Posted by By Ise-Oluwa Ige on
Abuja — By a split judgment of five to two, the Supreme Court, yesterday declared as illegal and unconstitutional.....
Abuja — By a split judgement of five to two, the Supreme Court, yesterday declared as illegal and unconstitutional, a legislation by the National Assembly empowering the Federal Government to police the 36 state governors in Nigeria on the allocation of statutory funds for the running of their local councils.
The said legislation which suffered a major legal blow yesterday was tagged "The Monitoring of Revenue Allocation to Local Government Act 2005." It contained ten major sections.
According to the apex court, its verdict could not be otherwise, however good-intentioned it could be because its provisions were alien to the provisions of the 1999 constitution.
Late Justice Chukwudi Pats-Acholonu was among the five justices that voided virtually all the vital organs (sections) of the enactment yesterday.
Late Justice Pats. Acholonu’s judgement was read Justice Legbo Kutigi.
But the Supreme Court, yesterday refused to strike down an aspect of the legislation which limits the powers of borrowing by the state governments.
In a leading, majority judgment, spiced with imageries, delivered by Justice Niki Tobi yesterday, the Supreme Court voided five major aspects of the legislation which empowered the Federal Government to monitor the disbursement of local council funds by the state government.
The sections struck down yesterday include sections 1, 2, 3, 7 and 9 of the Act.
Section one of the legislation provides for the establishment and membership of the Joint Local Government Account Allocation Committee for each state; section two provides for the function of the committee while section three provides for the rendering of monthly returns by the committee to the Federation Account Allocation Committee.
Section 6 however, provides for the limitation of power of borrowing by state governments but was not struck down; section 7 (3) contains penalty for contravention or breach of the provisions of section 7 (1) while section 9 enjoins the Auditor General of the Federation to report to the National Assembly at the end of each financial year how the monies allocated to each state for the benefit of the local government councils within the state and the area councils in the Federal Capital Territory were spent.
While striking down each of the vital sections of the legislation yesterday, the Supreme Court said that though it appreciated the fact that there were many thieves in the system and that the controversial legislation (now voided) was probably enacted to check corruption and brazen looting of public funds by officers of state governments holding in trust the funds of their local council, it however said that any effort to plug such leakages must be done within the dictates of the constitution.
Tobi’s exact words: "I know as a matter of fact that the Act is yet another effort to push corruption out of the Nigerian polity. It is a genuine effort to wipe out corruption at the grassroot.
"It is a notorious fact that there are leakages here and there in local government funds, leakages that are caused by human beings that either operate the system or supervise the operation of the system.
"There are many thieves in the system and any effort to plug the leakages within the dictates of the constitution must be supported by any well- meaning institution, including the judiciary.
"This court has never condoned corruption and will never condone corruption.
"In Attorney-General of Ondo State V Attorney-General of the Federation, this court condemned corruption in all its facets and ramifications.
"But that is not to say that the court will be blind to a situation where an Act which is out to check corruption is enacted in contravention of the constitution.
"In such a situation, this court will stoutly rise to condemn such an act, even though an Act on corruption is designed to promote the highest good and economic well being of the society," he added.
But the court quickly added yesterday that the mere fact that the vital organs of the legislation had been struck down should not be mistaken by state government officials as a licence to loot.
According to Justice Tobi, "I should say finally that any person who is at the corridors of local government finances or funds or in some proximity with such finances or funds or sleeping with them and sees this judgment as a victory in the sense that he has freedom of the air to steal from the finances or funds should think twice and quickly remind himself that the two anti-corruption bodies, the ICPC and the EFCC are watching him very closely and will without notice, pounce on him for incarceration after due process.
"But that is not as serious as God’s law which says he will go to hell and he will certainly make hell. This is not a curse. God’s law does not lie because God is not a liar," he added.
Three states of the Federation including Abia, Lagos and Delta had dragged the Federal Government and 36 states of the Federation before the Supreme Court on the constitutionality of an enactment by the National Assembly aimed at policing the state governments on the disbursement of statutory funds meant for their local councils.
The controversial enactment tagged ‘Monitoring of Revenue Allocation to Local Governments Act 2005’ was made following complaints that some state governors were in the habit of short-changing local governments in their domains in the sharing of their statutory allocations.
The legislation requires each state government to include a commissioner of Revenue Mobilisation Allocation and Fiscal Commission as a member of the State Joint Local Government Allocation Committee to monitor the sharing of the funds.
It also requires each state government to render monthly returns in respect of the statutory allocation to the Federation Account Allocation Committee.
Dissatisfied with the provisions of the legislation, Abia state government ran to the Supreme Court with a constitutional suit, urging the apex court to interpret the intendment of section 162 of the 1999 constitution with a view to pronouncing on the legality of the controversial National Assembly Act.
The suit which was lodged at the registry of the Supreme Court by Abia State Government was contending specifically that if there should be any legislation on the monitoring of the allocation, it said it ought to have been enacted by the state houses of assembly and not the National Assembly.
Abia consequently contended that the controversial legislation by the National Assembly was unconstitutional and illegal, urging the apex court to strike it down accordingly.
Its exact words: "the legislation is accordingly null and void and inoperative."
The said section 162 (1) (5) (6) (7) and (8) of the 1999 constitution relied upon by Abia to make its prayers provide:
"(1) The Federation shall maintain a special account to be called the ‘Federation Account’ into which shall be paid all the revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the Ministry or department of government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja
(5) The amount standing to the credit of local government councils in the Federation Account shall also be allocated to the states for the benefit of their local governments councils on such terms and in such manners as may be prescribed by the National Assembly.
(6) each state shall maintain a special account to be called State Joint Local Government Councils of the State from the Federation Account and from the Government of the State
(7) each state shall pay to local government councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manners as may be prescribed by the National Assembly
(8) The amount standing to the credit of local government councils of a state shall be distributed among the local government councils of that state on such terms and in such manners as may be prescribed by the House of Assembly of the state.
When the matter was fixed for hearing, two other states of the Federation including Lagos and Delta came to file similar suit at the Supreme court.
All the suits were consolidated during hearing on the case.
The Supreme Court, after taking submissions in the matter, struck down five vital sections of the legislation.
Although the entire Act of the National Assembly was not voided, it seemed the majority decision of the Supreme Court did a deadly blow on it because all its vital organs were extinguished.
Justice Niki Tobi who was among the five justices on the panel that delivered the majority decision read the leading judgment while two justices including Justice Dahiru Musdapher and Justice Idris Legbo Kutigi read the dissenting judgment on the matter yesterday.