8

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y.
Amana
An Appraisal of the Legal Status and Autonomy of Local Government in

Nigeria: Lessons from Brazil and South Africa
Amana Mohammed Yusuf

Abstract
The legal status and autonomy of local government in Nigeria is shrouded in

controversy. Although local government enjoys recognition and entrenchment
under the 1999 Constitution of the Federal Republic of Nigeria, its exact status
as a tier of government is uncertain, bacause the recognition appears to be more
symbolic and half-hearted and requires the mediation of the state for its
competences and powers through enabling laws. This renders local government
more as an appendage of the other levels of government. In other countries
around the world, local governments occupy a prime place in the Constitution
with clear demarcation and comprehensive exposition on its competencies and
powers which has hindered unjustifiable interference. Brazil and South Africa
stand out unique on the issue of legal status and autonomy of local government.
Local government in the Constitution of these countries not only enjoy
constitutional recognition as an order of government but, also enjoys clear and
elaborate constitutional provisions detailing out establishment, structure and
tenure, specific powers and functions and fiscal autonomy amongst others in the
constitutional distribution of powers between the federal, state and local
government. This article finds that though Nigeria, Brazil and South Africa,
operates based on the system of constitutional democracy, the position of local
government status and autonomy in Brazil and South Africa is more in tune with
the current trends. This article concludes that the inadequate, loopholes and
unclear provisions on local government in Nigeria under the 1999 constitution
have affected its legal status and autonomy. It is the recommendation of this
article that Nigeria should draw lessons from the Brazilian and South Africa
Constitutions on the legal status and autonomy of local government.
1.0
Introduction
Three-level government, federal, state/provincial and local/municipal government

is common to most federal systems; however, the place and role of local
Amana Mohammed Yusuf, LL.B, BL, LLM., is a Lecturer with the Department of
International Law & Jurisprudence, Faculty of Law, Bayero University Kano,
amankg77@yahoo.com, 08033340192
163
Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana
government in those systems vary markedly. In some, local government is a

constitutionally recognized sphere of government, while in others; it is merely a
component of the state/provincial government. Nevertheless, local government
has an increasing role in the governance of federal countries, placing new
demands on the theory and practice of federalism.1
The issue of independence and separate legal identity from other level of
government by the local government has remained of concern 2 and research has
shown that three major distributions of powers decisions confront the framers of
constitutions. The first has to do with the distribution of powers between the
people and the sovereign. The second decision involves the establishment and
distribution of powers among the executive, legislative and judicial branches of
government. The third decision which is core to this article, involves the
distribution of powers between the federal, state and local government.3
It is important to recognize that the legal framework for decentralization in
constitutions is but one of the many factors that determine the success of
decentralization and the principle of autonomy is significant in the determination
of whether there is an assignment of sufficient and real power to a democratic
local government. To this end, clear legal framework for constitutional
recognition, democratization, fiscal autonomy and a clearly defined structures or
organs of the local government, have now become vital issues for consideration as
this concerns the status and autonomy of local governments. 4 This is because; the
Constitution is used to enshrine the broad principles on which decentralization
operates, including the rights and responsibilities of all levels of government.
Although the Constitutions of the Federal Republic of Nigeria 1999 (as amended)
herein after refered to as the Nigerian Constitution, seem to have upheld
federalism and a decentralized system of government, the question whether the
1 Bird, R., (2003), Asymmetric Fiscal Decentralization: Glue or Solvent? Working paper
03 09, Atlanta International Studies Program, Andrew Yong School of Policy Studies,
Georgia State University, P.1
2 Davey, K. J., (1991), Local Autonomy and Independent Revenue, Journal of Public
Administration, Vol. 49, p 45
3 Libonati, M. E., (2001), Local Government Autonomy, Louisiana Law Review, Vol.62,
No.1, Fall, pp.97-101 available at http://digitalcommons.law.lsu.edu/lalrev/vol62/iss 1/10
accessed 1/8/2013
164
legal framework is one that guarantees adequate autonomy and decentralization of

powers, more especially as it concerns local government from the other levels of
government, remains unsettled when compared to the situation in Brazil and
South Africa.
Decentralization is a complex institutional framework, and if the legal status and
autonomy of local government in Nigeria is anything to go by, the need to clearly
define mandate with specificity of implementation instruments and operating
structures needs to be enshrined in clear language and principles in the
constitutions as is the case in Brazil and South Africa. To this end, and
substantively, key aspects of decentralization, the legal framework for the
structure, mandate, relationship and powers of the federating units are issues to be
set forth and addressed in the Constitution. Potentially therefore, the classification
of local governments within the tiers established under the constitution should be
clearly defined; the broad organizational structures, roles, responsibilities, terms
of office, operating powers; procedures, limitations of the political leadership and
the taxing and fiscal administration authority of local government etc. This makes
for ease of interpretation and practical application. Whether these principles are
clearly entrenched in the Nigerian Constitution when compared to that of Brazil
and South Africa is the concern of this article.
Several attempts at reforms on the legal status and autonomy of local government
have been undertaken by successive administrations in Nigeria. 5 On the contrary,
Brazil and South Africa have undertaken reforms which have made the issue of
the legal status of local government more relevant. It is against this background
that this article seeks to explore the position of the legal status and autonomy of
local government in Brazil and South Africa with a view to exposing the
shortcomings in the system in Nigeria and proceed to setout lessons to be learnt.
4 Rondinelli, D., Nelis, J., and Cheema, G.,( 1993), Decentralization in Developing
Countries: A Review of Recent Experience, Washington D.C., World Bank, P. 52;
European Charter of Local Self-Government, Strasbourg, 15.x. 1985, European Treaty
Series No. 122.
5 The reforms date back pre-colonial era starting between the period 1900-1950, later
1950 to 1966, then 1967-1976 and 1976 to date. The period 1976 to date marked the era
of standardization and uniformity in the reform to the status of local government.
Specifically, several efforts at reforns were made during this period, starting from 1976,
then 1979, followed by 1989, later 1995 and then 1999 and more recently at the just
concluded National Conference in 2014.
165
1.1Conceptual Understanding of Autonomy and Local Government

1.1.1 Autonomy
The concept of autonomy has come to assume a place of great importance in
recent discuss.6 Despite the rise in prominence of the concept, it remains vague at
best. Its vagueness is due to the fact that autonomy is used in different context,
although the uses are closely related.7 Deliberately, autonomy here is discussed in
the context of the relationship between different tiers of the state.
1.1.1 (a) Definition
Autonomy, it was stated, was first employed by the Greeks to denote certain
rights of a city state (to manage its own affairs) even when dependent on a
mother-city or outside power.8 Autonomy is thus derived from the Greek words
autos and nomos meaning, literally, self-rule.9 Starting from the linguistic
significance, the concept autonomy as can be understood represent freedom to
govern according own rules or by extension the right to self-administration. 10
Contextually, according to Nwabueze, B. O., 11 autonomy under a federal system
means each government enjoys a separate existence and independence from the
control of the other governments. It is an autonomy which requires not just the
legal and physical existence of an apparatus of government like the Legislative
Assembly, Governor, Court etc, but that each government must exist not as an
6 May, T., (1994),The Concept of Autonomy, American Philosophical Quarterly,
University of Illinois Press, Vol.31, No.2, pp.133-144 available at
http://www.jstor.org/stable/20014493 accessed 1/8/2013
7 ibid
8 ibid
9 ibid
10 ibid
166
appendage of another government but as autonomous entity in the sense of being

able to exercise its own will in the conduct of its affairs free from direction of
another. He stated further that autonomy would only be meaningful in a situation
whereby each level of government is not constitutionally bound to accept
dictation or direction from another.12
1.1.1 (b) Dimension
Dimension wise, two primary principles underscores the concept of autonomy:
the power of initiation and the power of immunity.13 The power of initiation
sometimes considered as the equivalent of the power of contrectation refers to
the power to act, whatever the circumstances, provided that the prior right to do so
exist. Bentham, J.,14 view it as the right or liberty of a person or institution to
action, given certain a prior specifications of rights and privileges. This translates
to the power of local government to initiate, regulate and carry out rightful duties
without being circumscribed by the other tiers of government. To this end, the
initiation power would be dependent on the provisions of constitutions,
legislations or regulations as the case may be.15
11 Nwabueze, B. O., (1984), The Presidential Constitution of Nigeria, Nigerian Journal

of Public Administration and Local Government, Sweet and Maxwell, London, Vol.2
No.2. Cited in Adeyemo, D. O., (2005) Local Government Autonomy in Nigeria: A
Historical Perspective, J. Soc. Sci., 10(2), pp. 77-87
12 Ibid, p.79
13 Frug, G., (1980),The City as a Legal Concept, Harvard Law Review Vol.93, pp.
1057-1154, cited by Clark, G. L., (1984), A Theory of Local Autonomy, Annals of the
Association of American Geographers, Vol.74, No.2, pp195-208
14 Bentham, J., (1970), Laws in General, Edited by Hart, H. L. A, The Athlone Press,
University of London, London
15 Nwabueze, B. O., note 11, p.79
167
The power of immunity on the other hand is essentially the power to act without
fear of the oversight authority of higher tiers of the state. In this sense, immunity
allows local governments to act however they wish within the limits imposed by
their initiative powers. For example, the power of local government in Nigeria to
utilize its own share of the money from the Federation Account due to it without
interference from the state.16
Contextually therefore, Local government autonomy it was stated should consists
of degree of discretionary authority separately established in four areas: structure
(determining their form of government and internal organization); function
(choosing the functions they perform); fiscal (raising revenue, borrowing and
spending); and personnel (fixing the numbers, types and employment conditions
of their employees).17 To this end, autonomy defines the extent of discretion in
terms of local government functions, actions and legitimate behavior.
1.1.2 The Concept Local Government
1.1.2 ( a)
Definition
The definition of local government is ample; this is because rich literatures 18

abound on the conceptualization of local government. The only problem however
is the question of which of the definitions best capture the essential characteristics
of the concept.
Local government according to Anwar, S., and Sana, S., 19 refers to specific
institutions or entities created by national constitution (Brazil, Denmark, France,
India, Italy, Japan, Sweden), by state constitutions (Austria, The United States),
by ordinary legislation of a higher level of central government (New Zealand, The
United Kingdom, most countries), by provincial or state legislation (Canada,
Pakistan), or by executive order (China) to deliver a range of specified services to
a relatively small geo-graphically delineated area.
Adopting the definition of the United Nations Office for Public Administration,
Imam,I. B.,20defined local government as a political subdivision of a nation (in a
federal system) state, which is constituted by law and has substantial control of
16 ibid
17 ibid
168
local affairs including the powers to impose taxes or to exact labour for prescribed
purposes. The governing body of such an entity is elected.
The above definition is not too far from that of Awa, F. O., 21who defined local
government as a political authority set up by a nation or state a sub-ordinate
authority for the purpose of dispersing or decentralizing political power. Also,
Wraith, R.,22 viewed local government as the act of decentralizing power, which
may take the form of deconcentration or devolution.
18 This includes; Mawhood, P. C., (1993), ed., Local Government in the Third World:
Experience of Decentralization in Tropical Africa, Africa Institute of South Africa, South
Africa; Gboyega, A., (1993), Local Government Reform in Nigeria in Mawhood, P. C.,
ed., Local Government in the Third World: Experience of Decentralization in Tropical
Africa, Africa Institute of South Africa, South Africa; Egonmwan, J. A., (1984) Principle
and Practice of Local Government in Nigeria, SMO Aka and Brothers Press, Benin City;
Stewart, J., (1983), Local Government: The Conditions of Local Choice, Inlogov,
George Allen and Unwin; Anwar, S., and Sana, S., (2006), The New Vision of Local
Government and the Evolving Roles of Local Governments, in Anwar, S., ed., Local
Governance in Developing Countries, Public Sector Governance and Accountability
Series, the World Bank, pp. 1-46; Davey, K. J.,( 1984), supra; Wraith, R., Local
Administration in West Africa, George Allen and Unwin, London; Awa, F. O., (1981),
The Theory of Local Government, Quarterly Journal of Administration, Vol.XV, No. I &
II; Emazi, C., (1984), Local Government in Historical Perspective, Nigeria Journal of
Public Administration and Local Government, Vol.2, No.2, p. 50; Ola, R. O. F., and
Tonwe, D. A., (2005), Local Administration and Local Government in Nigeria, Amfitop
Books, Lagos; Akande, I, F., (2014), Local Government Law and Policy in Nigeria: Cases
and Materials, Malthouse Press Limited, etc
19 Anwar, S., and Sana, S., (2006), The New Vision of Local Government and the
Evolving Roles of Local Governments, in Anwar, S., ed., Local Governance in
Developing Countries, Public Sector Governance and Accountability Series, the World
Bank, p.1
20 Imam, I. B., (2007), Local Government System in Nigeria, 2nd ed. College Press & Publishers
Ltd, Ibadan, pp. 6-7; Akande, I, F., (2014), Local Government Law and Policy in Nigeria: Cases
and Materials, Malthouse Press Limited, p.1; Imam, I.B., (1996), Local Government in Nigeria:
169
According to the Guideline for Local Government Reform, 23 local government is

defined as government at local level exercised through representative councils
established by law to exercise specific powers in defined areas. These powers
should give the council substantial control over local affairs as well as the staff
and institutional and financial power to initiate and direct the provision of services
and to determine and implement projects so as to complement the activities of the
state and federal government in their areas.
One of the most accepted definitions of local government is that of Mawhood, P.
C.,24 because of its aptness in capturing some of the essential characteristics of the
concept. According to him, local government is a body separated by law(and
have) local representatives (and)formal power to decide on range of public
matters.Their right to make decisions is entrenched by law and can only be
altered by a new legislation. They have resources, which subject to the stated
limits are spent and invested at their discretion.
In like manner, according to Imhanlanhimi, J. E., and Ikeanyibi, M. O., 25 local
government has a defined area and a popularly elected democratic council. It has
formal powers derived from the laws or constitution of the land to decide on a
range of public matters.The formal powers can only be altered by a subsequent
Evolving a Third Tier of Government, Heimma Educational Books (Nigeria), p.4
21 Awa, F. O., (1981), The Theory of Local Government, Quarterly Journal of

Administration, Vol.XV, No. I & II, pp. 23-46
22 Wraith, R., (1972), Local Administration in West Africa, 2nd ed., George Allen and
Unwin, London, pp.25-26
23 Federal Republic of Nigeria 1976, Guidelines for Local Government Reform,
Kaduna Government Printers
24 Mawhood, P. C., ed., (1993), Local Government in the Third World: Experience of
Decentralization in Tropical Africa, Africa Institute of South Africa, South Africa, pp. vii
&2
170
legislation or constitutional amendment. The local government has personnel,

financial and other resources, from whatever sources, which are deployed, spent
and invested at its own discretion for the execution of legally or constitutionally
assigned and mutually agreed functions for the overt development of the area.
Contextually therefore, from the above definitions, it is apparent that the basis of
local government is inextricably woven around the principle of decentralization
and it has as its essential characteristics, an area of defined jurisdiction; elected
representation; legally or constitutionally recognized with stated functions;
adequate powers for sourcing and expenditure over revenue and finances; not
subject to arbitrary manipulations save in accordance with the law.
1.1.2
(b) The Nature and Form of Constitutional Recognition of Local

Government
The nature and form of constitutional recognition vary considerably from country
to country so also is the consequences of such recognition. Broadly however, the
recognition of local government could be symbolic, institutional and or
financial.26
Symbolic recognition of local government is obviously the most innocuous form
of recognition as it has few or no legal consequences. Under this form of
recognition, local government could be mentioned in a preamble or in a
statement of values.27
25Imhanlahim, J. E and Ikkeayibe, M. O, (2009), Local Government Autonomy and
Development of Localities in Nigeria: Issues, Problems and Suggestions, Global Journal
of Social Sciences, Vol. 8 No.2, p.15
26 Steytler, N., An International Perspective on the Constitutional Recognition of Local
Government, Comments on the Public Discussion Paper of the Expert Panel on Constitutional
Recognition of Local Government, the Forum of Federations, available @
www.forumfed.org/pubs/international_perspective..., publication date unknown, pp.1-18
27 see for instance Section 40 of the Indian Independence Constitution 1949, wherein it
is reflected in the Directive Principle of State Policy that the state shall take steps to
organize village Panchyyats and endow them with such powers and authority as may be
171
In the case of institutional recognition, local government is recognized as an order

of government. The recognition of local government in the constitution is a
descriptive statement that the federated state constitutes three orders of
government federal, state and local government. Such statements are then a
prelude to further clauses that gives full expression to the position of local
government, as is the case in the Brazil and South Africa Constitutions.28
Financial recognition of local government entails some measure of fiscal selfreliance. This includes access to a specific tax source and participation in the
sharing of centrally generated revenue.29 Scholars have argued that local
government autonomy can only flourish in practice where local governments have
access to their own financial resources to make and implement policy choices. 30 In
the light of the above, financial powers of local government have thus featured
prominently in a number of federal constitutions.31
1.1.2
(c) Consequences of Constitutional Recognition of Local Government
necessary to enable them to function as units of self-government. As a directive

principle of state policy, this provision imposed no binding, legally enforceable
obligations on either the Union or state governments to implement a system of local
government. Not surprisingly, then, local self-government did not come to fruition and
state attempts with the Panchayati Raj institution have been described as half-hearted.
This prompted the constitutional initiative that resulted in the 73rd and 74th
Amendments in 1992
28 Steytler, N., pp. 10-14
29 ibid
30 See Davey, K. J., Local Autonomy and Independent Revenue, Journal of Public
Administration, Vol. 49 1991, p 45; Libonati, M. E., Local Government Autonomy,
Louisiana Law Review, Vol.62, No.1, Fall, 2001, pp.97-101 available at
http://digitalcommons.law.lsu.edu/lalrev/vol62/iss 1/10 accessed 1/8/2013
172
As the nature and form of constitutional recognition vary from country to country,
so also the legal consequences of such recognition differ. The following
represents some the consequences32:
i.
The symbolic recognition of local government in constitutions have no or

minimal legal consequences. It is merely a statement of values that is
arguably of little value as the preamble. Though the general role of a
preamble in legislation is to provide the reasoning behind the passing of a
piece of legislation, and can therefore be used sometimes in working out
how an ambiguous piece of legislation should be interpreted, a preamble
usually does not create rights and obligations. As the Indian experience
has shows before the 73rd and 74th amendment the mere recognition of the
principle of local self-government in the Directive Principles of State
Policy had little or no impact on local government in Indian. In the end it
was the substantive provisions on local government in the 73rd and 74th
Amendments that augmented the status of local government in India.
ii.
The recognition of local government by listing of local government as one

of the institutions of government, alongside the federal government and
the states as in the case of Brazil and South Africa has enhanced the
constitutional status of local government. This was achieved through
reference to local government in a descriptive clause as a prelude to more
substantive provisions dealing with local self-government, setting out in
specific terms the functional areas, taxing powers and intergovernmental
relations. This has helped in setting out the limits of each of the level of
government and thus helped in safeguarding encroachment by the other
levels of government.
31 In the German Basic Law, of 1949, which is its Federal Constitution for instance, the link
between the right to local self-governance and financial self-reliance is articulated in Article 28(2).
After asserting the right to self-government, the article reads further: The right of selfgovernment shall include responsibility for financial matters. The municipalities have the
power to levy trade taxes according to the rates for assessment determined by them. Similar
provisions exist under the Brazilian and South African Constitution.
32 Steytler, N., pp.14-17

173
iii.
Constitutional recognition of local government puts some brake on state

power. In India it was only after the 1992 Amendments that states
exclusive jurisdiction over local government was breached. However,
where the implementation of constitutional recognition still lies in the
hands of state governments, reluctance or resistance on their part may
effectively scupper the realization of local self-government. Nigeria
presents an example of state governments fundamentally undermining
such a constitutional mandate.
iv.
Where constitutional provisions are directly operative in relation to local

government (without having to be mediated by state law), the shield
against federal and state intervention is that much more effective. In South
Africa, not only can the Constitutional Court be called upon to protect
local autonomy, but the Constitution also defines the practice of
intergovernmental relations.
v.
Where constitutional recognition of local government is confined to the

principle of local self-government, the lack of a clear definition of the
scope of local powers limits the impact of such recognition. The
recognition nevertheless remains legally significant. The experience of
Germany shows that it protects local governments from excessive
restrictions and preserves a core sphere of responsibilities (finances,
local planning, and personnel matters) for local government. It also
protects local governments from revocation of responsibilities to higher
orders of government: this is only allowed if justified by an overriding
public interest.
vi.
Recognition of local government has formalized and regulated its

relationship with the federal government. Local government is no longer
the sole preserve of states, but can, in the governance of a country, have
direct relations with the federal government. Recognition places this
relationship on a solid legal basis for the purpose of financial relations as
well as consultative processes.
vii.
Recognition of local government in the constitution may also have a

broader political impact. As noted above, where democratic local selfgovernment is entrenched, it builds the democratic system from the
bottom up. Participatory democracy finds best expression in the
174
government closest to the people. Moreover, as the world is globalizing at

an ever-increasing pace, the paradoxical consequence has been a renewed
interest in local politics in an attempt by citizens to connect to and control
their local space.
viii.
Given the importance of finance in our everyday life and more importantly
as a fundament tool to attaining sustainable development, it is
unimaginable how local government can function without finance. Hence
the absence of clear constitutional provisions on the finance of local
government in some constitutions has drastically rendered the local
government in those countries an appendage of the other level of
government. Financial autonomy strengthens the base of governance.
2.0 An Overview of Local Government in Nigeria

Local government administration in Nigeria, history wise, can be traced to the
British system of local government and it has undergone many changes and
transformation,33 with the 1976 Local Government Reforms and the Constitutions
of 1979, 1989 & 1995 (which never came to life), and 1999 as the most
prominent.34
The 1976 Local Government Reform marked a major departure from the previous
practice of local government administration in Nigeria. The philosophical basis of
the reform lies in the conviction that a strong local authority with clearly defined
functional responsibilities in a power sharing relationship with the states is an
institutional safe-guard against tyranny. Following the 1976 reforms, local
government was said to become recognized as a tier of government entitled to a
share of national revenue consequent on its constitutionally allocated functions.35
33 see note 5.
34 Oviasuyi, P.O., Idada, W., and Isiraojie, L., (2010), Constraints of Local Government
Administration in Nigeria, J. Soc. Sci. 24(2), pp. 81 86.
35 Imuetinyan, F.O., Issues in Nigerian Government and Administration, Denvic
Publishing Company, Benin City, P. 102.
175
The provisions of the 1976 Local Government Reforms Document were

incorporated into the 1979 Constitution of the Federal Republic of Nigeria and
subsequently the 1999 Constitution of Federal Republic of Nigeria. 36 The situation
of local government under the two Constitutions appears confusing and complex
because of the absence of a clearly defined legal status for local government. This
is further made worse by the powers conferred on the state to make laws in
relation to local government, in the exercise of which powers we have existing
local government laws of the various states of the federation operating alongside
the Constitutions.37 The apparent conflicts, confusion and complexity these legal
frameworks have generated, has negatively affected the status and autonomy of
local government.
It is arguable that it is difficult to practice an enduring autonomy in Nigerias local
government because of the difficulty and bottlenecks created by the existing
constitutional framework on local government status, more particularly as it
concerns political and fiscal autonomy. This is worsened by the overbearing role
of the state governments on the activities of local government, which has been
made possible by the contradictory provisions within the legal frameworks of the
states powers over local government.38 All these have left us with lingering issues
as to whether within the existing legal framework, local government actually
36 See Sections 3,7, 8, 149(2), (4), (5), (6) and (7), 150(a), First schedule, part I., fourth
schedule, first schedule, part II, items II and 12 of the 1979 constitution of the Federal
Republic of Nigeria, reproduce and printed by New Nigerian Newspapers Limited,
commercial Services Davison, Kaduna, 1979. Section 3, 7, 8, 162(3), (4), (5), (6), (7),
(8), 163(a), First Schedule Part I, and Part II, Items II and 12, and Fourth Schedule of the
1999 Constitution of the Federal Republic of Nigeria.
37 See for instance, Local Government Laws; the laws of the Kano State of Nigeria,
Cap. 84, vol. 2, 1991, by Richardson, S.S. et al., Revised Edition, Burgess and Sons
(Abingdon) Ltd., England, 1991, Laws of Sokoto State of Nigeria Cap. 82 by Richardson,
S.S. et al., Revised Edition, Burgess & sons (Abingdon) Ltd., England, 1993. The Law of
Kaduna State of Nigeria, Cap. 91, Laws to amend Local Government Laws, Laws of
Kaduna State, 1991 Nos. (3), 2002, (7), 2002, (1)0, 2006 and the Kaduna Sate Joint Local
Government Account Allocation Committee Law 2006, Published in the Annual Volumes
of the Laws of Kaduna State of Nigeria 2002 and 2006.
176
enjoys the status of a third tier of government in Nigeria, particularly under the
1999 constitution?
2.1The Status of Local Government under the Constitution of the Federal
Republic of Nigeria 1999 (as amended)
From 1999 to date civil rule as a system of government re-emerged and still
remain in operation39and it is governed by the provisions of the Constitution of the
Federal Republic of Nigeria 1999 (as amended). The Nigerian Constitution to say
the least provides the juristic foundation for the Nigeria federalist structure. It set
out in its provisions the framework of the structure of government.40
The Nigerian Constitution in addressing the framework and structure of
government essentially shared constitutional powers between the federal, state
and local government, essentially, treated local government as an appendage of
the states when compared to the clearly defined status of local government under
the Brazilian and South Africa Constitutions. The Nigerian Constitution made
mention of local government in several of its provisions, the first of which is
section 3 (6) which sets out the total number of local government in Nigeria.41
38 Adeyemo, D.O., Local Government Autonomy in Nigeria: A Historical Perspectives,
J. Soc. Sci., 10(2), 2005. Pp. 77 87.
39 Asaju, K., (2010), Local Government Autonomy in Nigeria: Politics and Challenges of the
1999 Constitution, International Journal of Advanced Legal Studies and Governance Vol. 1 No.1,
p.106; Wilson, G., (2013), The Politics of Local Government Reforms and Democratic
Governance in Nigerian Local Governments, Developing Country Studies, available @
www.iiste.org ISSN 2225-0565 (Online) Vol 3, No.1, p.141
40 see the provisions of sections 2 and 3 of the 1999 Constitution of the Federal
Republic of Nigeria.
41 There shall be 768 Local Government Areas in Nigeria as shown in the second
column of Part I of the First Schedule to this Constitution and six area councils as shown
in Part II of that Schedule.
177
The Constitution then proceeds to provide for the system of local government in
section 7 in the following terms:
7. (1) 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. (2) The person authorised
by law to prescribe the area over which a local government council may exercise
authority shall- (a) define such area as clearly as practicable; and (b) ensure, to
the extent to which it may be reasonably justifiable that in defining such area
regard is paid to - (i) the common interest of the community in the area; (ii)
traditional association of the community; and (iii) administrative convenience.
(3) it shall be the duty of a local government council within the State to
participate in economic planning and development of the area referred to in
subsection (2) of this section and to this end an economic planning board shall
be established by a Law enacted by the House of Assembly of the State.
(4) The Government of a State shall ensure that every persons who is entitled to
vote or be voted for at an election to House of Assembly shall have the right to
vote or be voted for at an election to a local government council. (5) The
functions to be conferred by Law upon local government council shall include
those set out in the Fourth Schedule to this Constitution. (6) Subject to the
provisions of this Constitution - (a) the National Assembly shall make
provisions for statutory allocation of public revenue to local government
councils in the Federation; and (b) the House of Assembly of a State shall make
provisions for statutory allocation of public revenue to local government
councils within the State.
The constitution in section 8(3) set out the process for the creation of new local
government and the adjustment of boundaries of existing ones.
In relation to public revenue and its distribution, the constitution provides thus as
it concerns the local government in section 162:
178
(3) Any amount standing to the credit of the Federation Account shall be
distributed among the Federal and State Governments and the local government
councils in each State on such terms and in such manner as may be prescribed
by the National Assembly. ..(5) The amount standing to the credit of local
government councils in the Federation Account shall also be allocated to the
State for the benefit of their local government councils on such terms and in
such manner as may be prescribed by the National Assembly. (6) 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. (7) Each State shall pay to local government councils in its area of
jurisdiction such proportion of its total revenue on such terms and in such
manner as may be prescribed by the National Assembly. (8) The amount
standing to the credit of local government councils of a State shall be distributed
among the local government councils of that State on such terms and in such
manner as may be prescribed by the House of Assembly of the State.
Whether or not the above constitutional provision clearly recognizes the legal
status of local government as a tier of government would be brought to fore when
compared with Brazil and South Africa.
3.0The Legal Status of Local Government in Brazil and South Africa

3.1
The Status and autonomy of Local Government in the Constitution of

the Republic of South Africa
Before the clear and unambiguous constitutional status and accommodation of

local government under the Constitution of the Republic of South Africa, 1996
(herein after refered to as the South African Constitution), local government for
most of South Africas history, has been under the control and management of the
179
higher government institutions and lacking proper autonomy.42 However, with

constitutional reforms, restructuring and democratization, the process of
transformation of the status of local government was set in motion in 1993. 43 This
commenced with the restructuring of local government under the Local
Government Transition Act 1993, which chief aim was to provide for a uniform
local government structure which previously was race-based municipal system
and also to bring the role of local government within the ambit of the
requirements of the Federal Constitution.44 This restructuring process led to the
inclusion for the first time in South African constitutional history a chapter on
local government45, leading to the recognition of local government as an
autonomous part of the overall government structure, with its own powers,
functions and constitutional importance.46
42 Steytler, N., (2005), Local Government in South Africa: Entrenching Decentralized

government in Syeytler, N., ed., The Place and Role of Local Government in Federal
System, Kaf-New Publication, South Africa, p. 183; Bekink, B., (2006), The
Restructuring (Systemization of Local Governmentr) under the Constitution of the
Republic of South Africa, Ph.d Thesis, The Department of Public Law, Faculty of Law,
University of Pretoria, p.52; Chris, H., (2006), Local Government Organization and
Finance: South Africa in Anwar, S., ed., Local Governance in Developing Countries,
public Sector Governance and Accountability Series, The World Bank, Washington D. C.,
pp. 47-51
43 Bekink, B., (2006), The Restructuring (Systemization of Local Governmentr) under
the Constitution of the Republic of South Africa, Ph.d Thesis, The Department of Public
Law, Faculty of Law, University of Pretoria, p.52
44 Ibid
45 Chapter 10 of the Interim Constitution 1995 and Chapter 7 of the Constitution of the
Republic of South Africa 1996
46 Ibid
180
The South African constitution to say the least, sets out on a sound foundation as
the basis for the recognition of local government, through the recognition of basic
constitutional principle necessary for the sustenance of an autonomous status for
local government47, to wit: each level of government have appropriate and
adequate legislative and executive powers and functions that will enable each
level to function effectively. The allocation of powers between different levels of
government was made on the basis of which financial viability at each level of
government effective public administration was recognized for the promotion of
national unity and legitimate provincial autonomy; a framework for local
government powers, function and structures was set out in the South African
Constitution. The powers, functions and other features of the local government
was set out too; the national government and provincial government have fiscal
powers and function which was defined in the South African Constitution and
appropriate fiscal powers and functions for the local government was also defined
too. Thus each levels of government have a constitutional right to an equitable
share of revenue collected nationally and the local governments have direct access
to funds meant for it, so as to ensure that it is adequately placed to exercise the
functions allocated to it.
The South African Constitution presents one of the most unique examples of clear
constitutional recognition of local government. It remains the fundamental
building blocks of the South African decentralized state structure. The South
African Constitution in its provisions provided the basic framework for the
structure of government and in so doing it termed each sphere of government
distinctive, interrelated and interdependent.48 These three labels define the
values underlying South Africas system of intergovernmental relations and
autonomy. The status of local government in the South African system of
government can therefore be explained by making use of this constitutional
terminology.49
47 The necessary sections will be set out in the analysis herein under
48 See Section 40(1) of the Constitution of the Republic South African, No. 108 of 1996
(now Act No.5 of 2005) provides that: In the Republic, government is constituted as
national, provincial and local sphere of governments which are distinctive,
interdependent and interrelated.
181
Local governments distinctiveness in the South African Constitution as a sphere

of government according to scholars50, manifests itself in a number of ways:
a. Municipalities/local governments are headed by democratically elected
councils.51The electoral framework, laid down in the Constitution52, the
Municipal Structures Act and the Local Government/Municipal Electoral
Act of 2000, provides that municipal councils generally comprise 50%
ward councilors, elected on a winner takes all constituency system, and
50% councilors elected via a party list (Municipal Structures Act 1998,
section. 20).
b. Another manifestation of the distinctiveness of local government is the
fact that the Constitution itself allocates original powers and functions to
municipalities. It does this by providing a list of local government
matters over which local government has authority.53 The articulate and
clearly worded provision of section 156 under the title powers and
functions of Municipalities read thus:
49 De-Visser, J., (2009), Developmental Local Government, in South Africa: Institutional Fault
Lines, Commonwealth Journal of Local Governance Available @
http://epress.lib.uts.edu.au/ojs/index.php/cjlg, Issue 2: January pp.7-25; Malherbe, R., (2005),
The Constitutional Distribution of Powers, in De-Dilliers edition of Review of Provinces and
Local Governments in South Africa: Constitutional Foundations and Practice, Kas, Republic of
South Africa, available @ www.kas.org.za...2008, pp.19-28; Steytler, N., Local Government in
South Africa: Entrenching decentralized Government, in Steytler, N., edition of The Place and
Role of Local Government in Federal system, Kaf Publication, South Africa, pp.183-212; Bekink,
B., (2006), The Restructuring (Systemization of Local Governmentr) under the Constitution of the
Republic of South Africa, Ph.d Thesis, The Department of Public Law, Faculty of Law, University
of Pretoria, Chapter 5 & 7.
50 Ibid
51 Section 157 of the Constitution of the Republican South African, No. 108 of 1996
(now Act No.5 of 2005) provides for the composition and election of municipal councils.
52 Ibid
182

(1) A municipality has executive authority in respect of and has the right to
administera. The local government matters listed in part B of Schedule 4 and part B of
Schedule 554; and
b. Any other matter assigned to it by national or provincial legislation.
(1) A Municipality may make and administer by-laws for the effective
administration of the matters which it has right to administer.
(2) Subject to section 151 (4)55, a by-law that conflict with national or provincial
legislation is invalid. If there is conflict between a by-law and national or
provincial legislation that is inoperative because of conflict referred to in section
14956, the by-law must be regarded as valid for as long as that legislation is
inoperative.
(3) The national government and provincial governments must assign to
municipality, by agreement or subject to any condition, the administration of a
(now Act No.5 of 2005)
54 Part B schedule 4 and Part B schedule 5 deals with local government matters to the
extent setout in section 155 (6)(a) and (7).
55 Section 151(4) of the Constitution of the Republican South African, No. 108 of 1996
(now Act No.5 of 2005) falls under the general provisions of the constitution dealing with
the status of municipalities: (1) The local sphere of government consist 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 it Municipal Council (3) A
municipality has the right to govern, 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
impeded a municipalitys ability or right to exercise its powers or perform its
functions.
(now Act No.5 of 2005) dealing with the status of legislations that does not prevail; it
provides thus: a decision by a court that legislation prevails over other legislation
does not invalidate that other legislation, but that other legislation becomes
inoperative for as long as the conflict remains
183

matter listed in part A of Schedule 4 or part A of schedule 5 57 which necessarily
relates to local government if:
a. That matter would most effectively be administered locally; and
b. The municipality has the capacity to administer it.
(4) A municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective performance of its
functions.
c. Further thereto, from the clear provisions of section 151, the special
guarantee and protection of the status of local government as a sphere of
government mandates:
i. The establishment and existence of local government in the whole of the
territory of the Republic.
ii. The vesting of executive and legislative authority on local government.
iii. That a municipality has the right to govern on its own initiative, its local
government affairs subject only to the provisions of the constitution.
iv. The national and provincial government not to compromise or impede a
municipalitys ability to perform its functions. Thereby guaranteeing for
the local government some measure of autonomy.
d. Also additional powers and functions can be transferred by national and
provincial governments to local government as a sphere, or to individual
municipalities as contemplated by section 156(2) above.
e. Furthermore, a significant part of local governments financial authority as
a distinctive sphere of government is guaranteed through constitutional
provisions that secure local governments power to levy property rates and
surcharges on fees.58
f. In addition thereto, the Constitution provides that local government is
entitled to an equitable share of nationally generated revenue, providing
municipalities with a legal claim to unconditional revenue streams.59
57 Part A schedule 4 and Part A schedule 5 deals with the functional areas of concurrent
national and provincial legislative competence and functional areas of exclusive
provincial legislative competence respectively.
58 See Section 229 of the Constitution of the Republican South African, No. 108 of
1996 (now Act No.5 of 2005) dealing with municipal fiscal powers and functions
184
g. Under the constitution clear democratic regime and tenure for local
government is guaranteed60, thus, enhancing the status of local
government under the constitutional scheme in South Africa. In relation
to tenure of local government/municipalities, Article 159 of the South
African Constitution, provides thus:
The term of a municipal council may be no more than five years
The emphasis on the distinctiveness of local government as a constitutional

guarantee of its independent status is further balanced by the two other
constitutional labels, namely the interdependence and interrelatedness of the
three spheres.61
Local governments interdependence in relation to other spheres of government
connotes a relationship of supervision and cooperation. This indeed was a far
departure from the position before the constitutional entrenchment of local
government, where local governments were mere administrative units under the
control of the provincial government as an appendage. However, under the South
African Constitution, national and provincial governments are only
constitutionally entitled and mandated to supervise the performance of
municipalities. The constitutional division of functions between national
government and provincial governments in the South African Constitution,
determines the extent to which either of them may supervise municipalities with
respect to a particular functional area.62 The relationship of cooperation rather
than hierarchical is what the constitution stressed.63
59 See Sections 214 dealing with the finance of the Republic and 227(1)(a) of the
Constitution of the Republican South African, No. 108 of 1996 (now Act No.5 of 2005)
under the title National sources of provincial and local government funding
60 See sections 157 and 159 of the Constitution of the Republican South African, No.
108 of 1996 (now Act No.5 of 2005)
(now Act No.5 of 2005) supra
185
Judging form the above, it is safe to conclude that local government in South
Africa, through the South African constitution is clearly and distinctively
entrenched as independent sphere of government with both legislative and
executive authority as well as financial autonomy.
3.2 The Status and autonomy of Local Government in the Constitution of the
Federative Republic of Brazil
Brazil is one of the countries that adopted the Constitutionalization of local
governments in the developing world. Local authorities in that country had been
used by politicians as a political pun and in fact presidents used to appoint the
mayors of the cities and states, as in most Latin American countries. In 1946
Brazil undertook a major reform of her local government system which had some
key elements. It defined a municipality, (municipio in Portuguese or local
government) in terms of population and area size. It assigned them with
responsibilities and autonomous financial and human resources and codified all of
these in the constitution. Finally, local governments were accorded a third tier
status, to complement federal and state governments. In October 1988, Brazil
further deepened her commitment to constitutional decentralization when the
constituent assembly drafted and passed a new constitution that granted more
robust autonomy to states and municipalities (local governments). This became
the basis for redemocratization after 20 years of military rule.64
62 See generally the provisions of sections 154 and 155(6) & (7) of the Constitution of
the Republican South African, No. 108 of 1996 (now Act No.5 of 2005) which mandates
the national and provincial governments by legislations and other means to support and
strengthen the capacity of municipalities to manage their own affairs and to exercise their
powers and perform their function effectively and also stipulating a further condition of
allowing the municipality representation, participation and contribution to any such
legislation or measures that affect the local governments to be undertaken.
63 Section 40 supra
64 Dele, O., (2012), The Constitutionalization of Local Government in Developing Countries
Analysis of African Experiences in Global Perspective Beijing Law Review,
http://dx.doi.org/10.4236/blr.2012.32006, Published Online
(http://www.SciRP.org/journal/blr), 2012, 3, 42-50
186
Brazil with the return to redemocratization is organized as a federal republic with

a presidential system and a Republican Constitution. 65 The Constitution of the
Federative Republic of Brazil, 1988, (herein after refered to as the Brazilian
Constitution) which is the bench mark in the Brazilian federalism came into force
in October 1988 and it provides the basic frame work for decentralization of
governmental power and functions.66 The Brazilain Constitution defines the
federation as a sum of the three tiers: the central government (called the union and
also referred to as the federal government); the intermediate governments (called
states, also referred to as state governments); and the local governments (called
municipalities, also referred to as municipal governments).67 Like the South
African constitution, the Brazilian constitution presents another good example of
constitutional recognition of the status of local government.
The Brazilian constitution innovatively established municipal/local government as
a third tier of government.68 Municipalities were given the same status as
members of the federation as the intermediate government, sharing the same
65 Afonso, J. R. R., and Araujo, E. M., (2006), Local Government Organization and Finance:
Brazil in Shan, A., Ed. of Local Governance in Developing Countries, Public Sector Governance
and Accountability Series, The International Bank for Reconstruction and Development / The
World Bank, Washington, DC, pp. 381-418@ 381; Afonso, J. R. R., (2004), The Relations
between Different Levels of Government in Brazil.Cepal Review 84:
http://www.eclac.cl/publicaciones/SecretariaEjecutiva/8/LCG2258PI/G2258iRodriguesAf
onso.pdf. pp 13355.; Afonso, J. R. R. and Mello, L., Brazil: An Evolving Federation, In
Managing Fiscal Decentralization, ed. Ehtisham, A., and Tanzi, V., London and New York:
International Monetary Fund.
http://www.federativo.bndes.gov.br/bf_bancos/estudos/e0001367.pdf. 2000. pp 26585;
Rezende, F., and Afonso, J. R. R., (2006), The Brazilian Federation: Facts, Challenges, and
Prospects, In Federalism and Economic Reform: International Perspectives, ed. Wallack, J., and T.
N. Srinivasan, New York: Cambridge University Press, 14388; Souza, C., (2001), Brazils
System of Local Government, Local Finance, and Intergovernmental Relations, Paper
commissioned by the International Development, Department of the School of Public Policy,
Birmingham, U.K. http://federativo bndes.gov.br/bf_bancos/estudos/e0001985.pdf.; World Bank,
(2002), Brazil: Issues in Fiscal Federalism. Report 22523-BR, World Bank, Washington, DC.
http://www.federativo.bndes.gov.br/bf_bancos/estudos/ e0001888.pdf.
66 Ibid
187
rights and duties of states. The three-tier federation inscribed and detailed in the
constitution reflects the long tradition of local autonomy.69
Every municipal government holds its own elections. The mayor (chief executive)
and the municipal council members (local legislative tier) are elected directly by
the voters for a four-year term. 70 As in the national and state legislative body,
municipal councilors are elected through the system of open-list proportional
representation. The number of councilors varies according to the municipalitys
population.71 After the promulgation of the Brazilain Constitution, each
municipality became entitled to issue its own constitution, known as the organic
law.72
67See Article 1 (The Federative Republic of Brazil is formed by the indissoluble union of
States, Municipalities (municipios), as well as the Federal District) and 18 (The political and
administrative organization of the Federal Republic of Brazil includes the Federal
Government (Uniao), States, Federal District and Municipalities, all autonomous, in terms of
this Constitution) of the Constitution of the Federative Republic of Brazil, 1988, see also
Afonso, J. R. R., and Araujo, E. M., (2006), Local Government Organization and
Finance: Brazil in Shan, A., Edition of Local Governance in Developing Countries,
Public Sector Governance and Accountability Series, The International Bank for
Reconstruction and Development / The World Bank, Washington, DC, p. 381
68 Ibid
69 Ibid
70 See Article 29 (I) of the Constitution of the Federative Republic of Brazil 1988; the
election of Mayor, Vice Mayor, and Councilmen for a term of office of four years, by
means of direct election held simultaneously throughout the country
71 See Article 29 (IV) of the Constitution of the Federative Republic of Brazil 1988
72 See Article 29 of the Constitution of the Federative Republic of Brazil 1988;
Municipalities shall be governed by organic law
188
It has been argued that the fiscal decentralization provision in the Brazilain
Constitution was essentially a process of municipalization of revenue
mobilization and service delivery.73
The municipalities enjoy broad autonomy in regard to levying taxes and
collecting other forms of income; making expenditures; and even hiring public
employees, setting their salaries, and contracting debts, 74 The budgets and
corresponding rendering of accounts are submitted to the legislative powers of the
local governments themselves and do not depend on ex ante or ex post
authorizations or evaluations by the state or federal government. The distribution
of expenditure responsibilities by tier of government distinguishing between the
responsibilities to legislate and to provide servicesis very important in
qualifying the Brazilian federation as highly decentralized.75
The Brazilain Constitution explicitly reserves certain powers for the federal
government, while providing a broad and general mandate to states and municipal
governments. It determines which activities should be performed or regulated
exclusively by the federal government76 and by the municipal governments77.
73 See Sections III, IV, V and VI of the Constitution of the Federative Republic of Brazil
1988
74 See Articles145, 156, 157 and 158 of the Constitution of the Federative Republic of
Brazil 1988
75 Afonso, J. R. R. and Mello, L., Brazil: An Evolving Federation, In Managing Fiscal
Decentralization, ed. Ehtisham, A., and Tanzi, V., London and New York: International
Monetary Fund. http://www.federativo.bndes.gov.br/bf_bancos/estudos/e0001367.pdf.
2000. pp 26585; Rezende, F., and Afonso, J. R. R., (2006), The Brazilian Federation:
Facts, Challenges, and Prospects, In Federalism and Economic Reform: International
Perspectives, ed. Wallack, J., and T. N. Srinivasan, New York: Cambridge University
Press, 14388; Souza, C., (2001), Brazils System of Local Government, Local Finance,
and Intergovernmental Relations, Paper commissioned by the International Development,
Department of the School of Public Policy, Birmingham, U.K. http://federativo
bndes.gov.br/bf_bancos/estudos/e0001985.pdf.
189
States may carry out all functions not prohibited to them by it78. Several activities
are executed concurrently by the three tiers of government79. To legislate about
such activities, the federal law must be limited to general norms, but it prevails if
it conflicts with state and municipal legislation. States and municipalities have
broad constitutional mandates. Municipalities are assigned the power to legislate
over subjects of local interest and to provide services of local public interest.80
The Federal and States government, therefore, cannot compel or prohibit actions
by municipalities within their jurisdictions.81
76 See Articles 21 and 22 of the Constitution of the Federative Republic of Brazil 1988
77 See Article 30 of the Constitution of the Federative Republic of Brazil 1988; the
municipalities have the power to: legislate upon matters of local interest;
supplement federal and states legislations where pertinent; institute and collect tax
within their jurisdiction; as well as to apply their revenue, without prejudice to the
obligation of rendering and account and publishing balance sheet within the period
established by law; .
78 See Articles 23 and 24 of the Constitution of the Federative Republic of Brazil 1988
79 See Article 23 of the Constitution of the Federative Republic of Brazil 1988
80see Article 30 of the Constitution of the Federative Republic of Brazil 1988
81 See Article 35 of the Constitution of the Federative Republic of Brazil 1988 which
expressly prohibit interference by the federal and state government with the activities and
actions of the local government save within the constitutionally permitted limits.
190
To sum it up in the words of Afonso, J. R. R., and Mello, L., 82, as well as
Baiocchi, G.,83, in view of the above, Brazil is a very decentralized federation by
international standards. Political and administrative decentralization are sizable
with each sub-national jurisdiction having its own directly-elected legislature and
executive branches, as well as an independent judiciary. The federal government
has limited control over sub-national tax administration; budget formulation,
execution, and oversight; and wage and investment policies. The Brazilain
Constitution as a benchmark of the Brazilian federalism deepened the process of
decentralization, rather than mere deconcentration powers. In fact, the Brazilain
Constitution reflected four broad transformations between national, state and local
government powers. First, local governments were given more significantly
political autonomy. Second, local governments were given greater fiscal
autonomy from the union, as it codified a number of mechanisms of transfer of
resources toward sub-national government. To this extent, the Brazialin
Constitution shifted a significant number of resources towards states and
municipalities, while increasing the number of taxes each could raise. Third, local
governments were given the responsibility (or co-responsibility) for some of the
main aspects of social service delivery that were municipalized. Fourth, local
governments became free to institutionalize channels of direct popular
participation into public affairs.
4.0The Legal Status and Autonomy of Local Governments: A Comparative
Analysis Between Nigeria, Brazil and South Africa
4.1
The Common Threshold between Nigeria, Brazil and South Africa
Nigeria, Brazil and South Africa are federal states, with presidential system
government, operated on constitutional democracy and founded on democratic
constitutions. The constitutions in these countries thus are the formal document
82 Afonso, J. R. R., and Mello, L., (2000), Brazil: An Evolving Federation, Prepared for the
IMF/FAD Seminar on decentralization to be held in Washington, DC, available @
http://www.imf.org/external/pubs/seminar/2000/fiscal/afonso.pdf , pp. 1-27
83 Baiocchi, G., (2003) Inequality and Innovation: Decentralization as an Opportunity Structure in
Brazil, University of Pittsburgh, available @ http://sticerd.lse.ac.uk/dps/decentralization/brazil.pdf, pp. 153
191
by which governance is organized, limits of powers and relationship between the

levels and organs of government defined and prescribed. 84 The constitutions in
these countries are proclaimed the supreme binding authorities.85
4.2 The Legal Status of Local Government under the Constitutions of Brazil,
Nigeria and South Africa: The Point of Departure
4.2.1
The Status of Local Government as a Third Tier of Government
Unlike the Nigerian Constitution, in the Brazilian and South African

Constitutions, the recognition of local government goes further than proclaiming
merely the general right of local self government. The Brazilian and South
African Constitutions dealt with substantive issues including a detailed exposition
of the democratic institutions including local government. The federations in
Brazil and South Africa as against that of Nigeria is explicitly defined in terms of
three orders of government (federal, state and local/municipal).86 The South Africa
Constitution proclaimed that the Republic, shall be constituted as national,
provincial and local sphere of governments which are distinctive, interdependent
and interrelated.87
84 Nwabueze, B. O., (1973), Constitutionalism in the Emergent States, C. Hurst &
Company, London, p.2; Souza, C., Brazils system of Local Government, Local Finance
and Intergovernmental Relations, EngKar Research Project 8070, International
Development Department of the School of Public Policy, University of Birmingham
(UK), p.2; Bekink, B., (2006), The Restructuring (Systemization of Local Governmentr)
under the Constitution of the Republic of South Africa, Ph.d Thesis, The Department of
Public Law, Faculty of Law, University of Pretoria, p.59; Mcllwain, C. H., (1947),
Constitutionalism: Ancient and Modern, Cornel University Press, Revised Edition, p.13
85 See Section 1 of the 1999 Constitution of the Federal Republic of Nigeria; Section
1(c) & 2 of the Constitution of the Republican South African, No. 108 of 1996 (now Act
No.5 of 2005); Article 1(1) and 23(1) of the Constitution of the Federative Republic of
Brazil 1988
86 Article 1 and 18 of the Constitution of the Federative Republic of Brazil 1988
192
Interestingly too in both the Brazilain and South African Constitutions, the scope
of local government autonomy is described with a measure of details.88 Steytler,
N.,89in view of the above submitted that in the Brazilian Constitution, local
government autonomy is secured even from constitutional amendment and is
protected from both the federal and state government as far as internal affairs are
concerned. Similar position he further submit prevails in South Africa. He added
that it is only in the Brazilian and South African constitutions that local
government draws directly from the constitution for the delineation of their
existence and powers. Souza, C.,90 also holds similar views. This is also in tune
with Nwabueze, B. O.,91conception and assessment of federalism and the
distribution of powers.
In Nigeria however, the constitutional recognition of the legal status of local
government as a distinct and autonomous tier of government has been greatly
compromised by the provisions of section 2(2), 4, 5, 7(1) and 8 of the 1999
Constitution.
Section 2(2) which provides for the constituent levels of government in Nigeria
provides thus:
87 Section 40(1) of the Constitution of the Republican South African, No. 108 of 1996
(now Act No.5 of 2005)
88 See chapter 7 of the Constitution of the Republican South African, No. 108 of 1996
(now Act No.5 of 2005) and Title III Chapter IV of the Constitution of the Federative
Republic of Brazil 1988
89 Steytler, N., (2009), Emerging Themes and Issues: Local Government and the
Evolution of the Federal System, in Kincaid, J., and Steytler, N., edition, Local
Government and Metropolitan Region in Federal Countries, Mc Gill-Queens Press,
p.409
90 Souza, C., Brazils System of Local Government, Local Finance and
Intergovernmental Relations, EngKar Research Project 8070, International Development
Department of the School of Public Policy, University of Birmingham (UK), pp.2-9;
193

Nigeria shall be a Federation consisting of States and a Federal Capital Territory.
The obvious interpretation of the above constitutional provision is that it

recognizes only federal and state levels of government (including the Federal
Capital Territory Abuja) within its institutional legal framework.92 Hence granting
local government only symbolic recognition, when it merely in section 3 (6) made
mention of the numbers of the total number of local government in Nigeria
without more.
The absence of clear constitutional recognition of local government as a tier of
government under the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) (the Nigerian Constitution) is a departure from the well intended
innovative position under the 198993 and the 1995 draft constitutions. Section 2(3)
of the 1995 draft constitution provides thus:
91 Nwabueze, B. O. (1983), Federalism in Nigeria under Presidential Constitution,

Sweet & Maxwell, London, p.1 (An arrangement whereby powers of the government
within a country are shared between a national, country-wide government and a number
of regionalized (i.e territorially localized) government in such a way that each exists as a
government separately and independently from the others operating directly on persons
and property within its territorial area, with a will of its own apparatus for the conduct of
its affairs, and with an authority in some matters exclusive of all the others.); see also
Ikhariale, M. A., (1990), The Changing Status of Local Government under the Third
Republic Constitution of Nigeria, Justice: Journal of Contemporary Legal Problems, The
Federal Ministry of Justice, Toma Micro Publishers, Lagos, Vol.1, No.4, p.50
92 See Chuma-Okoro, H., (2008), Local Government as a Third Tier of Government
Under the 1999 Constitution: An Analysis of some Contemporary Issues, Controversies
and Solutions, Nigeria Current Law Review 1998-2006, the Journal of the Nigeria
Institute of Advance Legal Studies, NIALS Press, pp141-165
93 See section 3(2) & (4) of the 1989 draft Constitution which recognized local
government as a constituent part of each state of the federation and then proceed to
mention the total numbers of the local government for the federation.
194

Nigeria shall be governed through a three tier structure of government namely
the government of the federation, the state government and the local
government.94
The above innovative provision under the 1995 draft Constitution is similar in
context with the constitutional provisions of Brazil and South Africa as
enunciated above.
Equally the delineation of powers under sections 4 and 5, the Nigerian
Constitution clearly removes local government within the contemplation of
structural division of powers of the federation in the constitution,95 when
compared with the provisions of the South African and Brazilian Constitutions
which vest the local government with clear executive and legislative powers. 96
Article 29 of the Brazilian Constitution allows Municipalities to governed by
organic law, and Article 30 confers on the Municipalities the power to: Legislate
upon local matter; Supplement federal and state legislation where pertinent;
94 The 1995 draft Constitution, Contained in the report of the Constitutional

Conference, Volume 1, 1995
95 Sections 4 and 5 of the 1999 Constitution of the Federal Republic of Nigeria deals
with the legislative and executive power of the federation. Section 4 vests the legislative
power at the federal level in the National Assembly and at the state level in the respective
State Houses of Assembly. While section 5 vests the executive powers at the federal level
in the president and at the state level in the Governors.
96 Section 151 (1) The local sphere of government consist 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 it Municipal Council (3) A municipality
has the right to govern, 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 impeded
a municipalitys ability or right to exercise its powers or perform its functions. See
section 156 supra note 53; See also Articles 21, 22, 23, 24, 29, 30 and 35 of the
Constitution of the Federative Republic of Brazil 1988
195
Furthermore, the provision of section 7(1) of the 1999 Constitution of the Federal
Republic of Nigeria which vests and empowers the State Houses of Assembly to
exercise legislative powers for the benefits of local government clearly
subordinate the local government to the state government. 97This is a clear
confirmation of the absence of clear constitutional recognition of local
government as a constituent institution in the federating unit with legislative
powers. In the words of Steytler, N.,98 the implementation of the constitutional
recognition of local government in Nigeria from the provision of the 1999
constitution is left in the hands of the state government.
Supporting the above position further, Jamo, N. M.,99 Adeyemo, D. O.,100
Awotokun, K.,101 Ladan, M. T.,102 Asaju, K.,103 Achara, R. A. C. E.,104 Akande, I.
97 Chuma-Okoro, H., (2008), Local Government as a Third Tier of Government Under
the 1999 Constitution: An Analysis of some Contemporary Issues, Controversies and
Solutions, Nigeria Current Law Review 1998-2006, the Journal of the Nigeria Institute of
Advance Legal Studies, NIALS Press, p. 144
p.409
99 Jamo, N. M., (2012), Local Government Election as a Foundation of Good
Governance, in Madaki, A. M., ed. Challenges of Constitutional Governance in Nigeria,
Legal Essays in Honour of Dr. Samson Sani Ameh SAN, MFR, A publication of the
Private Law Department, ABU, Zaria, Meadal Micro Computers, Kaduna, Nigeria, pp.
247-273
100 Adeyemo, D. O., (2005), Local Government Autonomy in Nigeria: A Historical
Perspective, J. Soc. Sci., 10(2), Kamla-Raj, pp.77-87
101 Awotokun, K., (2005), Local Government Administration under 1999 Constitution
in Nigeria. Journal of Social Science, 10(2), 129-134
196
F.,105 and Kehinde, B. B.,106 all agreed and submitted that the combined reading of
sections 7 and 8 of the 1999 Constitution of the Federal Republic of Nigeria is an
indication that local government is not an independent tier of government within
the contemplation of the constitution but rather a creation of the state government
via the powers derived from the constitution. The provisions of section 7(1) they
submit assume and grant the state government the powers to create local
government.
4.2.2 Democratization and Tenure of Local Governments
Democratization and fixed/guaranteed tenure is universally acknowledged as the
heart of representative democracy,107 In Nigeria, while the constitution clearly
guarantees a democratic regime and tenure for the federal and states level of
102 Ladan, M. T., (2009), Local Government System in Selected Countries: A
Comparative Examination and Lesson for Nigeria, A Paper Presented at a National
Summit on Local Government in Nigeria: A Tier or a Parastatal? Issues on
Constitutionalism in Federalism, West African Development Dialogue, Shehu Musa
YarAdua Center, Abuja, pp.1-26; Ladan M. T., (2010), Local Government System in
Selected Countries: A Comparative Examination and Lessons for Nigeria, The Advocate,
A journal of Contemporary Legal Issues, A publication of the Law Students Society,
University of Jos, Vol.13, No.13, p.22
103 Asaju, K., (2010), Local Government Autonomy in Nigeria: Politics and Challenges of the
1999 Constitution, International Journal of Advanced Legal Studies and Governance Vol. 1 No.1,
pp.98-113.
104 Achara, R. A. C. E., (2003), Can Nigeria Local Government Councils

Autonomously Impose Rates? Journal of Africa law, Vol. 47, No.2, pp.221-243
105 Akande, I, F., (2014), Local Government Law and Policy in Nigeria: Cases and
Materials, Malthouse Press Limited, 2014
106 Kehinde, B. B., (2012), Absence of Legislative Arm in Local Government Dire to
Grassroot Democracy, Legislative Digest, Vol.6, No. 10, CISLAC, pp 1&5
197
government for both the executives and the legislature, 108 the same is not the case
for local government in Nigeria. Indeed the Nigerian Constitution merely states
that the system of local government by democratically elected local government
councils is under this Constitution guaranteed.109 It did not provide the framework
for the structure, tenure and composition of the local government; rather the task
was left to the state.110 The implications of the above on the status of local
governments across Nigeria has been grave, as it has resulted in the deliberate
undemocratization of the local government councils in Nigeria, by the refusal of
the states to conduct local government election and a deliberate aberration of the
constitution through the appointment of sole administrators, interim management
committees and the likes.111 This has been made possible by laws passed by the
107 Schlozman, K. L., Verba, S., and Brady H. E., (2012), The Unheavenly Chorus:
Unequal Political Voice and Broken promise of American Democracy, Princeton
University Press, 1987, p.3; John, A. A. and Adeoye, A. A., Nigerias Critical Election,
Lexington Books Press, p.34
108See sections 47, 48, 49, 64, 90, 105, 130, 135(2), 141, 142(2), 176, 180, 186 and
187(2) of the 1999 constitution of the Federal Republic of Nigeria
109 Section 7(1) of the 1999 constitution of the Federal Republic of Nigeria
110 Ibid
111 Kehinde M. M., (2008), Constitutional Law in Nigeria, Malthouse Press Limited,
Nigeria, pp. 243-246; Jarikre, F., (2013), Local Government Autonomy: A Catalyst for
National Transformation, Urhobo Times, p.4; Asaju, K., (2010), Local Government
Autonomy in Nigeria: Politics and Challenges of the 1999 Constitution, International
Journal of Advanced Legal Studies and Governance Vol. 1 No.1, p.108; Kehinde, B. B.,
(2012), Absence of Legislative Arm in Local Government Dire to Grassroot Democracy,
Legislative Digest, Vol.6, No. 10, CISLAC, p.5; Ladan, M. T., (2009), Local Government
System in Selected Countries: A Comparative Examination and Lesson for Nigeria, A
Paper Presented at a National Summit on Local Government in Nigeria: A Tier or a
Parastatal? Issues on Constitutionalism in Federalism, West African Development
Dialogue, Shehu Musa YarAdua Center, Abuja, p.7
198
state Houses of Assembly by virtue of the powers conferred on them by the

provisions of section 7(1) of the Nigerian Constitution of the Federal Republic of
Nigeria.112 The resultant consequences right from the position under the repealed
Constitution of the Federal Republic of Nigeria, 1979 and down to the present
days under the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) has been constant litigation challenging the constitutionality of the
actions of the states.113
The position under the 1999 Constitution of the Federal Republic of Nigeria is a
sharp contrast from what is obtainable under the South African and Brazilian
Constitutions. Under these constitutions clear democratic regime and tenure for
local government is guaranteed (South Africa, 5 years tenure and Brazil, 4 years
tenure).114
4.2.3 Financial Autonomy of Local Governments
Financial autonomy defines whether local government can be seen as an order of
government and a true partner of the federal system of government. Where local
government raises the bulk of their revenue independently, a high level of
112 see for instance, Law No.3, 2002, A Law to Amend the Local Government Law,
Cap. 91, Laws of Kaduna State, 1991, dated the 10th May 2002; Law No.7, 2002, A Law
to Amend the Local Government Law, Cap. 91, Laws of Kaduna State, 1991, dated the
31st May 2002; Section 58 Kano State Local Government Laws 2006, Kano State of
Nigeria Gazette, No.3, Vol.38, 27th July 2006
113 See the cases of Akpan & Ors vs Umah & Ors (2002) 23 WRN 52; Akpan vs
Attorney General Cross River State (1982) 2 FNR p. 177; Balogun vs Attorney General
of Lagos State (1984) 5 NCLR p.447; Akinpelu & Ors vs A.G Oyo State, (1982) 2 FNR
48; Adeniji Adele vs Governor of Oyo State (1983) 3 NCLR p 698; Dogari vs Att.-Gen.,
Taraba State (2011) All FWLR Pt.603, p.1926; Attorney General of Plateau State vs
Guyol (2007) 16 NWLR Pt. 1059, P.57
114 See sections 157 and 159 of the Constitution of the Republican South African, No.
108 of 1996 (now Act No.5 of 2005) and section 29 of of the Constitution of the
Federative Republic of Brazil 1988
199
autonomy follows. Conversely overreliance on transfer from the state and federal
governments, especially if the transfer is tied particular policy outcomes, usually
results in local governments financial dependency and policy subservience.
Whatever the formal power of local governments, financial self reliance often
determine their ability to make meaningful choices with regards to policy
directions and implementation of services115
The controlling norm for fiscal decentralization in Nigeria is essentially the
Nigerian Constitution.116 It makes two sets of general provisions: the one
regarding to the distributing of public revenue (funds) of the federation 117 and the
other relating to the powers and control of public funds.118 Section 162 of the
Nigerian Constitution of the Federal Republic of Nigeria makes provision for the
distribution of funds standing to the credit of the federation account to the three
tiers of government in Nigeria. While the provision of section 162(3) of the
Nigerian Constitution may appear seemingly to have recognized local government
as a tier of government for the purpose of the distribution of the funds standing to
the credit of the federation account, the general framework of the provisions of
section 162 when read together clearly failed to confer on the local government
the necessary financial independence requisite for an autonomous level of
government to function properly in the discharge of its functions.119
p.419
116 Kanyip, B. B., (2009), The 1999 Constitution and Fiscal Federalism: Matter
Arising, in Ajibade, B., ed. Law, Democratic Governance & Justice Administration in
Nigeria, A Tribute to Hon. Justice Idris Legbo Kutigi, GCON, Life Gate Publishing Co.
Ltd, pp. 184-221
117 Sections 162-168 of the constitution of the federal Republic of Nigeria 1999
118 Sections 80-89 and 120-129 of the constitution of the federal Republic of Nigeria
1999
200
The controversial provisions of section 162(5), (6) and (8) clearly subordinate the
local government as an appendage of the state government as it makes it within
the jurisdiction of the state to determine how local government statutory
allocation are disbursed. The so-called state joint local government account as
required by the provisions of section 162(6) is not only antithetical to the
autonomous status of local government, fiscal independence and the concept of
decentralization, it has continuously facilitated the desires of the states to control
the affairs of local government within their domains.120 In view of the
constitutional inadequacies of the provisions in relation to local government
funds, most of the monies meant for the local government never reach their
destination as they are either hijacked or misappropriated by the federal or state
government. And in most cases the monies are subjected to several deductions
and levies, leaving the local government with little or nothing at the end of the
day.121 Interestingly, this interference on the financial independence of the local
government has been made subject of litigation and the courts have not hesitated
to declare the acts as illegal and unconstitutional.122
119 Chuma-Okoro, H., (2008), Local Government as a Third Tier of Government Under
the 1999 Constitution: An Analysis of some Contemporary Issues, Controversies and
Solutions, Nigeria Current Law Review 1998-2006, the Journal of the Nigeria Institute of
Advance Legal Studies, NIALS Press, 2008, p. 146; Abashi, C., (2001), Local
Government in the 1999 Constitution of the Federal Republic of Nigeria, in Alemika,
E.E.O., and Okoye F. O., ed. Constitutional Federalism and Democracy in Nigeria,
Human Rights Monitor, Kaduna, Nigeria, Chapter six, pp.140-161
120 Ibid
121 Ikhariale, M. A., (1990), The Changing Status of Local Government under the Third
Republic Constitution of Nigeria, Justice: Journal of Contemporary Legal Problems, The
Federal Ministry of Justice, Toma Micro Publishers, Lagos, Vol.1, No.4, p.54
122 See the cases of Attorney General of the Federation vs Attorney General of Abia
state (2002) 6 NWLR Pt. 764, p. 542; Attorney General of Lagos State vs Attorney
General of the Federation (2004) 11-12 SC 85; Attorney General of Ogun State vs
Attorney General of the Federation (2003) WRN 100
201
Also, local government financial independence in relation to tax areas appears to

have been delineated by the provisions of section 7 and the fourth schedule to the
Nigerian Constitution. This because, local government independent powers to
impose tax has been curtailed by the provision of the constitution vesting on the
state Houses of Assembly the power to
make enabling laws for its
actualization.123 Though local government appears to have been invested with the
power to imposed tax as confirmed by the Supreme court in the case of Night
Frank & Rutley vs Attorney General Kano State,124 there is however a marked
conflict with the judicially implied powers of local government competence to
impose tax and the lack of autonomous legislative powers, a complexity created
by the provisions of section 7(5) of the Nigerian Constitution. 125 Taxing power
embodies both legislative and administrative powers.126 These powers which are
inadequately granted to the local government within the framework of the
provisions of the Nigerian Constitution greatly affects its status as a tier of
government in Nigeria.
The position of the status of local government in Nigeria in relation to fiscal
independence when compared to South Africa and Brazil is a far cry. In-deed in
the case of Brazil, It has been argued that the fiscal decentralization provision in
the Brazilain Constitution was essentially a process of municipalization of
123 Section 7(5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria
124 (1998) 7 NWLR Pt. 556 P. 1-37; see also the case of Attorney General of Ogun
State vs Aberuagba (1984) SC 20
125 Achara, R. A. C. E., (2003), Can Nigeria Local Government Councils
Autonomously Impose Rates? Journal of Africa law, Vol. 47, No.2, pp.222-223; Kanyip,
B. B., (2009), The 1999 Constitution and Fiscal Federalism: Matter Arising, in Ajibade,
B., ed. Law, Democratic Governance & Justice Administration in Nigeria, A Tribute to
Hon. Justice Idris Legbo Kutigi, GCON, Life Gate Publishing Co. Ltd, pp. 184-221
126 see per Mustapha F. J in the case of Nigeria Agricultural and Cooperative Bank vs
Jigawa State Board of Internal Revenue & 2 Ors (2000) 1 Nigeria Revenue Law Report
(NRLR) p. 62 @ 73 and 75; also the case of Attorney General of Ogun State vs
Aberuagba (1984) SC 20
202
revenue mobilization and service delivery and accordingly, the Brazilian

Municipalities/local governments are said to be relatively well-off financially in
comparison with their counterpart in developing countries. This financial
independence was made possible by the clear provisions of the Brazilian
Constitution.127 Articles 30, 156, 158, 160 and 162 of the Brazilan Constitution
clearly defined the tax regime and competence of the local government and
Article 35 prohibit the Federal and State government from interference with this
powers unless in exceptional circumstances. Brazilian municipalities/local
governments, from the foregoing provisions, enjoys broad autonomy in regard to
levying taxes and collecting other forms of income; making expenditures; and
even hiring public employees, setting their salaries, and contracting debts. 128 The
budgets and corresponding rendering of accounts are submitted to the legislative
powers of the local governments themselves and do not depend on ex ante or ,
authorizations or evaluations by the state or federal government. The distribution
of expenditure responsibilities by the tier of government distinguishing between
the responsibilities to legislate and to provide services is very important in
qualifying the Brazilian federation as highly decentralized.129
127 Souza, C., Brazils System of Local Government, Local Finance and
Intergovernmental Relations, EngKar Research Project 8070, International Development
Department of the School of Public Policy, University of Birmingham (UK), p.9; See
Sections III, IV, V and VI of the Constitution of the Federative Republic of Brazil 1988
128 See Articles145, 156, 157 and 158 of the Constitution of the Federative Republic of
Brazil 1988
129 Afonso, J. R. R. and Mello, L., Brazil: An Evolving Federation, In Managing Fiscal
Decentralization, ed. Ehtisham, A., and Tanzi, V., London and New York: International
Monetary Fund. http://www.federativo.bndes.gov.br/bf_bancos/estudos/e0001367.pdf.
2000. pp 26585; Rezende, F., and Afonso, J. R. R., (2006), The Brazilian Federation:
Facts, Challenges, and Prospects, In Federalism and Economic Reform: International
Perspectives, ed. Wallack, J., and T. N. Srinivasan, New York: Cambridge University
Press, 14388; Souza, C., (2001), Brazils System of Local Government, Local Finance,
and Intergovernmental Relations, Paper commissioned by the International Development,
Department of the School of Public Policy, Birmingham, U.K. http://federativo
bndes.gov.br/bf_bancos/estudos/e0001985.pdf.
203
Also the South African Constitution provides that local government is entitled to
an equitable share of nationally generated revenue, providing municipalities
with a legal claim to unconditional revenue streams.130
Interestingly, the provisions of Brazilian and South African Constitutions grant
the local government direct access to funds unlike what is obtainable under the
provisions of the Nigerian Constitution and they also enjoy relative taxing powers
which covers the power to legislate and administer in relation to tax. In Nigeria,
the constitutional promise of income streams must be mediated by state laws. In
other words, a dual model transfer is constitutionally asserted with the allocation
of revenue meant for local government. This mediated process that allows for
funds to pass through the hands of the state government, making allowance for
considerable abuse by the state deducting various amounts of money from the
allocated funds.131 Hence, common to both South Africa and Brazil from the
foregoing and arising from their constitutional status is the constitutional claim of
local government on nationally raised revenue directly, contrary the to the
mediated process in Nigeria.
4.2.4 The Constitutional Relationship of the Orders of Government
Flowing from the recognition that local government is an order of government, is
the question of the hierarchical relationship of the tiers of government within the
constitutional scheme of distribution of powers. In the case of Nigeria, the
constitutional recognition of local government did not in any way results in the
local government becoming an equal partner to the other tiers of governments.
The dyadic federal system contemplated by the constitution subjects the local
government to the jurisdiction of the states.132 Thus, within the context of the 1999
constitution, hierarchical relationship is preserved between the local government
130 See Sections 214 dealing with the finance of the Republic and 227(1)(a) of the
Constitution of the Republican South African, No. 108 of 1996 (now Act No.5 of 2005)
under the title National sources of provincial and local government funding.
p.420
204
and the other tiers of governments.133The listing of powers and functions of local
government thus remain only a promise as the determination of the contours of
the local government powers, functions and access to funds remains the
prerogatives of the states.134 The Nigeria constitutional provisions, under the
Constitution of the Federal Republic of Nigeria 1999 (as amended) in relation to
local government are not directly operative, but must be mediated by state law.135
The position in the Brazilian and South African Constitutions differs. Under these
constitutions, the recognition of local government as an order of government 136
and not merely a creature of statute under the control of the state governments
comes with the acknowledgement and acceptance of the relationship of
132 Steytler, N., An International Perspective on the Constitutional Recognition of local

Government, The Forum of Federations, www.forumfed.org/pubs/ InternationalPerspective on- the -Constitutional -Recognition -of local- Government.(date of
publication unknown) p.12
133 See section 7 and 162 of the 1999 Constitution of the Federal Republic of Nigeria
134 Ibid
p.420; Steytler, N., An International Perspective on the Constitutional Recognition of
local Government, The Forum of Federations, www.forumfed.org/pubs/ InternationalPerspective on- the -Constitutional -Recognition -of local- Government.(date of
publication unknown) p.12
136 Article 1 & 18 of the Constitution of the Federative Republic of Brazil 1988 and
Section 40 of the Constitution of the Republican South African, No. 108 of 1996 (now
Act No.5 of 2005)
205
governments as that of cooperative government and not hierarchical.137Operating

within the widely accepted notion of cooperative government, where the interest
of other government partners cannot be ignored, consultation and cooperation
becomes the constitutional imperatives.138 The South African constitution clearly
articulates this position through the constitutional institutionalization of the
processes and structure of cooperation; it provides that the three sphere of
government must cooperate with one another in mutual trust and good faith by
informing one another of and consulting one another on matters of common
interest.139Specifically section 154 creates the obligation of cooperation and
consultation with the local government by the other orders/tiers of government.
The implication is that the status of the local government as a tier of government
is preserved and the other tiers of government are under obligation in their
legislative processes to take into consideration the interest of municipalities or
local government in their law making processes, so as not to make laws that will
impedes on the status of local government.
5.0 Conclusion
In view of the above and in the end it is discovered that the legal status of local
government in Nigeria when compared to Brazil and South Africa is not clear but
is shrouded in confusion. The provisions of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) as revealed, failed to clearly and
unambiguously defined the status and situate local government within the scheme
of decentralization as envisaged. Indeed, the attempt at the recognition of local
government in the Nigerian Constitution by any means howsoever is halfhearted.
The framework for local government status in Nigeria as it is, presents local
government more as an appendage of the state government than as an autonomous
tier of government.
137 Section 41 & 154 of the Constitution of the Republican South African, No. 108 of 1996
(now Act No.5 of 2005) And Article 35 of the Constitution of the Federative Republic of Brazil
1988
138 Op.cit note 69

139 Section 45 (1) (h) of the Constitution of the Republican South African, No. 108 of
1996 (now Act No.5 of 2005)
206
Interestingly, the acknowledgment of the inadequacies in the provisions of the

Constitution of the Federal Republic of Nigeria, 1999 (as amended) on the legal
status and autonomy of local government in Nigeria, which is similar to what is
obtainable under the repealed Constitution of the Federal Republic of Nigeria,
1979 has in the past and present attracted moves for an amendment. Indeed, the
move has resulted in the emergence of innovative constitutional provisions on the
legal status of local in Nigeria in the 1989 and the draft1995 constitutions that
would have resolved substantially the adequacies in the provisions of the Nigerian
Constitution on the legal status of local government in Nigeria. The said
constitutions however did not see the light of the day.
Most modern states as revealed from the position in Brazil and South Africa have
made provisions for different levels of government within their governmental
structures and these divisions have provided the necessary mechanism whereby
government powers and authority have been distributed effectively and clearly.
Furthermore, the decentralized structure of governments within the framework of
the constitutions of these countries confirms and established the distinctiveness,
interdependence and autonomous status of the levels of government rather than a
status of subordination. And, for the local governments in these countries, its
constitutional recognition and protection has provided the necessary safeguard for
local government from the unwarranted and unjustifiable interference and
encroachment in the sphere of local government jurisdiction. Nigeria cannot
afford to be left out of this development.
5.1
Major Findings /Observations
From what has been discussed so far, the following represents the major
findings/observations
1. The legal status of local government in Nigeria has been greatly impaired
by the existing constitutional framework when compared to what is
obtainable under the Brazilian and South African constitutions.
2. Local government within the context of the provisions of sections 2(2), 4,
5, 7, 8 and 162 amongst others of the Constitution of the Federal Republic
of Nigeria, 1999 (as amended) lacks clear structural, institutional, fiscal
and democratic recognition for an assertive status of a tier of government
compared to local government under the Constitution of the Federative
207
3.
4.
5.
6.
7.
8.
9.
Republic of Brazil, 1988 and the Constitution of the Republic of South

African 1996.
The inadequacies in the legal status of local government in Nigeria, more
particularly under the Nigerian Constitution appeared to have been
acknowledged and reforms substantially undertaken under the draft
Nigeria constitution of 1989 and 1995.
The Constitutions of Brazil and South Africa contains clear provisions on
the legal status of local government from which lessons can be learnt and
inference drawn by Nigeria.
Clear constitutional recognition and protection of local government in
Nigeria as is the case with Brazil and South Africa would safeguard it
from unwarranted and unjustifiable interference and encroachment by the
other levels of government.
State local government joint account and absence of direct allocation of
funds from the federation account to the local government in Nigeria
compared to the direct allocation provisions in Brazil and South Africa
constitutions has remained a barricade to the attainment of fiscal
independence by the local government in Nigeria and by implication its
status.
Local governments in Nigeria, within the contemplation of the constitution
lacks legislative competence in respect of the sphere of function conferred
on it by the constitution. This is a clear departure from the legislative
competence granted to the local governments in Brazil and South Africa
under their constitutions.
Even though the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) guaranteed democratic system of local government in Nigeria,
the clear framework for it actualization is lacking. Hence, the leeway for
the state government to continue to subvert the provisions of the
constitution with their refusal to conduct local government elections but
appointmenting Sole Administrators, Caretaker Chairmen and Interim
Management Committee. This is not the case in Brazil and South Africa as
their constitutions made adequate provisions for the actualization of
democratic system of local government.
The will to address the inadequacies of the legal framework for the status
of local government in Nigeria is lacking, as against the dedication to
institutionalized reforms on the status of local governments in Brazil and
South Africa within a considerable time which should serve as a worthwhile lesson for Nigeria to emulate.
208
10. With a distinct and autonomous status, the other levels of government
would not automatically be permitted to encroach or intervene with the
powers and functions of local government and its structures as is the case
with Brazil and South Africa.
11. An autonomous status for local government would greatly enhance it
status in intergovernmental relation and its participation in different sphere
of governance as is the case with Brazil and South Africa.
12. An autonomous status for local government clearly entrenched would also
enable the local government to defend and resist attempts of encroachment
and interference by the other level of governments through available legal
means. One instance of this under the Nigerian Constitution is the judicial
struggle by the local government to protect the constitutionally guaranteed
democratic system of government (even though not adequately defined).140
13. Clearly entrenched legislative competence for local government within the
framework of the constitution would strengthen and enhance its financial
and tax base as well as economic development.
5.2 Recommendations
In view of the foregoing, the following recommendations are made.
1. There is the urgent need to undertake a holistic review of the Constitution
of the Federal Republic of Nigeria, 1999 (as amended) on the status of
local governments in Nigeria.
2. Nigeria must, as a matter of urgency, move away from the status quo and
draw inspiration from the position in Brazil and South Africa by
advancing on the legal status of local government in Nigeria with the
adoption and modification of the clear constitutional provisions
recognizing local government as an order of government, with clear
structure and tenure, powers and functions as well fiscal autonomy
amongst others.
140 See the cases of Akpan & Ors vs Umah & Ors (2002) 23 WRN 52; Akpan vs
Attorney General Cross River State (1982) 2 FNR p. 177; Balogun vs Attorney General
of Lagos State (1984) 5 NCLR p.447; Akinpelu & Ors vs A.G Oyo State, (1982) 2 FNR
48; Adeniji Adele vs Governor of Oyo State (1983) 3 NCLR p 698; Dogari vs Att.-Gen.,
Taraba State (2011) All FWLR Pt.603, p.1926; Attorney General of Plateau State vs
Guyol (2007) 16 NWLR Pt. 1059, P.57
209

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appendage of another government but as autonomous entity in the sense of being

11 Nwabueze, B. O., (1984), The Presidential Constitution of Nigeria, Nigerian Journal

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

The definition of local government is ample; this is because rich literatures 18

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

According to the Guideline for Local Government Reform, 23 local government is

21 Awa, F. O., (1981), The Theory of Local Government, Quarterly Journal of

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

legislation or constitutional amendment. The local government has personnel,

(b) The Nature and Form of Constitutional Recognition of Local

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

In the case of institutional recognition, local government is recognized as an order

(c) Consequences of Constitutional Recognition of Local Government

necessary to enable them to function as units of self-government. As a directive

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

The symbolic recognition of local government in constitutions have no or

The recognition of local government by listing of local government as one

32 Steytler, N., pp.14-17

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Constitutional recognition of local government puts some brake on state

Where constitutional provisions are directly operative in relation to local

Where constitutional recognition of local government is confined to the

Recognition of local government has formalized and regulated its

Recognition of local government in the constitution may also have a

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

government closest to the people. Moreover, as the world is globalizing at

2.0 An Overview of Local Government in Nigeria

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

The provisions of the 1976 Local Government Reforms Document were

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

3.0The Legal Status of Local Government in Brazil and South Africa

The Status and autonomy of Local Government in the Constitution of

Before the clear and unambiguous constitutional status and accommodation of

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

higher government institutions and lacking proper autonomy.42 However, with

42 Steytler, N., (2005), Local Government in South Africa: Entrenching Decentralized

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Local governments distinctiveness in the South African Constitution as a sphere

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

The emphasis on the distinctiveness of local government as a constitutional

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Brazil with the return to redemocratization is organized as a federal republic with

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana

Bayero Journal of International Law & Jurisprudence (BJILJ) M. Y. Amana