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A native arbitration is therefore not a court of law and its award has no such recognition but it is a convenient forum for the settlement of native dispute which is faster and cheaper without unnecessary technicalities which has infected the court system. Then what is the status of the award of a customary arbitration? STATUS ORAUTHORITY OFTHEAWARD It has been observed by T.O. Elias50 that an arbitration award cannot be enforced as a judgement of a court but may be raised as a defence by way of estoppel by res judicata. It is settled that a native arbitration award operates as estoppel against the defendants provided it satisfied all the requirements of a valid customary arbitration. Thus the status of a customary or native arbitration award is likened with the judgement of a judicial tribunal which is binding and creates an estoppel.51 CONCLUSION A customary arbitration will be binding if all the ingredients or preconditions of a valid customary arbitration are met. They are as listed below: 1. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons; 2. that it was agreed by the parties either expressly or by implication that the decisions of the arbitrators will be accepted as final and binding; 3. that the arbitration was in accordance with the custom of the parties or of their trade or business; 4. that the arbitrators reached a decision and published their award and; 5. that the decision or award was accepted at the time it was made.52 In so far as the above ingredients of a valid native or customary arbitration are satisfied, the court will treat it as creating an estoppel. In the same vein, whosoever is relying on the award of a customary arbitration has a duty to plead and establish by evidence the above listed ingredients to enjoy the necessary legal effect of a conclusive customary arbitration. I.

SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S CONSTITUTIONAL DEMOCRACY: EBONYI STATE AS A CASE STUDY H. P. FAGA INTRODUCTION

The expediency for the creation of local government anywhere in the world stems from the need to facilitate development at the grass roots. The relevance of local government is predicated on its functions to generate a sense of belongingness, popular participation, and satisfaction among its populace. Although these are goals which governments at all levels strive to achieve. However, the primacy and urgency of these goals at the grassroot is the very crux of the concept and practice of local government everywhere in the world. Indeed, in many countries, the local government has become the only and sure path to national integration, stability and development.1 This conception of local government has meaning in the context of Nigeria's socio- political realities, with multiplicity of cultures, diversity of languages and geographically differential needs and means. Thus, the importance of such an organisation in fostering the needed national consciousness, unity and relative uniformity as well as preservation of peculiar diversities cannot be over-emphasised. Central to the creation of local government, however, is its ability to relate with the people with the minimum friction and facilitate closer ties between the people and government, in terms of time and space.2 Like most other administrative political structure, this is more readily achieved by establishing a system with less role conflict, through the apportioning of roles and designation of structures, essentially among the three organs of governmental strata: the legislature, the executive and the judiciary. This paper is an attempt to investigate the tripartite functions of the local government in the Nigeria polity, with the view of ascertaining how the arrangement deepens the process of democracy and democratization, and robs off on the established principles of federalism and separation of powers as the hallmark of the Nigerian political system. The remaining part of the paper is therefore divided into five sections.
* LLM, LL.B B.L. Lecturer, Faculty of Law, Ebonyi State University, Abakaliki 1 See, Cheryl Cran, Local Government Administration and the Challenges of Rural Development in Nigeria, on-line material FA Lifestyle available at http://www.floweradvisor.com/lifestyle/business/leadership/51053/ 2 Ibid

50 T.O.Elias, n.18 at 213 51 Oparaji V.Ohanu (199) 9 NWLR (Pt.618) 290 at 304 52 Okereke V.Nwako (2003) 9 NWLR (Pt.826) 592 at 613

Ayinla,L.A

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The first section, part II is a brief attempt to define and do an analysis of the key concepts involved in the paper that will help understand the topic under discussion. Part III takes an historical incursion into the establishment and evolution of local government administration in Nigeria until the advent of the Fourth Republic. Part IV looks at the system of local government administration under the current dispensation, the 1999 constitution of Nigeria and addresses the question of separation of powers in the constitution in respect of local government administration and the issue of its status and autonomy from the other tiers of government. Part V dwells entirely on the Ebonyi state model of local government administration. This part equally deals with the status of Development Centres established by the state government and closely examines the concept of separation of powers under the Ebonyi state model of local government administration. Lastly, part VI is the concluding remarks, which contains some brief recommendations. II. Definition of Terms and ConceptualAnalysis

Government at local level exercised through representative council established by law to exercises specific powers within defined areas. These powers should give the council substantial control over local affairs as well as the staff and institutional and financial powers to initiate and direct the provision of services and to determine and implement projects so as to complement the activities of the state and federal governments in their areas, and to ensure, through devolution of these functions to these councils and through the active participation of the people and their traditional institutions, that local initiative and response to local needs and conditions are maximized.5 Emezi, on the other hand, perceived local government as a: System of local administration under local communities that are organized to maintain law and order, provide some limited range of social amenities, and encourage cooperation and participation of inhabitants towards the improvement of their conditions of living. It provides the community with formal organizational framework which enables them to conduct their affairs effectively for the general good. The idea of conceptualizing local government as grass root governance lies in the fact that it is usually the lowest governmental arrangement that is closest to the people and vested with certain powers to exercise 7 control over the affairs of people in its domain. A local government is expected to play the role of promoting the democratic ideals of a society and coordinating development programmes at the local level. It is also expected to serve as the basis of socio-economic development in the 8 locality.
5 Guidelines for Local Government Reforms, 1976, p. 1 6 Emezi, Cleus, Local Government in Historical Perspective, Nigerian Journal of Public Administration and Local Government 2(2), p. 50 7 See, S. Lawal, Local Government Administration in Nigeria: A Practical Approach, in Ajayi K. (ed) Theory and Practice of Local Government, Ado-Ekiti, UNAD, 2000, p. 60 8 Cheryl Cran, op. cit, note 1, p. 2
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As a preliminary step, it is important to clarify the core concepts that may aid better understanding of the thematic perception of this paper. Thus, it is essential to define and explain the concepts of local government, democracy and democratization, federalism, and separation of powers. A. Local Government

The term local government in its generic sense refers to the ideas of selfgovernment by a local community. However, in its modern usage, local government is equated with grass root participatory democracy. It refers to self-government of the local community for local community by its elected local inhabitants.3 Viewed from this perspective thus, the concept of local government in modern societies revolves around philosophical commitments to democratic participation in the governing process at the grass root level. Many authors tend to look at the concept from this perspective.4 In fact, it is within the framework of grass root democracy that the 1976 Nigerian local government reform guidelines defined local government as:
3 Kamilu Sani Fage, Local Government Elections and Democratization in Nigeria, Sunday TRIUMPH Newspaper, April 29, 2007, p. 17, available at http://www.triumphnewspapers.com/archieve/ST29042007/local2942007.html 4 See for instance, Agagu, (defines local government as a government at the grass root level of administration meant for meeting peculiar grass root needs of the people), see, Agagu A.A. Local Government, in Kolawole D. (ed) Readings in Political Science, Ibadan, Dekaal, 1997, p. 18. See also, Appadorai, (defines local government as government by the popularly elected bodies charged with administrative and executive duties in matters concerning the inhabitants of a particular district or place). Appadorai A, The Substance of Polities, London, Allen and Unwin, 1975, p.287

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Implicit in the modern conceptualization of local government is the issue of devolution of powers in a hierarchical stratum, placing the local government at the lowest level and the federal government at the highest. Between the two levels of government is usually an autonomous unit called the state or whatever nomenclature adopted.9 This perception of the modern usage of the term as opposed to the earlier conception mentioned above is suitably engrained in different definitions. For instance, the United Nations Office for Public Administration defines local government as: A political sub-division of a nation or (in a federal system) state, which is constituted by law and has substantial control of local affairs including the powers to impose taxes or to exact labour for prescribed purposes. The governing body of such an entity is elected or otherwise locally selected.10 Maddick on the other hand, defines local government as:
11 10

From the generality of the definitions stated so far, Ihonvbere,13 concludes that what is deducible from the concept of local government is that it essentially has to do with increasing power and authority, moving resources to local levels, strengthening the foundations of democratic institutions and practice and giving power to those that really matter, the people. Local governance also directly relates to the maintenance of law and order locally, the provision of essential or basic services at the local level, promoting holistic and sustainable development and providing a line of engagement and interaction between higher levels of government and local interests.14 Also four characteristics of local government can be deduced from the definitions. First, local government officials are elected. Regular elections at specified periods of time is a feature of local government. In fact, the main distinguishing characteristic that differentiates a local government from a local administration is the fact that while the officials of the former are elected, those of the latter are appointees of the center to implement policies of the center. Second, the local government units must have legal personality distinct from the state and federal governments. Thirdly, the local government must have specified power to perform a range of functions, and finally, it must enjoy substantial autonomy, which include among other things, ability to make its laws, rules and regulations, formulate, execute and evaluate its own plans and the right to recruit, promote, develop, and discipline its own staff.15 In a nutshell, Laski summarized the existence and relevance of local government when he wrote: We cannot realize the full benefit of democratic government unless we begin by the admission that all problems are not central problems, and that the result of problems not central in their incidence requires decision at the place, and by the person, where and whom the incidence is 16 most deeply felt.
13 Julius O. Ihonvbere, Legislative Duties and Responsibilities in a Democracy, Text of lecture delivered at the Workshop for Local Government Councilors in Edo State, Benin City, Nigeria, June 19, 2008

a sub-unit of government controlled by a local council which is authorized by the central government to pass ordinances having a local application, levy taxes or exact labour and within limit specified by the central government Another writer, R. Wraith, sees the concept of local government as: The act of decentralizing power which may take the form of deconcentration or 12 devolution.
9 For instance, the intermediate level of government (second tier) is referred to as Lander in Germany, in Austria, it is called cantons and in Switzerland, it is known as autonomous communities (also Cantons). See, Felix Knupling, Federalism and Multi-level Governance: Comparing the E.U. with other Federal States, (Check citation online) p. 110 Quoted in F. R. Ola, Local Administration in Nigeria, London, Kegan Paul InternationalPlc,1984 11 Maddick H. Democracy, Decentralization and Development, Asia, Bombay publishing House, 1963 (Introductory chapter),cited in National Open University: School of Arts and Social Sciences, Handbook on Local Government Administration and Revenue Generation, 2008, p. 3.(hereinafter National Open University Handbook) See also the definition given byE. O. Awa, (local government is a political authority set up by a nation or state as a sub-ordinate authority for the purpose of dispersing or decentralizing political power), E. O. Awa, The Theory of Local Government, Quarterly Journal of Administration, vol. xv, No I & II 04/ January 1981 12 Deconcentration involves delegation of authority to field units of the same department, while devolution refers to the transfer of authority to local government units or special statutory bodies, which are lesser power in a national policy. See generally, D. O. Adeyemo, Local Government Autonomy in Nigeria: A Historical Perspective, J. Soc. Sci. 10(2), p. 77

1415 Ibid 16 See generally, Otive Igbuzor, Local Government Reform and Constitutional Review in Nigeria, Local Government Reform and Constitutional Review, January 2009, available at www.gamji.com/NEWS 52675.htm

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B.

Democracy and Democratization

The term democracy is very vague. It is used in different ways by different people. For instance, while people like Lefort17 tried to define it on the basis of political practice by an entity, others warned that it is illogical to define democracy by induction from the practice of any one political unit or any one sub-set of political unit.18 This disagreement is just one of the many reasons that account for the multiplicity of approaches in dissecting the meaning of democracy. In discerning the concept of democracy, Egwu equates it to a political arrangement that approximates to the rule of the people and the expression of sovereignty which resides in the people.19 This according to him, was what the ancient Greek city state of Athens practiced. Because, then as is the case now, in democracy the consent of the people is the centre-piece of governance, arbitrary rule is outlawed, there is equality of men before the law, natural rights and sovereignty.20 On his part, Joseph Schumpeter conceptualizes democracy as: an institutional arrangement which seeks to realize the common good by making the people decide issues through the election of individuals who are to assemble in order to carry out their will. 21 Another school of thought is of the view that public accountability is the essence of democracy. This is the view of Schmitter and Karl22 who argue that democracy is a system of governance in which rulers are held accountable for their actions in the public domain by citizens acting indirectly through the competition and co-operation of their elected representatives. To some however, democracy is much more than political competition through periodic elections. It also means much more than one-man one vote. It necessitates settling affairs according to
17 H.J. Laski, A Grammar of Politics, London, Allen and Unwin, 1982, p. 411 18 Cluade Lefort, Democracy and Political Theory, (Daivid Macey Translator), University of Minnesota Press (Minneapolis), 1988 18 Saward Michael, Democratic Theory and Indices of Democratization in Beetham David (ed.) Defining and Measuring Democracy, Sage Modern Politics, London, UK: Sage, 1994, p. 6 19 S. Egwu, Ethnicity and Nigeria's Democratic Eclipse, Jos, AFRIGOV Monograph Series, No. 5, 2001, p.2 20 Ibid 21 Joseph Schumpeter, Two Concepts of Democracy, in A. Quinton (ed.) Political Philosophy: Oxford University Press, 1963, p.153 22 Philippe C. Schmitter & Terry Karl, What Democracy is and is Not, Journal of Democracy vol. 1, No. 3 (Summer 1991), p. 79

known rules of government, toleration towards minority views, regular elections, freedom of speech, and above all, observance of the rule of law.23 Though diverse, Fage24 opines that the above definitions are undoubtedly defective. They all conceptualize democracy as a form of government in which representatives are elected periodically by the electorate into government in order to direct the state's affairs on behalf of the voters, but fails to take into cognizance issues such as economic rights, social justice, and egalitarianism, issues which are considered by Marxian scholarship to be an integral part of democracy.25 On the other hand, the concept of democratization has attracted various usages, interpretations and categorizations. For instance, while some people view democratization as a spontaneous transition from nondemocratic to democratic form of government, others see it as a deliberate policy of building the institutional mechanism of democracy, such as the constitution, political parties, electoral commission and ombudsman institutions. For Ihonvbere, however, democratization is the steady and systematic empowerment of the people , their communities and constituencies in a direction that empowers them to dictate and determine the content and context of politics with emphasis on pro-people issues: human rights, social justice, gender rights, environmental protection, basic human needs, accountability, transparency, ethnic and minority rights and popular participation.26 On his part, Bawa, views democratization as a two way process. According to him, democratization is generally regarded as a process involving a two-step development mechanism. First, it requires the establishment of all those crucial political institutions that enhance and strengthen democratic participation. It also socializes the citizens into a democratic culture, norms, values and practices, as well as the conduct and behaviour of leaders that the institutions seek to engender. The second step involves deliberate, bold and concerted efforts to continually evolve, nurture, consolidate and sustain the first initial process. 27
23 See, Bello-Imam, 1985:542, cited in Kamilu Sani Fage, op. cit, note 3, p.18 24 Ibid

25 See, Lenin, 1978:3, Gurkind and Brazier, 1979:88, cited in Kamilu Sani Fage, Ibid 26 Julius O. Ihonvbere, Democratization in Africa, Peace Review, 9, No. 3 (Sept. 1997) 371-378 27 H. G. Bawa, (July 2004, p.13), cited in Kamilu Sani Fage, op. cit., note 3, p. 18

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Having looked at the various meanings of democracy and demoralization, it is important to state that these concepts are relevant to our discourse in this paper because the very existence and creation of local government in any polity, much less, Nigeria, is to engender the process of democracy and political participation at the grass root, as we have already seen in the notion and definition of local government above. Thus, further discussions in this papers, especially the process of evolution of the local government system in Nigeria, will clearly show how the institution of the local government as a tier of governance has impacted on the process of democratization in Nigeria, particularly in the establishment of core political and administrative structures such as the legislature and executive institutions at that level. C. Federalism and the Notion of Multi-tiered Governance

directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority in some matters exclusive of all the others.30 Indeed, it has been mentioned that the concept of federalism allows for the coordinated expression of the various diversities of a polity, giving room for fulfillment of both regional and national goals 31 simultaneously. Thus, Tamuno, concludes that federalism is that form of government where the component units of a political organization participate in sharing powers and functions in a co-operative manner, though the combined forces of ethnic pluralism and cultural diversity, among them, tend to pull their people apart.32 This is what is commonly referred to in the literature as unity in diversity. Though some scholars maintain that the adage is contradictory and at cross purpose with the inherent idea of federalism.33 The concept is viewed as the process of unifying power within a cluster of states and decentralizing power within the unified state. 34 Many writers tend to equate federalism with democracy.35 However, the major debates concerning the elements of federalism centres on two main issues: the vertical arrangement of the federal structure, in terms of centralization versus decentralization of power and authority; and the number of federating strata, (that is the level or spheres of tiered governance, in terms of whether a two or three tier arrangement). The argument in the literature predominantly considers decentralization as an essential element of federalism. Federalism is expressed as decentralization of power from the central authority to the lower levels
30 B. O. Nwabueze, Federalism in Nigeria under Presidential Constitution, London, Sweet and Maxwell, 1983, p. 1 31 See, G.S. Mahler, Comparative Politics: An Institutional and Cross-National Approach, New Jersey, Englewood Cliffs, 1995, p. 31; G. Hollis and K. Plokker, Towards Democratic Decentralization: Transforming Regional and Local Government in the New Europe, Tacis Service DG., European Commission, 1995, p. 84 32 Tamuno 1998, p. 13, cited in Ademola Ariyo, op. cit, note 28, p.1 33 See for instance, Kunle Awotokun, Local Government Administration under 1999 Constitution in Nigeria, J. Soc. Sci, 10(2) (2005), p. 130 34 See Ademola Ariyo, op. cit, note 28, p. 2 35 See Stephen Lister and Mary Betley, Approaches to Decentralization in Developing Countries (Good Practice in Public Expenditure Management, Oxford. U.K, 1999), (Believes that federalism necessarily goes with decentralization which brings about democracy, good governance, accountability, participation and legitimacy and efficiency in decision making. See also, Litvack et al, Rethinking Decentralization in Developing Countries, Sector Studies Series: The World Bank, Washington D.C. 1998

The term 'Federalism' in its classical sense as espoused by leading scholars in the field presupposes the notion of division of powers among different levels of government comprised in one single political and geographic area. It is an expression of multi-level or multi-tier governance by which power is shared politically and geographically among constitutionally provided units of authority in a hierarchy. Wheare,28 notes that federalism refers to the method of dividing power so that general and regional governments are each, within a sphere, coordinate and independent. Friedrich, further elaborates on the concept explaining that federalism is the most suitable term by which to designate the process of federalizing a political community, which is the process by which a number of separate political organizations, be they states or any kind of association, enter into agreements for working out solutions, adopting joint policies and making decisions of joint problems.29 According to Nwabueze, federalism is not more than:an arrangement whereby powers of government within a country are shared between a national, country-wide government and number of regionalized (i.e. territorially localized) governments in such a way that each exists as a government separately and independently from the others operating
28 K. C. Wheare, Federal Government, (1963), p.5. cited in Ademola Ariyo, Theories of Federalism Fiscal Policy and Growth in Africa: Fiscal Federalism, Decentralization and the Incidence of Taxation, Economic Commission for Africa, Ad Hoc-Expert Group, October 2003 p. 1 29 Carl J. Friedrich, Constitutional Government and Democracy, 188 (1963).

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of governance. Thus, Litvack define it as a process of transferring political power, administrative and fiscal responsibilities from central government to lower levels of government (sub-national governments).37 According to Mawhood, decentralization is a principle of federalism which entails the sharing of part of the governmental power by a central ruling group with other groups, each having authority within a specific areas or state.38 Another writer defines the concept as: The transfer or delegation of legal and political responsibility for planning, management and resources use and allocation from the central government and its agencies to field organizations of these agencies, subordinate units of government, semiautonomous public corporations and areaswide regional or functional authorities.39 Most literature identify four standard types of decentralization based on the combination of the level of authority and location of accountability between the central and federating units of government.40 (a) Deconcentration: Occurs when the central government disperses responsibility for certain services to its regional branch offices that implement decisions taken at the center. An independent local
36 See, Conforti et al, An overview of Decentralization in Sub-Saharan Africa, a Paper presented at a Workshop organized by the Economic Development Institute of the World Bank, on Decentralization and Participation for Sustainable Rural Development in Africa,1998; Giorgio Brosio, Decentralization in Africa, Paper presented at IMF/World Bank Fiscal Decentralization Conference November 20-21 2000 (Washington); and Stephen Ndegwa, Decentralization in Africa: A Stocktaking Survey, African Region Working Paper Series, No . 40, World Bank (2002) 37 Litvack et al, op. cit, note 35, p. 49. Various reasons are given for the adoption of Federalism in the form of decartelization. See, Derrese Degefa, Fiscal Decentralization in Africa: A Review of Ethiopia's Experience, Economic Commission for Africa, Ad Hoc Export Group on Fiscal Policy and Growth in Africa, October, 2003, p. 3 (Mentioning the focus on local demands, the need to bring economic and political systems closer to local communities, administrative efficiency, local participation and enhance tax effort and sustainability of services and increased access to services delivery as the main factors for federalism in the form of decentralization) 38 P. Mawhood, Decentralization: The Concept and the Practice, in Mawhood P. (ed.) Local Government in the Third World, (John Wiley and Sons, Chichester, UK, 1993), p. 4

government does not exist in this type of decentralization, local (regional) branch offices are simply used to improve the efficiency and effectiveness of service delivery. This is usually seen in unitary countries like the U.K. (b) Delegation: Refers to a situation in which the central government transfers some of its responsibility for decision-making and administration of public functions to local governments that execute certain functions on behalf of the central government. According to Litvack, this form of decentralization can be characterized as a principalagent relationship. 41 (c) Devolution: In this kind of decentralization, central government transfer substantial authority for decision-making, finance and management to quasi-autonomous local governments that are accountable to their constituents. Conforti notes that local governments of a devolved system have clear and legally recognized geographic boundaries over which they exercise authority and within which they perform public functions.42 This kind of decentralization is most akin to the features of federalism and our discussion in this paper. (d) Deregulation: This involves the accountability of local governments to their constituents, though central government does not allow full discretionality or does not transfer enough resources for decision- making and management.43 Notwithstanding the broad exposition of the types of decentralization made by different scholars, Treisman44 identified six additional indices for examining the interjacent between the concepts of decentralization and federalism, based on (i) Five attributes that are distributed among the different tiers within a compound political system (decision-making authority, appointment authority, election, fiscal resources, and government personnel), and (ii) The number of tiers in the system. He identified the following categories of decentralization: (a) Vertical decentralization: Simply defined as the number of tiers that a system contains. For instance, Ethiopia, in

39 R. Cameron The History of Devolution of Powers to Local Authorities in South Africa: the Shifting Sands of State Council, in Local Government Studies, vol. 21. No. 3, 1995, pp. 396-397 40 See Conforti et al, op. cit, note 36, Lister and Betley, op. cit, note 35, and Litvack et al, op. cit, note 35

41 Litvack et al, Ibid 42 Conforti et al, op. cit, note 36, p. 108
43 See generally, Derrese Degefa, op. cit, note 37, pp. 6-7 44 Daniel Treisman, Defining and Measuring Decentralization: A Global Perspective, Department of Political Science, University of California, Los Angele, 2002

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which government exists at four levels (central, region, zone, and Woreda) is the most vertically decentralized government system in the world. 45 (b) Decision-making Decentralization: Focuses on how the authority to make political decision is distributed among different tiers. If authority to decide all questions belongs to the central government, the system is maximally centralized. But, if the lowest-tier of government has all decision-making rights, then the system is highly decentralized. Appointment decentralization: Concerns with the level at which officials at different tiers are selected and dismissed. The lower appointment decentralization is the one where the first tier body appoints the executive at the second tier. But if the second tier actors select their executive independently, then the system is higher form of appointment decentralization. This implies that the degree of appointment decentralization is related to whether or not the system is democratic. Electoral decentralization: Is defined as the proportion of tiers at which direct elections are held to select executives (or the legislators who then choose an executive from their number), if two systems have the same number of tiers, the one in which officials at more tiers are selected in direct elections is more electorally decentralized one. The concepts of appointment decentralization and electoral decentralization overlap. Fiscal Decentralization: Deals with how tax revenue and public expenditures are distributed among the different tiers. The larger is the share of total tax revenues that sub-national tiers receive, the greater is the tax revenues decentralization. Personnel decentralization: Focuses on the way administrative resources are distributed across tiers of government. The higher is the share of administrative personnel at lower tiers, the greater is personnel decentralization.

population, level of ethno-linguistic division, colonial history, economic development and degree of democracy), he found the following results: (i) Countries with a large area or population tend to have greater vertical, decision-making, fiscal and personnel decentralization though they are not more likely to have local selection of officials. Countries in which ethno-linguistic minorities make up a large share of the population tends to have more tiers of government, but less decentralization of fiscal resources and administrative personnel and less local electoral accountability. Former French colonies tend to have more tiers of government and less likely to have high levels of sub-national autonomy than others. More economically developed countries tend to have fewer tiers of government, but more decentralization in most other ways.46

(ii)

(c)

(iii)

(iv)

(d)

It is important to note that this paper dwells so much on the concepts of decentralization as understood under federalism because of the need to establish a yardstick from which to measure and assess the Nigerian political system in terms of the stratifications of tiers of governance and the interrelationship between them, especially the local government with the other tiers of government. The second area of debate on the fundamental principles of the federal system has to do with the number of tiers ordinarily recognizable in a federation. This issue directly bears on our quest to determine the position and role of the local government in the Nigerian political system. Scholars are divided on the number of tiers of government in a classical federal state. The debate revolves around a two or three-tier system. Wheare, for instance implied the two-leveled structure. He identified the federal system as: An association of state so organized that powers are divided between a general government, which in certain matters is independent of the governments of the associated states, and, on the other hand, state government which in certain matters are in their turn, independent of the general government.47 Many other scholars
46 Daniel Treisman, op. cit, note 44. See generally Derrese Degafa, ibid, pp. 8-9
47 K. C. Wheare, op. cit, note 28

(e)

(f)

Having identified the above indices in defining the concept of decentralization, Treisman, further correlates these with various characteristics of countries (i.e. their size, in terms of area and
45 See, Derrese Degefa, op. cit, note 37

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favour the two-tier system in a federal arrangement. maintains that a federal state is one:

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Oyovbarie

Characterized by at least two patterns of communities, one all-inclusive and the other composed of several mutually exclusively communities. The geographical nature of the community pattern and especially the location of boundaries among the sub-communities and around the whole community are crucial to a 49 federal system. On the other hand, scholars such as Gildenhuys and Ariyo among many others argue for a three-tier system in a federal state. Gildenhuys, particularly maintains that the two-tier structure is only suitable in a unitary arrangement and that in a federal system the formal stipulation in the constitution defines the authority of governmental institutions at 52 federal, state and local levels. It is further argued that in contemporary political systems, the constitution contains provision on the plan according to which the various units of government are organized, the range of powers allocated to each unit of government and the way in which these powers are to be exercised. This way, it is suggested that one can deduce how many tiers of government there is in any political 53 system, and whether the system is federal, unitary or consociative. Even though the third tier of government, that is, the local government is included in the constitutions of many countries as a level of
50 51

governance, it is generally observed that these constitutions seldom confer it with absolute autonomy or independence unlike the second tier. More often than not, the third tier is clearly tied to the apron string of the second tier, in terms of general control and management.55 However, be that as it may, such countries are usually considered as operating a threetier political system notwithstanding that the issue of autonomy of the third tier (local government) is often problematic.56 D. Separation of Powers

Aside from the fact that a polity may be arranged in multi-tiered levels of governance, a very fundamental principle of the modern political system is that the various functions of the state (each tier of government) are required to be performed by separate and independent organs of government. This is what is known as separation of powers. Separation of powers is an influential concept in modern democracy and it is a liberty sensitive concept.57 It denotes the practice of dividing the political and legal duties/powers of the government among the legislature, executive and judicial branches. This means that while the legislature has the power to make laws, the executive branch has the authority to administer and enforce the laws so made. The judicial division, on the other hand, adjudicates cases brought before the courts
54 See for instance the Constitution of Nigeria, 1979 and 1999, s. 7 thereof; the constitution of South Africa, 1993, and 1996 and the Constitution of Ethiopia. A Similar situation exist in the United States, though the Federal Constitution did not make provision for the existence of local governments, the State Constitutions create local governments which are independent from the states, and recognized by the federal government through partnership on various issues. See generally, A. Gboyega, History of Local Government Reforms and the Gains made in Local Government Administration During the Transition period, in Aborisade O.& Mundt R. J. (eds), Local Government in Nigeria and the United States: Learning from Comparison, Local Government Publication series, Ife, Nigeria, 1995 p.10; R. Cameron, The Democratization of South African Local Government: A Tale of Three Cities, J.L. Van Schaik Publisher, Pretoria, 1999, pp. 225-226; G.R. Rassel, Financial Local Government in a Federal System: Selected Aspects of Local Government Finance in the United States, in O.Aborisade, and R. J. Mundt (eds), ibid, p. 135 55 See, O. O. Oyelakin, Implementation of the Executive Federal Presidential System of Government at the Local Government level: Its Logic, Merits and Constrains , in O. Aborisade and R.J. Mundt, (eds), Ibid, pp. 38-39. See also G. Primstone, The Constitutional Basis of Local Government in South Africa, Occasional Paper, Johannesburg: Konrad Adenauer Foundation, 1998, p. 3. See also the E.U. Committee of the Region: White Paper on Multi-level Governance, 2008, p. 5; Nico Steyther (ed.) Local Government and Metropolitan Regions in Federal Systems A Global Dialogue on Federalism, McGill Queens University press, 2008 (A study conducted on the role of local governments in 12 countries, Australia, Austria, Brazil, Canada, Germany, India, Mexico, Nigeria, Switzerland, Spain, South-Africa and United States) 56 See, Felix Knupling, Federation and Multi-level Governance: Comparing the E.U with other Federal States, (Forum of Federation) 2008, p. 6; Nico Steytler, ibid; O.O. Oyelakin, ibid; and G. Primstone, ibid; See also, Edwin Madunagu, Governance at the Third Tier, available at www.nigerdeltacongress.com/garticles/governance_at_the_third_tier.htm (January 2002)

48 See Kunle Awotokun, op.cit, note 33, p. 130; R. Hague and M. Harrop, Comparative Government and Politics: Introduction, London, Macmillan Education Ltd, 1987, 169-170 (defined federalism as a system of government in which legal sovereignty is shared between the central and the other levels of government. Each level or sphere, central and state, has constitutional authority to make some decisions independently of the other), Ibid 49 S.E. Oyovbaire, The Theory of Federalism: A Critical Appraisal, Nigerian Journal of Political Science, 1979, p. 82 50 J.S.H. Gildenhuys, et al, Public Micro-Organizations, Juta and Co. Ltd, Cape Town, 1991 51 Ademola Ariyo, op. cit, note 28, p. 3 (arguing from an economic perspective, he maintained that government can be perceived as concerned with the provision of three categories of goods: national, regional (state) and local communities) 52 J. S. H. Gildenhuys, op. cit, p. 165 53 Ibid, pp. 26-27

57 See, Ikenga Oraegbunam, Separation of Powers and Nigerian Constitutional Democracy, Vanguard Newspaper, January 19, 2005, p. 19.

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in respect of any matter or dispute, and interprets the laws. It is this latter 58 function that constitutes the court's power of judicial review. This entire arrangement of governmental structure is described as 'horizontal 59 separation of powers. In a federal system, the term is also employed to connote 'vertical' separation of powers whereby governmental powers are shared between the central government and the fringe governments (states and local governments). 60 The doctrine of separation of powers developed over many centuries. The evolution of the concept can be traced to the British parliament's gradual assertion of power and resistance to the loyal decrees during the 14th century.61 The English Scholar, James Harrington, was one of the first modern philosophers to analyze the doctrine. In his essay, Commonwealth of Oceania (1656), Harrington building upon the works of earlier philosophers like Aristotle, Plato and Machiavelli, described an utopian political system that included a separation of powers.62 English political theorist, John Locke, gave the separation concept more refined treatment in his Second Treatise on Government (1690). Locke argued that legislative and executive powers were conceptually different, but that it was always necessary to separate them in government institutions.63 Judicial power, however, played no role in Locke's thinking. The modern idea of the separation doctrine was explored more profoundly in the Spirit of Laws (1748), a study by French political writer, Baron de Montesquieu.64 He based his exposition on the British constitution of the first part of the 18th century as he understood it. The crux of his thesis was embedded in the statement:
58 The term 'Judicial review simply means the act of investigating or reviewing the actions of the executive and legislative branches of government performed in exercise of the powers conferred on them by the constitution in order to ascertain their compliance or otherwise with the provisions of the constitution. It is a type of court proceeding in which a Judge reviews the lawfulness of a decision or action made by a public body. See, Judiciary of England and Wales: Judicial Review, Guidance Notes on Applying for Judicial Review, available online at http://www.judiciary.gov.uk/judgment_guidance/judicial_review/index.htm 59 Robert Schutze, Sharpening the Separation of Powers Through a Hierarchy of Norms? European Institute of Public Administration, Working Paper, 2005/W/01, p.17. V60ictoria Nourse, The Vertical Separation of Powers, 49, Duke L. J. 749 (1999). 61 See, Jethro K. Lieberman, Separation of Powers, Microsoft Student, 2008 [DVD], Redmond WA: Microsoft Corporation, 2007. See also, Adrian Hardiman, The Commonwealth Lawyer Vol. 14 No. 3 (December 2005) p. 38. 62 Ibid 63 See, John Locke, Second Treatise on Government, 1690 cited in Ikenga Oraegbunam, op. Cit, note 57 64 Baron de Montesquieu, Spirit of Laws (1748), contained in Baron de Montesquieu Microsoft Student, 2008 [DVD], Redmond WA: Microsoft Corporation, 2007

If the executive and the legislature are the same persons, there must be a danger of the legislature enacting oppressive laws which the executive will administer to attain its own ends. 65 Montesquieu therefore outlined a threeway division of powers in England among the parliament, the king and the courts, although such a division did not de facto exist at the time. Nevertheless, Montesquieu believed that the stability of English government was due to this practice even though he did not use the word Separation.66 In contemporary context, the doctrine of separation of powers is understood to imply that none of the legislative, executive and judicial powers should control or interfere with the others; (that is to say the 67 judges should be independent of the executive and the legislature), or that the same individuals should not hold posts in more than one of the three branches, (that is to say, executive ministers should not be members of the legislature or vice verse),68 or that one branch of government should not exercise the functions of another, (for example, 69 that the executive should not make laws). Indeed, a strict case of separation of powers among the different governmental organs is one of the fundamental feature of modern democracy which ensures the reduction or elimination of arbitrary powers by unchecked and unscrupulous rulers. It also ensures the needed equilibrium in terms of checks and balance - the notion that governmental power should be controlled by overlapping authority internally and by the external 70 conferment of rights on the citizenry to remove officials from office.
65 Ibid 66 Ibid, 67 F. A. R. Bennion, The Great Myth of Judicial Independence, The Times, 13 July 2004. 68 Ibid 69 See generally, Ikenga Oraegbunam, op. cit, note 57. Though some scholars argue that creating an extreme separation of powers can make government less effective, and may increase the possibility of governmental paralysis especially where there is disagreement among members of the different organs. See, Saleh Mohammed, Separation of Powers in Nigeria: A Myth or Reality, available at http://dspace.unijos.edu.ng/bitstream/10485/231/1 /pg284.pdf Thus, in real practice, there is no watertight operation of the doctrine in governmental structure. See, Yusuf O. Ali (SAN), Separation of Powers Under the 1999 Constitution of the Federal Republic of Nigeria: A Critical Review, available at http://wwwyusufali.net/articles/separation_of_powers_under_1999_constitution.pdf (Last Accessed 4/1/2010)
70 Francis Bennion, Separation of Powers in Written and Unwritten Constitutions, 15 Com L (April 2006) 17, p. 21

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The total absence of separation of powers often progressively leads to repression and anarchy because it is easier for leaders to abuse their authority. Few examples can be given of countries like china, the former Soviet Union and countries under military dictatorship, including Nigeria before the enthronement of democratic rule in 1999. In these countries, political authority was concentrated in a few very powerful ministries and other executive agencies. The court and the legislature did not wield enough power to prevent the military, police and other executive officials from repressing the citizens.71 Thus, there is no gainsaying the fact that a government of separated powers is less likely to be tyrannical and more likely to follow the rule of law, engender democratic culture and promote freedom and liberty. III History and Evolution of Local Government System in Nigeria The history of local government system in Nigeria dates back to the colonial days. Although contact with Europeans dates back to the fifteen century, it was not until 1861 before the first steps were taken to establish an administration by Britain. The colonial administration that was established was based on indirect rule. This required that the administration should be carried out through traditional rulers and institutions. This led to the establishment of native authorities in their most rudimentary forms from the 1890s to the 1930s. The main function of the native authorities was to maintain law and order.72 The first national legislation on local government administration was enacted two years after the amalgamation of the Southern and Northern protectorate into one country known as Nigeria, in 1914. The Native Authority Ordinance73 recognized traditional rulers as native authorities. It empowered the Governor-General to appoint a Native Authority for any area, for local administration. This colonial legislation replaced all pre-colonial, indigenous system of local administration. Such systems varied from the hierarchical emirate system of the north through the monarchy system of the west and the republican system of the east, to the
71 Isawa Elaigwu, Nigerian Federalism under Civilian and Military Regimes, Publius: The Journal of Federalism (winter), vol. 18, no. 1, 1988, pp. 177 72 See, Otive Igbuzor, op. cit, note 15. The Native Authorities were empowered to check and prohibit behaviours that the colonial authorities considered offensive. These include the manufacture and distribution of local liquors, the holding of drinking bouts, cultivation and supply of noxious plants and carrying of arms. In addition, they had power to regulate the cutting of timber and to prevent water pollution, tax evasion and any conduct likely to disturb the peace. See generally National Open University Handbook, op. cit note 11, p. 109 73 Native Authority Ordinance 1916

diffused systems of other areas. Thus, appointment of Native Authorities by the colonial administration was easily done in Northern Nigeria, but there was a problem in identifying who those authorities were in most parts of southern Nigeria. This necessitated the first reforms in the 1930s and the 1940s culminating in the establishment of chiefsin-council and chiefs-and-council in place of sole native authorities. The chiefin-council was made up of the chief and members of council. The chief presides at all meetings and acts in accordance with the majority of opinion in the council. But if he disagrees with the council, he would take whatever action he thought best and inform the Governor of the region. Contrarily, in the chief-and-council, the chief has no power to act against the decision or advice of the council. Under this arrangement, people particularly representatives of missionaries and British trading interests were appointed into the Native Authorities. This meant that nationalists were not appointed to serve on the council, which led to further agitation for reforms in the NativeAuthorities. These agitations were taken into cognizance in the drafting of the Richards Constitution 1946. The constitution restructured Nigeria into three regions, which assumed responsibility for the re-organization of local governments. Thus, the country abandoned the national local government system. The Eastern, Western and Northern regions each enacted laws to re-model the local government systems in their domain.75 By this time, the councils were given a wider range of functions including primary education, health, police, judiciary and the provision of other basic public services in line with the implementation of the colonial government's ten-year welfare and development plan (19461956). The councils also enjoyed a great measure of autonomy in financial, personnel and general administrative matters. 76 Between 1950-55, the first largely elected local government council based on the British Whitehall model emerged in Lagos and the former Eastern and Western regions. Traditional rulers constituted not more than 25 percent of most council in the then Western region and Lagos. After political independence from British rule in 1960, between 196074 See National Open University Handbook, op. cit, note 11, p. 109 75 The Eastern Region enacted the Local Government Ordinance of 1950, which introduced a three-tier representative local government system in the region; the Western Region also adopted the representative local government system, which was provided in the local gover nment law of 1952. In the North, the resultant Native Authority Law, 1954 made only moderate changes in the system of local government administration. See, Oyeleye Oyediran, The Reform of Local Governments in Diamond, Kirk-Green, and Oyediran, Transition Without End: Nigerian Politics and Civil Society Under Babangida, Boulder and London: Lynne Rienner, 1997. 76 See Otive Ogbuzor, op. cit, note 15

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66, there was a decline in the prestige and responsibility of local authorities. In the former Western Region, the Local Government (Amendment) Law 1960 abolished the powers of councils to levy education and general rates on the basis of need. The situation was not different in Lagos and the Eastern Region before the outbreak of the Civil War in 1967. In Northern Nigeria, there were gradual changes in the structure of the council during this time, with increasing numbers of elected or appointed non-traditional office holders becoming members of local authorities. The military takeover of political power in 1966 led to radical changes in the system of local government administration in the regions and the states that later replaced them. The initial reforms focused mainly on correcting the political abuses perpetrated by local officials. Therefore, the local constabulary, courts and prison were taken over and integrated into the national police, judicial and prison services. In 1967, following the creation of twelve states out of the four regions, all the states began to carry out reforms of their local government system. The six northern states expanded the scope for popular participation in the system. The southern state also tried new measures to improve their system of local governance. Thus, the East central, South Eastern, Rivers and Mid-West states adopted system of local administration (Development Administration) which merely deconcentrated powers of the state governments to the localities. Under this system of deconcentration, it was the Resident or Divisional officer who represented the state government in the locality that was vested with the powers of a local government. He consulted and often acted on the advice of a local representative council but he could also ignore it. The Western state adopted the 'council manager' system under which the council confined its role to policy formulation only but appointed a manager for day-today management. 77 These reforms were however considered inadequate. Thus, albeit in a military era, the military leaders felt there was need to democratize the lower level of governance and provide appropriate development and service to the people, having emerged from the civil war more united and with a buoyant economy.78 This was achieved by the 1976 Local Government Reform. The reform was radical and far-reaching. It marked the turning point in the co-ordination and status of local
77 See generally, National Open University Handbook, op. cit, note 11, p. 111 78Kamilu Sani Fage, op. cit, note 3,p. 18

government in Nigeria. The reform restored the uniform national system of local government in the country and introduced substantial democratic process at that level of governance.79 Also, for the first time, the reform conceptualized local government as the third tier of government operating within a common institutional framework with clearly defined functions and responsibilities.80 It is observed that the success of the reform generally led to its incorporation verbatim into the 1979, 1989, 1995 and 1999 constitutions. 81 Under the new system, at least seventy five percent of officials of the local government were elected, while the rest were made up of nominated members. Councilors were popularly elected by the people, while they elect their chairman from among themselves, subject to the approval of the state governor. Supervisory councilors were also elected among the councilors to serve as political heads of departments of the local government. Together with the chairman and at least two-elected members, they formed the Finance and General Purpose Committee which was the cabinet of the local government council. Traditional rulers were organized into an Emirate or traditional council under the reform. They were empowered to advise the local government councils or the state government on matters pertaining to local governance, religion, arts and culture, chieftaincy and customs within their areas. For a while, these reforms put local government administration in Nigeria on a sound footing. However, during the second republic (197983) many of the features of the 1976 reform were ghastly violated, even constitutional provisions were neglected. Throughout that period, no elections were held in contravention of provisions of the 1979 constitution,82 and Sole Administrators were appointed. The whole system of local government collapsed until the pressure of party politics. The second republic did not last long, it was engulfed in crisis which ultimately led to its sacking in 1983 by the military. Thereafter, successive military regime tried to revamp and restructure the system of
79 See, the Guidelines for Local Government Reform 1976 (document produced by the Reform Committee after consultation at various levels with the people). The objectives of the reform were clearly stated inter alia to make recommendations in order to devolve and delegate development activities to local representative, to facilitate the exercise of democratic self government at the grass root; to mobilize human material resources and involvement of members of the public; and to provide a two way channel of communication between the local communities and governments (both state and federal) 80Otive Ogbuzor, op.cit, note 15 81Kamilu Sani Fage, op. cit, note 3. (stating that the intentions of the 1976 reforms were debated by the constitution drafting committee and the Constituent Assembly in 1978 before they were incorporated in the 1979 constitution) 82 See s. 7(1) of the 1979 constitution, which stated that: the system of democratically elected local government councils is under this constitution guaranteed.

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local government administration. The Babangida administration made conscious efforts in this regard. A committee was set up to review the system, after which the recommendations were implemented. The recommendations favoured more autonomy for the local governments. As a result, funding of the local governments was removed from being disbursed through the state to being disbursed directly to the councils, the states ministries of local government were also abolished and replaced by departments of local government in the Governor's office, which were only charged with responsibility to advise, assist and guide, rather than controlling the local governments.83 Most of the reforms were incorporated into the 1989 constitution. However, to further confer more autonomy on local governments in the aborted Third Republic (1990-1993), the Local Government (Basic Constitutional and Transitional) Provisions (Amendment) Decree 1991,85 extended the presidential system to local government administration. Under this arrangement, the local government council became the legislative arm of government at that level,86 and charged with the following functions (a) Law-making, debating and passing local government legislation, (b) debating, approving and amending local government yearly budget, (c) vetting and monitoring the implementation of projects and programmes in the council's yearly budgets (d) examining and debating monthly statements of income and expenditure rendered to it by the executive arm, impeaching the chairman who has committed an impeachable offence, and (e) performing such other functions as may be assigned by the House of Assembly of the state. In the same vein, the executive authority was conferred on the local government chairman and his cabinet.87 These reforms ensured the expansion of autonomy and substantially bigger revenues for local governments. However, it is observed that because of the subsequent recklessness and abuse of the newfound freedom and autonomy by local government chairmen, in 1995 and 1997 new guidelines were issued reverting the system to the 1976 pattern of
83 See D. O. Adeyemo, op. cit, note 12, p. 81 84 Ibid 85 Decree No. 23, 1991 86 The executive Chairman ceased to be a member of the council; only elected councilors were to be in the council as the legislature. Councilors to elect a leader who will act as council speaker. Council clerk to head the personnel department. The elected Chairman to become the Chief Executive Officer and to appoint supervisors who will assist him as heads of department. The executive arm to generally consist of the Chairman, Vice-chairman, Secretary and the Supervisors 87 Ibid
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administration. However, the decree preserved the legislative autonomy of the local governments to make bye-laws.89 This was the state of local government administration in Nigeria, before civil rule was re-introduced in 1999. IV. The local Government System under the 1999 Constitution of Nigeria Unlike the previous constitutions of Nigeria (1979, 1989 and 1995 draft), the 1999 constitution is purely a military contraption.90 That explains the stiff opposition it has received in the last ten years of its operations. However, in terms of its provision in relation to local government administration, the 1999 constitution has wholly preserved the status and role of local government as the basis of grass root development and governance. It has preserved the tripartite system of government in Nigeria, and the local government as the third level of government. Interestingly, the constitutional provisions on local government are restricted to guaranteeing its existence as a level of governance, and stipulating its functions only rather than stipulating its structure and composition in line with earlier reforms in the sector. The existence of local government administration in Nigeria is the creation of the constitution. Its existence is constitutionally entrenched as an order of government alongside the federal and state governments. The constitution requires all states to enact legislation providing for the establishment, structure, composition, finance and function of local governments within their jurisdiction. Section 7(1) of the 1999 constitution states: 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.
88 Local Government (Amendment) Decree 1997 89 See, National Open University Handbook, op. cit, note, 11, p. 115 90 All the previous Constitutions were a result of popularly constituted Constitutional Conference where delegates debated on the salient previsions to be included. See, Kunle Awotokun, op. cit, note 33, p. 131

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A commentator observed that the rationale for the constitutional recognition of local government arose out of the need to make it obligatory on the state governments to ensure the existence of democratically elected local government councils, to guarantee their functions and to direct the allocation of funds to them from the federation revenue.91 Indeed, to ensure that the local government is entrenched as a tier or level of government in Nigeria, the constitution went as far as stating the names and areas of each existing local government council in every state of the federation,92 and clearly stipulating the procedure for the creation of new local government in any state of the federation.93 In addition, the constitution stipulates fairly extensive procedure that guarantees the allocation of funds from the federation account and other distributable sources from the federal and state governments to the local government council.94 But most importantly, in additional to any other functions that may be conferred on the local government by a law of the state House of Assembly, the constitution outlines an exclusive and concurrent list of functions for the benefit of local governments. Section 7(5) of the constitution provides that the functions to be conferred by law upon local government councils shall include those set out in the fourth schedule of the constitution. Section 7(3) of the constitution provides that it is the duty of local government council to participate in economic planning and development of the area under its jurisdiction. This is also reiterated in paragraph (1) (a) of the fourth schedule to the constitution. The main functions of the local government includes, collection of rates; radio, television, bicycle, canoe, and carts licensing; establishment, maintenance and regulation of markets, motor parks and public
91 See, Habu Galadima Local Government in Nigeria, in Local Government Bulletin, vol. 9, issue 3, July 2007 (South Africa) p. 26
92 See s.3 and the First Schedule of the 1999 Constitution. (It is assumed that these provisions will prevent the manipulations of local government boundaries and the unwarranted proliferation of local government areas for purely partisan political reasons as was the case in the second republic). See, D. O. Adeyemo, op cit, note 12, p. 83 93 See, s. 8 (3) & (4) of the Constitution (The procedure is a complex one, originating in the relevant state House of Assembly and terminating with the recognition of the new local government by the National Assembly and consequent adjustment of boundaries stipulated in an Act of the National Assembly) 94 See, ss. (7)(6), 162 (2) - (10), and 313 of the Constitution (Federal government most maintain a federation account from which money is shared between the federation, state and local government on a percentage to be determined by the Revenue Mobilization and Fiscal Commission. The formula now stands at 20% for local governments. Each state government must also maintain a State Joint Local Government Account into which all monies standing in the credit of local government from the federal account of any other federal sources is paid, for onward distribution to the local government. In addition, state governments are mandated to allocate 10% of their internally generated revenue to local governments within their jurisdiction). See generally, Habu Galadima, op. cit, note 91, p.27

conveniences; registration of births and deaths; levying and rates on houses and tenements; control and regulation of outdoor advertising and hoarding; movement and keeping of pets, shops and kiosks, restaurants, bakeries and Landry; and licensing, regulation and control of sale of liquor.95 Other functions which the local government are to perform concurrently with the state government are the provision and maintenance of primary, adult and vocational education; the development of agriculture and natural resources, other than the exploitation of minerals; and the provision and maintenance of health services. 96 One interesting fact to note is that the constitution failed to provide for the law-making powers of the local government, or for that matter, the modalities for the making of such laws. Thus, barring for the provision of the existence and function of the local government as a third tier of government, the constitution is silent on the question of separation of powers at that level and the general structure of government at the local level. This task is overwhelmingly conferred on the State Houses of Assembly,97 which are allowed to choose any structure or composition of councils within their domain. The constitution therefore does not compel the state Houses of Assembly to maintain the presidential structure of governance stipulated for the federal and state governments98 at the local government level. Even though, the constitution saves all existing laws that were in force before the coming into effect of the constitution, which includes the 1991 Local Government (Basic Constitutional and Transitional) Provisions Decree and all other Decrees promulgated with respect to the structure of the local government system before 1999, all such existing laws or Decrees are to apply with such modification and subject to the provisions of the constitution.99 In our considered opinion therefore, the state Houses of Assembly are free to choose any of the structure of local government administration contained in any of the previous reforms of the system, whether the 1976 or 1991 reforms. The above summation leaves us with the question of determining how autonomous the local government system under the 1999 constitution is, in view of the enormous powers conferred on the state government in
95 See paragraph (1)(a)-(k) of the Fourth Schedules of the 1999 Constitution 989796 Paragraph (2)(a)-(d) of the Fourth Schedule

97 See s. 7(1) of CFRN 1999 98 For the Presidential System's Separation of Power among the Legislature, Executive and Judiciary at the Federal and State Government Levels, see ss. 4(Legislative), 5 (Executive), and 6 (Judiciary) of the 1999 Constitution 99 See s. 315 of the Constitution

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respect of the overall control and management of the local governments. Does the local government have enough autonomy especially from the state government to be independent in the performance of the functions conferred upon it by the constitution? Unfortunately, the question of autonomy had generated a lot of heat and controversies during all the previous reforms100. According to Nwabueze, autonomy under a federal system means that: each government enjoys a separate existence and independence from the control of the other government. Each government must exist not as an appendage of another government but as autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs free from the direction of another government.101 In his contribution on the literature of autonomy, Davey on his own part opines that: Local autonomy is primarily concerned with the question of responsibilities, resources and discretion conferred on the local authorities. As such, discretion and responsibility are at the core of local government. From this brief explanation of autonomy, it is submitted that local governments are not autonomous at all under the present dispensation irrespective of the extensive provisions of the 1999 constitution in respect of their existence and function.103 In practice, state governments are reluctant to allow local governments conduct their affairs freely, even within the purview of law conferring powers and functions on them. The intergovernmental relationship between local
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government and their state counterpart has been totally over-shadowed by conflicts and exercise of overbearing authority. There has been numerous complains of state government interference in local government's affairs ranging from plot to remove the chairmen before the expiration of their tenure, to using the state government's audit powers to harass the local governments.104 The recurrent problem areas in the relations between the local government and the other tiers of government has bordered on finance, functions and staffing. State governments have routinely hijacked varying proportions of the allocations to local governments from the federation Account. Sometimes the federal government itself is guilty of this offence.105 In addition, many state governments usurp local government avenues of generating internal revenues and fail to contribute the required proportions of their internally generated revenues into the State Local Government Joint Account, for sharing among the local governments, contrary to the provisions of the 1999 constitution. 106 All these conflicts have resulted in serious political chaos and threat to democracy in Nigeria. Most of the problems ended up in court, and this has immensely enriched the Nigerian jurisprudence on local government system. For instance, the Supreme Court in A.G, Lagos State v. A.G. 107 Federation, declared the Local Government Area Law No. 5 of 2002 made by Lagos State Government in which 57 local governments were created by breaking the existing 20 local government areas recognized under the 1999 constitution into 57 local government councils as unconstitutional, null and void. The law in effect abolished local Government Areas created under the 1999 constitution by altering their names, adjusting their boundaries and dividing them into smaller units. The law further vested the governor with powers to appoint persons to administer the affairs of the newly created local government areas in contravention of section 7(1) of the constitution. In the same case, the Supreme Court held as null and void the decision of the federal government to withhold statutory allocations due and payable to the Lagos State Government in respect of the 20 local governments. 108
104 Ibid 105 Joash Amupitan, The Role of the Courts in strengthening Democracy at the Local Government Level in Nigeria, available on-line at http://www.ialsnet.org/meetings/constit/ papers/AmupitanJoash(nigeria).pdf (Last Accessed 4/1/2010) 106 See, s. 162(6), (7) & (8) of the 1999 Constitution. See also Habu Galadima, op. cit, note 91. p. 28 107 (2004) 18 NWLR (pt. 904), 1

100 M. A. Odunfa,Local Government Autonomy and Intergovernmental Relations in Nigeria, (submitted in partial fulfillment of the requirement for the special Advanced Course in local Government Studies, Ile-Ife: Obafemi Awolowo University, June, 1991) 101 B. O. Nwabueze, The Presidential Constitution of Nigeria, London, Sweet and Maxwell 1983; see also B.O. Nwabueze, The Presidential Constitution of Nigeria, Nigeria Journal of Public Administration and Local Government, Vol. 2, No. 2, 1984 102 K. J. Davey, Local Autonomy and Independent Revenue, Journal of Public Administration, Vol. 49 :45, 1991 103 Habu Galadima, op. cit, note 91, pp. 27-28

108 It should be noted that despite the decision of the Supreme Court, the Federal

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In the case of A. G. Abia State and 35 Ors. v. A. G. Federation, the Supreme Court declared the Electoral Act made by the National Assembly in 2001 as null and void. The Act purported to legislate on the tenure of the local governments in Nigeria whereas that power was constitutionally reserved for the State Houses of Assembly. Again, in the 110 case of A.G Abia State and 2 Ors v. A. G. Federation and ors, the Supreme Court held that the powers of the National Assembly over funds accruable to the local government councils in Nigeria under sections 7(6) and 162(5) of the 1999 constitution are only limited to allocation of such funds and it did not extend to monitoring such funds. Monitoring is a post-allocation matter and the National Assembly had no power to make such laws. Therefore, the Monitoring of Revenue Allocation to Local Government Act which sought to monitor the revenue allocation to the local government councils was held to be unconstitutional. Lastly, the Court of Appeal in A.G. Plateau State v. Goyol and Ors and A. G. Benue State v. Umar and Ors112 declared the actions of the Plateau State Governor and that of Benue State Governor respectively in dissolving the local government councils in those states as unconstitutional, null and void.113 The laws made by the two States House of Assembly which authorized the governors to impede the smooth running of the local government councils were also declared to be unconstitutional, null and void. Very importantly, the Supreme Court in the earlier cited case of A.G. Lagos State v. A. G. Federation114 pointed out that the creation of additional local governments in Nigeria would amount to an amendment of the constitution. Thus, no State House of Assembly could on its own create additional local governments without involving the National Assembly which would then set the necessary machinery in motion for the amendment of section 3(6) of the 1999 constitution.
111

V. Operational Modalities of Local Government Councils in Nigeria: The case of Ebonyi State As stated earlier in this paper, the 1999 constitution is silent as to whether state governments should adopt the Presidential or Parliamentary systems of government at the local government level. Section 7(1) of the constitution empowers the state House of Assembly generally to make law which provides for the establishment, structure, finance and functions of the local government councils and no more. Consequently, the current system of local government administration in Nigeria varies from state to state. This, to a large extent, is determined by the local government law enacted by each state House of Assembly. While some states tend to favour the fusion of the executive and legislative arms (Parliamentary system), others prefer the full separation of powers as espoused by presidential democracy.115 It is observed that those states, which opted for the Westminster model, have anchored their argument on paucity of financial resources and the need to preserve the available funds for the betterment of the people of the grass root. The proponents of the presidential system on the other hand have argued for the need to sustain the presidential system at local levels in order to be in consonance with state and federal governments. 116 In Ebonyi State, various laws have been enacted since 1999 to govern the administration of local governments in the state.117 These laws have clearly adopted the presidential system. However, it may seem that the local government administrative structure in Ebonyi State is far from clear. The numerous laws enacted so far tend to have created a sort of dual or two-tier local government system rather than a single system as envisaged under the 1999 constitution. This situation was foisted on the state as a result of the failure to maintain an additional 21 local government councils purportedly created by the state in 2001,118 due to an order by the presidency in 2006 to all states which had purportedly created new local governments to wound them up based on the decision
115 See, Kunle Awotokun, op. cit, note 33, pp. 132-133 116 Ibid 117 See, the Local Government Law, No 3 of 1999, as amended by Law No. 1 of 2002, the Local Government (Amendment) Law No. 2 of 2004; The Local Government Councils and Development Areas (Amendment) and Related Matters Law, 2006; the Revenue Distribution to Local Government Councils and Development Areas Law 2006; and the Ebonyi State Local Government Council and Development Centre (Amendment) Law, 2007 118 The New States were created in 2001 by virtue of the Ebonyi State Local Government Area (Creation and Transition Provision) Law, No. 7 of 2001(supra), note 107. See, Wale Ejibunu, Like Lagos, Ebonyi, Bayelsa, Enugu Run Development Areas , The Nation Newspaper, 12 August, 2004, available on line at www.thenationonlineng.net/web2/articles/13713/1/.../page1 .html (Last Accessed 4/1/2010) See s.2 of the Local Government Area Creation Law

Government still refused to release to Lagos State the statutory allocations for lo cal government for an onward period of over three years. 109 (2002) 6 NWLR (pt. 763) 264 110 (2006) 7 SCNJ, 1. 111 (2007) 12 NWLR (Pt. 1059) 59 112 (2008) 1 NWLR (Pt. 1068) 311
113 See generally, Joash Amupitan, op. cit, note 105, pp. 3-4 114 (Supra) note 107.

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of the Supreme Court in the earlier cited case of A.G. Lagos State v. A.G. Federation.119 The initial plan of the Ebonyi State government was to confer the same powers and functions of the constitutionally created local government councils on the purported newly created local government areas in the state.120 Perhaps, if the plan had succeeded, the same presidential structure of governance applicable in the original 13 local government councils by virtue of the local government law, No. 3 of 1999, would have been extended to the newly created councils, thus ensuring a uniform local government administrative structure. Be that as it may, the present structure adopted in the state dearly distinguishes between the constitutional created 13 local governments and the now constituted 51 development centres.121 While the law allows democratic elections to be conducted into the 13 local government councils, the Chief Executive Officers (coordinators) and Management Committee of the Development Centres are to be appointed by the Governor,122 and like the council chairman shall hold office for a term of three years.123 The Development Centres seem to be an appendage of the local government councils from which they are created, in terms of overall control and supervision.124 The functions conferred on the Development Centres are merely permissive and heavily influenced by the discretion of the local government chairman in whose jurisdiction it exist.125 Thus, the functions are nowhere comparable with the overall functions of the constitutionally created local governments. The principle of separation of powers is not adopted at the Development Centres,126 nor is any form of autonomy granted them except for the allocation of revenue, which shall be used for recurrent expenditure and as directed by the local government chairman for development purposes.127
119(supra), which states that subject to sections 4 and 16 of this law, the new Local Government Areas created by subsection of this section shall have the same rights, power and privileges as the local government areas existing prior to the commencement of this law. The initial newly created local government council were reconstituted and called Development Area. The 2007 local Government and Development centres law, has now designated them as Development centres (hereinafter law No.007 of 2007) 120 See s. 8 of Law No. 007 of 2007 s. 10, ibid Ibid, s. 11 and 20 s. 12, ibid, provides the functions of the Development Centres: The chairman of the Local government seem to be at the centre of decision-making at these centres, which exist merely for coordinating development and advising the local government chairman 125 s. 12, ibid, provides the functions of the Development Centres: The chairman of the Local government seem to be at the centre of decision-making at these centres, which exist merely for coordinating development and advising the local government chairman 126 The administration of the Development centre is conferred on a management committee comprising of a coordinator and not more than four members to be appointed by the Governor. (See S. 8, Law No. 007, 2007). The committee does not have any legislative functions 127 s. 10 of the Revenue Distribution to Local Government Councils and Development Areas Law No.004, 2006, Stipulate that upon receipt of allocation from the State Joint Local Government Account, the chairman of the Local Government must disburse the funds to the Development centres under its jurisdiction in accordance with the formula stated in s. 11 of the law.

The structure, powers, rights and obligations of the Local government Councils in Ebonyi State provided under the Local Government Law 1999 were left intact by all the subsequent enactments in respect of local governments and Development centres.128 Thus, the full presidential system applicable under the first initial law is still operational. Under the law, the powers of the Local government are divided between the legislative arm and the executive. These powers are very similar to the division of powers under 1991 Local Government (Basic Constitutional and Transitional) Provisions (Amendment) Decree earlier stated. The legislative function is vested in the Council constituted by the Councilors who are directly elected from the various wards of the Local government.129 The council is presided over by a leader to be elected from among the Councilors by themselves. It is observed that these officers of the Council are the equivalent of the speaker and deputy speaker in the State House of Assembly.130 The Council shall also have a clerk who shall be appointed by the Governor of the state. 131 The Law stipulates that the legislative powers vested in the Local Government, Council shall be exercised by bye-laws passed by the Council. The assent of the Executive Chairman of the Local government must be obtained before any bye-law becomes valid. However, if he withholds assent, the Council can by a two-third majority vote to override the chairman's assent and pass the bye-law into force.132 The entire legislative procedure at the Local government resembles that which is obtainable in the State House of Assembly.133 Aside from law-making, the Council is conferred with additional functions, especially the exercise of oversight functions over the executive by the vetting and monitoring of implementation of projects and programmes, debating, approving and amending the annual budget of the local government, and examining and debating monthly statements of income and expenditure of the local government. 134

128 See, s. 21 of Law No.007 of 2007 129 s. 27 of the Local Government Law, No.003, 1999 (hereinafter, Law No. 003, 1999) 130 E.N. Nnamani, The Application of the Doctrine of Separation of Powers in Local Government Administration in Nigeria: The Ebonyi State Model, in M.A. Ajanwachuku & H.P . Faga (eds.) Contemporary Legal Thoughts: Essays in Honour of Chief Jossy Chibundu Eze, Abakaliki, 2008, p. 241. 131 Ibid, s. 37 132 Ibid, s. 35 133 E.N. Nnamani, op. cit, note 130, pp. 241-242 134 s.36 Law No.003, 1999

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The executive powers of the local government on the other head, are conferred on the chairman of the local government, which shall be exercised either directly by him or through the vice-chairman, or supervisors to be appointed by him.134 A person to be appointed as a supervisor shall not be a member of the Council and his appointment must be confirmed by the council.136 The chairman shall also appoint the Secretary to the local government who shall liaise with the Secretary of the Government of the State. The provisions conferring legislative power on the Council of the local government to make bye-laws seem to be inelegantly drafted. Section 4 of the 1999 law confers power on the Council to make bye-laws in respect of any of its functions and on matters confer upon it by law. 137 However, the only functions conferred on the Council in section 36 of the law are expressly given in addition to the power to make bye-laws, and they are matters of merely supervision, approval or over sight activities. This is strange, because one would have thought that since the Council is conferred with the legislative powers of the local government, it could make bye-laws in respect of all the functions of the local government. In other words, the entire functions of the local government stipulated in Part IX of the law (ss. 50-54) would automatically serve as the legislative list of the Council of the Local government. This is common-sensical, more reasonable and in consonance with the practice under the 1999 constitution.138 At the local government level in Nigeria, the concept of separation of powers ends with the division of powers between the executive and the legislature. Unlike the federal and state governments which are expressly conferred with judicial powers to be exercised by courts created by the constitution or the National or State Houses of Assembly,139 the local governments are bereft of this power. Neither the constitution nor anyAct of the National Assembly or law of the State Houses of Assembly in Nigeria purports to confer any judicial powers on the local government to be exercised by any local government courts, notwithstanding that they
135 Ibid, s.38 136 Ibid, s.25 137 Ibid 138 Under the 1999, constitution the exclusive and concurrent legislative lists provides for the subject areas which the National Assembly and State Houses of Assembly have power to legislate. These areas also automatically become the areas under which the executive powers of the federal and state governments are defined, and invariably the functions of the respective tiers of government. See, s.4 and the Second Schedule to the 1999 Constitution

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are conferred with both executive and legislative powers. In fact, one writer opines that the local government is obliged to make use of both the federal and state judicial apparatus140 The above notwithstanding, it is our opinion that the time is long overdue to devolve some judicial powers to the local government to be exercised through native courts, under the control of the local government. This power was extensively allowed to local council under the colonial administration and it really revolutionalised the system of justice at the grassroots, rather than relying solely on English courts. Even though the constitution has made provision for establishment of customary courts at the state levels, which would service local government interests, especially with regards to questions bordering on native law and custom, these courts are usually inadequate and often headed by inexperienced persons. In Ebonyi state, like most other states of the federation, the local government law makes provision for the establishment of Council of Traditional Rulers.141 In view of the role and functions of this body,142 it would have provided the needed backbone for a viable native system of justice administration if it were allowed to function judicially under any form of arrangement. On the contrary, this is exactly what the local government law of Ebonyi state seeks to prohibit.143 The other aspect of judicial powers, the establishment of a legal department in the local government under which a Chief Legal Officer and counsel will be employed to look after the legal business of the local government, is also very germane. VI. Concluding Remarks Having done an extensive survey of the legislative, executive and judicial role/functions of the local government, especially in Ebonyi state, and having compared the current system of local government administration with previous forms of governance at that level, it is our considered opinion that the following modifications should be adopted in Ebonyi state in order to make the system more effective, responsive and development driven:140 Kunle Awotokun, op.cit, note 33, p.131 141 See, s.151 of Law No. 003, 1999 142 The body is primarily conferred with the function to advise the local government on matters relating to law, order, customs and traditions of the people of the local government among other functions. See s.151 (iii) (a) of Law No. 003, 1999 143 Ibid, s.151 (iii)(g) (A proviso providing that nothing in the section shall be construed as conferring any executive, legislative or judiciary powers on the Council of Traditional Rulers)

139 See generally, s.6 of the 1999 constitution, which confers judicial powers on the federal and state governments and creates Superior Courts of record in Nigeria.

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(A) The Development Centres should be granted more independence in terms of control and management to enable them generate and implement development agenda. There should be a system of democratically elected officials in the Development Centres The Presidential system should be abolished at the local government level and reverted to the Westminster model, where both the legislative and executive arms are fused together. This will reduce cost of governance and encourage more democratic participation. The state House of Assembly should make law to allow local government councils establish native courts, which would have the backing of law to dispense justice at the grassroots where the need is most felt. The local governments should also establish legal departments with full powers to administer the legal business of the local government councils. CONCLUSION

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A customary arbitration will be binding if all the ingredients or preconditions of a valid customary arbitration are met. They are as listed below: 1. 2. 3. 4. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons; that it was agreed by the parties either expressly or by implication that the decisions of the arbitrators will be accepted as final and binding; that the arbitration was in accordance with the custom of the parties or of their trade or business; that the arbitrators reached a decision and published their award and; that the decision or award was accepted at the time it was made.

(b) (c)

(d)

5.

(e)

In so far as the above ingredients of a valid native or customary arbitration are satisfied, the court will treat it as creating an estoppel. In the same vein, whosoever is relying on the award of a customary arbitration has a duty to plead and establish by evidence the above listed ingredients to enjoy the necessary legal effect of a conclusive customary arbitration.

STATUS OR AUTHORITY OF THE AWARD It has been observed by T.O. Elias that an arbitration award cannot be enforced as a judgement of a court but may be raised as a defence by way of estoppel by res judicata. It is settled that a native arbitration award operates as estoppel against the defendants provided it satisfied all the requirements of a valid customary arbitration. Thus the status of a customary or native arbitration award is likened with the judgement of a judicial tribunal which is binding and creates an estoppel.

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