the functioning of the local government … · in a federalist constitution: controversies,...

THE FUNCTIONING OF THE LOCAL GOVERNMENT SYSTEM IN A FEDERALIST CONSTITUTION: CONTROVERSIES,

COMPARISONS AND CONSENSUS

BY

PROF. MUHAMMED TAWFIQ LADAN (PhD) DEPARTMENT OF PUBLIC LAW, FACULTY OF LAW,

AHMADU BELLO UNIVERSITY, ZARIA, KADUNA STATE, NIGERIA EMAIL: [email protected], [email protected] and [email protected]

BLOG SITE: - http://mtladan.blogspot.com/

A PAPER PRESENTED AT

THE 13TH ANNIVERSARY AND EXTRA ORDINARY GENERAL-ASSEMBLY NATIONAL CONFERENCE ON REDISCOVERING THE NIGERIAN LOCAL

GOVERNMENT SYSTEM IN THE EMERGING CONSTITUTION

ORGANIZED BY

ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON)

DATE: - 28th – 30th NOVEMBER, 2012 VENUE: - NIKE LAKE RESORT HOTEL, ENUGU

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THE FUNCTIONING OF THE LOCAL GOVERNMENT SYSTEM IN A FEDERALIST CONSTITUTION: CONTROVERSIES, COMPARISONS

AND CONSENSUS BY

PROF. MUHAMMED TAWFIQ LADAN (PhD) INTRODUCTION

Local self-government is, of course, the most familiar and universal form of

democratic decentralization. In common parlance, local authorities are often dignified

by the title of ‘local legislatures’. How far this had any real meaning obviously depends

on the extent to which they are required, de jure or de facto, to act under the

instructions of the central administration and to submit their decisions to central

approval. In most countries there is a strong tendency for local authorities to become

little more than decentralized administrative agencies of the central government,

particularly in respect of the nationally-important services (such as public health, public

housing, water supplies, sewerage, public utilities and, in some countries, police and

fire) which they may be called upon to provide. This is partly due to their need of central

subventions to meet the cost of these ‘mandatory’ services, but even more so to a

demand for national uniformity and to the determination of central governments to

keep all forms of public expenditure firmly under their control, as a means of regulating

the economy and of enforcing certain priorities. This tendency, it should be noted,

appears to be largely independent of the constitutional status which local authorities

have been given. It is quite as evident in Britain, where they are regarded as ‘powers in

their own right’, as in continental countries, where they are subject to administrative

tutelle. The main countervailing force is that somewhat intangible thing, the ‘spirit of

local independence’. It is this, among other factors, that makes local government in say,

Turkey so very different from the French Local Government on which it was modeled.

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Whereas in France the desire among the people of a locality to administer their own

affairs is strong, in Turkey it is comparatively weak.

It is ironic that State Governors who are fighting for more powers to be devolved

to states from the Nigerian Federation are the ones centralizing power, wanting to

control everything in their States, thereby stultifying the emergence and growth of

democratic participation and governance as well as control by the grassroot populace

over their lives and resources through autonomous and functional local government

administration.

The States Legislative Houses of Assembly are also engaged in the struggle to

control local government administration. As a result of this, most State Legislatures have

clashed with their Governors and local government councils in the past decade.

The Local Government (LG) system in Nigeria holds a critical role in the

consolidation of democracy in the country. But because of the ambiguities in its status

and responsibilities as enshrined in the 1999 Constitution, and the hue and cry that

attended the generally poor performance of operators of the local government system

between 1999 to date, it has continued to dominate the centre-stage of national

discourses and certainly has been a serious source of concern to policy makers and

analysts alike.

It is against this background that this conference aims at interrogating the

configuration of Nigeria’s federalism from different perspectives and to generate

authoritative submission on possible legislative inputs and constitutional amendments

to strengthen the local government system, as a contribution to the on-going

constitutional reform process in Nigeria.

Accordingly, this paper aims at realizing the following objectives: -

1. To highlight the dilemma of local governance in Nigeria as part of the

controversial issues on constitutionalism in federalism;

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2. To provide comparative perspectives of local government system in selected

countries; and

3. To draw lessons for Nigeria’s country strategy; and

4. To conclude with viable options for Nigeria.

1. THE DILEMMA OF LOCAL GOVERNANCE IN NIGERIA: - ISSUES ON

CONSTITUTIONALISM IN FEDERALISM.

The 1999 Constitution contains several centrist features that raise questions in

regard to its federal nature. Apart from the genuine fears that the tendency for power

to concentrate in the hands of some ethno-regional elites could lead to the exclusion of

people who are out of power, it was believed that the desperate struggle to capture

power at the centre was in order to control the benefits that come from these

enormous powers and resources. And the support, in some quarters, for a return to a

regional arrangement on the basis of a modification of the existing zoning system

derives largely from the conviction that the present federal structure does not conduce

to true federalism because each federating unit is too politically and financially weak to

withstand the overbearing power of the centre. However, there is a growing popular

demand for the reconfiguration of the Nigerian federal state in a manner that

substantially ensures the decentralization of power and resources to the states and local

governments. (Tables 1 and 2 below affirmed this position. Based on the existing

revenue sharing formula, the FGN is entitled to 52.68% of the statutory revenue;

States 26.72% and Local Governments 20.60%. Then 13% derivation fund to state.

With VAT revenue sharing formula to FGN, States and LGAs in ratios of 15,50 and 35

percent respectively). Hence, there is a widespread support for decentralization of

power, which should reduce the very long and inexhaustible exclusive legislative items.

The Constitutional Exclusive Legislative List, with articles numbering about 70, goes

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beyond the traditional spheres of federal concerns such as foreign policy, defence,

currency and monetary matters, customs and excise, to include items such as education,

agriculture, commerce, stamp duties, marriages, weights and measures etc, all of which

can be competently handled by the states and local governments.

On the status and role of local governments, the 1999 Constitution is not only a

move backward to 1979 Constitution but also a total regression from the gains made by

the local government system between 1989 and 1999. In the 1989 Babangida

Constitution, the local governments were given power as a group of independent third

tier of government in the Federation. The presidential system of governance in the same

Third Republic was extended to the local governance. This progressive development of

local governance was supported by and retained in the 1995 Abacha aborted

Constitution.

Though the 1989 and 1995 Constitutions were remarkable progress over the

1979 Constitution as far as local governments are concerned, compared to the 1st

Republic Nigeria they did not even go far enough. In the First Republic, the native

Authorities (our today’s local governments equivalent), were truly autonomous. They

had control of their resources and even security. They controlled the judiciary (Native

Authority Courts), the Police and the Prisons. It is argued that these powers were

abused by the then local administrators/traditional chieftaincy/emirate institutions.

That the Native Authorities were regarded as corrupt, oppressive, abusive of their

powers and politically manipulated by political parties and governments in power. This

may be true. However, is there no rampancy of corruption, abuse of power and political

oppression in today’s centralized system? What of the paradoxes of Nigeria that impede

sustainable development? A nation full of paradoxes ranging from: - a land of poverty

in the midst of plenty; widening income inequality, rising high cost of governance to

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growing insecurity and unemployment rates amongst educated, able-bodied and

combat ready youths/graduates of secondary and tertiary institutions.

First, is the paradox of Nigeria: - a land of poverty, high unemployment rate,

endemic corruption and wide income inequality, in the midst of plenty. According to the

2007 Human Rights Watch Report, the endemic nature of corruption in Nigeria has led

to the loss of US Dollars 380 billion between 1960-1999. A Global Financial Integrity

Initiative Report dated January 2011 estimated that US$ 130 billion dollars worth of

illicit financial dollars to the fuel subsidy racket alone brings our national loss due to

corruption to over $500 billion dollars between 1960 and 2011. Hence, corruption

diverts resources into graft-rich public works projects, at a cost to education and health

services. Corruption destroys a nation’s social and human capital, by discouraging

corruption is even more damaging than terrorism/insurgency, perhaps it is the single

greatest obstacle to both human and national development.

Income inequality is another serious problem. According to the National Bureau

of Statistics (NBS), in 2010 65% of Nigeria’s wealth is owned by just 20% of the

population (i.e. 32 million out of 160 million). Thus, 80% of the population share

between them only about one-third (1/3) of the nation’s wealth.

Nigeria is richly endowed with human and natural resources particularly oil and

gas as well as 34 solid mineral resources such as gold, coal and sulphur. With a nominal

Gross Domestic Product (GDP) of $280 billion dollars in 2011, Nigeria is the second

largest economy in Africa; the sixth fastest growing economy in Africa with a Real GDP

economic growth rate of 6.9% in 2011; the largest producer of oil in Africa and the

seventh largest in the world in 2011. With a population of about 160 million in 2011,

Nigeria is by far the most populous country in Africa, accounting for 47% and 2% of

West Africa’s and global population respectively.

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Despite this rich human and natural resource endowment, Nigeria’s GDP per

capita is only $1,200 dollars; average life expectancy at 51.9%, average years of

schooling at 5.0% rate and poverty is widespread, with about 70% of the population

living below the poverty line in 2011. Hence, Nigeria was ranked by the UNDP 2011

Report on UN quality of life/Human Development Index as the 156 out of 187, among

the “least human development” countries globally in terms of income, education and

life expectancy.

Despite a plethora of development policies and programmes, Nigeria’s level of

economic development over the past five decades has been disappointing. The

country’s economy is dominated by the primary production sector, with agriculture,

which is predominantly practiced by peasantry with low and declining productivity,

accounting for 41.6% of GDP, followed by crude oil 15% in 2011, while the secondary

sector, especially manufacturing, has stagnated at 3.7 to 3.9% of GDP in 2011. This

makes Nigeria one of the least industrialized countries in Africa.

For an agricultural nation, it is a paradox that 41% of Nigerians, nearly 70 million

(out of 160 million), are classified as “food poor” in 2010. The zonal distribution tells a

deeper story. About 52% of the people living in the North-West and North-East, 39% of

the North-Central, 41% of the South-East, 36% of the South-South and 25% of the

South-West are hardly able to feed themselves.

According the Central Bank of Nigeria 2011 Annual Report, unemployment rate

rose from 12.7% in 2007 to 14.9% in 2008, 19.7 in 2009, 21.1% in 2010 and 23.9% in

2011. Incidence of poverty rose from 54.0% in 2007-9 to 69.0% in 2010 and 71.5% in

2011. Adult literacy rate remain stagnant at 66.9% in 2007 to 2011. Life expectancy at

birth declined from 54.0% in 2007 – 10 to 47.6% in 2011.

Hence, the paradox of Nigeria with widespread and endemic poverty in the midst

of plenty. The question then is, Why does the second wealthiest nation in Africa and a

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country not lacking in resources or manpower, have a human development index that is

lower than the average in Sub-Saharan Africa? Why do the great majority of Nigerians

lack access to clean and safe water, electricity and other basic necessities? Why are over

14 million educated youths unemployed, forcing them to engage in fraudulent and

cybercrimes?

Though Nigeria is a country of paradox, overall, the country has the potential to

build a prosperous economy, reduce poverty significantly, and provide the basic social

and economic services its population needs. However, several years of military rule,

poor public expenditure management, over-dependence on oil and unmitigated rent-

seeking behavior to amass wealth from the nation’s treasury have conspired to

undermine the country’s development.

Problems exist at all levels of governance in the Federation, and indeed in our

larger society. We need to provide strategic responses to such problems. Hence, the

various efforts embarked upon by successive administrations at reforming the local

government system in Nigeria.

The underlying philosophy of the 1976 Local Government Reforms was the need

for a uniform administrative system throughout the federation. The system was

designed to be a multi-purpose administrative unit with clearly defined functions shared

between the state and local governments and statutory provisions for the local

governments. As a result of the reforms, 301 local government areas were created all

over the country. Subsequently, the number was increased to 559 in 1991 and to the

present 774 under the 1999 Constitution.

The main goals and objectives of the 1976 Local Government Reforms were

stated in the guidelines, as the following:

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1. To make appropriate services and development activities responsive to local

wishes and initiative by devolution, or delegating them to local representative

bodies.

2. To take the exercise of democratic self-government close to the local levels of our

society and to encourage initiative and leadership potential.

3. To mobilize human and material resources through the involvement of members

of the public in their local development.

4. To provide a two-way channel or communication between local communities and

government (both state and federal).

Since the 1976 Local Government Reforms there has seemingly been different

opinions with respect to the desirability or otherwise of local governments as an

independent tier of government. This issue has taken different approaches by

proponents and opponents from all over the country, depending on the nature of the

pre-colonial social formation and the manner in which the colonial state interacted with

the people at the local level.

Successive governments since independence have realized the importance of

effective administration of local councils. This could be seen from the long history of

reforms that the local government system has undergone since 1945 (shortly after

World War II). The initial effort by the British government was to democratize the

system as a basis for social and economic development. The British realized that local

governments not only has an important role to play in developing the communities but

also has social responsibility in providing the platform for mobilization and political

education. This move by the British colonial government indicated a shift of the

rationale for the existence of local governments as being primarily a “law and order”

instrument, to one actively involved in the local economy and in social development.

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This is the premise on which local governments came to be defined as “the government

that is closest to the people”, and involving people at the grassroots, in the context of

the overall development of the entire society.

After the experience of the colonial state, various regional governments in

Nigeria made further improvements towards attaining the earlier stated objective, from

the decade of the 1950s through the 1960s. For example, the Northern regional

government enacted the Native Authority Law of 1954 while the Eastern and Western

regional governments enacted the Local Government Laws of 1950 and 1952,

respectively. These laws were concerned with the structural changes of local

governments, and definition of the functions of powers and responsibilities, and the

democratization of the membership of local government councils, but much attention

was however paid to their developmental responsibilities.

Even with the creation of the 12 states in 1967, and the adoption of the

“development administration” policy of the federal government, not all states effected

a uniform implementation of the policy. For example, the Western State created

administrative divisions and appointed sole administrators to operate them. The aim

was essentially to aid the process of democratization, decentralization, and

deconcentration. By 1973, however this arrangement was replaced by the council-

manager system, a type of city government generally being practiced in the United

States (Okafor, 1986). The local government system, however, continued to be plagued

by the problems of funding, staffing and popular participation as well as the more

crucial role of social and economic development, thus providing the basis for the several

reforms that have been undertaken for the local government system. As Oyediran

(1987) observes,

All attempts at reforms have always been focused essentially on the powerlessness, poverty, parochialism, patronage-ridden personnel

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practices and the paucity of development oriented administrators in the local government councils.

Indeed, even after the 1976 Local Government Reforms, these problems seemed

to have persisted resulting in further reform efforts up to the present.

The immediate impact of the 1976 Local Government Reforms was the increase

in local governments’ share of the revenue of the nation. There was a quantum leap in

the revenue of many local governments which were then able to embark on large-scale

projects in the economic sector, especially agriculture, health, cottage industries, water

schemes, rural road development, etc. The fact was, however, that whereas the tempo

of economic activities increased in scale, there was not a commensurate growth in

scope. The expenditures of most local governments increased significantly in favour of

recurrent expenditure, mainly salaries and wages and other overheads, rather than

capital development. However, where capital expenditure was witnessed, it was often

more in favour of the economic sector, which had the potential of making the provision

of economic goods and services available for all Nigerians at the grassroots level. A sad

development that needs to be noted here were the many grandiose projects embarked

upon which had little relevance to the needs of the local communities. It was such that

when the oil revenues started to dwindle, the projects were abandoned, leading to

colossal waste of resources.

The desire of the federal government was to create local government councils,

which would be democratic, and would readily respond to the yearnings of the peoples

at the grassroot. Regrettably, however, Oyediran (1987) has documented that

apart from the 1976 exercises in which direct elections were held into

local government councils in ten states, the last time elections of any kind

were held into offices of this tier of government was in 1964/1965…

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To this observation, we could add a few other times, like in December 1979,

when there were elections into local government council positions and unsuccessfully in

1984, until again in December 1998. In effect, therefore, “Local Government councils

have been led by people who cannot in the more appropriate sense of the word, claim

to have the mandate of the citizens to be their elected representatives.” Indeed, this

trend has virtually continued even into the Fourth Republic, when from June 2002 to

March 2004, local government councils were governed by caretaker committees or by

such other undemocratic appointees of the state governors.

The next major tinkering with the local government structure and its functioning

was the review of local government administration in 1985, otherwise known as the

Dasuki Review Committee. It is important to recount the terms of references of the

Committee, which were the following:

1. To evolve the most suitable mode of managing local governments within the

context of the present military administration.

2. To examine the existing structures, functions and financial resources available to

local governments for the performance of those functions.

3. To look into the accounts/management (staff) problem of local governments,

including the standardization of the various departments of the councils.

4. To evolve a proper place for traditional authorities in local governments.

5. To propose how best to manage intergovernmental relations between federal,

state, and local governments and also between local governments and ministries

for Local Government Service Boards/Commissions, etc.

6. To work out manpower development schemes for all local government staff.

7. To deliberate and recommend on the matters the Committee considers relevant

for the improvement of local government administration in the country,

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Following the acceptance of the Dasuki Committee report by the federal

government, another committee was set up to design an appropriate scheme of service

for local government employees in the country. The result is that local government

employees enjoy the same salaries, allowances as well as other conditions that obtain in

the civil service either at the state or federal level.

In 1988, the federal government set up another technical committee on the

application of civil service reforms in the local government service. This time also the

committee was

To study the new civil service reforms and make the commendations on how they would apply in the local government service bearing in mind the peculiarities of the service and the need to preserve the gains made in building the service in the recent past.

To consolidate on the gains that the efforts on reforms which the federal

government had made through the various committees, the 1979 Constitution of the

Federal Republic of Nigeria recognized local governments as the third tier of

government and assigned concrete functions to the local government in the

Constitution.

More changes were introduced into the status of local governments, as

contained in Decree 23 of 1991, which introduced the presidential system of

government into local government administration. This means that the local

government council, which is the highest decision-making organ at that level, shall be a

legislative body, and separated from the executive arm of the local government. The

executive arm then consisted of the chairman of the council as the chief executive, his

deputy and supervisors. Egonmwan and Ibodje (1998:16) have summarized some of the

changes and innovations that have taken place in the local government system since the

1976 Reforms to date. These are:

1. The professionalization of the local government service.

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2. The application of the presidential system in the local government system, such

that the chairman is chief executive and accounting officer, separate from the

council, which is the legislative arm, made up of elected councilors.

3. The establishment of mandatory departments in local governments.

4. The establishment of the position of supervisory councilor’s secretaries to the

local governments and treasures, as well as the creation of the office of the

auditor-general for local governments.

The current role and status of the local government system in the 1999

Constitution, section 7, subsection (1), provides that

The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the government of every State shall, subject to section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.

It could be seen from the foregoing that there has been a lot of efforts to reform

the local government system. It should, however, be noted here some of the issues

central to the 1976 Reforms. First is that there should always be elected representatives

at the helm of affairs at the local governments. Second is that the local government

system should be a distinct tier of government, yet dependent on the other two tier,

namely the federal and the state governments. Third is that the resources of the people

which are channeled either through the states or the federal governments should be

shared in such a way as to give such resources according to responsibilities of each tier

of government.

However, we make bold to assert that from 1976 to date, the local government

system has suffered so much abuse in the running of its affairs than the other two tiers.

For example, between 1966 and 1979, when the military was in power, local

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governments had appointees over their affairs. Between 1979 and 1983, local

governments were also under appointees and not elected representatives. That is why it

was unpalatable to us as democrats and as people who believed that we must always

have elevated representatives at the local governments, when in 2002, under a

democratic dispensation, the other two levels decided to shove aside elected

representatives and to have appointees over the local government system in Nigeria.

The point to note, is that, whereas the president, state governors and other elected

representatives do not have to be removed from office before their election or

reelection, so there should similarly be seamless transition at the local government level

so that one set of elected representatives would pass the mantle of leadership to the

next elected representatives, rather than have appointees coming and going and

thereby truncating democratic regimes at the local government level.

Another issue that relates closely to the development of the local government

system has been the provisions of the constitutions. The 1989 Constitution for the first

time introduced the issue of the presidential system into the local government system.

This provided for an executive arm separate from the legislature. The 1995 Constitution

upheld it (although that Constitution was not implemented). Sadly, the 1999

Constitution introduced some major reversals, especially with respect to the status of

local government, funding and resource allocation and the tenure of local government

elected representatives. We have already argued in the paper that elected

representatives in the country should have a uniform tenure like the other tiers of

government. Therefore, local government chairmen and councilors should also have

four years tenure like governors and the president.

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1.1 Sources of Funds, Distributable Revenue to the Three Tiers of

Government/Expenditure

Table 1: Sources of Funds for the Three Tiers of Government in 2011 (Naira Billion)

Aggregate Expenditure

At N9,774.3 billion, the aggregate expenditure of general government increased

by 11.2 per cent from the level in 2010. As a proportion of GDP, it represented 27.6 per

cent, compared with 29.8 per cent in 2010. A breakdown showed that the outlay on

recurrent activities at N6,011.96 billion (17.0%) of GDP), accounted for 61.5 per cent,

and capital expenditure at N2,715.5 billion (7.7% of GDP), represented 27.8 per cent.

Transfers and ‘others’ at N935.9 billion (2.6% of GDP) and N111.0 billion (0.3% of GDP),

respectively, accounted for 9.6 and 1.1 per cent of the total.

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Consolidated Fiscal Balance and Financing

The fiscal operations of general government resulted in a primary deficit of

N528.4 billion (1.5% of G DP), and an overall deficit of N1,287.8 billion (3.6% of GDP),

compared with N1,206.9 billion (4.1% of GDP) in 2010. The deficit was financed, largely,

with borrowing from the non-bank public and the domestic banking system.

Table 2: - Local Governments’ Revenue: 2010-2011

Overall Fiscal Balancing and Financing

Provisional data on local governments’ fiscal operations indicated a surplus of

N2.6 billion, compared with a surplus of N2.5 billion in 2010.

Revenue

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The total revenue of local governments, at N1,6.3.8, represented an increase of

18.0 per cent over the level of in 2010. The sources of the revenue comprised

allocations from the Federation Account (N940.0 Billion), Share of Excess Crude Account

(N80.7 billion), NNPC refunds to LGs (N11.5 Billion), budget augmentation (N246.6

billion) VAT (218.2 billion), IGR (N27.3 billion), grants/’others’ (N4.1 billion), stabilization

fund (N21.3 billion), and state allocation (N14.0 billion).

Expenditure

At N1,601.2 billion, the total expenditure of local governments indicated an

increase of 18.0 per cent above the level in 2010, and represented 4.65 per cent of the

GDP. A breakdown indicated that recurrent outlay stood at N1,179.4 billion or 73.7 per

cent, while capital expenditure amounted to N421.8 billion, or 26.3 per cent of the total.

A breakdown of recurrent expenditure showed that personnel cost was N748.1

billion, while overhead cost and the consolidated fund charges/others amounted to

N231.7 billion and N199.6 billion, respectively. Analysis of capital expenditure by

function revealed that the share of administration was N52.4 billion, economic services

(N211.8 billion), social and community services (N148.6 billion), and transfers (N9.0

billion).

2. COMPARATIVE PERSPECTIVES OF LOCAL GOVERNMENT SYSTEMS IN SELECTED

COUNTRIES: - USA, SOUTH AFRICA, KENYA, GHANA, TANZANIA AND NIGERIA

The federal entity created by the USA Constitution is the dominant feature of the

American governmental system. However, the system itself is in reality a mosaic,

composed of thousands of smaller units of building blocks that together make up the

whole. There are 50 state governments plus the government of the Washington District

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of Columbia, and further down the ladder are local governments with smaller units that

govern counties, municipalities, towns and villages.

Local government in the USA is generally structured in accordance with the laws

of the various individual states. Typically, each state has at least two separate tiers: -

counties and municipalities. In turn, there are several different types of municipal

government, generally reflecting the needs of different levels of population densities,

although the types and nature of these municipal entities varies from state to state.

This multiplicity of governmental units is best understood in terms of the

evolution of the USA. The federal system, it has seen, was the last step in an

evolutionary process. Prior to the Constitution, there were governments of the separate

colonies (later states) and, prior to those, the governments of counties and smaller

units.

The drafters of the USA Constitution left this multilayered governmental system

untouched. While they made the national structure supreme, they wisely recognized

the need for a series of governments more directly in contact with the people and more

keenly attuned to their needs. Thus, certain functions, such as defence, currency

regulation, and foreign relations, could only be managed by a strong centralized

government. But others, such as sanitation, education, and local transportation etc,

could be better served by local governments/ jurisdictions.

In the United Republic of Tanzania, the local government system is part of the

scheme of decentralization of power and resources. The two halves of the Republic

(Tanganyika and Zanzibar) have somewhat different evolution of and system of local

government.

The mainland Tanzania has a long history of functioning local government

starting with the Native Authorities Ordinance in 1926. There was a ten year break, as in

1972 the local government was abolished and replaced with a direct central government

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rule. The reintroduction of the local government occurred in the beginning of 1980s,

when the rural councils and the rural authorities were re-established. Local Government

elections took placed in 1983 and the establishment of functioning councils in 1984. In

1993, the one-party political system was abandoned and replaced with a multiparty

system of government, which witnessed in 1995 the first multi-party elections.

Following the liberalization of the political field in Tanzania was a major political

sector reform, which included a Local Government Reform Programme (LGRP). The

LGRP covered four areas of: - political decentralization, financial decentralization,

administrative decentralization and changed central-local relations with the mainland

government having over-riding powers within the framework of the constitution.

This process of local government reform in Tanzania is still on-going. It aims to

promote democratic, accountable and autonomous local government authorities, with

wide discretionary powers and a strong financial base implemented by 2011.

Like Tanzania, the Republic of South Africa’s local government system in the last

decade has been that of the deliberate scheme of decentralization of power and

resources for effective democratic governance. In 1993, South Africa launched a

comprehensive local government reform by drafting the Local Government Transition

Act 209, which defined a three-stage process for the restructuring of the local

government. Firstly, in 1995/6 elections for transitional councils were held, allowing

some continuity in delivery until the second phase of the local government reform was

in place. At this time, the number of municipalities was set on 843. The second phase of

the reform included the establishment of the Municipal Demarcation Board, of which

task it was to redraw the municipal boundaries in the country. The third stage followed

the local elections of 2000. At this time, it was decided to drastically reduce the total

number of local authorities from 843 to 284 and to cut down the number of the elected

members.

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In 2000, the old local government system of South Africa was replaced with a

new, streamlined structure. The new system was designed to drive the government’s

transformation programme by delivering clean water, electricity, schools, sewage

treatment and roads to the poorest communities in the country.

South African Local Government consists of Metropolitan Municipalities, District

Councils and Local Councils, each of which serves a different part of society. Although

the number of local authorities declined as a result of the local government

restructuring, their role did not as they now became responsible for much of the socio-

economic delivery. Indeed, the 1998 Government White Paper advanced a concept of a

Development Local Government, determining that from that point onwards the local

governments would pursue integrated development planning. Integrated development

planning would take place in the context of intersectional partnerships, requiring,

alongside other vested interests groups. Developmental local government was now

viewed as a vehicle for South Africa’s development, even to the extent that some

observers have been anticipating a decline in the power of provincial government

(equivalent of state government in Nigeria) relative to the local government structures.

Unlike the evolutionary character and structure of government in the USA, South

Africa and Tanzania, Ghana had a highly centralized government structure pre-1981

Revolution, in which local people and communities were little involved in decision

making. Local government services were poor and depended largely on funds and

personnel provided by the national government in Accra.

Successive governments in Ghana since independence have looked to a vibrant

local government system to aid the country’s development. Attempts at

decentralization of power were introduced in 1974 and 1983. Ghana’s current

programme of decentralization was initiated in 1988 when the Rawlings government

introduced the Local Government (PNDC Law 207), through which the number of local

22

authorities, then 65, was reviewed and reorganized into 110 district assemblies. The

stated aim of the local government reform was to transfer functions, powers, means

and competences from the central government to the local government, and to

establish a forum at the local level where a team of development agents,

representatives of the people and other agencies could discuss the development

problems of the district and/or area and their underlying causative factors. On an

ideological level, decentralization was expected to support democratic participatory

governance, improve service delivery and also lead to a rapid socio-economic

development.

The process of decentralization continued and was endorsed by Ghana’s first

multiparty government that came into power in 1992. It consolidated the aim of

decentralization within the new framework of liberal democratic constitution.

Recently, to promote the decentralization efforts, Ministry of Local Government

and Rural Development has developed and is implementing a National Decentralization

Action Plan, which was endorsed by the cabinet in February 2004. The plan, being

implemented aims to: -

Promote participation and partnerships;

Strengthen sub-district governance;

Strengthen functional and governance performance of the district assemblies;

Strengthen financial and human resource management;

Consolidate funding;

Enhance policy management;

Strengthen political leadership and inter-sectoral collaboration

The Municipal/Metropolitan/District Assemblies (MMDAs) derive their revenues

from the District Assembly Common Fund established under the 1992 Constitution,

representing not less than 5% of annual revenue and shared among the MMDAs

23

according to a formula devised by cabinet and approved by parliament, ceded revenue

such as taxes from gambling, betting, casinos, advertisement, entertainment duty etc,

donor funding especially micro-finance, and other sources.

In Kenya, local authorities have evolved into important governance and

development agencies. Operating under the Local Government Act, Chapter 265 of the

Laws of Kenya, they serve several functions, the primary function of which is to mobilise

resources and provision of services within their areas of jurisdiction. Increasingly, their

effectiveness in discharging their mandate of service provision has been wanting.

Strengthening of local governments is thus a priority concern for the government of

Kenya. Such policy documents as the Poverty Reduction Strategy Paper (PRSP) and the

9th National Development Plan, as well as the current Kenya Economic Recovery

Strategy for Wealth and Employment Creation (2003-2007) stress the need to accelerate

the local government reform process in order to further improve local service delivery,

governance and poverty alleviation.

Local government sector reforms, so as to improve delivery of services, is

undertaken under the Kenya Local Government Reform Programme (KLGRP) which was

mooted in the early 1990s as a result of recommendations of the “Kenya Local

Government Study” (Report No. 8997 – KE, April 23, 1992) and the Ministry of Local

Government Task

Force on Local Government report (popularly referred to as the Omamo Report of

1995).

Since 1995, the focus of local government reforms has been on rationalizing Kenya’s

central –local fiscal relationships, improving local revenue mobilization by enhancing

local authority financial management practices, and improving local governance and

service delivery. To facilitate local authorities to provide the services and facilities the

government established the Local Authorities Transfer Fund (LATF) through an Act of

24

Parliament, The Local Authorities Transfer Fund Act (No.8 of 1998). LATF is currently

pegged at 5% of the national income tax collected in a financial year and accounts for

about 25 % of total local revenues. Local authorities access LATF funds based on the

relative population of the local authority as well as certain performance conditions such

as the timely preparation of budgets, financial reports including the abstracts of

accounts, and preparation of a participatory services delivery action plan, the Local

Authorities Service Delivery Action Plan (LASDAP). Introduced in 2001, the LASDAP

process involves citizens who participate in community meetings to identify local needs

and priorities. The question, however, remains one of how inclusive the process of

LASDAP is.

Table 3 below depicts the comparative perspectives on the status, objects,

functions of Local Governments and their relations with other units of government

(central, state/provincial/regional etc) in the selected countries.

25

TABLE 3: - COMPARATIVE CHART ON THE STATUS, OBJECTS AND FUNCTIONS OF LOCAL GOVERNMENTS IN SELECTED COUNTRIES

No.

Country

Status of LGs

Objects of LGs

Functions/Jurisdiction

Relations with other Units of Government (Central, State, Provincial / Regional

Comments

1. GHANA Local government is provided in the Constitution of the Republic of Ghana 1992. Article 35 (5d) requires the state ‘to take appropriate measures to ensure decentralization in administrative and financial machinery of government and to give opportunities to people to participate in decision-making at every level in national life and government’. The Constitution also establishes the District Assemblies Common Fund and provides that ‘not less than five per cent of the total revenues of Ghana’ are paid into it for use in district assembly capital works.

To devolve powers to the local governments for effective grassroots governance;

To promote citizens’ participation in local democratic governance

To promote accountability and transparency in governance.

The districts are responsible for the provision of basic education, although the central government retains control over education policy. Social welfare is a shared responsibility. The districts are responsible for public health, environmental protection, roads, forestry, agricultural extension and sanitation. Planning is shared with the RCCs. Article 240(2) of the Constitution accords to local governments “functions, powers, responsibilities and resources”; support for “the capacity of local government authorities to plan, initiate, co-ordinate, manage and execute policies in respect of all matters affecting the people within their area”, and a “sound financial base with adequate and reliable sources of revenue”; staff that is “subject to this Constitution, a District Assembly shall be the highest political authority in the district, and shall have deliberative, legislative and executive powers.” Art. 21(2) e. of the LGA states that “The DA Executive committee is expected to “develop and execute approved plans of the units, area

The intent of the Ghanaian Constitution is to give some teeth to local governance. The Constitution states in Art. 241 (2) that “parliament may by law make provisions for the redrawing of the boundaries of districts or for reconstituting the districts.” In the LGA, the President has the dominant role in creating districts (Art. 1(2)). The President considers the advice of the Electoral Commission for new district creation (Art. 1(3)), and the latter applies criteria contained in Art. 1(4). The Minister must use a “legislative instrument” to establish a District Assembly “for each district” (Art. 3). There is some tension in the constitutional provisions between the desire to give LG significant autonomy, and the concern to retain some control. The key means selected to retain control are the Presidential appointment of the District Chief Executive (DCE) and 30% of the District Assembly

There has been a good effort to capture the essential features of local government in the Constitution, but more effort will be needed to ensure that the Constitution can act as a proper guide to government/legislators in realizing the vision embedded in the Constitution. The nature of LG (structure, scope and autonomy) needs to be better defined and guided by the Constitution, and should reflect an updated national consensus.

26

No.

Country

Status of LGs

Objects of LGs



Comments

and towns and sub-metropolitan districts.”

members, the establishment of Regional Coordinating Councils (RCC), and national audits of LG. These are fairly common features, though not the only ones necessary, and whether they still give room for genuine local autonomy depends on how they are wielded in practice. The relationship between the RCC and district assemble is also not clear, nor are the modes of decentralization possible. Art. 254 seems to hint at agency/delegation (where the Central Government continues to hold on to the “provision” responsibility) but may in fact refer to further “devolution” (where provisions responsibility is transferred to LG, with the Central government only retaining some policy guiding instruments).

2. KENYA The Republic of Kenya is a unitary state. The local authorities have a semi-autonomous status within their geographic area. In terms of management, the districts are headed by the district commissioners, appointed by the president and assisted by

Local Government Reform Objectives includes: Improve Local Service Delivery, Enhance Governance, Alleviate Poverty, through increasing Efficiency, Accountability & Transparency and Citizen Ownership

Within their jurisdictions the Local Authorities in Kenya are charged with the responsibility for providing services such as health, primary education, refuse collection, water and sanitation, and fire protection services among others.

Local authorities in Kenya are semi autonomous legal entities with administrative and legal powers delegated by the central government under the local government Act. The Act empowers the minister of local government to approve local authority

The advent of multi-party politics in Kenya in 1992 ushered in a major shift towards devolution through local authorities. Local authorities are increasingly being recognized as effective partners in the governance and development process.

27

No.

Country

Status of LGs

Objects of LGs



Comments

divisional officers, chiefs and sub-chiefs. Divisional officers, chiefs and sub-chiefs have the responsibility for the divisions, locations and sub-locations. The district commissioner is accountable through the provincial administration to the Office of the President. “Under the provisions of the Local Government Act 1977 as amended, the Minister of Local Government is responsible for local authorities. The minister’s remit covers the constitution of local authorities, power to establish and extinguish local authorities, and oversight of their policies, by-laws, staffing, administration, operations, budgets and financial management. Other sector ministries also directly affect the operation of local authorities, particularly in the areas of health, education, water and roads.

revenue sources, budgets, and to dissolve a council and appoint a commission if it is not justified. The public service commission – a central government body determines the appointment of local authority senior staff Central government oversight and control in Kenya is very strong at all levels down to provinces, districts and locations. The ministry is required to ensure that local authorities have the instructional and policy framework systems and capacity to effectively provide the required local services in a responsive, efficient accountable and transparent manner.

The ministry of local government in collaboration with the ministries of Finance and other central level ministries has been undertaking various reforms focused on improving the intergovernmental fiscal structure, enhancing local financial management, strengthening citizen participatory planning has been introduced through the local governance. Participatory planning has been introduced through the local authorities Service Delivery Action Plans (LASDAP) and it now involves over 43,000 citizens participating in over 1,000 community meetings nationwide to identify local priorities. The current Kenya Economic Recovery Strategy for Wealth and Employment Creation (2003- 2007) continues to stress the need to accelerate the local government reform process in order to further improve local service delivery, governance and poverty alleviation. The strategy specifically places priority on:

28

No.

Country

Status of LGs

Objects of LGs



Comments

• Restructuring of local authorities based on viability, • Rationalizing central-local financial relations, • Improving local authority budgeting, financial management and revenue mobilization, • Strengthening Local Authority participatory planning and service delivery, • Rationalizing Local Authority staffing and structure, • Reviewing Local Government Act and legal framework.

3. TANZANIA Local government is a non-Union matter. It is nonetheless enshrined in the Union constitution as well as in the constitutions of the mainland and Zanzibar. "In mainland Tanzania, the Constitution of the United Republic 1977, Articles 145 and 146 state that the National Assembly or the House of Representatives must provide for local government through legislation.

The objective of the local government is 'to enhance the democratic process within its area of jurisdiction and to apply the democracy for facilitating the expeditious and faster development of the people'."

The stated basic functions of the local government are: 1) Maintenance of law, order and good governance 2) Promotion of economic and social welfare of the people within their areas of jurisdiction 3) Ensuring effective and equitable delivery of qualitative and quantitative services to the people within their areas of jurisdiction. In addition to the basic functions, all local governments are charged with seven other functions and duties, as follows: · Formulation, coordination and

The role of Central Government vis-à-vis local councils through the ministries for local government is largely: -

a) Supportive and capacity building bodies

b) Monitoring and quality assurance bodies within the Local Government legislation framework.

Although in the current legislation the above functions have been assigned to the local government, it seems that most services and infrastructure are still being provided by the central government or its executive agencies. Also, most of the funding still comes from the central government or donors. Here, a good example is the managing of roads. The road sector has always been in the realm of the central government.

29

No.

Country

Status of LGs

Objects of LGs



Comments

supervision of the implementation of all plans for economic, industrial and social development in their areas of jurisdiction · Monitoring and controlling the performance of duties and functions of the council and its staff · Ensuring the collection and proper utilization of the revenues of the council · Making bylaws applicable throughout their areas of jurisdiction, and considering and improving bylaws made by village councils within their areas of jurisdiction · Ensuring, regulating and coordinating development plans, projects and programmes of villages and township authorities within their areas of jurisdiction · Regulating and monitoring the collection and utilization of revenue of village councils and township authorities · Subject to the laws in force, doing all such acts and things as may be done by a people’s government.

“The current policy to let the Local Government Authorities manage the public roads is being funded through the road fund collected by the central government. Some 30% of the Road Fund Collection is allocated to Local Authorities for the maintenance of distance roads.” The same goes with the health delivery system. “The local authorities are supposed to run certain health facilities on behalf of the central government. The financial resources going to the health sector come from the central government grants and resources generated by the local authorities themselves.”

4. SOUTH AFRICA

Under Sections 174-180 of Chapter 10, Constitution of South Africa:

1. The objects of local government are -

a. to provide democratic

Under section 175 of the South African Constitution (1) The powers, functions and structures

Under section 154 of the South African Constitution, Municipalities in co-

Local Government, on the other hand, has the executive powers over the

30

No.

Country

Status of LGs

Objects of LGs



Comments

1. The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic.

2. The executive and legislative authority of a municipality is vested in its Municipal Council.

3. A Local Government/municipality has the right to govern, autonomously on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.

4. The national or a provincial government may not compromise or impede a municipality's ability or right to exercise its powers or perform its functions.

and accountable government for local communities;

b. to ensure the provision of services to communities in a sustainable manner;

c. to promote social and economic development;

d. to promote a safe and healthy environment; and

e. to encourage the involvement of communities and community organizations in the matters of local government.

2. A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).

of local government shall be determined by law of a competent authority. (2) A local government shall be assigned such powers and functions as may be necessary to provide services for the maintenance and promotion of the well-being of all persons within its area of jurisdiction. (3) A local government shall, to the extent determined in any applicable law, make provision for access by all persons residing within its area of jurisdiction to water, sanitation, transportation facilities, electricity, primary health services, education, housing and security within a safe and healthy environment, provided that such services and amenities can be rendered in a sustainable manner and are financially and physically practicable. (4) A local government shall have the power to make by-laws not inconsistent with this Constitution or an Act of Parliament or an applicable provincial law. (5) A local government shall have such executive powers as to allow it to function effectively. (6) A local government may, in its discretion, by means of a

operative government

1. The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.

2. Draft national or provincial legislation that affects the status, institutions, powers or functions of local government must be published for public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organized local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation.

following issues: air pollution, building regulations, childcare facilities, electricity and gas networks, fire services, local tourism, municipal planning, health, public transport and public works, storm water management, trading regulations, water and sanitation services.

In addition, municipalities exercise full legislative and executive power within their areas of jurisdiction subject to national and provincial legislation.

31

No.

Country

Status of LGs

Objects of LGs



Comments

resolution of its council provide for the assignment of specified functions to local bodies or sub municipal entities within its area of jurisdiction as prescribed and regulated by or under law where, in the opinion of the council, such assignment of functions will facilitate or enhance the provision or administration of services, the adherence to municipal bylaws or, more generally, good governance in the public interest: Provided that such assignment of functions- (a) shall not be inconsistent with an Act of Parliament or an applicable provincial law; and (b) shall not diminish the accountability of such local government.

5. USA Since the Tenth Amendment to the United States Constitution makes local government for the most part a matter of state rather than federal law, the states are free to adopt a wide variety of systems of local government. Unlike the relationship of federalism that exists between the U.S. government and the states (in which power is shared), municipal governments have no power except what is granted to them

Promoting strong and virile local governance;

Ensuring effective and efficient service delivery to grassroot populace.

Strengthening greater cooperation among the federating units.

Local Government directly serves the needs of the people, providing everything from police and fire protection to sanitary codes, health regulations, education, public transportation, and housing.

Local governments have also been modernized and reformed. Legally, local governments are created and empowered by the states, and can exercise only those powers clearly given to them by the state legislature.

Local Government in the United States remains heavily dependent on property taxes, deriving approximately 75 percent of its tax revenue from property taxes. The fiscal capacity of local government has been undermined by property tax limitations, often mandated by constitutional amendments enacted through the ballot initiative process during the 1980s and 1990s. The

The adoption of broad-based state systems of taxation and the fiscal stress of local government have affected how public services are delivered in the United States. For example, in California, when a popularly enacted initiative reduced local property taxes, affecting the capacity of local communities to support public schools, the state increased its contribution to public

32

No.

Country

Status of LGs

Objects of LGs



Comments

by their states. This legal doctrine was established by Judge John Forrest Dillon in 1872 and upheld by the Supreme Court in 1907. In effect, state governments can place whatever restrictions they choose on their municipalities (including merging municipalities, controlling them directly, or abolishing them outright), as long as such rules do not violate the state’s constitution.

About half the states, however, have adopted “home-rule” provisions for local government. Under home rule, local governments can exercise all powers not prohibited to them. This has given cities a great deal more flexibility in meeting present-day challenges. In addition, many smaller cities have hired professional city managers to run the day-to-day operations of government on a non-partisan basis.

resulting challenge to local budgets has been met in three ways. First, so long as state tax revenues were increasing, the states were able to increase their aid to local governments. Second, several states allowed local governments to enact new taxes. Pennsylvania, for example, empowered the city of Philadelphia to enact a one-percent sales tax, and a limited wage tax on its citizens. By far, however, the most important response to local budget challenges has been innovation and cost saving in service delivery. In the name of “reinventing government,” many local services were privatized, new labour agreements were negotiated and fees for governmental services were increased to meet the real costs of the service.

education. As a consequence, in a matter of only a few years, the funding of public education in California changed from approximately 70 percent local and 30 percent state to about 70 percent state and 30 percent local. Local fiscal stress has forced local governments to become innovative. The governmental, political and fiscal modernization that has come to characterize American state and local government has brought about changes not only in the way in which public services are delivered, but in the very ways that these governments operate. They have become much more representative of the communities they serve, more transparent in their deliberations, more responsive to their constituencies and more accessible to ordinary citizens. For example, most state and local governments operate under “sunshine laws,” which require that

33

No.

Country

Status of LGs

Objects of LGs



Comments

meetings of public officials be open to the press and the public. Many governments also operate under “sunset laws,” which means that once a law or regulation expires, public meetings must be held before the law or regulation is renewed. Most states have enacted laws regulating campaign finance, requiring candidates to report the amount and source of their campaign contributions. In some states, these reports are available on-line and can be accessed by the press and by ordinary citizens. State and local governments also now relate to their citizenry on-line. In many states, for example, citizens can renew their vehicle registrations and automobile licenses on-line, using credit cards to pay the fees. Generally, citizens can obtain information about all their state and local government agencies and operations online. Most agencies make various forms available to download onto computers. Arizona goes

34

No.

Country

Status of LGs

Objects of LGs



Comments

so far as to allow its citizens to vote in primary elections via their computers. “E-government,” as it is called, is just beginning, and the states and their communities are at the forefront in enabling their citizens’ access to it.

6 NIGERIA Section 7 of the 1999 Constitution guarantees the existence of the local government system by democratic means. It vested in the State Governments of the federation the power to ensure the existence of local government councils under a law which provides for their establishment, structure, composition, finance and functions.

Promoting the participation of people in governance and serving as an agent of sustainable development

The Fourth Schedule to the 1999 Constitution made provisions for the functions of Local Governments. For the avoidance of doubt we reproduce some of the key functions here.

1. The main functions of a Local Governments council are as follows: -

a. The consideration and the making of recommendations to a State Commission on Economic Planning or any similar body on:

i. The economic development of the State particularly in so far as the areas of authority of the council and of the State are affected and

ii. Proposals made by the

The 1999 Constitution made half-hearted attempts at entrenching local governments as the third-tier of government in the Federation. But it gave with the right hand only to take away with the left. One of the crucial elements of autonomy is fiscal independence. Under Section 7(6) (a), the Constitution empowers the National Assembly to make provisions for the stator allocation of public revenue to the local government councils in the Federation”. However, the same Constitution in the same sub-section (b) empowers the State House of Assembly “to make provisions for the statutory allocation of public revenue to the local government councils in the State.” In order to do this,

The provisions in the constitution fall short of the expectations of the local government system, especially against the background of the spirit of the 1979 local government reforms, which sought to truly make the local government a third tier of government. That any form of ambiguity relating to the federating unit status, fiscal autonomy and control of the local government should be removed from the constitution. This in keeping with the practice in most federations, there is the need to state the powers of the State House of Assembly in the determination of the structure and tenure of the local government councils. Similarly, the power to remove and/or impeach a

35

No.

Country

Status of LGs

Objects of LGs



Comments

said Commission or body.”

2. The functions of Local Government Council shall include participation of such Council in the Government of a State as respects the following matters:

a) The provisions and maintenance of primary, adult and vocational education;

b) The development of agriculture and natural resources, other than the exploitation of minerals.

c) The provision and maintenance of health services

d) Such other functions as may be conferred on a Local Government Council by the House of Assembly of the State.”

the 1999 Constitution created what is known as the “State Joint Local Government Account.” Under the 1999 Constitution, the local governments have several masters. The National Assembly appropriates funds for them from the Federation Account individually and sends these funds to an Account to be operated by the State Government called “State Joint Local Government Account”. The State Government is to distribute these in accordance with a law passed by the House of Assembly of that State among the local Governments of that State. What have we found in practice?

local government chairman should be exercise by the local legislative council, rather than the State Governor.

36

3. LESSONS AND VIABLE OPTIONS FOR NIGERIA

Successful decentralization entails giving local government a clear mandate,

architecture, and functions, and considerable discretion over the use of its funds

and implementation, to obtain alignment with local preferences. The discretion

given to local government is meaningful when adequate financial resources are

provided, and when consideration of spending needs is tempered with a

sufficient measure of locally raised taxes to pay for services rendered. With the

scrutiny of tax payers, and a public that not only elects a council but insists on

direct participatory democracy, local government is expected to be responsive,

and yet spend within its means, and to search for efficiencies and innovation in

the delivery of services. Through an appropriate national policy and legal

framework, local government is also provided with ongoing guidance and

mechanisms for working in concert with national institutions to pursue national

goals.

Writing in the 1923 case of New State Ice Company v. Liebmann, U.S. Supreme

Court Justice Louis D. Brandeis commented, “It is one of the happy accidents of

the USA federal system that a single courageous state may, if its citizens choose,

serve as a laboratory, and try novel social and economic experiments without risk

to the rest of the society,” Brandeis’s observation was valid in 1923 and remains

valid today. American state and local government is proving flexible, innovative

and effective in meeting the challenges and adapting to change.

In South Africa the central government is responsible for areas of external

relations, defence, education, environmental management, tourism,

development and national legislation. Many areas of responsibility are held

concurrently with provincial administrations. In practice this means that the

37

national government determines the policy whilst provincial governments are

responsible for implementation.

In South Africa the conduct of public administration in any sphere of government

can be investigated by the Public Protector. Apart from investigating the conduct

of public administration, the public protector has the power to take any remedial

action she/he deems necessary. Thus, in many ways the public protector

resembles in official whom we better know as the ombudsman.

On the financial side, the Auditor General is required to audit and report on the

accounts and financial management of all local authorities.

4. CONCLUSION

All that we have tried to do here is to examine the 1999 Constitution and how it

has affected Local Governments. We observed that there is a great legal lacuna on the

question of Local Government in this Constitution.

We recommend that the National Assembly should take urgent steps to review

the Constitution and amend same, among others, in respect to Local Government to

ensure:

1. That Local Governments are guaranteed in the Constitution as a third tier of

government in the Federation. The Powers, functions, structure and

management of this tier should be clearly spelt out as in the case of State and the

Federal Governments. The presidential system of government should be

extended to local governments in order to encourage checks and balances,

openness, transparency and grassroots development.

2. The power to create new and additional Local Governments should be restricted

and subject to ratification by the National Assembly to avoid indiscriminate

creation of mushroom Local Councils as has been done by a State Governor

38

already. A 10 year moratorium be placed on Local Government creation which

should be tied to population census and other verifiable indicators.

3. The revenue allocation to the Local Government should be increased from the

present 20% to 35% to ensure grassroots development.

4. Fiscal autonomy of Local Governments should be ensured by direct allocation to

each of the Local Governments from the Federation Account. The ‘State Joint

Local Government Account’ should be removed from the Constitution. Normal

mechanism for checks and control can be instituted by creating the office of the

Independent Auditor-General to check and monitor annually, the Accounts of

Local Governments and lay them before their respective Councils.

5. A subsidiary list is made from which the State and Federal Governments cannot

legislate. These will be powers reserved exclusively to the Local Governments.

39

REFERENCES 1. Otive I. and Ololade B. (ed); Contentious Issues in the Review of the 1999 Constitution: 2002, Citizens

Forum for Constitution Reform, Lagos. 2. E. E. O. Alemika and F.O. Okoye (ed); Constitutional Federalism and Democracy in Nigeria: 2001, Human

Rights Monitor, Kaduna. 3. Haruna Dabin (ed); 2005, Local Government System in Nigeria: Sustainable Democracy and Good

Governance. Peoples Democratic Institute, Abuja. 4. The Constitution of Republic of Ghana 1992, Chapter 20 5. Afro Barometer Briefing Paper No. 52, August 2008: Popular Opinions on Local Government in Ghana,

2008. 6. Ferrazi G., 2006: Ghana Local Government Act 1993: A comparative Analysis in the Context of the Review

of the Act. Local Governance and poverty Reduction Support Programme, Accra, Ghana October 2006. 7. Issues of Democracy: State and Local Government: Adapting to Change in Electronic Journal of the U.S

Department of State, Washington DC USA. Vol. 8 No. 2, October 2003. 8. Ghana- The New Local Government System: Ministry of Local Government and Rural Development,

November 1996 9. Beall, J. (2005) “Decentralising Government and Centralising Gender in Southern Africa: Lessons from the

South African Experience”, Occasional Paper 8, United nations Research Institute for Social Development. 10. Human Development Report 2004, UNDP. 11. Othman, H. and Liviga, A. (2002) Local Governance and Poverty Reduction, Tanzania Country Paper for

AGFV, Tanzania. 12. The Local Government System in Tanzania (http://www.clgf.org.uk/index_profiles.htm) 13. UN-Habitat (2002) Local Democracy and Decentralization in East and Southern Africa: Experiences from

Uganda, Kenya, Botswana, Tanzania and Ethiopia, Nairobi: UN-Habitat. 14. Republic of South Africa: Government Gazette: No. 32 of 2000: Local Government: Municipal Systems Act.

2000. 15. Republic of South Africa: Government Gazette: No.52 of 1997: Organised Local Government Act. 1997. 16. UN-Habitat (2002) Local Democracy and Decentralization in East and Southern Africa: Experiences from

Uganda, Kenya, Botswana, Tanzania and Ethiopia, Nairobi: UN-Habitat, p.37. 17. Devas, N. and Grant, U. (2003) “Local Government Decision-making – Citizens Participation and Local

Accountability: Some Evidence from Kenya and Uganda”, Public Administration and development, Vol. 23, No. 4, p. 312.

18. The Local Government System in Kenya (http://www.clgf.org.uk/index_profiles.htm). 19. Central Bank of Nigeria, Abuja (2011): - Annual Report of 2011.

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