LEGAL IDEAS FORUM

GOMBE STATE JOINT PROJECT DEVELOPMENT AGENCY BILL AND THE QUESTION OF CONSTITUTIONALITY BY AHMAD ABUBAKAR DUBAGARI

Introduction
Exactly one year after the commencement of direct federal allocation to local government councils, Gombe State House of Assembly passed a controversial ‘Joint Projects Development Agency Bill’ (now waiting for the assent) with the objective of creating  “a voluntary mutual collaboration between states and willing local government councils in the state on the joint execution of developmental projects”. This Bill has attracted a lot of uproar and criticisms from general public in the state as many see the Bill as an effort to erode the autonomy of the Local Government Councils (” The Councils “) and put the Councils between the proverbial Devil and the deep sea.  
The essence of this writeup is to analyse the provisions of the Constitution of Federal Republic of Nigeria 1999 cum the Bill in light of the following questions; Did the establishment of the Agency constitutionally erodes the autonomous nature of the Councils or violates any provision of the constitution? Is the establishment of the Agency a forbidden area on the part of the State House?  Is there any mischief intended by the Bill? I wish I am writing a thesis so that I will allow my horse to saddle as it wishes. But I am not. I must be brief. I will take the first and the second questions together.
The Agency and the Question of Autonomy
Section 7 of the 1999 Constitution of the Federal Republic of Nigeria established the local governments as third tier of government. The section provided that “The system of local government by democratically elected local government councils is under this Constitution guaranteed” This provision is quite instructive that the councils “should be democratically elected”.
But unfortunately, this provision left the council at the mercy of the State Governments which has turned them to play the role of errand boys. Many Governors appoint unconstitutional ‘caretaker committees’ instead of conducting the elections. Furthermore, the constitution created another two problems. Although functions of the local government were mentioned in 4th Schedules to the constitution, section 162 (6) stipulated that State Should maintain a special account to be known as “State Joint Local Government Account” through which Allocations and Revenues to the credits of Local Government Councils will be released. This provision has been grossly abused by the State Governments as they hijacked local funds from the Federation Account and deprives them of their own share of statutory revenue until last year when the federal government start to allocate funds directly to the Councils. 
Secondly, Item 2 of the 4th Schedules to the Constitution mandated local government councils to Joint head with Government of a State on respects of the following matters – 
(a) the provision and maintenance of primary, adult and vocational education;
(b)    the development of agriculture and natural resources other than the exploitation of minerals;
(c)    the provision and maintenance of health services; and;
(c)    such other functions as may be conferred on a Local Government Council by the House of Assembly of the State.”
The reason for such Joint is as a result of, as Oguntande JSC put it, “the inability of a particular Local Government Council on its own to meet the expense involved in certain  projects like building of schools and hospitals, that one or more Local Government Councils may come together to syndicate funds and resources for such projects. The State Government is expected to be the arrowhead or co-ordinator of such projects which require joint funding by Local Governments Councils.” See the case of A.G Abia State v. A.G Lagos State. Furthermore, a combined reading of subsection (c) of the item (2)  with section 7, 165(7)  of the constitution empower the State House of Assembly to make laws in respect of Local Government finances. I therefore submitted that Gombe State House of Assembly can make laws as to how  local government should utilize its fund and how to Joint head with State Government in performing the developmental projects. So there is nothing prevented the State House of Assembly to establish a body or such terms and manner  as it thinks proper for carrying out such Developmental Projects including the establishment of the Joint Project Development Agency. That didn’t erode the idea of autonomy. However, it’s to be noted that Councils could only Joint heads with state to perform only the above mentioned projects (I.e., item (2) of the Fouth Schedules) and not otherwise unless and until House of Assembly clearly legislate on that. Unfortunately, there is no provisions in the Bill or in any other Gombe State Law that authorised the state and council to Joint on Developmental Projects other than those mentioned in the constitution. In the authority A.G  of Abia State and others V A.G  of the Federation and others (SC 99/2005, SC 121/2005, SC 216/2005 consolidated) , the almighty supreme court held that 
“a person, body or organisation named in the Constitution and functions spelt out therein, cannot in law perform any other statutory functions which are not borne out from the Constitution, particularly when the statutory function deviates or subtracts from the constitutional function. This is the essence of section 1 of the Constitution.” In the light of this, it’s unconstitutional for the Councils or the ‘would established’ Agency to engage in any other developmental Projects outside the one mentioned in the constitution. 
Moreover, Section 2 of the Bill stated that the objective of the Agency is execution of the Joint Development Projects and subsection (4) of the said section made the membership of the Agency “willingly ” on writing application of the Local Government Councils.   It is a trite princple of law as stated in Attorney-General of Ogun State v Attorney-General of the Federation, that under the principle of autonomy in a federal system “neither the central government nor the regional ones can confer functions or impose duties on the functionaries of the other without the consent of its chief executive.”
Therefore, where the local government councils give a valid-written consent to participate in the Agency as required by section 2 of the Bill, that participation is deemed to be legal. I strongly concur that since the Constitution mandated the local governments to Joint with State Government in execution of some projects, the State House of Assembly has power to make law on the way and manner this collaboration may be conducted. However, the problem with the Bill is that it did not stipulates the way and manner in which local government council can also “willingly” withdraw from the agency.  Furthermore, the Bill suppose to provide that it’s only DEMOCRATICALLY ELECTED LOCAL GOVERNMENT COUNCIL suppose to give consent and not any other unconstitutional councils. For instance, for more than a year, Local Government Council in Gombe are being managed by Secretaries as they do not have even the unconstitutional caretaker councils. And unfortunately, this is happening on the eyes of the state law makers.  
Mischievous Nature of The Bill
The processes for the enactment of the law was said to have included some level of secrecy and exclusion of some members. Section 13(9)(a) of the Bill mandated the local government councils to remit all of its outstanding after Statutory and Mandatory Deductions. This signifies that, although the Federal Government have wanted Local Government Councils to fully utilize their funds, this provision has taken away all the money leaving the councils to dance to the music and chorus beats and sings by the Agency’s Board, which is to be headed by the governor. And whether the melody of this music and chorus sounds good or bad.  Additionally, there is no express provision in the Bill that spelt out the nature and extent of the Partnership. Apparently, the Agency seems to have taken management of all of the Councils projects without respecting any boundary. As a  matter of fact the Law is yet another effort to bring back corruption into Gombe State polity. It is a notorious fact that, since the introduction of the local governments Councils, there have been leakages here and there in Local Government Councils their funds. This law seems to have encouraged that unholy act to continue, instead of plugging it with its  powers. 
Conclusion
To conclude, I strongly agreed that the lopsidedness in the division of the State and Local Government powers, more especially on the area of legislation is what brought this confusion. I recommended that Our National Assembly should consider amendment of the Constitution to widen the  scope of matters in which the States and even the local government councils can exercise legislative powers in the true spirit of federalism as obtainable in other countries that operate a federal system of government.
Ahmad Abubakar Dubagari, is a writer and poet, Author, with strong interest in Capital Markets, Telecommunications, Property and Islamic Commercial Laws. He writes from Ahmadu Bello University Faculty of Law. He could be reached through his e-mail [email protected] or his phone 0814 651 5644
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For knowledge and Justice

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