Fouad Oki Writes LASIEC On Lagos LG Election: Don’t Give Room For Illegality; Read His Full Letter Exclusively Here

 

The tenure of elected 20 local government chairmen and 37 Local Council Development Areas (LCDA) in Lagos State is expected to end on July 25 2021 having been sworn into office on July 25 2017. The Lagos State Independent Electoral Commission (LASIEC) conducted the last local government election on July 22 2017 for a Four-year tenure.
The Third Schedule Part II (B), Section 4 (a) Constitution of the Federal Republic of Nigeria 1999 provides for the establishment of LASIEC with the primary duty to “organize, undertake and supervise all elections to Local Government Councils within the state.”
Section 21 of the LASIEC Law provides that the Notice of Elections shall be published not less than 90 days before the date of election in conformity with section 30(i) of the Electoral Act 2010 as amended. Going by the afore-stated, LASIEC would be expected to publish a notice of Local Government elections in the State not later than 22 April, 2021.
On 13 April 2017, the Lagos State Independent Electoral Commission (LASIEC), published a Notice of elections into the office(s) of Chairmen and Councillors in the 20 LGs and 37 LCDAs in Lagos State with a full schedule titled “Release of Election guidelines – Publication of Election Guideline” after an exhaustive stakeholder’ consultations. Unfortunately, the reality on ground is not showing any seriousness on the part of LASIEC that the Commission is ready for Local Government elections.
There are concerns that LASIEC is budging to shenanigans of the State government and its political benefactor from holding local government elections as at when due. The plan is to introduce Caretaker administrations in the local government the same way it was done between 2014 to 2017 despite a Court ruling that LASIEC should conduct election forthwith, following an earlier suit filed by the party, a Lagos State High Court had, in 2015, declared the caretaker committees administering local governments in the state as null and void and ordered that elections be conducted within 90 days.
The state government appealed the judgement ostensibly to buy time for two years before conducting elections in 2017, we should not allow this to happen. All people of conscience should rise up to challenge this impunity and brazen robbery of democratic norms.
Indeed, the integrity of the LASIEC boss is also at stake as she promised her avowed commitment by upholding the tenets and dictates of the rule of law exactly four years ago at one of the stakeholders meeting where she said that “the commission shall strictly adhere to best practices in election management and will not perform below the benchmark for excellence in electoral administration. Hence, the main reason for the commission’s painstaking thoroughness……”
She further stated that ‘’this is a new commission I am heading. I want to promise you all that my reputation is at stake. I will guard my work conscientiously not to jeopardize my reputation.”  Justice Philips promised the stakeholders that the laws guiding the elections would be strictly adhered to. Today, posterity beckon on the LASIEC boss to walk her talk, not to allow the reputations which she has built over four decades to be tarnished on plater of political exigences occasioned by deceit and undemocratic elements parading as democrats.
Why Caretaker government?
A caretaker government is a temporary ad hoc government that performs some governmental duties and functions until a regular government is elected or formed. It usually consists of randomly selected individuals. Caretaker governments in representative democracies are usually limited in their function, serving only to maintain the status quo, rather than truly govern and propose new legislation.
Unlike the government it is meant to temporarily replace, a caretaker government does not have a legitimate mandate (electoral approval) to exercise aforementioned functions. Caretaker governments may be put in place when a government in a parliamentary system is defeated in a motion of no confidence, or in the case when the house to which the government is responsible is dissolved, to be in place for an interim period until an election is held and a new government is formed. Unlike with elected government, the caretaker government’s activities are limited by custom and convention.
Can we also demand for an interim Caretaker government at the State or National levels upon the expiration of their tenure? If not, why then should we subject the local government system to such because of the whims and caprice of an individual? Haba! All well-meaning individuals should rise up and Say NO to any interim arrangement in Lagos State.
Constitutional Provision
Section 7(1) of the 1999 Constitution as amended provides 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.”
The foregoing provisions makes one conclusion necessary; that the Lagos State House of Assembly is empowered to make laws for the function of Local Government Councils in the State provided such laws do not temper with or abrogate the guaranteed existence of the democratically elected councils in the State.
Constitutional Issue
The well-established principle that the Constitution is the supreme law of the land as clearly pointed out by the said FRN 1999 Constitution as amended, in Section 7 (1), guarantees democratically-elected Local Government Councils throughout Nigeria.It therefore frowns at a situation where a State house of Assembly will amend Local Government administration law to create room for an interim arrangement as being envisage again in Lagos State.
Section 7(1) is very unambiguous and that no law enacted by any State legislature can supersede the express provisions of the Constitution. Any arrangement to amend or provide either by fiat or legislation will be a blatant breach of Section 7 and will be resisted so vehemently that, the #endsars saga will be a child’s play.
Section 7 (1) guarantees a system of local Government by democratically- elected Local Government Councils. Thus, the Lagos State Assembly is under obligation to ensure their existence, Section 1 (1) of the Constitution; Tanko v State [2009] 4 NWLR (pt 1131) 430, 452; AG, Abia State v AG, Federation [2006] 16 NWLR (pt 1005) 265, 281 – 282 are judicial pronouncement in this regard.
The system of local government by democratically elected local government council is under the Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of the Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such council.
Having thus guaranteed the system of local government by democratically elected Local Government Councils, the Constitution confers a toga of sacro- sanctity on the elections of such officials whose electoral mandates derive from the will of the people freely-exercised through the democratic Process.
Put differently, the intendment of the Constitution is to vouchsafe the inviolability of the sacred mandate which the electorate, at that level, democratically-donated to them, Eze and Ors v Governor, Abia State and Ors [2014] 14 NWLR (pt 1426) 192. In the apt and eloquent postulation of the Court of Appeal in AG, Benue State v Umar (2008) 1 NWLR (pt 1068) 311, 354 – 358,
The raison detre of Section 1 (3) of the FRN 1999 Constitution was to stem the sort of lawlessness which the State government is planning by being complicit if LASIEC does not organize elections into Local Governments as at when due. The Lagos State House of Assembly must also not be tempted to amending the Local Government Administration Law to accommodate any interim arrangements. I am not challenging the authority of the State House of Assembly to make laws.
On the contrary, my contention here is that, in exercising its law-making authority, the House of Assembly must act within the ambits and limits of the FRN 1999 Constitution. To that extent, therefore, the laws of the House of Assembly which are inconsistent with constitutional provisions are bound to be nullified as I shall approach the Court for judicial declaration on such inconsistencies.
The State House of Assembly should take cognizance of the Supreme Court position 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 pf Ekiti State)) to abridge the tenure of office of the respondents, it overreached itself.
That is, 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.
Local Government Elections like at other levels of Government should be held sacrosanct. Representatives of the people through an election cannot just be denied at the pleasure of other elected office holders. Democracy is growing or should grow in this Country and not deflated not withstanding attendant pitfalls and hiccups. Election of local government officials into their offices and their tenure are clothed with constitutional force.
They cannot, therefore, be abridged without breaching the Constitution from which they derive their force. The only permissible exception, where a State Governor could truncate the lifespan of a Local Government Council which evolved through the democratic process of elections, is “for over-riding public interest” in a period of emergency.
The penchant by some State Governors in appointing caretaker must stop if Nigeria wants to develop democratically, establishing interim arrangement for Local Government Councils is clearly undemocratic. It is only when a state of emergency has been declared that can warrant the suspension of democratic institutions in the polity. Many judicial pronouncements have been made on this, Akinpelu v AG, Oyo State [1982] 2 -FNR, 428; Akpan v Umar (2682) 7 NWLR (pt 767) 701, 732, paras G-H.
In effect, where such is the situation, as even nature itself abhors any vacuum, the Governor would be entitled to empanel a Caretaker Committee for a very short time. Anything outside that is an unwarranted affront to the Constitution, Eze and Ors v Governor, Abia State and Ors.
The State Government cannot make any excuse for not preparing for a once in four years exercise. Fortunately, the State has been able to relatively flatten the Covid 19 Pandemic curve, therefore, that cannot be an excuse. Afterall, more pandemic raven State like Kano just concluded its Local Government elections some few weeks back, even in the thick midst of the Pandemic, Plateau State conducted the election and almighty INEC conducted election in Lagos State in December 2020.
Hence, there cannot be any reason or justification for not holding election other than, the fact that an unseen hand has not given a go ahead in that direction. It will be very unfortunate if that come to pass, indeed, it will tantamount to executive lawlessness and confirm an evident suspicion that, it is the fons et origo, (that is, the provenance, from which all sub-constitutional norms derive its source and sustenance) that is actually at work.
The Governor swore to preserve, protect and defend the Constitution and not to mutilate it although the House of Assembly has power to make laws, [it] has no powers to make any law giving the Governor power to truncate a democratically elected system of Local Government Council with any interim arrangement during peace time. The primary duys of the Governor of a state is not limited to the security and welfare of the people, it includes observance of the rule of law, without any practice of selective obedience of the laws. 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.
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.
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 spelt 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 when their tenure expires.
The idea of appointment of caretaker officials is very alien to our law and totally unknown to the Nigerian Electoral and Constitutional Jurisprudence. A Governor’s act of elections to Local Government Councils with caretaker Committees amounts to the Governor acting on his whims and fancies, unknown to Nigerian laws and clearly illegal, as per EZE V. GOVERNOR OF ABIA STATE.
I urge the Honourable Attorney General of Lagos State to advise and guard the Governor, Mr. Babajide Olusola Sanwoolu on the effect of taking any action that will bring him and his government into disrepute and pitch him against the people of Lagos State who are yearning for fresh election and mandate to officials who will be entrusted with their sovereign franchise for another four years. He should also work with the LASIEC to ensure that, the latest date to announce or publish notice of elections is adhered.
The Honourable Attorney-General is invited to take another look at a letter written by the Honourable Attorney General of the Federation and Minister of Justice, Abubakar Malami, for immediate disbandment of caretaker committees and restoration of elected local government representatives across the states of the federation.
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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.
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 spelt 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 when their tenure expires.
The idea of appointment of caretaker officials is very alien to our law and totally unknown to the Nigerian Electoral and Constitutional Jurisprudence. A Governor’s act of elections to Local Government Councils with caretaker Committees amounts to the Governor acting on his whims and fancies, unknown to Nigerian laws and clearly illegal, as per EZE V. GOVERNOR OF ABIA STATE.
I urge the Honourable Attorney General of Lagos State to advise and guard the Governor, Mr. Babajide Olusola Sanwoolu on the effect of taking any action that will bring him and his government into disrepute and pitch him against the people of Lagos State who are yearning for fresh election and mandate to officials who will be entrusted with their sovereign franchise for another four years. He should also work with the LASIEC to ensure that, the latest date to announce or publish notice of elections is adhered.
The Honourable Attorney-General is invited to take another look at a letter written by the Honourable Attorney General of the Federation and Minister of Justice, Abubakar Malami, for immediate disbandment of caretaker committees and restoration of elected local government representatives across the states of the federation.
The letter dated 14 January 2020 with reference HAGF /OYO /2020 /Vol. I/I entitled; “Unconstitutionality of dissolution of elected local government councils and appointment of caretaker committee: The urgent need for compliance with extant judicial decisions,”  Permit me to state that, the Minister frowned at the common practice by state governors in sacking democratically elected local government representatives at will. According to Malami, “in view of the decision of the Supreme Court on the matter, that is binding on all 36 States of the Federation.
“The c ommon practice by some state governors in dissolving elected local government councils is unconstitutional, null and void.
“So, also any system of local government run by Caretaker Committees are out rightly illegal and unconstitutional.
“To this end, I he reby request all their Excellencies, State Governors and Speakers of State Houses of Assembly, who are currently acting in breach of the provisions of Section 7(1) of the 1999 Constitution (as amended);
“And also acting in disobedience of the Supreme Court judgment highlighted above to immediately retrace their steps by ensuring compliance with the above in the overall interest of the rule of law and our democracy.”
In the case of Oyo State, Malami requested the Commissioner for Justice to take positive steps to ensure compliance, adding that the president and other relevant agencies would advise on further compliance measures to be taken in national interest.
Lagos State has been through this route before, I do not wish to see us going through it ever again. The need to ensure democratically elected representatives to man the local governments is obligatory.
Lagos State is a pace setter in the annals of Nigeria’s history and political development. We flaunt a democratic credentials, Lagos is the barometer by which the tempo of political activities and rule of law is measured. Unfortunately, the State has glided to its ebb in the last two decades and this narrative must change. We should start to create a new and positive trajectory as Democrats.
Today and in this season, Nigerians are anxiously waiting to see whether it is true that, Lagos is under the yoke of a god father whose fancy it is to hold on the jugular of the State; they are watching to see in truth, act and convictions, if political leaders in Lagos are true democrats or as was stated sometimes ago by one of the Presidential political gladiators from Lagos that, he is the leader of all progressive democrats. Only time will, but one thing is very clear, events of the next One week will make or mar the future and indeed political stability of this State government and the prospect of its benefactor. In closing, I earnestly urge the leadership of LASIEC not to be tempted with the allure of office and bring itself to disrepute. I beseech you to stand up and uphold Oath you sworn to do right and create an environment where rule of law is sacrosanct.
Eko O ni baje O!!!!!!!!!
Ogboni Fouad Oki
17 April, 2021

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