By Olusola Balogun (balogunesola@yahoo.com)
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•Fashola & Yar ’Adua Photo: Sun News Publishing |
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Yar’Adua ignited a constitutional conflict in a letter to Fashola dated July 14. He had given him a 14-day ultimatum to revert the present 57 local government structure in the state to the original 20 by stopping the operation of the additional Local Council Development Authorities (LCDAs). He seems poised to follow the path of his predecessor, Olusegun Obasanjo, over the vexed issue of Lagos councils.
Yar’Adua warned that after the 14-day grace, he might “direct that necessary action be taken by the relevant organs of state to defend the constitution and preserve the authority of the Federal Government”.
The President’s threat immediately sparked an outrage from both within and outside political circle. Lawyers were particularly miffed that the President was about to resort to self-help in the matter.
But Fashola, a Senior Advocate and former Chief of Staff during the immediate past Bola Tinubu administration, was not fazed by the threat. He questioned the motive behind Yar’Adua’s threat over the LCDAs and maintained that the Supreme Court never declared the councils illegal.
The governor used the opportunity of the letter to advance a robust legal view of the matter in his reply to the President. He faulted the advice given to the President on the matter, adding that the judgment of Justice Muhammadu Uwais in the ruling by the Supreme Court over the matter in 2005 affirmed the right of Lagos to create the councils.
Fashola noted that the former Chief Justice of the Federation said the laws were valid but “inchoate” until necessary steps, as provided in the Constitution, were taken by the National Assembly.
The Lagos governor also quoted Supreme Court’s Justice Iguh, who declared that the creation of councils was “unquestionably constitutional.”
Fashola disagreed with the advice to the President to the effect that the decision of the High Court in Chief Taiwo Joseph Tovi-Hungevu v Abraham O. Ogabi suggests that the 2002 and 2004 council creation laws were null and void.
He also said he found it “curious and worrying” that the President chose to act on an advice that a lower court could pronounce illegal what the Supreme Court had declared valid.
The controversy over the creation of the LCDAs by the former administration of Tinubu had pitched the state against the Obasanjo government, leading to the withholding of the council funds due to the state by the immediate past President. The Supreme Court judgment in the matter of AG of Lagos State Vs AG of the Federation (2004) 20 NSCQLR 90 declared that the Federal Government had no powers to withhold funds due to councils in Lagos State. But Obasanjo ignored the apex court and held on to the fund. He only released N10 billion after former Attorney General of the Federation, Bola Ajibola (SAN), intervened.
Interestingly, Yar’Adua made the release of the seized N11 billion a priority when he assumed office in 2007. That move drew a lot of applause and further gave fillip to his administration’s crusade of respect for the rule of law.
But human rights activist, Femi Falana, said the action was to gain legitimacy. “It is now clear that President Yar’Adua was badly looking for legitimacy when he paid the seized fund of Lagos local governments.
"The Action Congress leaders who have been praising President Yar’Adua’s rule of law policy must have now seen that they have no choice but to work with the opposition to terminate the oppressive misrule of the PDP", he noted.
National Chairman of the African Democratic Congress, (ADC), Ralphs Okey Nwosu, asked why Yar’Adua was revisiting the matter he seemed to have endorsed with the release of the fund initially seized by his predecessor.
“I can see that this President is also about to go the way of former President Olusegun Obasanjo, who loved to treat the law with contempt. He has started playing politics with serious issues and that is very dangerous for the country. I think he should face other serious matters of governance and stop involving himself in politics of the states.
“The problem with our politicians is that they want to control every thing from Abuja. Nigeria is a large country but some people want to narrow it down and control it as if it is a local government. He is allowing those people that destroyed the government of Obasanjo to destroy his own government too. I wish him luck but I will advise that he should face the problem of electricity and leave Lagosians alone. I know no one is complaining in Lagos because we can feel the impact of the government and I know that the same cannot be said of his own government at the federal level”, he noted.
National Vice Chairman of the Action Congress (AC) and chairman of the Lagos Elders Council, Tajudeen Oluyole Olusi, also slammed the Federal Government for attempting to distract the governor. He noted that the President should rather busy himself with the task of getting Nigeria to work and ensure free and fair election.
Otunba Femmy Carrena, a chieftain of the Peoples Democratic Party (PDP) in Lagos however insisted that the pronouncement of the President was in order. He noted: “There must be a limit to the rascality of Lagos State government.”
The gubernatorial aspirant in the 2007 poll said although the letter should have been written by the Attorney General and Minister of Justice, the “continued operation of the local governments under whatever guise is illegal and should be stopped by any responsible federal government. The Supreme Court has said they are not to be, so why stubbornly go ahead with it?”
Carrena who however added that the state deserved more than 57 local councils, advised the Federal Government to go to the apex court for interpretation of ‘inchoate’ in the 2005 judgment.
The state PDP Chairman, Setonji Koshoedo, also toed the same line, maintaining “the government reserves the right to call all illegality in the land to order.”
He noted that although the state needs the local governments to spread the dividends of democracy to the people, “they should be done through constitutional and legal means.”
Legal minds were however livid with Yar’Adua over the ultimatum he handed the state government. They viewed the ultimatum as a throw back to the dark days of the military.
Constitutional lawyer, Prof. Itse Sagay (SAN), described Yar’Adua’s threat as “grossly illegal and unconstitutional” at the expense of the peace and order of the court.
He said if the government was unhappy that the LCDAs were still operational, it should go to court instead of indulging in ‘self-help’ and arbitrariness.
Tayo Oyetibo (SAN) also said it was wrong for the government to have issued the ultimatum, saying it should have gone to court to seek legal interpretation to the issue.
But Emeka Ngige (SAN) saw the ultimatum as being in “bad taste”, adding: “There is more to it than meets the ordinary eye.” He said with the ultimatum, “it seems the Federal Government is up to some mischief going by its bellicose stance.”
Activist lawyer, Femi Falana, described as "primitive and authoritarian" the presidential directive that the state government should revert to the old 20 local government structure.
He said it was the duty of the court, and not that of the Presidency, press or the Attorney General of the Federation and Minister of Justice to enforce judicial verdicts.
AC’s senatorial candidate for Ogun East in 2007, Bisi Adegbuyi, viewed the directive by the President as a direct assault on the principle of federalism in the country.
“It is also a brazen contravention of Section 2 of the 1999 Constitution that enunciates the federal principle in Nigeria.” Adegbuyi, a lawyer, added that ‘‘to be sure, the relationship between the Federal Government and the Lagos State Government is not that of a master and the servant. The two governments belong to the tiers of government with respective autonomy and none can give ultimatum to the other.”
But Tunde Olomodosi, a sociologist, calls for caution in the unfolding crisis so that the nation would not be littered with illegal entities called LCDAs. He noted that “if the apex court had said that the local governments are inchoate, meaning the process of the creation of the councils are incomplete because they are yet to be listed, and the state government now changed the name to LCDA and is operating them, what stops another governor from doing the same?
“We should remember that Lagos was not the only state that created new local governments in 2004. I remember that Ebonyi and Enugu as well as Niger did the same but they dismantled them and I learnt Enugu still operates and funds them. I think caution should be applied here. If the National Assembly is not doing its job, let the states wait and use the opportunity of a constitutional review to get what they want. We should consider that aspect in this matter. Lagos needs the local councils and we can see their work in operation, but what about the ripple effect on other states?”
Secretary General of the pan-Yoruba socio-cultural organisation, Afenifere, Femi Okunrounmu, wants the National Assembly to speed up the process of amending the Constitution and totally expunge the section that listed the names of the 774 local councils in the constitution.
He insisted: “It is an aberration that the councils were listed in the first instance. We don’t need it because the state has the power to create as many local governments as it deems fit so far they can fund them.”
Keen watchers of the unfolding scenario claim that the government is embarking on both public relations and political misadventure in the face-off. According to Segun Adiyeloja, a public relations consultant, the “President is embarking on a PR blunder if he thinks he will win a battle against Fashola. I am sure his advisers misadvised him to send that letter. He is taking on Fashola who is generally believed to be working and with very high approval rating. It is like shooting yourself in the foot”.
Political watchers believe that the Federal Government’s latest posture on the local governments was ill-advised. If it is a ploy to get at Fashola and the AC in the politics of 2011, they have missed it by the miles as the AC is too well entrenched to capitulate to sue a prank.
Again, if the battle is purely a constitutional matter, Fashola is equal to the task, especially when he was part of the backroom staff of Tinubu that won the 2004 Supreme Court battle.
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