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.


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 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


5 Emezi. p. and encourage cooperation and participation of inhabitants towards the improvement of their conditions of living. “Local Government Administration in Nigeria: A Practical Approach. note 1. Ado-Ekiti. “Local Government Elections and Democratization in Nigeria”. 1997.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 266 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 267 The first section. that local initiative and response to local needs and conditions are maximized. London. p. Appadorai A. 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 in Historical Perspective”. April 29. 50 7 See. in its modern In fact. (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).” in Ajayi K. 2000. 1 6 Emezi. Agagu. 1975. see. p. A. part VI is the concluding remarks. through devolution of these functions to these councils and through the active participation of the people and their traditional institutions. 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”. II. Many authors tend to look at the concept from this perspective. on the other hand. in Kolawole D. 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. p. 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. Thus. perceived local government as a: System of local administration under local communities that are organized to maintain law and order. 18. The Substance of Polities. 60 8 Cheryl Cran. democracy and democratization. p. It provides the community with formal organizational framework which enables them to conduct their affairs effectively for the general good”. Sunday TRIUMPH Newspaper. p. Dekaal. p. and to ensure.3 Viewed from this perspective thus. Nigerian Journal of Public Administration and Local Government 2(2). Ibadan. Part V dwells entirely on the Ebonyi state model of local government administration. provide some limited range of social amenities. Cleus. local government is equated with grass root participatory democracy. S. 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. 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. it is essential to define and explain the concepts of local government. 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. Agagu A. and separation of powers. which contains some brief recommendations. It is also expected to serve as the basis of socio-economic development in the 8 locality. See also. 5 Guidelines for Local Government Reforms. op. available at http://www.triumphnewspapers. 17. Appadorai. 1976. Part IV looks at the system of local government administration under the current dispensation. UNAD. 2007. 2 6 As a preliminary step. “Local Government”. Local Government The term “local government in its generic sense refers to the ideas of selfgovernment by a local community.A. federalism. (ed) Theory and Practice of Local Government. However. the concept of local government in modern societies revolves around philosophical commitments to democratic participation in the governing process at the grass root level. Definition of Terms and ConceptualAnalysis Government at local level exercised through representative council established by law to exercises specific powers within defined areas. Lastly. Part III takes an historical incursion into the establishment and evolution of local government administration in Nigeria until the advent of the Fourth Republic. it is important to clarify the core concepts that may aid better understanding of the thematic perception of this paper. It refers to “self-government of the local community for local community by its elected local inhabitants”. Allen and Unwin. cit. (defines local government as a government at the grass root level of administration meant for meeting peculiar grass root needs of the people). (ed) Readings in Political Science.287 . Lawal.html 4 See for instance.

p. The governing body of such an entity is elected or otherwise locally selected”.U.cited in National Open University: School of Arts and Social Sciences. formulate. in Austria. rules and regulations. defines local government as: 11 10 From the generality of the definitions stated so far. 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. Ihonvbere. the people. Otive Igbuzor. “The Theory of Local Government”. 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. it is known as autonomous communities (also Cantons). and that the result of problems not central in their incidence requires decision at the place.15 In a nutshell. 110 Quoted in F. the local government units must have legal personality distinct from the state and federal 52675. Soc. xv. which include among other things. 1963 (Introductory chapter). Awa. Asia. Adeyemo.(hereinafter National Open University Handbook) See also the definition given byE. Wraith. Nigeria. No I & II 04/ January 1981 12 Deconcentration involves delegation of authority to field units of the same department. and discipline its own staff. 10(2). Benin City. Regular elections at specified periods of time is a feature of local government. Federalism and Multi-level Governance: Comparing the E. promote. 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. 2008. it must enjoy substantial autonomy. placing the local government at the lowest level and the federal government at the highest.10 Maddick on the other hand.13 concludes that what is deducible from the concept of local government is that it essentially has to do with increasing power and authority. p. See.htm . Thirdly. 13 Julius O. promoting holistic and sustainable development and providing a line of engagement and interaction between higher levels of government and local interests. Text of lecture delivered at the Workshop for Local Government Councilors in Edo State. Bombay publishing House. it is called cantons and in Switzerland. Local governance also directly relates to the maintenance of law and order locally. First. “Local Government Reform and Constitutional Review in Nigeria”. Second. Local Administration in Nigeria.gamji. June 19. Sci. R. 77 1415 Ibid 16 See generally. which are lesser power in a national policy. Kegan Paul InternationalPlc. the provision of essential or basic services at the local level. ability to make its laws. J. develop. Decentralization and Development. “Local Government Autonomy in Nigeria: A Historical Perspective”. Quarterly Journal of Administration. the local government must have specified power to perform a range of functions. O. In fact. Democracy. where and whom the incidence is 16 most deeply felt.1984 11 Maddick H. R.9 This perception of the modern usage of the term as opposed to the earlier conception mentioned above is suitably engrained in different definitions. E. vol.14 Also four characteristics of local government can be deduced from the definitions. execute and evaluate its own plans and the right to recruit. O. Awa. See generally. Felix Knupling. sees the concept of local government as: The act of decentralizing power which may take the form of deconcentration or 12 devolution. while devolution refers to the transfer of authority to local government units or special statutory bodies. January 2009. moving resources to local levels. the intermediate level of government (second tier) is referred to as Lander in Germany. available at www. Ihonvbere.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 268 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 269 Implicit in the modern conceptualization of local government is the issue of devolution of powers in a hierarchical stratum. (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). (Check citation online) p. and by the person. Ola. the United Nations Office for Public Administration defines local government as: A political sub-division of a nation or (in a federal system) state. London. Between the two levels of government is usually an autonomous unit called the state or whatever nomenclature adopted. with other Federal States. 3. strengthening the foundations of democratic institutions and practice and giving power to those that really matter. 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. D. levy taxes or exact labour and within limit specified by the central government” Another writer. For instance. 9 For instance. O. and finally. local government officials are elected. Local Government Reform and Constitutional Review. “Legislative Duties and Responsibilities in a Democracy”. those of the latter are appointees of the center to implement policies of the center. Handbook on Local Government Administration and Revenue Generation.

Journal of Democracy vol. arbitrary rule is outlawed. Laski. In discerning the concept of democracy. norms. p. interpretations and categorizations. 9. natural rights and sovereignty”. Democracy and Democratization The term democracy is very vague. London. cited in Kamilu Sani Fage. UK: Sage. Bawa. 1. accountability. For instance. It also socializes the citizens into a democratic culture. 1994. political parties. values and practices.25 On the other hand.) Political Philosophy: Oxford University Press. as well as the conduct and behaviour of leaders that the institutions seek to engender. Gurkind and Brazier. Bello-Imam. social justice. bold and concerted efforts to continually evolve. cited in Kamilu Sani Fage. 1988 18 Saward Michael.J.20 On his part. regular elections. others see it as a deliberate policy of building the institutional mechanism of democracy. op. 2001. Quinton (ed.2 20 Ibid 21 Joseph Schumpeter. It necessitates settling affairs according to 17 H. democratization is “the steady and systematic empowerment of the people . such as the constitution. Schmitter & Terry Karl. 411 18 Cluade Lefort. Egwu. social justice. in A. 3 (Sept. 21 Another school of thought is of the view that public accountability is the essence of democracy. environmental protection. 79 known rules of government. A Grammar of Politics.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 270 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 271 B. 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. Ibid 26 Julius O. p. 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. the concept of democratization has attracted various usages.153 22 Philippe C.) Defining and Measuring Democracy. Because. cit. Peace Review.. According to him. No. electoral commission and ombudsman institutions. 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”. freedom of speech. democratization is generally regarded as a process involving a two-step development mechanism. gender rights. democracy is much more than political competition through periodic elections. 1985:542. then as is the case now. p. 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. “What Democracy is… and is Not”. No.26 On his part. Ethnicity and Nigeria's Democratic Eclipse. First. op. Democratization in Africa. G. issues which are considered by Marxian scholarship to be an integral part of democracy. note 3. Jos. Lenin. but fails to take into cognizance issues such as economic rights. however. nurture. p. For instance. AFRIGOV Monograph Series. 18 . Fage24 opines that the above definitions are undoubtedly defective. 1978:3. For Ihonvbere. Allen and Unwin. 5. and egalitarianism. p. “Democratic Theory and Indices of Democratization” in Beetham David (ed. 1982. 27 23 See.19 This according to him. Democracy and Political Theory. cited in Kamilu Sani Fage. cit. 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”. p. 1979:88. p. It also means much more than one-man one vote. Bawa. while people like Lefort17 tried to define it on the basis of political practice by an entity. (July 2004. there is equality of men before the law.23 Though diverse. University of Minnesota Press (Minneapolis). consolidate and sustain the first initial process.13). Sage Modern Politics. To some however. basic human needs. “Two Concepts of Democracy”. ethnic and minority rights and popular participation”. and above all. toleration towards minority views. views democratization as a two way process. London. it requires the establishment of all those crucial political institutions that enhance and strengthen democratic participation. No. (Daivid Macey Translator). 6 19 S. was what the ancient Greek city state of Athens practiced. It is used in different ways by different people. in democracy “the consent of the people is the centre-piece of governance. The second step involves deliberate. note 3. p. 1997) 371-378 27 H. transparency. observance of the rule of law. 1963.18 This disagreement is just one of the many reasons that account for the multiplicity of approaches in dissecting the meaning of democracy. 3 (Summer 1991). 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”. Ihonvbere. while some people view democratization as a spontaneous transition from nondemocratic to democratic form of government.18 24 Ibid 25 See.

territorially localized) governments in such a way that each exists as a government separately and independently from the others operating 28 K. 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. and the number of federating strata. especially the process of evolution of the local government system in Nigeria. with a will of its own and its own apparatus for the conduct of its affairs. Comparative Politics: An Institutional and Cross-National Approach. 1 31 See. See also. New Jersey. op. Thus. Soc. 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. Plokker. p. 1999). (Believes that federalism necessarily goes with decentralization which brings about democracy. Nwabueze.e. 1995. in terms of centralization versus decentralization of power and authority. p. Thus. good governance. which is the process by which a number of separate political organizations. cited in Ademola Ariyo. among them. cit.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 272 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 273 Having looked at the various meanings of democracy and demoralization. enter into agreements for working out solutions. accountability. much less. note 28.28 notes that federalism refers to the method of dividing power so that general and regional governments are each. G.K. 1 29 Carl J.C. Economic Commission for Africa.1 33 See for instance. Mahler. tend to pull their people apart”. p. further elaborates on the concept explaining that federalism is the most suitable term by which to designate the process of federalizing a political community. “Theories of Federalism” Fiscal Policy and Growth in Africa: Fiscal Federalism. 34 Many writers tend to equate federalism with democracy. C. adopting joint policies and making decisions of joint problems. 2 35 See Stephen Lister and Mary Betley. 31.5. in terms of whether a two or three tier arrangement). participation and legitimacy and efficiency in decision making. 84 32 Tamuno 1998. Decentralization and the Incidence of Taxation. Friedrich. Washington D. Oxford. Wheare. Federalism in Nigeria under Presidential Constitution.35 However. G. J. 1983. within a sphere.. will clearly show how the institution of the local government as a tier of governance has impacted on the process of democratization in Nigeria. and with an authority in some matters exclusive of all the others. cited in Ademola Ariyo.32 This is what is commonly referred to in the literature as “unity in diversity”. Englewood Cliffs. 1995. Kunle Awotokun. 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. Towards Democratic Decentralization: Transforming Regional and Local Government in the New Europe. London. Tamuno. 130 34 See Ademola Ariyo.S. Sci. Ad Hoc-Expert Group. O. (1963). note 28.30 Indeed. Wheare. p. it has been mentioned that the concept of federalism allows for the coordinated expression of the various diversities of a polity. Hollis and K. the major debates concerning the elements of federalism centres on two main issues: the vertical arrangement of the federal structure. European Commission. Constitutional Government and Democracy.33 The concept is viewed as the process of unifying power within a cluster of states and decentralizing power within the unified state. October 2003 p. C. Though some scholars maintain that the adage is contradictory and at cross purpose with the inherent idea of federalism. “Rethinking Decentralization in Developing Countries”.29 According to Nwabueze. Sector Studies Series: The World Bank. p. U. Sweet and Maxwell. 13. The argument in the literature predominantly considers decentralization as an essential element of federalism. be they states or any kind of association. 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. country-wide government and number of regionalized (i. Federalism is expressed as decentralization of power from the central authority to the lower levels 30 B. coordinate and independent. 10(2) (2005). giving room for fulfillment of both regional and national goals 31 simultaneously. cit. federalism is not more than:an arrangement whereby powers of government within a country are shared between a national. Tacis Service DG. Friedrich. Federal Government. particularly in the establishment of core political and administrative structures such as the legislature and executive institutions at that level. p. Approaches to Decentralization in Developing Countries (Good Practice in Public Expenditure Management. p. (that is the level or spheres of tiered governance. is to engender the process of democracy and political participation at the grass root. op. 188 (1963). as we have already seen in the notion and definition of local government above. though the combined forces of ethnic pluralism and cultural diversity. Local Government Administration under 1999 Constitution in Nigeria. further discussions in this papers. Litvack et al. Federalism and the Notion of Multi-tiered Governance directly on persons and property within its territorial area. p. . Nigeria.

(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. in Local Government Studies.38 Another writer defines the concept as: The transfer or delegation of legal and political responsibility for planning. 41 (c) Devolution: In this kind of decentralization. and (ii) The number of tiers in the system. cit.37 According to Mawhood. Litvack define it as “a process of transferring political power. finance and management to quasi-autonomous local governments that are accountable to their constituents. 3 (Mentioning the focus on local demands. this form of decentralization can be characterized as a principalagent relationship. Derrese Degefa. Cameron “The History of Devolution of Powers to Local Authorities in South Africa: the Shifting Sands of State Council”. on “Decentralization and Participation for Sustainable Rural Development in Africa. 396-397 40 See Conforti et al. decentralization is a principle of federalism which entails the sharing of part of the governmental power by a central ruling group with other groups. subordinate units of government. Lister and Betley.) Local Government in the Third World. administrative and fiscal responsibilities from central government to lower levels of government (sub-national governments). pp. vol.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. Department of Political Science. 1995. See. op. and Litvack et al. p. Mawhood. This is usually seen in unitary countries like the U. op. p. Chichester. UK. Paper presented at IMF/World Bank Fiscal Decentralization Conference November 20-21 2000 (Washington). note 35.making and management. Giorgio Brosio. “Decentralization: The Concept and the Practice”. op. 1993). An independent local 36 See.1998. though central government does not allow full discretionality or does not transfer enough resources for decision. op. Ibid 42 Conforti et al. Los Angele. 108 43 See generally.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 36 274 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 275 of governance. p. “Defining and Measuring Decentralization: A Global Perspective”. “Fiscal Decentralization in Africa: A Review of Ethiopia's Experience. “An overview of Decentralization in Sub-Saharan Africa”. fiscal resources. cit. cit. cit. local (regional) branch offices are simply used to improve the efficiency and effectiveness of service delivery. African Region Working Paper Series. 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. p. op. note 35 41 Litvack et al. 6-7 44 Daniel Treisman. According to Litvack. University of California. Treisman44 identified six additional indices for examining the interjacent between the concepts of decentralization and federalism. and government personnel). Derrese Degefa. 2002 . 40. in 39 R. note 35. and Stephen Ndegwa. in Mawhood P. 2003. op. Thus. Economic Commission for Africa”. “Decentralization in Africa”.43 Notwithstanding the broad exposition of the types of decentralization made by different scholars. (John Wiley and Sons. note 37. 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. (d) Deregulation: This involves the accountability of local governments to their constituents. central government transfer substantial authority for decision-making. (ed. a Paper presented at a Workshop organized by the Economic Development Institute of the World Bank. appointment authority. the need to bring economic and political systems closer to local communities. based on (i) Five attributes that are distributed among the different tiers within a compound political system (decision-making authority. note 36. administrative efficiency. Various reasons are given for the adoption of Federalism in the form of decartelization. Ethiopia. 4 government does not exist in this type of decentralization. October.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.K. For instance. He identified the following categories of decentralization: (a) Vertical decentralization: Simply defined as the number of tiers that a system contains. 3. note 36. election. 21.42 This kind of decentralization is most akin to the features of federalism and our discussion in this paper. pp. World Bank (2002) 37 Litvack et al. cit. Conforti et al. No . management and resources use and allocation from the central government and its agencies to field organizations of these agencies. 49. each having authority within a specific areas or state. No. “Decentralization in Africa: A Stocktaking Survey”. semiautonomous public corporations and areaswide regional or functional authorities. Ad Hoc Export Group on Fiscal Policy and Growth in Africa. cit.

Scholars are divided on the number of tiers of government in a classical federal state. cit. The higher is the share of administrative personnel at lower tiers. op. but more decentralization in most other ways. their size. See generally Derrese Degafa.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. zone. the system is maximally centralized. But if the second tier actors select their executive independently. 8-9 47 K. This issue directly bears on our quest to determine the position and role of the local government in the Nigerian political system. fiscal and personnel decentralization though they are not more likely to have local selection of officials. independent of the general government. decision-making. state government which in certain matters are in their turn. 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). More economically developed countries tend to have fewer tiers of government. note 37 . op. level of ethno-linguistic division. Appointment decentralization: Concerns with the level at which officials at different tiers are selected and dismissed. 45 (b) Decision-making Decentralization: Focuses on how the authority to make political decision is distributed among different tiers. 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. The larger is the share of total tax revenues that sub-national tiers receive. which in certain matters is independent of the governments of the associated states. he found the following results: (i) Countries with a large area or population tend to have greater vertical. But. note 44. economic development and degree of democracy). Personnel decentralization: Focuses on the way administrative resources are distributed across tiers of government. if two systems have the same number of tiers. If authority to decide all questions belongs to the central government. Treisman. on the other hand. He identified the federal system as: An association of state so organized that powers are divided between a general government. region. then the system is highly decentralized. The debate revolves around a two or three-tier system.47 Many other scholars 46 Daniel Treisman. pp. the greater is the tax revenues decentralization. This implies that the degree of appointment decentralization is related to whether or not the system is democratic. the greater is personnel decentralization. ibid. Countries in which ethno-linguistic minorities make up a large share of the population tends to have more tiers of government.e. The lower appointment decentralization is the one where the first tier body appoints the executive at the second tier. and Woreda) is the most vertically decentralized government system in the world. Wheare. colonial history. cit. C. The concepts of appointment decentralization and electoral decentralization overlap. Former French colonies tend to have more tiers of government and less likely to have high levels of sub-national autonomy than others. further correlates these with various characteristics of countries (i. and. if the lowest-tier of government has all decision-making rights. Derrese Degefa. then the system is higher form of appointment decentralization. Fiscal Decentralization: Deals with how tax revenue and public expenditures are distributed among the different tiers. but less decentralization of fiscal resources and administrative personnel and less local electoral accountability. population. especially the local government with the other tiers of government. Wheare. the one in which officials at more tiers are selected in direct elections is more electorally decentralized one. for instance implied the two-leveled structure. op. cit. in terms of area and 45 See. note 28 (e) (f) Having identified the above indices in defining the concept of decentralization.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 276 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 277 which government exists at four levels (central.

Each level or sphere. regional (state) and local communities) 52 J. See also G. Merits and Constrains” . 2008. executive and judicial branches. This is what is known as separation of powers. Gboyega. one all-inclusive and the other composed of several mutually exclusively communities. in Aborisade O. Local Government Publication series. . scholars such as Gildenhuys and Ariyo among many others argue for a three-tier system in a federal state.Aborisade. 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. O. Nigeria. A Similar situation exist in the United States. O. Governance at the Third Tier. the range of powers allocated to each unit of government and the way in which these powers are to be exercised. “Financial Local Government in a Federal System: Selected Aspects of Local Government Finance in the United States”. s. London. Juta and Co. India. O. (eds). maintains that a federal state is one: 48 Oyovbarie Characterized by at least two patterns of communities. it is generally observed that these constitutions seldom confer it with absolute autonomy or independence unlike the second tier. 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”. pp. Comparative Government and Politics: Introduction. Nico Steyther (ed. South-Africa and United States) 56 See. 165 53 Ibid.htm (January 2002) 48 See Kunle Awotokun. It is further argued that in contemporary political systems. See also. 1993. (Forum of Federation) 2008. A. 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.H. p. Separation of Powers Aside from the fact that a polity may be arranged in multi-tiered levels of governance. G. Mundt. This way. and 1996 and the Constitution of Ethiopia. on the other hand. and whether the system is federal. 1979 and 1999. Ife. Primstone. Pretoria. 2005. op. Felix Knupling. Austria. 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. p. “Implementation of the Executive Federal Presidential System of Government at the Local Government level: Its Logic. pp. Mexico. Spain. 169-170 (defined federalism as a system of government in which legal sovereignty is shared between the central and the other levels of government. it is suggested that one can deduce how many tiers of government there is in any political 53 system. p. S. in O. Local Government in Nigeria and the United States: Learning from Comparison. ibid. Primstone. Gildenhuys. note 28. p. 7 thereof. the third tier is clearly tied to the apron string of the second tier. Public Micro-Organizations. 135 55 See. p. 1987. Cameron. Gildenhuys. 38-39. p.J. Ibid. (eds). be that as it may. 1991 51 Ademola Ariyo. available at www.cit. Oyelakin. the executive branch has the authority to administer and enforce the laws so made. Federation and Multi-level Governance: Comparing the E. the constitution of South Africa. “The Constitutional Basis of Local Government in South Africa”.57 It denotes the practice of dividing the political and legal duties/powers of the government among the legislature. Brazil.R. Mundt (eds).U. he maintained that government can be perceived as concerned with the provision of three categories of goods: national. in terms of general control and management. has constitutional authority to make some decisions independently of the other).& Mundt R. On the other hand. Australia.) Local Government and Metropolitan Regions in Federal Systems A Global Dialogue on Federalism. J. The judicial division. the local government is included in the constitutions of many countries as a level of 50 51 governance. Switzerland. 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. 3. adjudicates cases brought before the courts 54 See for instance the Constitution of Nigeria. See generally. Vanguard Newspaper.55 However. Harrop. Canada. ibid. Nigeria. The Democratization of South African Local Government: A Tale of Three Cities. Cape Town. Even though the third tier of government. 2008 (A study conducted on the role of local governments in 12 countries. Nico Steytler. 225-226. 26-27 57 See. Committee of the Region: “White Paper on Multi-level Governance”.O. Macmillan Education Ltd. “The Theory of Federalism: A Critical Appraisal”. the constitution contains provision on the plan according to which the various units of government are organized.S. Edwin Madunagu. et al. Hague and M. Separation of powers is an influential concept in modern democracy and it is a liberty sensitive concept. and R.nigerdeltacongress. ibid. Johannesburg: Konrad Adenauer Foundation. Ibid 49 S. 1999. state and local levels. Gildenhuys. op. 82 50 J. Ikenga Oraegbunam. pp. 130. This means that while the legislature has the power to make laws. McGill Queens University press. op.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 278 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 54 279 favour the two-tier system in a federal arrangement. J. 6. 3 (arguing from an economic perspective. in O. See also the E. J. and G. cit. More often than not. Rassel. 1995 p. Separation of Powers and Nigerian Constitutional Democracy. January 19. note 33. p. central and state. that is. p.56 D.L.E. 1979. unitary or consociative. Van Schaik Publisher. R. p. Aborisade and R. “History of Local Government Reforms and the Gains made in Local Government Administration During the Transition period”. 5. and recognized by the federal government through partnership on various issues. cit.U with other Federal States. R. Nigerian Journal of Political Science. Occasional Paper. Germany. 1998. 19. H.10. Oyelakin. ibid. Ltd.

Though some scholars argue that creating an extreme separation of powers can make government less effective. See also. Guidance Notes on Applying for Judicial Review.64 He based his exposition on the British constitution of the first part of the 18th century as he understood it. Locke argued that legislative and executive powers were conceptually different. 2007. described an utopian political system that included a separation of powers.62 English political theorist. 38. 65 Montesquieu therefore outlined a threeway division of powers in England among the parliament. Plato and Machiavelli. executive ministers should not be members of the legislature or vice verse). 65 Ibid 66 Ibid. “Separation of Powers”. p. Redmond WA: Microsoft Corporation. 13 July 2004.68 or that one branch of government should not exercise the functions of another. See. 49. 749 (1999). 15 Com L (April 2006) 17. Jethro K.63 Judicial power. Harrington building upon the works of earlier philosophers like Aristotle. a study by French political writer. It is a type of court proceeding in which a Judge reviews the lawfulness of a decision or action made by a public body. available at http://dspace.61 The English Scholar. Working Paper. Spirit of Laws (1748). Duke L. “The Great Myth of Judicial Independence”. Lieberman. 1690 cited in Ikenga Oraegbunam. Saleh Mohammed. The Commonwealth Lawyer Vol. Adrian Hardiman.pdf Thus. 2008 [DVD]. 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. 67 F. “Separation of Powers in Nigeria: A Myth or Reality”. gave the separation concept more refined treatment in his Second Treatise on Government (1690). note 57 64 Baron de Montesquieu. Second Treatise on Government. 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). available at http://wwwyusufali. 61 See. contained in “Baron de Montesquieu” Microsoft Student. 68 Ibid 69 See generally. 60 The doctrine of separation of powers developed over many although such a division did not de facto exist at the time.unijos. /pg284. It also ensures the needed equilibrium in terms of “checks and balance” . but that it was always necessary to separate them in government institutions. “Sharpening the Separation of Powers Through a Hierarchy of Norms? European Institute of Public Administration. 62 Ibid 63 See. executive and judicial powers should control or interfere with the others. See. op. R. It is this latter 58 function that constitutes the court's power of “judicial review”. was one of the first modern philosophers to analyze the doctrine. the doctrine of separation of powers is understood to imply that none of the A. In his John Locke. 2008 [DVD]. See.htm 59 Robert Schutze. Microsoft Student. Nevertheless. and interprets the laws. V60ictoria Nourse.judiciary. 3 (December 2005) p. or that the same individuals should not hold posts in more than one of the three branches. op. Ali (SAN). (that is to say the 67 judges should be independent of the executive and the legislature). Redmond WA: Microsoft Corporation. in real practice. cit. Cit. the king and the courts. 14 No. The (Last Accessed 4/1/2010) 70 Francis Bennion. Ikenga Oraegbunam. Montesquieu believed that the stability of English government was due to this practice even though he did not use the word “Separation”. played no role in Locke's thinking. 21 . (for example. (that is to say. however. note 57. “Commonwealth of Oceania” (1656). available online at http://www. Yusuf O. “Separation of Powers Under the 1999 Constitution of the Federal Republic of Nigeria: A Critical Review”. J. 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. and may increase the possibility of governmental paralysis especially where there is disagreement among members of the different organs. Indeed.66 In contemporary context. 2007 If the executive and the legislature are the same persons.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 280 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 281 in respect of any matter or dispute. there is no watertight operation of the doctrine in governmental structure. p. 2005/W/01. John Locke. “The Vertical Separation of Powers”. The modern idea of the separation doctrine was explored more profoundly in the Spirit of Laws (1748). This entire arrangement of governmental structure is described as 'horizontal 59 separation of powers”. 69 that the executive should not make laws). there must be a danger of the legislature enacting oppressive laws which the executive will administer to attain its own ends”.17. Judiciary of England and Wales: Judicial Review. Separation of Powers in Written and Unwritten Constitutions. In a federal system.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. Baron de Montesquieu. James Harrington. 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.

“Nigerian Federalism under Civilian and Military Regimes. the first largely elected local government council based on the British Whitehall model emerged in Lagos and the former Eastern and Western regions. the country abandoned the national local government system. op. 1954 made only moderate changes in the system of local government administration. The main function of the native authorities was to maintain law and order. note 15 . health. the Western Region also adopted the representative local government system. Under this arrangement. engender democratic culture and promote freedom and liberty. Transition Without End: Nigerian Politics and Civil Society Under Babangida. pp. Thus. the resultant Native Authority Law. note 11. the councils were given a wider range of functions including primary education. This required that the administration should be carried out through traditional rulers and institutions. 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.71 Thus. The chief presides at all meetings and acts in accordance with the majority of opinion in the council. These include the manufacture and distribution of local liquors. p. The Native Authorities were empowered to check and prohibit behaviours that the colonial authorities considered offensive. 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). But if he disagrees with the council. op. This colonial legislation replaced all pre-colonial. 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. which introduced a three-tier representative local government system in the region. police and other executive officials from repressing the citizens. These agitations were taken into cognizance in the drafting of the Richards Constitution 1946. personnel and general administrative matters. the former Soviet Union and countries under military dictatorship. political authority was concentrated in a few very powerful ministries and other executive agencies. 177 72 See. Kirk-Green. 109 73 Native Authority Ordinance 1916 diffused systems of other areas. In addition. 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. 76 See Otive Ogbuzor. op. it was not until 1861 before the first steps were taken to establish an administration by Britain. they had power to regulate the cutting of timber and to prevent water pollution. Thus. 1988. 109 75 The Eastern Region enacted the Local Government Ordinance of 1950. people particularly representatives of missionaries and British trading interests were appointed into the Native Authorities.75 By this time. Few examples can be given of countries like china. but there was a problem in identifying who those authorities were in most parts of southern Nigeria. The constitution restructured Nigeria into three regions. “The Reform of Local Governments” in Diamond. The Eastern. including Nigeria before the enthronement of democratic rule in 1999. p. Contrarily. the holding of drinking bouts. 1997.” Publius: The Journal of Federalism (winter). cultivation and supply of noxious plants and carrying of arms. cit. he would take whatever action he thought best and inform the Governor of the region.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. Oyeleye Oyediran. This led to the establishment of native authorities in their most rudimentary forms from the 1890s to the 1930s. no. in 1914. for local administration. the chief has no power to act against the decision or advice of the council.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 282 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 74 283 The total absence of separation of powers often progressively leads to repression and anarchy because it is easier for leaders to abuse their authority. appointment of Native Authorities by the colonial administration was easily done in Northern Nigeria. to the 71 Isawa Elaigwu. III History and Evolution of Local Government System in Nigeria The history of local government system in Nigeria dates back to the colonial days. police. The councils also enjoyed a great measure of autonomy in financial. This meant that nationalists were not appointed to serve on the council. Although contact with Europeans dates back to the fifteen century. 76 Between 1950-55. See. vol. The chiefin-council was made up of the chief and members of council. cit. After political independence from British rule in 1960. op. and Oyediran. In the North. It empowered the Governor-General to appoint a Native Authority for any area. Traditional rulers constituted not more than 25 percent of most council in the then Western region and Lagos. which assumed responsibility for the re-organization of local governments. cit note 11. cit. The colonial administration that was established was based on indirect rule. See generally National Open University Handbook. The court and the legislature did not wield enough power to prevent the military. which was provided in the local gover nment law of 1952. which led to further agitation for reforms in the NativeAuthorities. between 196074 See National Open University Handbook. in the chief-and-council. Boulder and London: Lynne Rienner. The Native Authority Ordinance73 recognized traditional rulers as native authorities. Western and Northern regions each enacted laws to re-model the local government systems in their domain. 18. note 15. tax evasion and any conduct likely to disturb the peace. Otive Igbuzor. 1. In these countries.

Together with the chairman and at least two-elected members. op. Thus. religion. courts and prison were taken over and integrated into the national police. South Eastern. It marked the turning point in the co-ordination and status of local 77 See generally. op. and to provide a two way channel of communication between the local communities and governments (both state and federal) 80Otive Ogbuzor. He consulted and often acted on the advice of a local representative council but he could also ignore it. In Northern Nigeria.78 This was achieved by the 1976 Local Government Reform. the Local Government (Amendment) Law 1960 abolished the powers of councils to levy education and general rates on the basis of need. note 11. having emerged from the civil war more united and with a buoyant economy. Throughout that period. Rivers and Mid-West states adopted system of local administration (Development Administration) which merely deconcentrated powers of the state governments to the localities. Thereafter. the Guidelines for Local Government Reform 1976 (document produced by the Reform Committee after consultation at various levels with the people). Councilors were popularly elected by the people. note 3. op. cit. while they elect their chairman from among themselves.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 284 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 285 66. p. even constitutional provisions were neglected. with increasing numbers of elected or appointed non-traditional office holders becoming members of local authorities. to mobilize human material resources and involvement of members of the public.80 It is observed that the success of the reform generally led to its incorporation verbatim into the 1979. 111 78Kamilu Sani Fage. National Open University Handbook. Thus. judicial and prison services. The reform restored the uniform national system of local government in the country and introduced substantial democratic process at that level of governance.p. 77 These reforms were however considered inadequate. Traditional rulers were organized into an Emirate or traditional council under the reform. The reform was radical and far-reaching.79 Also. they formed the Finance and General Purpose Committee which was the cabinet of the local government council. arts and culture. 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. during the second republic (197983) many of the features of the 1976 reform were ghastly violated. note 3. 1995 and 1999 constitutions. op. The southern state also tried new measures to improve their system of local governance. The situation was not different in Lagos and the Eastern Region before the outbreak of the Civil War 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. 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. cit. subject to the approval of the state governor. The six northern states expanded the scope for popular participation in the system. They were empowered to advise the local government councils or the state government on matters pertaining to local governance. no elections were held in contravention of provisions of the 1979 constitution. which stated that: “the system of democratically elected local government councils is under this constitution guaranteed”. 1989. However. the local constabulary. The whole system of local government collapsed until the pressure of party politics. cit. 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. while the rest were made up of nominated members. In the former Western Region. Under this system of deconcentration. The objectives of the reform were clearly stated inter alia to make recommendations in order to devolve and delegate development activities to local representative. (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. In 1967. The initial reforms focused mainly on correcting the political abuses perpetrated by local officials. for the first time. the East central. the reform conceptualized local government as the third tier of government operating within a common institutional framework with clearly defined functions and responsibilities. . 7(1) of the 1979 constitution.82 and Sole Administrators were appointed. The second republic did not last long. there was a decline in the prestige and responsibility of local authorities. successive military regime tried to revamp and restructure the system of 79 See. Therefore. chieftaincy and customs within their areas. to facilitate the exercise of democratic self government at the grass root. For a while. 81 Under the new system. these reforms put local government administration in Nigeria on a sound footing.cit. it was engulfed in crisis which ultimately led to its sacking in 1983 by the military. 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. at least seventy five percent of officials of the local government were elected. 18 government in Nigeria. note 15 81Kamilu Sani Fage. there were gradual changes in the structure of the council during this time. Supervisory councilors were also elected among the councilors to serve as political heads of departments of the local government.

finance and functions of such councils”. The constitution requires all states to enact legislation providing for the establishment. However. IV. composition. structure. cit. The executive arm to generally consist of the Chairman. 131 .86 and charged with the following functions (a) Law-making. 23. As a result.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 286 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 88 287 local government administration. 115 90 All the previous Constitutions were a result of popularly constituted Constitutional Conference where delegates debated on the salient previsions to be included. p. Councilors to elect a leader who will act as council speaker. The local Government System under the 1999 Constitution of Nigeria Unlike the previous constitutions of Nigeria (1979. and (e) performing such other functions as may be assigned by the House of Assembly of the state.89 This was the state of local government administration in Nigeria. (b) debating. the states ministries of local government were also abolished and replaced by departments of local government in the Governor's office. the executive authority was conferred on the local government chairman and his cabinet. the local government council became the legislative arm of government at that level. structure. the constitutional provisions on local government are restricted to guaranteeing its existence as a level of governance. finance and function of local governments within their jurisdiction. op. op. Kunle Awotokun. after which the recommendations were implemented. cit. The elected Chairman to become the Chief Executive Officer and to appoint supervisors who will assist him as heads of department. O. cit. approving and amending local government yearly budget. Section 7(1) of the 1999 constitution states: The system of local government by democratically elected local Government councils is under this constitution guaranteed. note 12. the 1999 constitution has wholly preserved the status and role of local government as the basis of grass root development and governance. (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. the 1999 constitution is purely a military contraption. Adeyemo. to further confer more autonomy on local governments in the aborted Third Republic (1990-1993). p. and accordingly. It has preserved the tripartite system of government in Nigeria. which were only charged with responsibility to advise. The Babangida administration made conscious efforts in this regard. and stipulating its functions only rather than stipulating its structure and composition in line with earlier reforms in the sector. only elected councilors were to be in the council as the legislature. 88 Local Government (Amendment) Decree 1997 89 See. Secretary and the Supervisors 87 Ibid 84 administration. The recommendations favoured more autonomy for the local governments. impeaching the chairman who has committed an impeachable offence. A committee was set up to review the system. However. 1991 86 The executive Chairman ceased to be a member of the council. In the same vein. p. 11. Vice-chairman. Interestingly. subject to section 8 of this constitution. and the local government as the third level of government. op. Under this arrangement. note. However. before civil rule was re-introduced in 1999. the Local Government (Basic Constitutional and Transitional) Provisions (Amendment) Decree 1991. 81 84 Ibid 85 Decree No. in 1995 and 1997 new guidelines were issued reverting the system to the 1976 pattern of 83 See D. rather than controlling the local governments. the decree preserved the legislative autonomy of the local governments to make bye-laws. it is observed that because of the subsequent recklessness and abuse of the newfound freedom and autonomy by local government chairmen. 1989 and 1995 draft). ensure their existence under a law which provides for the establishment. Council clerk to head the personnel department.90 That explains the stiff opposition it has received in the last ten years of its operations. in terms of its provision in relation to local government administration. the government of every state shall. However. assist and guide. note 33. debating and passing local government legislation. composition. Its existence is constitutionally entrenched as an order of government alongside the federal and state governments. See.87 These reforms ensured the expansion of autonomy and substantially bigger revenues for local governments. The existence of local government administration in Nigeria is the creation of the constitution. funding of the local governments was removed from being disbursed through the state to being disbursed directly to the councils.85 extended the presidential system to local government administration.83 Most of the reforms were incorporated into the 1989 constitution. National Open University Handbook.

levying and rates on houses and tenements. 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. cit. (7)(6). Habu Galadima.91 Indeed. Thus.27 conveniences.99 In our considered opinion therefore.95 Other functions which the local government are to perform concurrently with the state government are the provision and maintenance of primary. and 6 (Judiciary) of the 1999 Constitution 99 See s. the constitution went as far as stating the names and areas of each existing local government council in every state of the federation.3 and the First Schedule of the 1999 Constitution. television. adult and vocational education. regulation and control of sale of liquor. in Local Government Bulletin. op. See. radio. note 91. restaurants.(10). 162 (2) . Habu Galadima “Local Government in Nigeria”. to ensure that the local government is entrenched as a tier or level of government in Nigeria. 315 of the Constitution . canoe. collection of rates. See generally. movement and keeping of pets. bicycle. the constitution saves all existing laws that were in force before the coming into effect of the constitution. The main functions of the local government includes. 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. maintenance and regulation of markets. Executive and Judiciary at the Federal and State Government Levels. 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. registration of births and deaths. 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. s. Even though. or for that matter. (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). establishment. 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. bakeries and Landry. 83 93 See. note 12. whether the 1976 or 1991 reforms. and licensing. 96 One interesting fact to note is that the constitution failed to provide for the law-making powers of the local government. and the provision and maintenance of health services. to guarantee their functions and to direct the allocation of funds to them from the federation revenue. 5 (Executive). D. 7(1) of CFRN 1999 98 For the Presidential System's Separation of Power among the Legislature. and 313 of the Constitution (Federal government most maintain a federation account from which money is shared between the federation. control and regulation of outdoor advertising and hoarding. p. the development of agriculture and natural resources. motor parks and public 91 See. This is also reiterated in paragraph (1) (a) of the fourth schedule to the constitution. 4(Legislative). state and local government on a percentage to be determined by the Revenue Mobilization and Fiscal Commission. issue 3. all such existing laws or Decrees are to apply with such modification and subject to the provisions of the constitution.94 But most importantly. the modalities for the making of such laws. in additional to any other functions that may be conferred on the local government by a law of the state House of Assembly. 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. The above summation leaves us with the question of determining how autonomous the local government system under the 1999 constitution is. and carts licensing. July 2007 (South Africa) p. 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. 26 92 See s.93 In addition. 9. the constitution outlines an exclusive and concurrent list of functions for the benefit of local governments. state governments are mandated to allocate 10% of their internally generated revenue to local governments within their jurisdiction). 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. 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. vol. O. In addition. This task is overwhelmingly conferred on the State Houses of Assembly. 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”. see ss. shops and kiosks. The formula now stands at 20% for local governments.97 which are allowed to choose any structure or composition of councils within their domain. op cit.92 and clearly stipulating the procedure for the creation of new local government in any state of the federation. ss.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 288 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 289 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. Adeyemo. p. other than the exploitation of minerals. for onward distribution to the local government.

27-28 108 It should be noted that despite the decision of the Supreme Court. Sometimes the federal government itself is guilty of this offence. the Federal . See also Habu Galadima. O. op. Most of the problems ended up in court. (submitted in partial fulfillment of the requirement for the special Advanced Course in local Government Studies. Journal of Public Administration. resources and discretion conferred on the local authorities. London.101 In his contribution on the literature of autonomy. s.O. Lagos State v. In the same case. “The Presidential Constitution of Nigeria”. “The Role of the Courts in strengthening Democracy at the Local Government Level in Nigeria”. 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. The intergovernmental relationship between local 102 government and their state counterpart has been totally over-shadowed by conflicts and exercise of overbearing authority. functions and staffing. 1991) 101 B. Vol. note 91. 108 104 Ibid 105 Joash Amupitan. 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 papers/AmupitanJoash(nigeria). 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. June. the question of autonomy had generated a lot of heat and controversies during all the previous reforms100. 1 100 M. null and void. “Local Autonomy and Independent Revenue”. (7) & (8) of the 1999 Constitution. see also B. J. op. 2. contrary to the provisions of the 1999 constitution. 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. 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. cit. A. discretion and responsibility are at the core of local government”. 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. autonomy under a federal system means that: each government enjoys a separate existence and independence from the control of the other government.pdf (Last Accessed 4/1/2010) 106 See.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 290 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 291 respect of the overall control and management of the local governments. State governments have routinely hijacked varying proportions of the allocations to local governments from the federation Account. cit. Davey on his own part opines that: Local autonomy is primarily concerned with the question of responsibilities. 106 All these conflicts have resulted in serious political chaos and threat to democracy in Nigeria. 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. Vol. Nwabueze. 162(6).105 In addition. The law in effect abolished local Government Areas created under the 1999 constitution by altering their names. 49 :45. and this has immensely enriched the Nigerian jurisprudence on local government system. to using the state government's audit powers to harass the local governments. As such. for sharing among the local governments. 28 107 (2004) 18 NWLR (pt. 1991 103 Habu Galadima. note 91. adjusting their boundaries and dividing them into smaller units. Nigeria Journal of Public Administration and Local Government. According to Nwabueze. Davey. From this brief explanation of autonomy. declared the Local Government Area Law No. available on-line at http://www. 1984 102 K. 2. No. A. The Presidential Constitution of Nigeria.G. 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. p. even within the purview of law conferring powers and functions on them.“Local Government Autonomy and Intergovernmental Relations in Nigeria”. 107 Federation.G. pp. state governments are reluctant to allow local governments conduct their affairs freely. Ile-Ife: Obafemi Awolowo University. Odunfa. For instance.104 The recurrent problem areas in the relations between the local government and the other tiers of government has bordered on finance.ialsnet. 904). the Supreme Court in A. Nwabueze.103 In practice. Sweet and Maxwell 1983.

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. Ebonyi. 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. the current system of local government administration in Nigeria varies from state to state. various laws have been enacted since 1999 to govern the administration of local governments in the state. Operational Modalities of Local Government Councils in Nigeria: The case of Ebonyi State As stated earlier in this paper. G. note 33. null and void. is determined by the local government law enacted by each state House of Assembly. 1. in the 110 case of A. Wale Ejibunu. as amended by Law No. 3-4 114 (Supra) note 107. others prefer the full separation of powers as espoused by presidential democracy.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. 111 (2007) 12 NWLR (Pt. 111 V.115 It is observed that those states. G. available on line at www. 1068) 311 113 See generally. 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.. G. to a large extent. which opted for the Westminster model. 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. the Court of Appeal in A. Very importantly. Plateau State v. 1059) 59 112 (2008) 1 NWLR (Pt. 7 of 2001(supra). “Like Lagos. null and void.117 These laws have clearly adopted the presidential system. 2004. it may seem that the local government administrative structure in Ebonyi State is far from clear. Goyol and Ors and A. the Local Government (Amendment) Law No. However. Kunle Awotokun. cit. Consequently. v.thenationonlineng. Joash Amupitan. 132-133 116 Ibid 117 See. 2 of 2004. note 107. the Supreme Court in the earlier cited case of A.G. 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. Abia State and 35 116 In Ebonyi State. . 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. G.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 292 109 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 293 In the case of A. Enugu Run Development Areas” . Again. While some states tend to favour the fusion of the executive and legislative arms (Parliamentary system). Thus. No. and the Ebonyi State Local Government Council and Development Centre (Amendment) Law.. Federation. pp. Therefore. 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. The Local Government Councils and Development Areas (Amendment) and Related Matters Law. cit. Lastly. 1 of 2002. the 1999 constitution is silent as to whether state governments should adopt the Presidential or Parliamentary systems of government at the local government level. A. structure. note 105. Federation114 pointed out that the creation of additional local governments in Nigeria would amount to an amendment of the constitution. The Nation Newspaper. the Revenue Distribution to Local Government Councils and Development Areas Law 2006. No 3 of 1999. A.html (Last Accessed 4/1/2010) See s. Bayelsa. 12 August. See. 763) 264 110 (2006) 7 SCNJ. the Supreme Court declared the Electoral Act made by the National Assembly in 2001 as null and void. 109 (2002) 6 NWLR (pt. Benue State v. op. 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. pp. the Local Government Law. Section 7(1) of the constitution empowers the state House of Assembly generally to make law which provides for the establishment. This. 2006. A.G Abia State and 2 Ors v. Monitoring is a post-allocation matter and the National Assembly had no power to make such laws./page1 .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. op. 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. G. finance and functions of the local government councils and no more. 2007 118 The New States were created in 2001 by virtue of the Ebonyi State Local Government Area (Creation and Transition Provision) Law. 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. Lagos State v. Federation and ors.

G.G. 10. in terms of overall control and supervision. Be that as it may. (See S. The initial newly created local government council were reconstituted and called Development Area. 11 of the law. 11 and 20 s. Nnamani. the functions are nowhere comparable with the overall functions of the constitutionally created local governments. 1999) 130 E. 007 of 2007 s.A.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. Law No. the powers of the Local government are divided between the legislative arm and the executive. 12. 37 132 Ibid. has now designated them as Development centres (hereinafter law No.120 Perhaps. 8. 12. ibid. note 130.P . the full presidential system applicable under the first initial law is still operational. Stipulate that upon receipt of allocation from the State Joint Local Government Account.128 Thus. 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. Abakaliki. The principle of separation of powers is not adopted at the Development Centres. The assent of the Executive Chairman of the Local government must be obtained before any bye-law becomes valid.) Contemporary Legal Thoughts: Essays in Honour of Chief Jossy Chibundu Eze.N.007 of 2007 129 s. 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.121 While the law allows democratic elections to be conducted into the 13 local government councils.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. The 2007 local Government and Development centres law. The legislative function is vested in the Council constituted by the Councilors who are directly elected from the various wards of the Local government. 21 of Law No. 131 Ibid. 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. in M. Council shall be exercised by bye-laws passed by the Council. 241. Lagos State v. 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. ibid. The structure.N. However. powers. The Application of the Doctrine of Separation of Powers in Local Government Administration in Nigeria: The Ebonyi State Model. the new Local Government Areas created by subsection of this section shall have the same rights. debating.123 The Development Centres seem to be an appendage of the local government councils from which they are created.129 The council is presided over by a leader to be elected from among the Councilors by themselves.004. pp. 8 of Law No. especially the exercise of oversight functions over the executive by the vetting and monitoring of implementation of projects and programmes. the present structure adopted in the state dearly distinguishes between the constitutional created 13 local governments and the now constituted 51 development centres.132 The entire legislative procedure at the Local government resembles that which is obtainable in the State House of Assembly. 1999 . s. 003. ibid Ibid. 2008. Federation. p.36 Law No. It is observed that these officers of the Council are the equivalent of the speaker and deputy speaker in the State House of Assembly.003. 10 of the Revenue Distribution to Local Government Councils and Development Areas Law No.133 Aside from law-making. Faga (eds.125 Thus. the same presidential structure of governance applicable in the original 13 local government councils by virtue of the local government law.130 The Council shall also have a clerk who shall be appointed by the Governor of the state. if the plan had succeeded. which exist merely for coordinating development and advising the local government chairman 125 s.007 of 2007) 120 See s.126 nor is any form of autonomy granted them except for the allocation of revenue. Law No. 1999 (hereinafter. 27 of the Local Government Law.127 119(supra). which states that “subject to sections 4 and 16 of this law. No. if he withholds assent. which shall be used for recurrent expenditure and as directed by the local government chairman for development purposes. 134 128 See.003. the Chief Executive Officers (coordinators) and Management Committee of the Development Centres are to be appointed by the Governor. The committee does not have any legislative functions 127 s. and examining and debating monthly statements of income and expenditure of the local government. Ajanwachuku & H. s. s. op. 35 133 E. 131 The Law stipulates that the legislative powers vested in the Local Government. the Council can by a two-third majority vote to override the chairman's assent and pass the bye-law into force. A. Under the law. 2007). No. 3 of 1999. 241-242 134 s. thus ensuring a uniform local government administrative structure.SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 294 SEPARATION OF POWERS AND FUNCTIONS OF LOCAL GOVERNMENTS IN NIGERIA'S 295 of the Supreme Court in the earlier cited case of A. power and privileges as the local government areas existing prior to the commencement of this law”. 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. 007.122 and like the council chairman shall hold office for a term of three years. These powers are very similar to the division of powers under 1991 Local Government (Basic Constitutional and Transitional) Provisions (Amendment) Decree earlier stated. s. would have been extended to the newly created councils. approving and amending the annual budget of the local government. Nnamani. the Council is conferred with additional functions. 2006. cit.

This is strange. responsive and development driven:140 Kunle Awotokun. In other words.143 The other aspect of judicial powers. s. one writer opines that the local government is obliged to make use of both the federal and state judicial apparatus140 The above notwithstanding.296 The executive powers of the local government on the other head. op. s. On the contrary. See s. 137 However. is also very germane. legislative or judiciary powers on the Council of Traditional Rulers) 139 See generally. the entire functions of the local government stipulated in Part IX of the law (ss. customs and traditions of the people of the local government among other functions.141 In view of the role and functions of this body. rather than relying solely on English courts. 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. it is our considered opinion that the following modifications should be adopted in Ebonyi state in order to make the system more effective. notwithstanding that they 135 Ibid. are conferred on the chairman of the local government. because one would have thought that since the Council is conferred with the legislative powers of the local government.4 and the Second Schedule to the 1999 Constitution 297 are conferred with both executive and legislative powers.25 137 Ibid 138 Under the 1999. 1999 142 The body is primarily conferred with the function to advise the local government on matters relating to law.138 At the local government level in Nigeria. and invariably the functions of the respective tiers of government. especially with regards to questions bordering on native law and custom. under the control of the local government. the concept of separation of powers ends with the division of powers between the executive and the legislature.cit. the local government law makes provision for the establishment of Council of Traditional Rulers.151 (iii)(g) (A proviso providing that nothing in the section shall be construed as conferring any executive. 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. These areas also automatically become the areas under which the executive powers of the federal and state governments are defined. In Ebonyi state. which confers judicial powers on the federal and state governments and creates Superior Courts of record in Nigeria. which would service local government interests. s. In fact. VI. This power was extensively allowed to local council under the colonial administration and it really revolutionalised the system of justice at the grassroots. and having compared the current system of local government administration with previous forms of governance at that level. more reasonable and in consonance with the practice under the 1999 constitution.38 136 Ibid. s. 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. 003. 1999 143 Ibid. these courts are usually inadequate and often headed by inexperienced persons. See. The provisions conferring legislative power on the Council of the local government to make bye-laws seem to be inelegantly drafted. 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.151 (iii) (a) of Law No. 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. approval or over sight activities. this is exactly what the local government law of Ebonyi state seeks to prohibit. s.151 of Law No.6 of the 1999 constitution. 003. it could make bye-laws in respect of all the functions of the local government.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. note 33. like most other states of the federation. 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. especially in Ebonyi state.131 141 See.139 the local governments are bereft of this power.136 The chairman shall also appoint the Secretary to the local government who shall liaise with the Secretary of the Government of the State. executive and judicial role/functions of the local government. 50-54) would automatically serve as the legislative list of the Council of the Local government.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. Concluding Remarks Having done an extensive survey of the legislative. or supervisors to be appointed by him. which shall be exercised either directly by him or through the vice-chairman. s. and they are matters of merely supervision. . This is common-sensical. 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. Even though the constitution has made provision for establishment of customary courts at the state levels. order. p.

that the arbitration was in accordance with the custom of the parties or of their trade or business. The state House of Assembly should make law to allow local government councils establish native courts. 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.O. (e) In so far as the above ingredients of a valid native or customary arbitration are satisfied. The local governments should also establish legal departments with full powers to administer the legal business of the local government councils. This will reduce cost of governance and encourage more democratic participation. 2. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons. . In the same vein. 3.298 (A) The Development Centres should be granted more independence in terms of control and management to enable them generate and implement development agenda. where both the legislative and executive arms are fused together. 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 decision or award was accepted at the time it was made. STATUS OR AUTHORITY OF THE AWARD It has been observed by T. 4. 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.” (b) (c) (d) 5. the court will treat it as creating an estoppel. that the arbitrators reached a decision and published their award and. 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. which would have the backing of law to dispense justice at the grassroots where the need is most felt. They are as listed below: “1. CONCLUSION 299 A customary arbitration will be binding if all the ingredients or preconditions of a valid customary arbitration are met. 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.

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