4 (7) of the country’s constitution provides that ‘The House of Assembly of a State shall have powers to make laws for the peace, order and good governance of the State or any part thereof…’. Also Section 7 (1) of the same Constitution empowers the Government of every State to make laws which provides for the establishment, structure, composition, finance and functions of local government councils.
Now coming to the issue of the proposed Community Governing Council popularly called ‘Fourth Tier Government’. My concern with the policy is not the nomenclature by which the policy is called. Moreover, there is no where in the constitution the word tier was used to refer to levels of government in the country. Rather, my concern is to look at the proposed functions and activities of the system viz-a-viz constitutionality for I believe that ‘a hood does not make a monk’.
According to what the Imo State Government has told us; the new councils will be manned by Traditional Rules, Woman Leaders, Youth Leaders and Presidents-General who will play advisory roles to the system while the actual implementation of government programmes, disbursement of monetary allocations and execution of government activities will be done by civil servants drawn from both the state and local governments.
First and foremost let us look at whether the Imo House of Assembly has the right to make law for the creation of the new councils. I very much appreciate that any law made by a State Legislature that runs contrary to either the constitution of a federal law is inconsistent and to the extent of such inconsistency, the law remains null and void.
However, the Imo State Government has told us that the new community councils will oversee the execution of government projects in the various autonomous communities in the state. Be that as it may, What is the essence of governance? The essence of government is to bring happiness to the citizenry and to do things that will develop the society. Government projects bring development to a place and if well implemented can be said to be a product of order and good governance as provided in Section 4 (7) as above cited. Interestingly, it is this same section of the law as above cited that empowers the State Houses of Assembly to make laws creating autonomous communities, development areas, regulation of town unions etc. ‘
Today, Lagos Stateconducts elections in all its Local Government Development Areas. These areas have elected chairmen, vice-chairmen and ward councilors. The state also gives these Development Areas state fund to pay salaries and build projects for the development of their areas. They also have powers to generate their own revenues accordingly. The Supreme Court in the case over the withholding of Federal Allocations of Lagos State during the Obasanjo Regime recognized these development areas as properly created only to the extent that they were not entitled to Federal Allocation as they are not listed in the Schedule of the country’s constitutions as local government areas.
Imo State also had such Development areas created during Udenwa Regime. However, the argument for its proscription was that it was not giving the desired development to the communities in the state. Therefore if Imo State Government is sincere with the said roles these new councils are to perform, I do not see the policy being contrary to any provision of the constitution or other laws in the country.
In a similar development, there is also no law that prohibits the Imo State Government from redeploying its civil servants to work for the state government in any community in the state. This I think, is in line with the Doctrine of Secondment as provided in the Imo State Civil/Public Service Rules.
Another issue I want to look at is the involvement of the local governments in the process. Ordinarily, some of the projects we are told the state governments want to do in the communities are what the local governments are expected to do as the government that is nearest to the people. Nevertheless, Section 7 (1) of the Constitution empowers the Government of every State to make laws which provides for the establishment, structure, composition, finance and functions of local government councils. Subsection 3 of the same section also provides that it shall be the duty of a local government council within the state to participate in economic planning and development of communities.
It is the above section that gives the State Houses of Assembly control over local governments. I quite agree that many State Governments abuse this section but until the section is amended, it still remains the law in force for the time being in the country. Now looking at the above cited section of the constitution, the State House of Assembly has the right to make laws involving the local governments (including the redeployment of its staff) in the proposed Community Council Government in Imo State.
In synopsis, if the House of Assembly makes law authorizing the existence and operation of the said Community Council Government, it is a state law and can be implemented by the executive as the arm that executes law at the state level. But for me anything done without the law first being in force is a nullity and illegal.