By Yusufu Shehu Usman. It’s now clear beyond doubt that the Government of Nasarawa State does not intend to conduct local governments elections before the expiration of the tenure of the incumbent members
In order not to create a vacuum in Local government administration, the Government may be forced by the doctrine of necessity (though it was not only foreseeable or foreseen) to adopt any of these three infamous options:
To extend the tenure of the incumbent chairmen when there tenure expires,
To hand over the administration of local government Councils to civil servants like DPMs or,
To appoint politicians and / or technocrats outside the local government system to manage the affairs of the local government councils until elections are conducted to produce democratically elected chair men and Councillors
It must however be emphatically stated that one of these three options are in conformity with the Constitution, which by virtue of the clear and unambiguous provisions of section 7, recognises only democratically elected local government Councils
Furthermore, the Supreme Court has severally and repeatedly declared the constitution of TMCs, IMCs and Caretaker Councils no matter by what name called or under which guise constituted, as illegal, unconstitutional, null and void and of no legal consequences whatsoever
It is also pertinent to state here as a timely precaution that the Nasarawa State House of Assembly lacks the legal vires to enact any legislation to give legal effect to constitution of TMCs, IMCs or Caretaker Committees the creation of which constitute a legal aberration or an illegal contraption inconsistent with the provisions and spirit of the constitution
Such a law If enacted by the House of Assembly, will be in clear violation of the Constitution and the Court will not waste any time in shooting it down being inconsistent with section 7 of the constitution and the general principles of constitutional democracy
The supremacy of the constitution over any other law that contradicts it or which is inconsistent with it provisions is not in doubt
Therefore there is a lingering drama about to unfold in the state in the next few weeks when the tenure of the incumbent Local Government councils will expire and come to an end
There dilemma for the state government will be, how to ensure the continued smooth functioning and operation of the local government system without violating the constitution of the Federal Republic of Nigeria
I guess the only way out, is to foist one illegality on the other and eventually try to justify it, by weak and unconvincing reference to the doctrine of necessity.
In this case as I stated earlier this necessity was for seen but not heeded to avert it’s occurrence
The bottom line however, is that it could be argued that having found ourselves in this quagmire by design or neglect, should the affairs of the local governments be left at large, without purpose, direction or leadership?
The expiration of the tenure of the elected Councils will certainly create a vacuum in all the thirteen Loca Governments across the state, and because nature abhors a vacuum, the leadership void created must be filled somehow, even for the local government Councils to be able to perform their constitutional mandate as the third tier of Government
The question is, can the local Councils execute their mandate without a leadership?
If we are to go by strict legal argument, it means that the government must shut down the local government on the expiration of the incumbent members, since the constitution does not permit or recognize any other way of constituting local government except through democratic election- and the tenure has expired without an election conducted to fill the vacancy created by the expiration
But, is this a wise, reasonable or viable alternative?
Will it not translate into depriving the citizens of the affected local government areas of their legal right to Political representation?
The action of the Government by its failure or refusal to conduct the local government elections as required by the law has deprived the people of their franchise to vote leaders of their choice to govern their affairs at the local government level
But at the same time, it will be counter productive to shut down the local governments because of the failure or inability of the state government to conduct elections to fill the positions of the Chairman and Councillors
In order to resolve this conundrum and move out of cul de sac, there must be solution that must create a balance between the law and factual reality
In my view, the state government should be blamed and heavily criticised or even impugned for violating both it’s own electoral laws and the constitution by its failure, refusal or neglect to arrange for the conduct of election into the local government Councils when it was clearly aware that the expiry of the tenure of the incumbents were imminent and legally foreseeable
However, should the citizens of the local government areas be punished for the sins of the State Government on an issue over which they have no power or control?
I think the solution lies not in shutting down the local government
It also lies not in failing to take any of the three options stated earlier in the post because of the fear of running foul of the law
The solution should be predicated on a balance between illegality and the need for the continued existence and operation of the local government to diver the dividends of democracy either through elected or appointed leadership. There should not be a vacuum in the management of the affairs of the local governments
This is where the doctrine of necessity may come into play. It is no doubt a foreseen or foreseeable “necessity”which was not addressed as at when due. It has now transformed into “a no option” situation and must be addressed in the context and effect of it’s present manifestation
The non democratic appointment to the local government Councils is the only practical option for the government and the people at this stage because it’s a lesser evil than shutting down the local government Councils on account of a breach of the law. It is however not a desirable option but a state of affairs foisted on the people, by “avoidable necessity” solely and deliberately created by the state government
From the state of the law governing local government elections in the state, the election can not be conducted so soon as the law requires a statutory ninety days notice to be given by the Nasarawa State Independent Electoral Commission preparatory to other time bound processes provided in the enabling electoral law
Having said all the above, it only remains to be determined for how long should the local government councils be under the appointed and undemocratic leadership without a basis or support in the law?
In my humble opinion, the interim or transitional management to be foisted on the local governments, should not be in place for a period beyond six months
I suggested six months because the extant b law requires the state electoral Commission to give a statutory notice of six months before the commencement of the polls
Any extension beyond six months will show a manifest intention on the part of the state government to perpetuate its already repugnant breach of the Constitution and as it is now a common expression in our political lexicon, “put our democracy under threat”