FEDERATION ACCOUNT

Written By Yushau A. Shuaib

FEDERATION ACCOUNT AND THE LAST JUDGMENT

Thisday July 21, Sunday Tribune July 23, Daily Champion July 24,

New Nigerian July 24-25, Daily Trust July 27, Leadership August 7, 2006

When lawyers proudly say only members of their profession are learned I get confused because there are many professionals who are learned in their respective fields. As learned as the lawyers are, they ceaselessly argue amongst themselves unless their masters in the person of judges adjudicate on issues/cases at hand, most often not without some drama; there are the lead judgment of the majority and the dissenting judgment of the minority. When this happens, as it sometimes does at the apex court, isn’t there a sense in which this lack of unanimity puts a question mark on the sacrosanct and finality of a verdict?

The above scenario played out in a recent judgment of the Supreme Court (on Friday, July 7, 2006) that nullified an Act of the National Assembly, which was enacted to minimize the abuse of local government funds by the authorities at states and local government councils. The legislation tagged “The Monitoring of Revenue Allocation to Local Government Act 2005” empowered relevant legally constituted institutions to monitor the accruals and ensure the respective beneficiaries receive their actual dues promptly from the Federation Account.

It is necessary from the onset to declare that this piece is not a representation of my organization, and may not therefore reflect its thinking. It is purely a personal opinion which the Constitution grants its citizens the freedom of self-expression. Because the more one seeks clarifications from the LEARNED and UN-LEARNED the more one gets confused on the verdict and its implications on revenue sharing and true fiscal federalism. Since lawyers may have different interpretations of this latest judgment, and editorials giving divergent views, I take the same liberty to point out, some contradiction from the judgment, probably from a layman’s legal argument.

A lead judgment of the Supreme Court read by Justice Niki Tobi, ruled that the Federal Government lacked the power to monitor the ways and manner in which states distribute funds to local governments in their jurisdictions. In fact the Court further ruled that the representatives of the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC) in the State Joint Local Government Account Committee were busybodies who should find their way out. Justice Niki pointed out bluntly that “the National Assembly has not the legislative competence to legislate on the nicety or nitty gritty of the allocation.”

While only one out of the three states that went to the Court against the Act is celebrating it as “a victory to Democracy,” Justice Niki Tobi has this word for those who may celebrate the verdict with the intent to abuse local government funds. He said “ any person who is at the corridors of local government finances or funds or in some proximity with such finances or funds or sleeping with them and sees this judgment as a victory in the sense that he has freedom of the air to steal…should think twice and quickly remind himself that the two anti-corruption bodies… are watching very closely and will without notice pounce on him(or her) for incarceration after due process…But that is not as serious as God’s law which says he will go to hell and he will make hell. This is not a curse. God’s law does not lie because God is not a liar.”

It is noteworthy that the Justice knows the implication and delicacy of the judgment by making reference to our infallible holy scriptures, and indirectly points out the weakness of our law that may, by some of its provisions, contradictorily promote vices within the system.

The State Joint Local Government Account (SJLGA) is not the creation of the 1999 Constitution but is an Act of National Assembly known as Allocation of Revenue (Federation Account etc.) Act 1981. That same Act established what is now known as Federation Account Allocation Committee (FAAC) which meeting is held every month since then. During the era of the military in our national life other Decree were enacted by the Federal Government like Decree 49 of 1989 which established for the Federation (note the word FEDERATION NOT FEDERAL GOVERNMENT) the Revenue Mobilisation Allocation and Fiscal Commission with powers to “monitor the accruals to and disbursement of revenue from the Federation Account.” This specific power of RMAFC amongst other functions in that Decree is still sustained in 32 (a-e) Part 1 of the Third Schedule to the 1999 Constitution.

Since military decrees, by law, become Acts of the National Assembly with the advent of democracy, Decree 98 of 1993, an amendment to Decree 49 of 1989 which established the Commission makes RMAFC a member of FAAC as well as SJLGA Committees. It may interest readers to note that while the SJLGA is retained in the 1999 Constitution, the FAAC is deleted, omitted or in a lighter word is MISSING. What happens to the monthly meeting that the stakeholders at the Federal, State and Local Governments consider as the engine room to authenticate the accruals and disbursement of revenue from the Federation Account even though only RMAFC has the constitutional power to monitor the accrual to and disbursement from the account of the Federation?

There is yet to be a categorical judicial interpretation to make a distinction between the Federation and the Federal Government. Federation Account, for instance, is not the Federal Government’s funds but belong to all the tiers of government. Likewise the Executive bodies mentioned in the Constitution which Section 158 says they “…shall not be subject to the direction or control of any other authority or person.” The bodies mentioned in Section 153 of the Constitution include INEC, RMAFC, FJSC, NPC etc whose constitutional roles cut across the federal, states and local government councils. For instance the verdict of Supreme Court, a judicial institution at the federal level, doesn’t mean its ruling is only applicable in Abuja even when it is funded by the federal government.

Before Justice Niki Tobi called RMAFC and others as busybodies, he asked a simple question that “where is the enabling constitutional provision?” (p26) I wonder if those earlier mentioned decrees are no more tenable as enabling acts of the National Assembly.

Surprising all the defendants in the case supported the plaintiffs as if there was a grand conspiracy. According to Niki Tobi “All the defendants who filed briefs have urged this court to grant the relief sought by the plaintiffs” (p11). I was told that an organization like RMAFC cannot make a representation at the Supreme Court because it is not a tier or an arm of government. It was therefore not surprising when Justice Niki Tobi declared (in p58) that: “The Court is not Father Christmas to dole out gifts not asked for by Children.” What a great dilemma to a child who was never given the right to defend himself!

Another bone of contention in the judgment is the comment made by the Justice in p41 that: “ In view of the fact that the Constitution does not mention any first or second or charges ad infinitum, section 7(2) cannot sail through the Constitution.” Now since the Federation Account Allocation Committee (FAAC) meeting, which commissioners of finance and their accountants general attend, is not mentioned in the 1999 Constitution, does it means the over two decades monthly ritual is by this judgment abolished.

There is also the issue of the Section dealing with legislative power over Public Fund, especially on SJLGA. In all the 10 subsections of Section 6 of the Constitution on Joint Account, the power of NASS in that regards is mentioned in subsections 2, 3, 4, 5 and 7. Only subsection 8 mentions the role of State Houses of Assembly. That too if critically examines refers to intended contribution of states from their Internally Generated Revenue to LGCs through enactments of laws by their respective legislative houses on the contribution. The Subsection 6 of that Section clearly states that “Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the local government councils of the State from the Federation Account and from the Government of the State. To get the details of this is to read Decree No 106 of 1992 Section 5(2) that said “The 10% of each State’s internally generated revenue payable to the Local Government Councils in the State, under the provision of Subsection (1) of this section, shall be distributed among the Local Governments in that State on such terms and in such manner as the State House of Assembly may prescribe.”

Going back to the Supreme Court’s nullification of Section 7 of the Monitoring Act which prohibits states to alter, deduct or reallocate funds of local government, the threat of Hellfire by Justice Niki Tobi would hardly checkmate the excesses of the states who may capitalize on that to reallocate or deny their councils of their funds and return us back to the gloomy period of zero allocation before the Act. It seems a judicial interpretation is mostly concerned about legality than morality going by the apex court’s verdict which may negate the spirit of accountability and transparency at the tiers of government.

We are all living witnesses to how some states recklessly abuse their local governments by sacking democratically elected Chairmen, creating mushroom councils, misappropriating local funds for campaigns and on frivolous joint projects. Most states ignore Section 7 (1) of the 1999 Constitution which states that “The system of local government by democratically elected local government councils is under this constitution guaranteed.” Can we count the number of existing democratically elected representatives of local government councils in the federation with the voice of their own like the governors? If they ever exist, very few can have the gut to challenge their governors. Let us guess what would happen if the federal government deals with states in similar crude methods/fashion adopted by some governors against their local government councils.

I may not complete this without reaffirming that while the majority may always have their way, the minority too must have their say. I personally agree with the minority and dissenting judgment of Justice Kutigi of the Supreme Court who not only said the Monitoring Act was valid and proper and that: “It must now be clear that the FG by the Act has not prescribed any way and manner the local governments spend their allocations…The simple question, therefore, is were the actual allocations received? And were they really spent? Accountability and transparency is what the act is all about. The allocations, they must have, and spending, they must also do. The allocations must not go into private pockets or private accounts.”

As Engr. Hamman Tukur, Chairman of RMAFC usually says “Supreme Court’s Verdict is the final judgment on the land.” Would the recent ruling be the last on the Federation Account? Like the learned would say, I too hereby rest my case.