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An Update to Essay on Local Council Polls and INEC

Mobolaji E. Aluko, Ph.D.

April 18, 2002

maluko@scs.howard.edu

In a recent essay, I made the following suggestions about the ongoing imbroglio over May 18 or no May 18 Council polls in Nigeria: http://www.gamji.com/aluko15.htm MID-WEEK ESSAY: Local Council Polls and INEC - A Funny Game Is Going On Here! April 11, 2002

QUOTE

SUGGESTED NEW DATES

What to do now? The 36 State Independent Electoral Commissions have fixed a date of May 18 for the local government elections, but I wish to be both pragmatic and logical - and to avoid legal wrangles later on.

So let us start counting dates from March 28 - that is the date of the Supreme Court ruling - and take some cue from Abubakar/Akpata's "efficiency":

1. President Obasanjo should release money to INEC's Dr. Guobadia without further delay. Something like N4 billion should be OK for now. If he does not release the money, he should be censured, then if he persists, impeached, period. The old voter registration used and May 18 be set as the LG poll date. That dereliction would be a fatal blow to democracy.

2. We will assume that president Obasanjo will do the right thing.

Then let new voter registration begin May 15 - 22, and list checking be from May 23-24. Those who have not moved since 1998 need not to re- register. I don't expect really more than 10 million new registrants.

3. New political parties should be registered by May 24, 2002. All comers please - if tiny Sierra Leone can have 15 parties, what is the problem with Nigeria?

4. Let the local government council elections be held Saturday, July 27, 2002.

5. All new councillors be sworn in Saturday, August 3, 2002.

6. Obviously, that means that we will be extending the tenure of the local council members from May 29 to August 3. If we don't like the phrase "extending the tenure", we can ask them to sign out as elected members at noon on August 29, and then sign back in as unelected caretaker committees at 1 pm May 29.

7. All the above actions should be backed by STATE LAW, passed by the various STATE ASSEMBLIES.

8. It should be noted that there is NOTHING in the Constitution that implies that ALL the States should act in consonance with each other with respect to fixing their local government elections. Therefore, those states that want to go ahead with May 18 - for example the PDP states - can go ahead. Those states that want to take my advice of postponement are welcome to do so!

That is in the spirit of federalism.

UNQUOTE

We are still waiting for the president to release INEC's money, and for Dr. Guobadia to begin INEC's voter registration.

Moving on.....

Let it be noted to remove all ambiguity that as stated above, I fully believe that ANY election held before, on or after May 18, even in the absence of a new voters' register, ) , will be fully legal and constitutional in order to terminate the term of the present local government councillors on May 29 (or soon thereafter for a number of them who were inaugurated between June 1 and June 8, 1999. Whether it will be politically wise to rush to do the May 18 elections WITHOUT any effort at new voter registration is another story.

Hence the pieces of advice about dates of voter registration and new dates for elections offered in (2) - (8) above.

However, I am now seriously concerned about the constitutionality of unelected caretaker committees (see Advice (6)), even if legislated by the State Assemblies. I now wish to advise against it. This is because of Section (7) of the 1999 Constitution, which states clearly viz;

QUOTE

1999 Constitution

Section (7).

(1) 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.

(2) The person authorised by law to prescribe the area over which a local government council may exercise authority shall-

(a) define such area as clearly as practicable; and

(b) ensure, to the extent to which it may be reasonably justifiable that in defining such area regard is paid to

(i) the common interest of the community in the area;

(ii) traditional association of the community; and

(iii) administrative convenience.

(3) it shall be the duty of a local government council within the State to participate in economic planning and development of the area referred to in subsection (2) of this section and to this end an economic planning board shall be established by a Law enacted by the House of Assembly of the State.

(4) The Government of a State shall ensure that every persons who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a local government council.

(5) The functions to be conferred by Law upon local government council shall include those set out in the Fourth Schedule to this Constitution.

(6) Subject to the provisions of this Constitution -

(a) the National Assembly shall make provisions for statutory allocation of public revenue to local government councils in the Federation; and

(b) the House of Assembly of a State shall make provisions for statutory allocation of public revenue to local government councils within the State.

UNQUOTE

Section 7(1) clearly prohibits "democratically UNELECTED local government councils", which is what would happen if councillors whose terms have expired are allowed to continue beyond May 29. Nevertheless, because the section vests such powers on the State governments and House of Assemblies, it also gives MUCH flexibility to solving the present local government election "logjam."

My suggestion is that House of Assembly that wishes to postpone the May 18 ocal government elections should simply legislate the take- over of local government councils by only those "democratically elected" members in the state whose tenures have not expired - THEMSELVES! After all, each local government has at least one elected Assemblyman, possibly two, so one can be Chairman, another can be Secretary, and a whole slate of interim councillors can be temporarily formed from the State Assembly members.

Thus, we should consider the following legislation :

SAMPLE LEGISLATION FOR INTERIM LOCAL

(To be enacted by State Assemblies)

QUOTE

1. In the event that new elections cannot be held by the expiration date of current local governments in the state, then for a period not exceeding 90 days from date of expiration, a slate of interim local government councillors shall be drawn up from the State Assembly of members whose terms will not expire within the 90 days in question.

2. The Interim chairman of such an Interim Local Government Council shall be a State Assembly member elected from that same local government.

3. The Interim Council members shall include all State Assembly members from that local government council and at least one State House of Assembly member from each of the contiguous local government council areas, to form a council equal in size to the number of councillors stipulated by law.

4. All members of the Interim Local Government Council shall be duly sworn in and shall have the duties and privileges of the office, subject to .Section 5 below.

5. No additional remuneration - except for travel allowance to be set by law by the State Assembly - shall be offered to the Interim Local Government councillors during this interim period.

6. The life of the Interim Council can be extended for no longer than 90 days at a time upon a majority vote of the State Assembly.

7. New elections for the substantive local government shall be held within the 90 days period for which the Interim Council serves, Subject to Section 6 above.

8. The Interim Local Government Councils shall stand dissolved when new elections for substantive local governments are held and the new councilors are sworn in.

UNQUOTE

I have not spoken to Senator Chuba Okadigbo, but I believe that this solution that he had in mind.

http://www.vanguardngr.com/news/articles/2002/April/18042002/f1180402.

htm

Way out of LG polls logjam, by Okadigbo Vanguard 18th April, 2002

Finally, I also believe that if one thinks deeply enough, any political problem can be solved; if one understands that the law is made for Man and not Man for the law, then any legal hurdle can be overcome.

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