A STATEMENT BY ARC (OBONG) VICTOR ATTAH

GOVERNOR OF AKWA IBOM STATE ON

THE SUPREME COURT JUDGMENT OF 5TH APRIL, 2002

The most charitable thing that one can say about the Supreme Court Judgment of 5th April, 2002 on the Resource Control Case instituted by the Federal Government of Nigeria is that it represents a not-very-successful and indeed convoluted attempt to argue towards a pre-determined position. Pre-determined because it tried to find legal justification for the position of the present Federal Government with respect to On-Shore Off-Shore Dichotomy; Pre-determined because Chief Rotimi Williams (SAN) as President of the Patriots had clearly indicated that, were the Derivation Funds to be paid at all, the On-Shore Off-Shore Dichotomy would have to apply.

It is instructive that the opinion of Chief Rotimi Williams, as the lead Counsel of the Federal Government is what has dominated, indeed dictated, all the arguments and therefore the conclusions and eventually the judgment in this case – this in spite of the frequent superior arguments of the defendants.

I will leave it to the legal experts to point out the flaws and distortions but I would like to look at a number of issues that have been raised by this judgment.

LAW AND INTENTION

Behind every Law there is a clear intention. As quoted in the lead judgment of Justice Michael Ekundayo Ogundare, our 1960 Constitution which ushered in our independence clearly stated in Section 134 – (6) that:

Section 140 of the 1963 Constitution repeated this provision verbissima verbis. The point here is that, while there were Regions no one could talk about On-Shore Off-Shore Dichotomy, because by then, the Regions were big and powerful and no one could dare trifle with their rights.

This decision not to recognize the Dichotomy was taken by Nigerians for Nigeria in spite of all the existing ancient statutes and conventions so copiously quoted by the lead judgment as having been executed between the Crown and the Protectorate, between one anachronistic establishment and another or otherwise sanctioned by the United Nations.

The salient point is that the same Federal Legislature, as sometimes represented by Ruling Military Councils, that made Laws granting the exercise of Sovereignty Rights over our territorial waters to the Federal Government always also made Laws prohibiting the application of On-Shore Off-Shore Dichotomy in the sharing of revenue. This was so until Chief Obafemi Awolowo introduced in November 1969 the application of On-Shore Off-Shore Dichotomy into the revenue sharing formula. This occurred at a time when the Regions had been broken into States and the capacity of the States to resist the usurpation of their rights had become greatly weakened.

When General Ibrahim Babangida realized that the 1979 Constitution and the subsequent Allocation of Revenue Act (Cap 16) had failed to specifically address the vexed issue of On-Shore Off-Shore Dichotomy, he proceeded by Decree 106 of 1992 to amend the Act. The amendment states:

Till today this remains the position of the Law on the On-Shore Off-Shore controversy as far as revenue allocation is concerned – that Dichotomy shall not apply.

That the Ogundare judgment has now arguably established a legal dichotomy and, that the 1999 Constitution was silent on the issue suggest a search for the intention.

This intention can be found in the previous revenue formulae and is clearly brought out by the Constitutional Conference debate of 1994 –1995 from which the Constitution was drafted. For this purpose I give below a reproduction of the debate on Wednesday, 26th April, 1995 at page 3488 of the hansards:

The Chairman: Let us go to page 58

Arc. Gabriel Y. Aduku (Kogi East ‘B’): Mr. Chairman, Sir, I have some corrections under page 58. On the 5th of April, 1995, Comrade Edet Bassey Etienam made some amendments which we accepted. Without going into details, I refer to item (g) which reads:

That is the correct thing. The amendment was put and was agreed to.

I also refer to the Minutes of Proceedings of 5th April, 1995. Again under paragraph (h), you have the following: The Dichotomy between On-Shore and Off-Shore exploration shall not be taken into account for the purposes of revenue generation to the Federation Account. Again, there was a correction. The word generation should read, allocation. The question was also put and agreed to on the same day. Thank you, Mr. Chairman, and I hope that mistake would not be made again because it has been repeated over and over again. Thank you, Sir.

The Chairman: Thank you very much.

So, Nigerians at the Constitutional Conference that gave us the 1999 Constitution had defined the boundaries of States to include, not only the territorial waters, but also the two hundred nautical miles exclusive economic zone. Besides, they had also reaffirmed that the principle of On-Shore Off-Shore Dichotomy shall not apply to Revenue Allocation. That the Constitution was silent on the issues must be because it considered the matter settled and such silence cannot possibly destroy the intention.

However it may be argued, this attempt to reintroduce On-Shore Off-Shore Dichotomy into the distribution of Federal Revenue, must be seen as an attempt to make a new Law – a Law that would be against the sacred contract entered into by all Nigerians at the Constitutional Conference as a necessary condition for our continued harmonious coexistence under equity. Besides one is left to wonder if the proper role of the Court is to introduce new legislation or to interpret existing Laws.

EFFECT OF THE NEW LAW

The effect of this new Law is to suggest that, even though the Department of Petroleum Resources (DPR) has declared Akwa Ibom State the largest oil producer, because all of its production (100%) is Off-Shore, the State shall get no direct benefit from derivation. Instead the total value of its oil production will be paid into the Federation Account. So Akwa Ibom State is left with the pollution, the degradation of its environment, the destruction of its fishing industry, the health problems, but with no benefit at all from Derivation. Can that be considered a just Law!!

We always knew that the Law was an ass but we did not expect that in Nigeria, it would be turned into something so vilely repugnant to the social conscience.

Please let the impression not be given that, after we had formed ourselves into the matrix that binds the belligerent majority tribes of Nigeria into one country, the only reason that we are wanted in the Union is so that we can be raped and all our resources carted away in a manner that even the worst external colonialist could not have contemplated.

For those States that expect to benefit financially from this judgment, I suggest that they read Justice Ogundare’s Statements with more discernment. He is quite categorical that "For a State to qualify for this allocation of (Derivation) funds from the Federation Account, the natural resources must have come from within the boundaries of the State, that is, the resources must be located within that State." He States further that "This is so, because at common Law, the sea shore or foreshores (both mean the same thing) belongs to the Crown" and according to him, the Federal Government – not the Federation – is the inheritor of the Crown. So we may be misled to support this injustice for selfish reason only to find that the only beneficiary is the already over bloated Federal Government as distinct from the Federation.

Let nobody in the Niger Delta be deceived into thinking that they are not affected because their oil or gas is On-Shore. Take a look at the Nigeria oil map and note that everything is moving Of-Shore. If we accept this injustice today, what will be our fate tomorrow!! Such a diabolical thing could only be contemplated in a situation in which the minority has no rights. Indeed it is yet midnight in the Niger Delta.

I seek solace with the Psalmist in the belief that "many are the trials of the just man but from them all, the Lord will rescue him". I further console myself with the fact that our President is no stranger to the sorrow and pain that are caused by injustice having himself been unjustly thrown into jail. While there, he offered prayers and entreaties that God will rid this land of injustice and God answered his prayers eminently. To his own prayers Akwa Ibom people, and indeed the entire Niger Delta add a powerful AMEN because we know that God cannot allow this injustice to stand against a people who had suffered so much to keep this country one and who are now contributing so much from their God-given resources for the prosperity, nay survival, of this country.

POLITICAL SOLUTION

Now is the time for the President to apply that political solution which he promised the country by pushing a legislation quickly through the National Assembly. That is what General Ibrahim Babangida did with Decree 106. The judgment has not only suggested such a legislation but in fact anticipates it.

God Bless Akwa Ibom State

God Bless the Niger Delta

Long live the Federal Republic of Nigeria

April 2002