Why Governor el-Rufai’s Metropolitan Authorities Are Illegal

BY BARR JD EPHRAIM

Governor Nasir Ahmad el-Rufai of Kaduna State recently created and inaugurated three administrators of the metropolitan authorities for Zaria, Kaduna and Kafanchan. He justified his actions, amidst criticism, by members of the public. There are those, mainly government officials, who support their creation, and others, mainly the public, who oppose their creation.

Those who oppose their creation say that the act of creating them is unconstitutional as well as illegal. Those who support it, argue that “there is nothing unconstitutional/ illegal about the creation………. as ” they are just for administrative convenience, and geared towards the infrastructural and developmental plans, of the areas covering the three major cities in the state– Kaduna, Zaria, and Kafanchan.” They go on to cite S.7, of the 1999 Constitution. We agree with them, with regards to the concepts, as they are.

However, we feel that there will be nothing wrong, if the correct steps are taken, to make the concept legal and constitutional. But since this has not been done, they are, for now, unconstitutional and illegal. We shall soon see why.

Secondly, the proponents argue that they are created to meet “administrative convenience, which enables the state to achieve infrastructural and developmental plans of the three cities”.

Here again, we agree, There is nothing wrong with the objectives. However, we make haste to state that, it is a duplication of the functions of the state’s ministries and their agencies, as some of them perform similar functions to those assigned to the metropolitan authorities, and more so, they cover the whole state, and not just three selected cities.

If however, the state decides to give special attention to the three cities, we would argue that there is nothing wrong in empowering the existing state structures to do so, as the Governor is deemed administratively competent. If however, the government feels or is afraid, that the existing structures cannot “effectively and efficiently” carry out the” infrastructural and developmental plans “, the answer to this deficiency does not lay in creating another governmental structure, which may end up in the same way with the existing structures, thereby defeating the purpose for which the new ones were created in the first place.

As the Chief Executive of Kaduna state, Governor el-Rufai’s challenge lies in how to bring about satisfaction, effectiveness, and efficiency to all governmental structures and institutions. Therefore, the governor is expected to exercise prudence in the management of both human and material resources and to avoid waste.

Let us go back to the Constitution on which the proponents base their argument: S.7 of the 1999 Constitution (as amended) contains provisions that deal with the establishment of Local Government Areas and their Councils, and the procedures for doing that. It does not directly provide for the establishment of metropolitan/ municipal authorities, other than ensuring the existence of a system of “democratically elected local government Councils.” However, it would seem that the constitution is not averse to a state creating local government areas and ensuring their existence under a law which “provides, for establishment, structure, composition, finance, and functions”, of such Councils. It seems, this will also refer to any newly created local government area, by a state, which procedure itself shall be subject to S.8, of the same Constitution.

S.7, could not have been on the existing local government areas alone, as we know this, through the proviso, which is S. 8. Again, S.7 could not, definitely, be referring to the establishment of metropolitan/municipal authorities, since they do not enjoy the same status with the Area Councils of the FCT, but are just “executive creation for administrative convenience ” in order to achieve “infrastructural and developmental plans”, which should place them in the same governmental institutions and ministries that have the whole state as their territorial jurisdiction.

What makes the new metropolitan authorities different from others is that they have specifically delineated territories. Therefore, usurping the authority and functions of other ministries and ministerial agencies that have similar functions, including the statutorily established local government areas and councils, which, ( whether created as new local government areas or old ones), the state is enjoined, by the constitution to ensure their existence and not for their given powers to be usurped, by other bodies of the state’s creation, “under a law, which provides for their establishment, structure, composition, finance, and functions……” For if a state were to do so, it would be contrary to the Constitution, which the governor is urged, and has sworn on oath to obey and comply with.

S.7 is clearly referring to new local governments, which a state could create. The section also deals with how to go about adjusting the boundaries of old local governments. It does not certainly deal with the governor’s new metropolitan authorities, which have not been recognized by the processes of their creation, provided in the constitution. Again, they are, certainly, neither based, on request, by members of the state’s House of Assembly, representing the areas affected, nor the people in the areas to be affected. None of these has happened, and it is most probably they do not intend that any of the above would happen.

In creating the municipal authorities, the provisions of S.7(2) “a” and “b”, and S.7(2) “b” i, ii, iii, have not been complied with. In fact, only sub 2(a), we would say, has been partially complied with, in that the government speaks of the coverage of these municipal authorities, although it would seem, they have not been properly delineated.
Even if the three new authorities have complied, and we do not concede that they have, with S.7(2), there are still other clauses in different sections that the law on the metropolitan authorities has not complied with, and it seems that there is no intention to comply with them.

Assuming, but not conceding, that the metropolitan authorities’ concept, complies with S.7 of the constitution, however, there is a proviso to it, and that is S.8.

What does S.8 say, on the relevant subject matter?

S.8 (3), provides for the procedure to be taken in creating a new local government area, by a state; it has to be through the state’s House of Assembly.

S.8 (4) deals with the procedure for boundary adjustment of a local government. In both S.8 (3) and (4), a request is made, for the creation of, or adjustment of, the boundaries of, a local government. This request is made by both the members of the State House of Assembly, from the area, and the people of the area to be affected.

S.8(5) requires the National Assembly to make consequential provisions, with regards to the new names, and their headquarters, ( also, as provided in S.3, and in Parts one and two of the First Schedule to the Constitution) To enable the National Assembly, make provisions, such states are to make returns to it. This is because the second column of Councils, as shown in Part two, of the Schedule, states that the local Government Areas are seven hundred and sixty-eight.

In view of the above, we conclude that neither the Kaduna State government nor its state House of Assembly was intended in the law creating the metropolitan authorities, that these authorities should be taken in the same class as the existing local governments or any proposed new local governments or boundaries of the existing local governments to be adjusted.

Therefore, if anybody gives the metropolitan authorities the same status as the existing local government areas and goes ahead to pretend that the Constitution has not been offended or breached would be regarded as being economical with the truth.

Since we have existing governmental institutions, performing the functions created for the new metropolitan authorities, it will be wrong to say that such functions cannot be performed by them, except new structures, which offend the Constitution, are created.

To say the truth, these metropolitan authorities are both illegal and unconstitutional to the extent that they are clothed the same way the local governments and the Area Councils have been clothed, by the Constitution. Additionally, they are a duplication of existing functions of the ministries and the constitutionally created local government areas.
Therefore, we conclude, by saying that if this exercise is not an ignorant one, going by the law, it might have perhaps been designed, to serve other, yet to be known, sinister motives, because, some people, already, rightly, or wrongly, term it as “land- grabbing “.

I would rather assume Governor el-Rufai has the best of intentions for the state, but he has the verdict of history waiting for him as a public officer.

Barr Ephraim is an attorney, prolific writer and public analyst