Alteration Of The Constitutionally Recognised Local Government Structure In Lagos State
Jul 17, 2009
Alhaji Umaru Musa Yar'Ardua, GCFR
Aso Rock Villa
RE: THE ALTERATION OF THE CONSTITUTIONALLY RECOGNISED LOCAL GOVERNMENT STRUCTURE IN LAGOS STATE BY THE STATE GOVERNMENT AND ITS IMPLICATIONS FOR CONSTITUTIONALISM AND NATIONAL UNITY
Your letter of 14th July 2009 refers.
Mr. President, after declaring a public amnesty with regards to the Niger Delta crisis, which was intended to bring peace to the country and calm frayed nerves in order to set a platform for meaningful development, the receipt of your letter signed barely twenty four (24) hours after an unprovoked attack on Lagos on the 13th July 2009, in which officers and men of the Nigerian Military lost their lives came as a shock to me.
As Commander-in-Chief, your silence in spite of this attack, and the timing of this letter heightens my concerns and causes me very deep apprehension about the motives behind the advice on which Your Excellency has acted in this matter and the intent of the entire letter at a time when all levels of Government must be working towards promoting peace and stability.
In specific response to the issues raised in your letter under reference, it is perhaps proper to start with a reminder that the decision of the Lagos State Government to conduct elections on 11th October 2008 into 20 Local Government Councils and 37 Local Council Development Areas was based on Laws validly enacted by the Lagos State House of Assembly pursuant to its legislative competence under the Constitution. The Laws under which the Local Council Development Areas were created and under which the elections were conducted are as follows.
(i) The Creation of Local Government Areas Law No. 5 2002;
(ii) The Creation of New Local Government Areas (Amendments) Law No. 15 of 2004;
(iii) The Creation of New Local Government Areas (Amendment) (No. 2) Law of 2005; and
(iv) The Lagos State Independent Electoral Commission Law 2008.
The decision of the Supreme Court noted in Your Excellency's letter in the case of Attorney General of Lagos State v. Attorney General of the Federation  2 WRN 1 affirms the validity of two of the laws mentioned above namely, the Creation of Local Government Areas Law No. 5 2002 and the Creation of New Local Government Areas (Amendment) Law 2004.
In the judgment delivered by Uwais CJN, as he then was, the Supreme Court held that:
“having read all the provisions of the Constitution aforementioned I am satisfied that the House of Assembly of Lagos State has the right to pass the creation of Local Government Areas (Amendment) Law 2004” See AG Lagos v. AG Federation & Ors.
His Lordship further noted that:
“... the Laws are valid but inchoate until the necessary steps as provided by the Constitution are taken by the National Assembly”
This position is also supported by the judgment of Iguh JSC when his Lordship held that:
“I have therefore no difficulty in coming to the conclusion that the Lagos State Government's Law No. 5 of 2002 is unquestionably constitutional and having complied with the provision of sections 7(1) and 8(3) of the Constitution.” see AG Lagos v. AG Federation & Ors.
Consequently there is no conflict between the Laws under which the new Local Council Development Areas were created and the Constitution of the Federal Republic of Nigeria.
I therefore cannot agree with the advice that you have been given that the decision of the High Court in Chief Taiwo Joseph Tovi-Hungevu v. Abraham O. Ogabi Ors in anyway suggests that the Creation of Local Government Areas Law No. 5 2002 and the Creation of New Local Government Areas (Amendment) Law 2004 are null or void in effect.
It follows that the renamed Local Council Development Areas cannot be referred to as illegal administrative bodies having been validly created under Laws enacted by the Lagos State House of Assembly which the Supreme Court has pronounced as validly made Laws.
Indeed the Supreme Court NEVER declared them illegal.
It is curious and worrying that Your Excellency has elected to act on advice suggesting that a lower court can pronounce as illegal what the Supreme Court has declared to be valid. This is a grave threat to the long established hierarchy of our Courts and our judicial system, and is not the rule of Law.
As the head of a State Government that is committed to the highest standards of Constitutionalism and legality, I regret that I am unable to accede to your request to alter the current status quo by stopping the operation of the 37 Local Council Development Areas.
It would require me as head of the Executive arm of the State Government to alter the provisions of an existing and valid law mode by the Lagos State House of Assembly.
Your Excellency, I must reiterate that the Lagos State Government, pursuant to Section 8 of the Constitution had forwarded returns of the necessary processes relating to the creation of the new Local Government Councils to the National Assembly to enable it make consequential amendments to the first schedule of the Constitution.
While we await the National Assembly's discharge of its responsibility, the doctrine of separation of powers requires that each arm of government should be allowed to operate without interference from any other arm of government.
It will be pre-emptive for the Executive arm of Government to take any position that would prejudice the exercise of the power of the Legislature to discharge its responsibility, when there is no competent challenge to the validity of the Laws passed by the Lagos State House of Assembly that can in any way affect the administrative entities created there under.
Respectfully and contrary to Your Excellency's assertions, I must caution that any steps taken outside the due process of the law by the Nations' Executive against a sub-national government such as Lagos State in this matter will pose a grave threat to constitutionalism, our democracy and good governance, because it will amount to a usurpation of constitutionally guaranteed State autonomy and a violation of the Constitution.
An unavoidable fact is that the legal advice you have received seems to be rooted in disparate (I believe patently wrong) interpretation of the decision of the Supreme Court referred to above. While the actions of the Lagos State Government have been dictated by our belief that the decision supports the actions that we have taken, the Federal Government apparently has a contrary view.
As Your Excellency is aware, the interpretation of Laws is the constitutional preserve of the Judiciary. Where parties are in genuine controversy as to the legality of an action. the rightful course is to approach the Judiciary to seek authoritative pronouncement on the legality of disputed actions.
Permit me to draw your attention to the advice of the Supreme Court in Attorney General of Lagos State v. Attorney General of the Federation as follows:
“If the Federal Government felt aggrieved by Lagos State creating more local governments, the best solution is to seek redress in a court of law, without resorting to self help. In a society where the rule of law prevails, self help is not available to the executive or any arm of government”
I respectfully urge your Excellency to reappraise the advice given on this matter.
In a constitutional democracy the Federal Government does not enjoy the prerogative of compelling a state entity to conform with its will however well conceived - except where that will conforms with the law.
The Federal and State Governments are autonomous entities within the sphere of authority and competence vested in each Government under the Constitution. In Attorney General of Lagos State v. Attorney General of the Federation & 35 Ors  35 WRN 1 Uwaifo JSC stated as follows:
“But I do not need to repeat that Nigeria operates a federal system of government. Section 2(2) of the 1999 Constitution re-enacts the doctrine of federalism. This ensures the autonomy of each government. None of the governments is subordinate to each other. This is particularly of relevance between the State Governments and the Federal Government, each being, as said by Nwabueze in his book, The Presidential Constitution of Nigeria, page 39-42, an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs within the Constitution, free from direction by another government”.
Should your Excellency take further and alternative legal advice as I respectfully urge that you now do; you will find that where any party, particularly the Federal Government, is of the opinion that the Lagos State Government has acted contrary to the decision of the Supreme Court, it should follow the procedure for the enforcement of that judgment as stipulated by the rules of court and certainly not to employing the use of Federal "...organs of state to...preserve me authority of the Federal Government" as stated in your letter. This is the practice that will be consistent with the Rule of Law.
Finally, Your Excellency, at this time when our economy is challenged and our people are expectant and looking up to us for leadership and direction, our Country can do without a political or constitutional crises over a matter which constitutionally and demonstrably constitutes no threat to our Nation.
To persist, as Your Excellency threatens in your letter will suggest that this is a deliberate political crisis and not one of necessity.
However let me continue to assure you of my unwavering commitment to constitutionalism and the due process of the Law; you will find that my office and the Government of Lagos state will remain willing partners in development and amicable resolution of disputes when called upon.
Your Excellency, please accept my best wishes and sincere compliments.
Babatunde Raji Fashola, SAN
Governor of Lagos State