Why I disagree with S’Court docket resolution on LG autonomy — Prof Kalu, SAN

On this interview with Vanguard’s Legislation & Human Rights, a revered member of the interior bar, consummate constitutional lawyer and former Abia State Legal professional-Basic and Commissioner of Justice, Prof Awa Kalu, SAN, highlighted some elementary points with the July 11, 2024 resolution of the Supreme Court docket which granted monetary autonomy to 774 native authorities councils within the nation.

The Supreme Court docket judgement on native authorities autonomy was roundly praised by stakeholders when it was delivered on July 11, 2024. However virtually three months after its supply, it does seem that the judgement stays a paper tiger. How do you react to this?

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Sure, I’m conscious many individuals who didn’t perceive the constitutional foundation of the judgement praised it. They did so based mostly on their understanding of the judgement and the structure. They’ll reward it in the event that they wish to. You stated the judgement seems to be a paper tiger. Sure, it needs to be, as far as the judgement pretends to overrule what the 1999 Structure of the Federal Republic of Nigeria expressly offered for. It’ll stay a paper tiger if it has turn out to be so already.

What I don’t agree with within the judgement is the try and bifurcate the totality of the intent of the framers of the structure in Part 162 of the 1999 Structure. It’s because what the Supreme Court docket has accomplished in its judgement in that case is to demote the phrase “Shall” within the subsections of the structure that confer with the state however has maintained “Shall” within the subsections that pertain to the Federal Authorities.

For emphasis, Part 162 (1) offers that the Federation shall preserve a particular account to be known as “the Federation Account” into which shall be paid all revenues collected by the Authorities of the Federation, besides the proceeds from the non-public earnings tax of the personnel of the Armed Forces of the Federation, the Nigeria Police Power, the Ministry or Division of Authorities charged with the duty for international affairs and the residents of the Federal Capital Territory, Abuja.

Part 162 (3) offers that any quantity standing to the credit score of the Federation Account shall be distributed among the many Federal and State Governments and the Native Authorities Councils in every state on such phrases and in such method as could also be prescribed by the Nationwide Meeting.

Part 162 (4) says any quantity standing to the credit score of the states within the Federation account shall be distributed among the many states on such phrases and in such method as could also be prescribed by the Nationwide Meeting whereas part 162 (5) says “the quantity standing to the credit score of native authorities councils within the Federation Account shall even be allotted to the States for the advantage of their native authorities councils on such phrases and in such method as could also be prescribed by the Nationwide Meeting.

Part 162 (6) goes to say “every state shall preserve a particular account to be known as State Joint Native Authorities into which shall be paid all allocations to the native authorities councils of the state from the Federation Account and from the Authorities of the State.

Now, the Supreme Court docket, within the judgement, has maintained shall as ordinarily understood within the sections that concern the Federal Authorities however has not accomplished the identical for subsections that apply to the state.

What do you assume the Supreme Court docket ought to have accomplished?

The Supreme Court docket ought to have interpreted part 162 persistently. That’s to say, it ought to have interpreted “Shall” close to subsections that have an effect on the state governments the identical method it interpreted “Shall” for the subsections that pertain to the Federal Authorities.

Put in another way, Part 162 considerations appropriation of revenues to the Federal Authorities in addition to the state governments. Within the try and separate the federal authorities from the states, the judgement makes an attempt to separate the federal authorities as a separate authorities after which have a look at the state governments in another way by way of using the phrase “Shall”. The phrase “Shall” is necessary. So, the “Shall” that considerations the subsections that take care of the Federal Authorities has been separated from the “Shall” that applies to the subsections that relate to the states.

Whereas, the Supreme Court docket itself has stated that in deciphering any part of the structure that accommodates subsections, the subsections should be interpreted uniformly. So, for those who have a look at part 162, it has subsections. A few of them (subsections) regarding the revenues belonging to Federal Authorities with among the subsections notably from subsection 5 regarding revenues belonging to the states. And the Supreme Court docket interpreted the sections that apply to the Federal Authorities as Shall and goes on to say you should use “Shall” instead of “Could” or you possibly can interpret “Shall” as you interpret “Could” within the subsections that apply to the states. So, they created that dichotomy. And that’s the place my disagreement arises.

In clear phrases, and however the world of the disagreement you identified, how can that judgement be made efficient?

I personally don’t assist the judgement. I don’t know the way it will turn out to be efficient. What you see now could be scampering amongst the states to carry elections. In the meantime, I don’t know any state you possibly can say has the finances for native council elections this 12 months. I don’t know any. What you might be creating is a rare budgeting state of affairs for these states who do not need a finances for native authorities elections this 12 months.

Two, that judgement has a long-term impact of making unitarism. So, if duty has been assigned to the states and also you switch the duty to the Federal Authorities, there’s severe hazard forward.

There are even present authorities from the Supreme Court docket judgement that the Federal Authorities can’t impose any obligation on the state until the structure by itself has created that obligation.

Senior legal professionals had, many at instances, previously, talked about judicial laws. Don’t you assume what the Supreme Court docket did within the case in query quantities to judicial laws to unravel an issue?

Judicial laws is abhorred. In legislation, judicial laws isn’t admissible. That’s what the legislation says. What the judiciary is for is to interpret the legislation to not make it.

However the Supreme Court docket is a coverage courtroom with powers to make coverage choices?

You create coverage out of the legislation. The position of the Supreme Court docket in coverage making is to take a look at the legislation after which create coverage to interpret the legislation; to not ignore the legislation after which make coverage. That’s my very own view about coverage making. It’s important to have a look at the framework of the legislation and you then create coverage.

However on this explicit case, there was an issue. The difficulty has been that the state governors have been cornering the allocations of native councils below them?

That could be a separate consideration. If the legislation says “X”, you possibly can’t then import “Y” so that you can make clear what “X” means. The query is: does the structure envisage that in coping with the native authorities, you possibly can bypass the state? There’s a Supreme Court docket resolution saying clearly that the duty for the administration of the state lies with the state authorities. It’s a resolution of the Supreme Court docket. And so, when you find yourself now taking a look at Part 162, you can’t soar over part 7 of the 1999 structure.

Part 7, for those who learn it by your self, doesn’t require any judicial interpretation. The part clearly assigns to the state the powers to control the native authorities councils. Primary, it’s the state authorities that creates the enabling legislation for the administration and regulation of native authorities. You can not soar over part 7. I’ve learn the judgement. I’m not speculating.

So, the place has the Supreme Court docket goofed?

I didn’t say they’ve goofed. What I’m saying is that I don’t affiliate with that judgement. They’ve given their causes for the judgement. And I’ve merely, as a lawyer, disagreed with their judgement.

Chief Samuel Okutepa, SAN, a firebrand advocate, in an opinion printed on-line, stated the judiciary seems to have successfully blocked entry to electoral justice in Nigeria by the sort of judgments it provides most often in electoral jurisprudence. Do you agree with him?

I’ve not seen the opinion with my koro-koro eyes. I don’t know whether or not it was printed or not.. And I don’t know whether or not there’s a reference to any explicit judgement within the stated opinion or whether or not there’s a reference to any explicit courtroom. Sure, electoral processes, judgments, have in some methods been confused. However I don’t know whether or not to place the blame on the judiciary or on the a part of any explicit case he has referred to. Okutepa is an excellent younger man. He’s my buddy. I can’t oppose his view with out seeing the opinion with my eyes.

From your individual private expertise, with the sort of judgments that had been given previously on some electoral issues, would you say that the judiciary has truly blocked entry to electoral justice?

I’m not going to place it that method. It’s because legal professionals differ within the language they use in conveying their opinions. One, if there’s a reference to a specific judgement, I want to see that judgement and interpret it within the mild of the info that led to the legislation. It’s the info that generate the legislation. So, I’m not going to present a blanket interpretation on all instances which were determined by the judiciary. They’re within the hundreds now. So, if there’s a concrete reference to a specific case, I’ll prefer to isolate the case and provides my opinion about it. , you requested me a query a few explicit case earlier. And I’ve stated that as a lawyer that has been in existence previously 46 years, I don’t consider in that individual judgment. However I’m not going to generalize that.