Why I Disagree with Supreme Court’s Decision on Local Government Autonomy — Prof. Kalu, SAN

In an interview with Vanguard’s Law & Human Rights, Prof. Awa Kalu, SAN, a distinguished constitutional lawyer and former Attorney-General of Abia State, shared his perspective on the Supreme Court’s July 11, 2024, ruling that granted financial autonomy to Nigeria’s 774 local government councils. Despite widespread praise for the ruling, Prof. Kalu expressed his disagreement, highlighting key constitutional issues with the judgment.

Concerns Over the Constitutional Basis of the Judgment

While many hailed the Supreme Court’s decision on local government autonomy, Prof. Kalu argued that such praise stems from a misunderstanding of the constitutional context. He expressed concern that the ruling undermines the provisions of the 1999 Constitution of the Federal Republic of Nigeria, particularly Section 162. According to him, the Supreme Court’s decision deviated from the clear intentions of the constitution’s framers.

At the heart of his critique is the interpretation of the word “shall” in Section 162, which governs the distribution of revenues among the federal, state, and local governments. Prof. Kalu pointed out that while the Court upheld the mandatory interpretation of “shall” in relation to the Federal Government, it did not apply the same interpretation to the subsections dealing with state governments. He believes this inconsistency in the Court’s interpretation has caused significant constitutional confusion.

Clarifying Section 162

Prof. Kalu emphasized that Section 162 outlines the allocation of funds from the Federation Account to federal, state, and local governments. He argued that the Court’s interpretation improperly bifurcated these provisions. In particular, he noted that Section 162(5) mandates that funds allocated to local governments be channeled through state governments. The Supreme Court’s ruling, however, appeared to overlook this constitutional arrangement, creating what he believes is a dangerous precedent of bypassing state authority over local governments.

A Call for Uniform Interpretation

Prof. Kalu asserted that the Supreme Court should have applied a consistent interpretation of “shall” throughout the entirety of Section 162. In his view, the Court’s attempt to treat the federal and state governments differently, despite both being subject to the same constitutional provision, created unnecessary legal ambiguity.

Impact of the Judgment on States

Beyond the legal interpretation, Prof. Kalu expressed concern over the practical implications of the judgment. He questioned how states, many of which have not budgeted for local government elections, would be able to conduct such elections without adequate financial planning. He also warned that the decision could lead to further centralization of power in the federal government, eroding the autonomy of state governments and undermining the federal structure.

Judicial Legislation or Policy Creation?

Addressing the concept of judicial legislation, Prof. Kalu explained that courts are meant to interpret laws, not create them. While the Supreme Court has a role in shaping policy through its interpretation of the law, he emphasized that this must always be grounded in the existing legal framework. He argued that the Court overstepped its bounds in this case by making a policy decision that contradicts the constitution.

Local Government Autonomy and State Control

Responding to the argument that the judgment seeks to prevent state governors from misappropriating local government funds, Prof. Kalu maintained that the constitution clearly assigns states the responsibility of managing local government councils. He referenced Section 7 of the 1999 Constitution, which grants states the power to regulate local government affairs. In his view, the Court’s ruling disregards this provision, further complicating the relationship between state and local governments.

Conclusion: A Lawyer’s Disagreement, Not a Generalization

In conclusion, Prof. Kalu made it clear that his disagreement with the Supreme Court’s ruling is rooted in constitutional principles. While he respects the Court’s authority, he believes the judgment contradicts the constitution and creates challenges for the effective governance of local councils. Although he refrained from generalizing about the Court’s overall performance in electoral matters, Prof. Kalu’s critique highlights the complexity of balancing legal interpretation with policy decisions in Nigeria’s evolving legal landscape.