On the Federal Government Suit Over Resource Control

On the Federal Government Suit Over Resource Control

Burtonsville, MD, USA

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The announcement yesterday that the Federal government is suing all the 36 states of the federation before the Supreme Court to enable that apex court to give constitutional interpretation to the issue of resource control is both very welcome and very curious for many reasons:

(1) for the first time in this democratic dispensation, the FG acts - even if some will think in this case that it pretends - as if it does not have all the power to make its own interpretations of the constitution.

(2) while states have sued the Federal government before during the Shagari regime - and won; Bendel's Alli government is a case in point - this is the first time in which the Federal government has sued not just ONE state but ALL the states under it put together! The uniqueness of this case must be an exciting one for constitutional lawyers and enthusiasts in Nigeria, if not the world.

(3) naturally, the suit gives those states that do NOT support resource control the opportunity to opt out of the legal tussle, thereby enabling the world to know which of all the states does or does not support resource control. If in the unlikely event that the suit fails - that is, the Supreme Court rules that the states should have resource control - the layman interpretation of course would be that only those states who stayed on to fight should have resource control, while others lose their right to state resource control. Of course, one can be sure that success would then have a thousand friends, and the others would jump onto the success bandwagon!

(4) judging from the fact that the Federal government's argument for not going to court over the Sahelian States' adoption of Sharia was that it was an explosive politico-religious matter, and that it was not certain that it would win in a Supreme Court riveted with religious loyalties, one is left to wonder whether the Federal government really feels that its present case in taking on particularly the Littoral States over onshore/offshore oil resource control dichotomy is any less explosive, and that its win at the Supreme Court has been "guaranteed."

(5) one wonders whether the National Assembly was consulted over this issue. It would appear that as representatives of these states in Abuja, a need to get the sense of their own sentiments about the issue would be a wise course. Such course appears to be few and far between these days.

(6) finally, bearing in mind that this decision to sue must presumably have been a taken at a Federal Executive Council comprised of ministers chosen FROM VARIOUS STATES according to a constitutionally-dictated federal-character formula, one then wonders who these ministers REALLY represent once chosen into the FEC. If for example the overwhelming majority of the Delta State delegation in the National Assembly supports resource control, and the Rivers State government (state assembly and governor) support resource control, how could a minister chosen to represent Delta State in Obasanjo's federal cabinet not support resource control?

Let me however make a prediction: The Federal government will TRIUMPH in this case after a rather short hearing because the 1999 Constitution is VERY CLEAR as to who controls the resources in question: It is the Federal Government. I do not even think that the States are arguing about that. Rather they seek a change of that constitution in line with "True Fiscal Federalism", and those who are most aggrieved are pushing the envelope in terms of passing local laws that VIOLATE the constitution to show their resolve and test that of the federal government. That is a better alternative to violence, which, while adoptable by unorganized or militantly organized individuals, is no option for a constitutionally organized state government.

If the Federal government feels, as the trial goes on, that it will not prevail over the wider issue of resource control, it will seek to narrow it to the issue of onshore/offshore dichotomy wherein, to my mind, it is on much surer footing, constitution or no constitution, for I believe that the International Law of the Sea supports the Federal position on who controls offshore waters. Whether the Federal government wishes to concede a portion or all of those waters is up to the FG. I believe that it should concede a portion - but not all - to the extent that that portion affects the fishing livelihood and environmental fears of the onshore people, and it involves the investment of their direct sweat equity.

We must not forget that what the Obasanjo 1979 Constitution did, and which was ossified in the Abacha 1999 Constitutions, was to institute bad laws that stand true federalism on its head. What the Federal government is now trying to do is a preemptive, delaying tactic - the suit might stop the states in their forward tracks - and also pull a publicity stunt to get the Supreme Court apparently to "legitimize" a bad law. The best that the states can expect is for the Supreme Court to say that the laws should be changed, but that its "hands are tied." What the states should do, particularly the littoral ones, is to use this opportunity to mount a public relations campaign to state their case before the people of Nigeria, as well as continue their preparations for a Sovereign National Conference or Conference of Nationalities which should be convened with or without goverment support.

There is a maxim: "be careful what you ask for, you might just get it." This maxim might yet apply to the Federal government in this its rather unique and welcome suit.

We shall see.

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GUARDIAN Thursday, February 8, 2001 Govt sues states over resource control

Emmanuel Onwubiko, Abuja

THE epic battle for resource control by some southern states has shifted to the law courts as the Attorney-General of the Federation, Chief Bola Ige (SAN), on Tuesday dragged the 36 states of the federation to the Supreme Court to seek proper constitutional interpretation.

The suit with number SC28/2001 was filed in response to the claims of the littoral states (Akwa Ibom, Bayelsa, Cross River, Delta, Edo, Ogun, Ondo and Rivers) that the natural resources located offshore ought to be treated or regarded as located within their respective states.

Besides, the landmark legal action at the nation's apex court which is also expected to deal with the onshore/offshore dichotomy controversy was dragged directly to the Supreme Court because it is the only court empowered to handle constitutional disputes.

The Attorney-General, who is the plaintiff, prays the court to determine the seaward boundary of a littoral state within the Federal Republic of Nigeria; for the purposes of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that state, pursuant to section 162(2) of the Constitution of the Federal Republic of Nigeria, 1999.

In his 19-paragraph statement of claim, the Attorney-General averred that:

Section 162(1) of the Constitution of the Federal Republic of Nigeria, 1999 (hereafter referred to as 'the Constitution) provides that the federation shall maintain a special account to be called 'the Federation Account into which shall be paid all revenue subject to certain exceptions which are not material to this case collected by the federation.

Pursuant to the provisions in Section 162(2) of the constitution, and subject to certain condition therein specified, the President of the Federal Republic of Nigeria is required to table before the National Assembly, proposals for revenue allocation.

By a proviso to the aforementioned Section 162(2) of the constitution, the principle of derivation must be reflected in any approved formula for revenue allocation.

The plaintiff states that in the context of Section 162(2) of the Constitution, the expression "principle of derivation" means the principle that revenue accruing to the Federation Account from any natural resources shall deemed to have been derived from the State or territory where such resources are located.

The plaintiff further states that the proviso to Section 162(2) of the Constitution requires that any approved formula for revenue allocation from the Federation Account shall reflect the fact that not less than 13 per cent of revenue accruing to the said Federation Account from any natural resources are allocated to the Government of the State or territory where such resources are located.

By reason of the facts pleaded in paragraphs 5,6 and 7 of this Statement of Claim, the Plaintiff states that for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from any State or territory pursuant to the proviso to Section 162 of the Constitution. The Attorney-General also averred that:

The natural resources located within the boundaries of any state are deemed to be derived from that state; In the case of the littoral states comprised in the Federal Republic of Nigeria (i.e the states of Akwa Ibom, Bayelsa, Cross River, Delta, Lagos, Ogun, Ondo and Rivers), the seaward boundary of each of the said states is the low water mark of the land surface thereof or (if the case so requires) the seaward limits of inland waters within the State;

The natural resources located within the territorial waters of Nigeria and the Federal Capital Territory are deemed to be derived from the federation and not from any state;

The natural resources located within the Exclusive Economic Zone and the Continental Shelf of Nigeria are subject to the provisions of any treaty or other written agreement between Nigeria and any neighbouring littoral foreign State, derived from the Federation and not from any State. In further support of the averments in paragraph 8 of this Statement of Claim, the plaintiff will contend at the trial of this action that under the provisions contained in the Constitution, it is only the Federal Government of Nigeria and not the government of any of the states comprised in the Federal Republic of Nigeria that has power to exercise legislative, executive, or judicial powers over the entire area designated as the "territorial waters of Nigeria" pursuant to the provisions of the Territorial Waters Act, Cap, 428, Laws of the Federation of Nigeria 1990, as amended.

The states of Akwa Ibom, Bayelsa, Cross River, Delta, Edo, Ogun, Ondo and Rivers dispute the averment of the Attorney-General even as the date of the hearing of the landmark suit was not disclosed at press time last night.