Challenges of democracy and the rule of law
By
AGAINST the background of the discourse that democracy and rule of law under the 1999 Constitution are particularly being challenged by the regime of injustice occasioned by bad laws consisting of the Sharia enactments, Corrupt Practices Act, 2001 and expropriating legislation, just to mention a few, permit me to comment on the challenges of injustice posed by the expropriation legislation particularly as same touches on the current struggle for resource control.
Unjust Expropriating Legislation
How just are the enactments which, contrary to the maxim quicquid plantatur solo, solo cedit expropriate the land and riparian resources of our people under the 1999 Constitution founded on democracy and the so-called Rule of Law? The foremost culprit is the Constitution of the Federal Republic of Nigeria 1999 itself.
Section 44(3) enacts the principle of collectivisation of both resources without compensation to the affected land owners in the following terms: "Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the Territorial Waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly."
In pursuance of the above constitutional provisions, several enactments remain validated notwithstanding their respective expropriation undertones to both land and riparian resources of the State. The Interpretation Act, 1964 Cap. 192 LFN, 1990 - section 18(1) thereof had earlier defined "land" "to include any building and any other thing attached to the earth or permanently fastened to anything so attached but does not include minerals." The Nigerian Urban and Regional Planning Act No. 88, 1992- section 91 of same consistently defined Land "to include any building and any other thing attached to the earth, permanently fastened to anything so attached but does not include minerals."
The Petroleum Act, 1969, Cap. 350 LFN, 1990 on the other hand, provides that:
"The entire ownership and control of all petroleum in , under or upon any lands to which this section applies shall be vested in the Federal Government."
The expropriating undertone of the Land Use Act, 1978 cannot escape some remarks. Section 1 states that: "Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefits of all Nigerians in accordance with the provisions of this Act." Section 49 (1) then reads:
"Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned."
The Act however, concedes in sections 34 and 36 to previous land owners, statutory or customary right of occupancy. This interest does not seem capable of sustaining a claim of its holder to ownership of natural resources embedded in the land comprised in the right of occupancy as they have been variously vested in the Federal Government.
The riparian resources are equally taken away and vested in the Federal Government. The Territorial Waters Act, 1967, Cap. 428 LFN, 1990 as amended in section 1(1) limits the Territorial Waters to be 12 nautical miles of the Coast of Nigeria or of the seaward limits of inland waters. This measurement applies for the purposes of any power of the Federal Government to make laws with respect to any matter applying to any part of the territorial waters of Nigeria. The Exclusive Economic Zone Act, 1978 Cap. 116 LFN, 1990 as amended, taking advantage of the Territorial Waters Act, asserts the right of the Federal Government to exploit the natural riparian rights of the region under this Act. Section 2(1) therein provides that: "Without prejudice to the Territorial Waters Act, the Petroleum Act or the Sea Fisheries Act, sovereign rights with respect to the exploration and exploitation of the natural resources of the seabed, subsoil and superjacent waters of the Exclusive Zone shall vest in the Federal Republic of Nigeria and such rights shall be exercisable by the Federal Government or by such minister, or agency as the government may from time to time designate in that behalf either generally or in any special case."
Our constitution must be hinged on humane democracy and just rule of law. The responsibility is ours to work to expunge these obnoxious enactments. Their evils may not be as great as the evils of apartheid, but their effects on the lives of the people and their environment are not less grave.
Evils of the regime of bad laws
The combined effect of these constitutional and statutory provisions is to completely deny the government and people of the Niger-Delta region their natural resources, including the right of control, management, use and enjoyment of same. The scheme of denial carries with it ugly socio-economic implications.
The unceasing massive exploration and exploitation of crude oil deposits by several multinational companies in the Niger-Delta has introduced a petrol economy in the region controlled by them to the exclusion of the governments and the people of the territory. The region is characterised by severe environmental pollution and degradation, leading to near extermination of the fauna and flora, living and non-living resources of the region. This phenomenon has led to the near collapse of the traditional economy and the people displaced from their traditional occupations which included fishing, farming, palm oil production and canoe construction industry.
Ironically, the region remains the treasure belt of the country producing over 90 per cent of the national wealth. Yet, it has been subjected to such incredible degree of criminal neglect. Historically, efforts of the Federal Government to develop the area appeared to be pretentious. Both the Niger-Delta Development Board of 1961 and the Oil Mineral Producing Areas Development Commission of 1992 intended to direct resources to develop the area, failed as a result of the lack of political will. The recently established Niger-Delta Development Commission of 2000 is yet to inspire any confidence in the people, of its ability to be a vehicle of any meaningful development due to poor funding by the Federal Government.
It is generally appreciated that while mining economic activities may be very lucrative as is the case in the Niger-Delta, it leaves behind a trail of negative and disastrous impacts on the host environment. To ameliorate these bad side effects, there is usually imposed a corresponding duty on the operators to restore the environment as much as possible to its original position through a programme of rehabilitation and treatment.
There is nothing discernible to indicate that oil companies operating in the region are subjected to any obligation of environmental restoration in respect of numerous walk-over wells, long pipeline ways and oil pollution blighted areas so as to make the affected land available for other economic uses. The situation leads to a systematic loss of economically viable land to the people of the region and the consequent reduction of their capacity for sustainable development and intergeneration equity. The larger implication of this is that the ability of the present generation to manage and use prudently the natural resources of the region in order to ensure that it does not pass on to future generations a worse environment that cannot fulfil their basic needs is also gradually impaired. Indeed, the question of prudence in the use of natural resources of government and people of the region does not even arise. They do not own the natural resources as it were, having been dispossessed as already noted.
The socio-economic symptoms of the situation are many and varied. They include the ugly scenes of infrastructural decay, failure of public institutions and facilities, stunted industrial base, massive unemployment, youth restiveness, violent anti-social behaviour, high crime rate, inter-ethnic conflicts and investment -hostile environment in the Niger-Delta region.
Redressing the Evils
It was against this backdrop that military rule yielded place to democracy in our country, including Niger-Delta region. The situation was challenging for the new democratic states' governments in the region. In Delta State, the situation was particularly challenging. The expectations of the people were understandably very high, given the long years of neglect by successive military administrations. The pluralistic nature of the state with a long history of mutual distrust and, sometimes, bitter rivalry among the ethnic groups, made government decisions to be slow, lest its actions were misinterpreted and distorted through the ugly images of these ethnic prejudices.
Yet, our Governor's commitment to redeem his electioneering promises for the enthronement of good governance and people-oriented development requires as faster decision-making process and adequate financial resources to implement government's programmes of development of the state. In spite of all these odds, the governments and peoples of the South-South remained undaunted. Not even the military invasion of Odi was a deterrence.
Solutions to the challenges
In line with sections 4(7) and 5(2) of the 1999 Constitution which make peace, among other things, the aim of government, the state government quickly evolved the policy of peaceful co-existence among the various ethnic groups of the state to address the problems of existing bitter ethnic rivalry and conflicts. The insecurity of lives and property posed by youth restiveness has been addressed by the prohibition and proscription of unlawful youth Associations and Organisation Law, 2001.
The need for the harnessing of all potential sources of revenue, both internal and external in the region, is vigorously pursued. With one single voice, the governments and the people of the region pressed for the passage of the Bill for the establishment of the Niger-Delta Development Commission. They also called for the implementation of the proviso to Section 162(2) of the Constitution which specifically prescribes the payment of not less than 13 per cent of the revenue accruing to the Federation Account directly on the basis of derivation principle to natural resources producing states. The demand, it would be recalled, fell on deaf ears in spite of the fact that it is not a novel principle of the nation's fiscal federalism.
The derivation principle first appeared under the 1960 Independence Constitution and was repeated in the 1963 Republican Constitution. In both Constitutions, 50 per cent was attached to it. It suffered a setback during the exigency of the Biafran War which ended over three decades ago. In spite of this history and its entrenchment in the 1999 Constitution, there was still refusal on the part of "the powers that be" to respect the Constitution and pay same to the oil-bearing states. The Federal Government maintained that until the Act of a National Assembly was passed prescribing a new formula based on the Section 162(2) of the Constitution, it was not under any obligation to reflect the 13 per cent principle of derivation in the sharing of the Federation Account.
As you will recall, the Federal Government grudgingly began in April 2000 to pay 7.8 per cent of the 13 per cent after the Keynote Address delivered by our Governor (James Ibori) at the inaugural meeting of the Governors and National Assembly members from the South-South Region at Asaba on Friday 31st March, 2000. In the speech, His Excellency declared:
"The mission of law is not to rob Peter to pay Paul. It is, in the view of the government and people of Delta State, to create a stable polity founded on freedom, equality and justice; a polity where every subject dreams according to his power of vision and translate his dreams to reality according to his strength and endowments without being denied by forces external to him. This is the vision of Deltans for our state, the South-South Zone of the Federation. A dream of egalitarianism.
"Therefore, any law in our statute books which directly or indirectly frustrates the realization of our dreams through a calculated scheme of expropriation of our natural resources should be seen as repressive and should be expunged. This should be one of the fundamental objectives of the governments and peoples of the South-South Zone. But, let me quickly add that in making this change, I am not less a federalist. These objectives are to be pursued within the shared values of democracy and true federalism".
This declaration which I have personally christened the "Asaba Declaration" achieved two things. It was powerful enough to traumatize the resistance of the Federal Government to honour derivation principle under the 1999 Constitution as stated above, although not in full in two important respects. The payment commenced from 1st of January 2000 instead of 29th May 1999, the commencement date of the Constitution in line with sections 313 and 320 of same. Section 313 preserves the 1998 revenue allocation formula subject to the provisions of the Constitution and as from the date when the section comes into force. On the other hand, section 320 prescribes the 29th of May 1999 as the commencement date of the Constitution. Again, instead of paying the 13 per cent in full, the Federal Government has paid 13 per cent of 60 per cent of what it calls on-shore oil production, arbitrarily excluding 40 per cent off-shore oil production and thus reducing the percentage payment to 7.8.
The second achievement of the "Asaba Declaration" is that it has formed what is now a programme of business for the Forum of the governors and national legislators of the South-South Zone in the Federation for the formulation and prosecution of the policy of resource control and true federalism in competition with the contemporary demand of the South-West for Sovereign National Conference; the demand of the south-East for reparation for marginalisation of the Zone and the policy of adoption and implementation of Sharia for the North.
The ingenuity, extreme political relevance and importance of the demand for resource control and true federalism in the context of the preceding paragraph cannot be over-emphasized. In addition to the fiscal benefit to us as a people, it has provided the South-South zone a powerful political demand upon the Federation in competition with the demands from other Zones. Needless for us to imagine what political poverty and misery that would have befallen the region if we had no political demand or agenda to put forward.
Legal meaning and legitimacy of resource control and true federalism.
The current demand for resource control and true federalism may be political in prosecution. However, both have their respective, though complimentary in this context, legal basis. Much has been said to explain the demand politically. As already alluded to, resource control is a legal incidence of ownership of natural resources. Whoever owns a thing of value manages it. This is a basic principle of the jurisprudence of property law. In the words of Niki Tobi, JCA in Abraham Vs. Olorunfunmi (1991) 1 NWLR (Pt. 165) page 53 at pages 74-75, the owner of a property is the alpha and omega of same. The distinguished jurist at pages 74-75 observed thus:
"In so far as the property is his and inheres in him nobody can say anything. He is the alpha and omega of the property. The property begins with him and also ends with him."
Therefore, subject to administrative and legal qualifications which may vary in content from jurisdiction to jurisdiction, it is a trite law that the owner of a thing controls, manages, uses and enjoys or even abuses the thing. Thus, the demand for resource control simply implies the wish of the governments and people of the Niger-Delta region to exercise the legal right to control, manage, use, enjoy and abuse the natural resources located in the Niger-Delta region. Is this demand legitimate? It is my strong view that the legitimacy of the demand can hardly be faulted in a democracy founded on the rule of law.
In common law parlance, land endowments in terms of natural resources in or under land belong to its owner. This is explained by the maxim quicquid plantatur solo, solo cedit earlier referred to which has been judicially recognized as an established principle of our land law by the Supreme Court, the highest Court in our land, in the landmark judgement in the case of Otogbolu vs. Okeluwa (1981) 6-8 S. C. 99 at 146. It simply means that what is attached to land is part of the land and belongs to the owner. As such, the owner has the amplitude of rights vested in him to be enjoyed as he pleases, limited by the right of his adjoining neighbour to the reasonable enjoyment of his land. Based on this legal proposition, all the natural resources in the Niger-Delta region should rightly belong to its governments and peoples. But, as has been seen, these resources have been compulsorily acquired by the federal government without the consent of the people and payment of compensation contrary to the very Constitution which forbids in Section 44(1) the compulsory take-over of property without the requirement of prompt payment of compensation. What a contradiction in terms!
True federalism, on the other hand, has its foundation in the successive Constitutions of our country which have consistently declared Nigeria as an indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria. A fundamental principle of federalism is that the governments of the Federal Union are allowed to take their destiny into their hands in the management of their respective administrative autonomy and natural resources within an agreed sovereign competence ceded to the Federation for their mutual beneficial purposes.
This political arrangement was, indeed, the ideals the founding fathers of our federation entrenched in the 1960 and 1963 Constitutions that were overthrown by the military who imposed on us a unitary system of government by virtue of its unitary administrative command structure and the 1979 and 1999 constitutions they bequeathed to the nation.
Truly speaking, the ethnic nationalities of the county have not had the opportunity to negotiate among themselves inter se the terms of the Federal Union. The 1960 Constitution was colonial in origin. The 1963 Constitution was not negotiated, except for the desire to have a republican constitutional status. The 1979 and 1999 Constitutions were a creation of the military. This explains the proliferation of the various competing demands upon the Federation with the advent of democracy and rule of law.
The demand for resource control and true federalism was advanced by Honourable Temi Harriman's Bill in the National Assembly for the amendment of the Petroleum Act intended to vest the entire ownership of the petroleum deposits in the oil-producing states of the Niger-Delta region. Although the Bill was defeated, it established the determination of the people to use all democratic processes available to turn their plight for good. It also established the inconsiderate use of democracy by the majority in the National Assembly who control the apparatus of government and project their private aim as the national interest so as to overreach the legitimate right of the minorities to the fruits of their natural endowments.
This should not be a source of discouragement to the governments and peoples of the Niger-Delta region. We should continue to take solace in the unhappy fate that befell the Pharaoh of ancient Egypt in consequence of his refusal to accede to the demands of the minority nation of Israel for freedom.
The response of the Federal Government in the face of the unrelenting demand for resource control and true federalism was to go to the Supreme Court to seek "the determination of the seaward boundary of a littoral state within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federal Account directly from any natural resources derived from the State pursuant to the proviso to section 162(2) of the Constitution of the Federal Republic of Nigeria, 1999." This case is now reported as Attorney-General of the Federal Vs. Attorney-General of Abia State and 35 Ors. (2001) 89 LRCN 2381.
The first reaction of the States' governments of the Niger-Delta was to challenge the jurisdiction by way of preliminary objection which by a majority of 6-1 was dismissed by the Honourable Court. Here again, and with due respect, we the governments and peoples of the Niger-Delta associate ourselves with the dissenting mijority judgement of Hon. Justice Karibi-Whyte, to the effect that the Supreme Court has no jurisdiction in that case because the relief sought is political in nature and not justiciable in law.
Conclusion
The freedom under which the governments and peoples of the Niger-Delta region are prosecuting and sustaining the struggle for resource control and true federalism is yet another gain of democracy. Under a military regime, given the intensity of the struggle, it would have been more costly in terms of risk to lives. Remember the fate that befell the heroes past of the struggle, our dear Adaka Isaac Boro and Ken Saro-Wiwa. May they rest in peace. All of these strongly suggest to me that the State governments of the Niger-Delta region and the government of Delta State in particular, have taken full advantage of democracy and the rule of law.
I therefore urge the peoples of the region and in particular all Deltans to rise up and join in the fight of this armless war for resource control and true federalism by being vigilant; seek true knowledge of the issues involved and be law-abiding and remain apostles of peace.
Professor Utuama is the Honourable Commissioner for Justice and Attorney-General of Delta State.
November 2001
Excerpts of a keynote address on challenges of democracy and the rule of law delivered on the occasion of the law week organised by the law students association of the faculty of law, Delta State University, Oleh Campus, on Thursday August 23, 2001.