(Cont. from Part II...) BEING TEXT OF Lecture on the 3rd Anniversary of the 5th Assembly Delta State House of Assembly WHICH HELD AT THE International Event Centre, Asaba, DELTA STATE ON June 5, 2014, TITLED: “NATIONAL DIALOGUE: A PANACEA FOR GROWTH AND DEVELOPMENT” DELIVERED BY PROFESSOR GODINI G. DARAH (DELTA STATE DELEGATE, NATIONAL CONFERENCE, ABUJA, 2014 Digest of Memoranda from Delta State: Memorandum of Delta State Delegates: In response to calls for the submission of memoranda, all the principal delegates from Delta State met several times to identify common themes and approaches. The deliberations were guided by the structure of the Delta State Memorandum to the 2005 National Political Reforms Conference with the title: FEDERALISM & RESOURCE CONTROL. That document set the agenda for the South-South delegates in 2005 and President Obasanjo never forgave Delta State for offering audacious leadership to the Niger Delta region. The preparation of the 2014 Memorandum complied with the guidelines provided by the National Conference secretariat. The highlights of the Memorandum are described below: (a) Contribution to the Oil & Gas Economy: This was illustrated with oil production figures of 1999-2004 when Delta State was the leading State in terms of volume. Also included for effect is the information on the “sweet crude” oil in the Kokori-Orogun fields of Erhoike, classified as the highest in quality in the world. The oil companies active in Delta State are listed together with oil-related facilities such as Ughelli Quality Control Centre at Eruemukohwarien near Ughelli, the Shell facilities in other oil fields, the Trans-Niger Trunk Line, the Escravos Tank Farm, the Export Terminal at Forcados, and the Warri Refining and Petrochemical Company at Ekpan. The data on natural gas are more comprehensive, including the Utorogu Gas Plant in Ughelli South/Udu LGA that accounts for 25% of electricity generated in Nigeria daily; the Nigerian Gas Company at Ekpan; the Delta Steel Company, Ovwian-Aladja; the Escravos Gas-to-Liquid complex, the largest in Africa; the Delta Power Station at Ibalegbe/Ughelli; the Ogorode (Sapele) Power Station, and the Okpai Electricity Turbine Station in Ndokwa area. The premier attention the Memorandum places on economic resources is to underline the strategic position of Delta State in the nation’s development process. The focus was intended to arm our delegates with adequate material to support their positions on federalism, resource control by federating units, increased derivation, devolution of power, restructuring of government, and necessary constitutional review/reforms. b. Loss of Revenue: The next section of the Memorandum focuses on loss of revenue to Delta State arising from the regime of unjust laws and policies. Ten of such laws and policies are enumerated, including the Petroleum Decree 51 of 1969, now the Petroleum Act, Cap. 351, Laws of the Federation of Nigeria, 1990. The Memorandum then zeroes in on specific anti-federal laws that are injurious to Delta State and the Niger Delta. First of these is Section 44 (3) of the 1999 Constitution (as amended). The vexatious section provides in part as follows:“…the entire property in and the control of all minerals, mineral oils, and natural gas, under or upon the territorial waters and exclusive economic zone of Nigeria shall vest in the Government of the Federation and shall be managed in such a manner as may be prescribed by the National Assembly”. The origin of the law goes back to the colonial Mines and Minerals Ordinance of 1908/1918 which placed all minerals under the control of the British Crown. However, in their debates and agitations for independence Nigerian nationalists compelled the British colonialists to apply the principle of derivation to moderate the negative effect of the ordinance. From 1946 derivation was used to share revenue between central and regional governments. Thus the 1960 and 1963 Constitutions stipulated payment of at least 50% revenue derived from minerals produced in a particular Region. More significantly, the clauses on derivation in the 1960 and 1963 constitutions specified that the continental shelf of a Region was deemed to be part of that Region. The Eastern Region, the Western Region and later the Midwestern Region created in 1963 benefitted maximally from the derivation provisions as littoral Regions of the country. But in 1969, during the Civil War, the military government of the then Lt. Co. Yakubu Gowon, enacted the Petroleum Decree 51 for the take-over of all oil revenue by the government at the centre. The excuse was that Nigeria needed to deny break-way Biafra access to oil wealth to prosecute its rebellion. The civil war ended in 1970, that is, 44 years ago, yet all governments, military and elected, have retained the law in our statute books. Nigerian governments ignore complaints against the law because its provisions are injurious to minority oil states in the country. If the obnoxious law had affected the regions or states with populous ethnic groups, the law would have been expunged long ago. As the 2014 Delta State Memorandum puts it, “…this law is tantamount to a slave mandate with which the Federal Government of Nigeria expropriates the wealth of the oil- and natural gas-endowed States of the country. The injustice in the law is made manifest in that it is only oil and gas minerals that are targeted for expropriation and alienation. The offensive section should be expunged from the Constitution,” c. Inequity in the Derivation Clause in Section 162 (2) of the 1999 Constitution is the next issue addressed in the Memorandum. The relevant portion reads thus: “The President, upon receipt of advice from the Revenue Mobilisation, Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account. In determining the formula, the National Assembly shall take into account, allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density; provided that the principle of derivation shall be consistently reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources” (emphasis added). In the light of our experience in the Resource Control movement spearheaded by Governor James Onanefe Ibori (1999-2007), the Delta State Memorandum unequivocally demands that “this Section should be removed and replaced with a clause on 100% ownership and management of resources by federating units”. However, at the Committee on Devolution of Power there were proposals from Niger Delta and some South West delegates to expunge Section 44 (3) for the federating units (states) to have 100% ownership and control of their natural resources. The Committee did not succeed in this regard largely due to the intransigent and hostile opposition of all delegates from the 19 Northern States. In their voracious greed to abet and expropriate the oil and gas revenue from the Niger Delta, the Northern delegates introduced vexatious and provocative demands such as the scrapping of the Niger Delta Development Commission, the Ministry of Niger Delta Affairs, and the Presidential Amnesty Programme, arguing that these agencies funnel too much revenue to the Niger Delta at the expense of the North. In their imperial ambition, the Northern delegates (socialists, Muslims, and Christians) never acknowledge that over 90% of public revenue in the country is contributed by the Niger Delta States. The Northern States contribute next to nothing to the Federation Account but they have 419 local councils which together with the States share in the Federation Account monthly. No less provocative was the demand by all the Northern delegates in our committee that the 13% derivation be reduced to 5%, adding that if an increase in derivation is to be contemplated at all, revenue from offshore oil and gas should be excluded from the calculation. We the Niger Delta delegates saw through this sinister motive and consequently changed strategy to safeguard the offshore resources from Northern “invasion”. This was how we opted to allow the 13% status quo to remain because we know that about 80% of the oil and gas deposits are now in the offshore territory. Notwithstanding this historic compromise, the federalist groups in the Conference are marshalling opinions and networking for the open debate at the plenary sessions scheduled for the last week of June. The position of the federalist groups is very clear, namely, that Section 44 (3) of the 1999 Constitution is a violation of the spirit and letter of the federal system of government being practised in Nigeria. There is no federal system where the government at the centre monopolises authority over all essential economic assets such as oil and natural gas. Oil-rich nations like Iraq, Iran, Saudi Arabia, and others where the central government owns all mineral resources are totalitarian and despotic regimes, not democracies. The federalists in the Confab want the aberration in Section 44 (3) corrected so that our country can truly earn the name: Federal Republic of Nigeria. A vital branch of the resource control iroko tree concerns the quantum of derivation as per Section 162 (2) of the 1999 Constitution. The legal logic as I have adumbrated above is that if the federating units (states) enjoy the unfettered right of 100% ownership of their natural and other resources, the middle ground of derivation becomes unnecessary or redundant. In 1969 Yakubu Gowon’s totalitarian military junta nationalised all the revenue from oil and gas. The elected government of President Shehu Shagari (1979-1983) returned to derivation with a paltry figure of 1.5%. Dictator General Muhammadu Buhari cancelled even this percentage from 1983-1985. His successor, fascist Ibrahim Babangida, raised the figure to 3% in 1992 and set up the Oil Minerals Producing Areas Development Commission (OMPADEC). He underfunded the Commission to fail. In 1994, General Sani Abacha, in the promotion of his president-for-life plot, established the Petroleum Trust Fund (PTF) to administer the revenue from increased pump price of products. Once again, General Buhari, the first Nigerian Minister of Petroleum Resource, was found suitable to chair the body. He unveiled his anti-South agenda when audit reports of PTF showed that it allocated over 80% of its funds to the three zones in “Northern Nigeria”. The least funded of all the six zones was the South-South headed by Emeritus Professor J.P. Clark. General Abacha was marking his time. At the 1994-1995 Constitution Conference he convoked, the politics of derivation almost ruined the process. Niger Delta delegates stuck to the demand for a minimum of 50% and this stalemated the conference for days. Wily Abacha asked his arch Fulani rival to the presidential throne, Major-General Musa Yar’Adua, to head a mediatory committee. The report it submitted resulted in the partial resolution expressed in the phrase “not less than thirteen per cent” in Section 162 (2) of the 1999 Constitution. But Abacha did not implement the new derivation order before his mysterious death in 1998. Enter “born-again democrat” General Olusegun Obasanjo as the elected president in 1999. His contempt for the Niger Delta people was displayed early as he violated the 1999 Constitution he swore to defend and uphold by deliberately refusing to implement the 13% derivation clause. The struggle to compel President Obasanjo to obey the constitutional provision is now known in history as “Resource Control” Campaign. It was spearheaded by Governors James Onanefe Ibori (Delta), D.S.P. Alamieyeseigha (Bayelsa), and Victor Obong Attah (Akwa Ibom). Of all the three resource control governors, only Attah has survived corruption trial so far. Ibori is in jail in the United Kingdom, Alamieyeseigha miraculously gained amnesty for his “sins according to Obasanjo”. In the year 2000, Obasanjo reluctantly established the Niger Delta Development Commission (NDDC) as an ameliorative measure for the exploited and oppressed oil states. The consultants who designed the NDDC master plan were Germans who had no knowledge of the region; they produced vague and vacuous propositions on infrastructure, environment, and social sectors. Over 50% of the funding of the NDDC is borne by the NDDC states. The other segments of the funding are contributed by multinational oil majors. Other parts of Nigeria do not make contribution to the fund. The long background I have provided is to explain the importance of President Umaru Musa Yar’Adua’s statesman action in setting up the Ministry of Niger Delta Affairs and in the amnesty armistice with freedom fighters in the oil states, both in 2009. All the Northern delegates in the conference who are determined to abrogate the palliative schemes are joyfully dancing on the graves of General Abacha and Musa Yar’Adua. The dancers should know the spiritual implication of their political rascality. Derivation: to increase or not to increase was a divisive issue in the Devolution of Power Committee. The Niger Delta delegates and some eminent ones from the Southwest submitted cases for raising derivation from 13% to 50% in the first instance and eventually to 100% when full-fledged federalism with states having their own constitutions would have been attained. On this economic principle of federalism, all delegates from north of the Rivers Niger and Benue Rivers stoutly opposed us. When we knew we could not win the vote count on the matter, we agreed to retain the 13% status quo and save the offshore wells from encroachment by avaricious landlocked states. We are determined to carry the 50% derivation battle to the plenary sessions starting in the final week of June. Let me repeat the point that the oceans hold about 75% of the wealth of Planet Earth. The 1982 United Nations Conference on the Law of the Sea clearly states that the area, region, state, or province of a country whose land mass abuts the sea is the bona fide owner of 360 km outward extension of the land into the waters. According to Article 76 of the 1982 Convention of the Sea: “The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial area throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles (360 km) from its baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend to that distance.” Eminent legal scholar, Professor Itse Sagay, has clarified the above legal instrument thus: “… the law of the continental shelf simply follows the physical fact of coastal State adjacency to the sea and continuity of its land mass and resources under the water. If land territory is submerged by rain water it does not stop being part of the territory of the relevant state for the duration of the submersion. As the Atlantic Ocean gradually advances into Lagos State coastal areas, particularly in the Victoria Island area, those areas being submerged by the sea do not lose their character and status as part of Lagos State to become part of the Federal Government territory simply because they have become covered by water”. Professor Sagay goes on to elucidate the concept of a “coastal state” as follows: “What distinguishes a coastal State with continental shelf rights from a landlocked State which has none, is certainly not the landmass, which both possess, but the existence of a maritime front (coast) in one State and its absence in the other. The judicial link between the State’s territorial sovereignty and its rights to certain adjacent maritime expanses is established by means of its coast. The concept of adjacency measured by distance is based entirely on that of the coastline, and not on that of the landmass”. Sagay explains further that “within the context of Nigeria, made up of a Federal State (Government) and 36 States, each of these 37 entities has its territorial space over which it has sovereignty and jurisdiction. Some of these territories have coasts and other do not. The States that have coasts are Cross River, Akwa Ibom, Rivers, Bayelsa, Delta, Ondo, Ogun, and Lagos…Again, within the context of Nigeria, these are the only States with continental shelves and margins. Specifically, and especially, the Federal Government and the remaining 28 States are landlocked. Again, within the domestic context of Nigeria, the other 28 States and the Federal Government have no continental shelf”. From my experience as an intellectual militant of the Resource Control movement, I am sure that the waves of the debate on this matter will spill over beyond the Conference into the multiple theatres of the struggle for economic and environmental justice. I therefore urge the Delta State House of Assembly to take proactive legislative action to fortify the pro-derivation interest groups as our democracy grows steadily from season to season. Delta State is a major stakeholder in the coastal/continental shelf politics. The House of Assembly can initiate legislative action to affirm the fact of the 1982 United Nations Conference on the Law of the Sea. The House has Professor Sagay and others to consult on the matter. d. Anti-Federal Powers in the Exclusive Legislative List in the Second Schedule of the 1999 Constitution with 68 items reserved for Federal Government legislation. The Delta State Memorandum stipulates that the list “disempowers the other federating units, namely, the States from being involved in making laws for the items. The Exclusive Legislative List was intended for a unitary and autocratic government, not a federal system where the central and other federating units are co-equals or coordinate partners. The Legislative List shall be reviewed to devolve power and responsibility to the federating units.” A microcosm of the Nigerian civil war was witnessed when we debated Item 39 of the Exclusive Legislative List dealing with minerals, mineral oils, geological surveys, and natural gas. In point of fact, this item had always been in the Exclusive Legislative List from amalgamation in 1914, through the Regional system from 1954, the Independence Constitution of 1960, and the Republican Constitution of 1963. As I alluded to in a previous section of this lecture, the British colonial regime and the elected governments of 1954-1966, took measures to moderate the negative effects of the law by introducing the factor of derivation. The Committee on the Devolution of Power attempted to break that 100-year-old law by making legislation on it concurrent, that is, the federal and state governments shall be involved in the exploration and development of liquid and solid minerals. The recommendation we have made to plenary says the federal government shall be in charge of licences and related policy matters, but the states shall be involved in all matters relating thereto. Besides Niger Delta States, potential beneficiary states of the changes proposed will be Edo, Ondo, Osun, and Lagos which have large deposits of bitumen awaiting exploitation. It is pertinent to say that the bitumen deposits in Okitipupa area of Ondo State were discovered in about 1913 when the German Bitumen Company started exploration for oil in Nigeria. It is now 100 years hence, but the bitumen wealth lies fallow and untapped because only the federal government has power to do so; for political reasons, no federal government has had the inclination to exploit the bitumen for commercial purposes. Yet the governments import bitumen products for the construction of roads and highways in Nigeria. This self-inflicted idiocy is primarily because the governments at the centre do not want states to make rapid economic progress. This is a peculiarly Nigerian disease of power. e. Fiscal Federalism which is related to the issue above was another item that generated heat in our Committee. The phrase simply means the principles guiding public revenue and how it is distributed amongst constituent parts of government. The Delta Memo submitted that “Nigeria shall operate a federal system of government with its concomitant component of fiscal federalism” comprising the following elements: (i) There shall be federating units…which shall have the power to own, develop and manage their resources, including minerals, within their territories (ii) The percentage to be set aside for the central government shall be determined by the powers and responsibilities devolved to it (iii) The principle of derivation shall apply and each federating unit shall receive a percentage of the proceeds from resources derived from the unit while the balance due to the federal government shall be distributed between the Federal Government and the federating units on the basis of agreed proportions. (iv) The principles of resource ownership and derivation recommended shall be as reflected in Section 140 (1) of the 1963 Republican Constitution. f. Creation of States: In the political calculation of the Delta Delegates, this is the most important issue in the conference. This view is based on the pragmatic strategy that the gains to be made the restoration of federalism, resource democracy, derivation, and related matters are of general interest to all sections of Nigeria. But for Delta State, the creation of new states is the political equivalent of a hunter who comes home laden with a big animal. Such a hunter receives joyous welcome and encomiums from family and peers. Consequently, the Memorandum states that “there are demands for the creation of two states, viz. (i) Anioma State comprising the nine (9) local government areas in the Delta North Senatorial District, and (ii) New Delta State made up of the sixteen (16) local government areas in Delta Central and South Senatorial Districts. The request for each of the proposed States has been made and submitted to the National Assembly for consideration”. There is a constitutional hurdle in the creation of states in a democratic dispensation as entrenched in Section 8 (1 a - d) of the 1999 Constitution as follows: “8 (1): An Act of the National Assembly for the purpose of creating a new State shall only be passed if- a request, supported by at least two-thirds majority of members (representing the area demanding the creation of the new (State) in each of the following, namely – the Senate and the House of Representatives, the House of Assembly in respect of the area, and the local government councils in respect of the area, is received by the National Assembly; a proposal for the creation of the State is thereafter approved in a referendum by at least two-thirds majority of the people of the area where the demand for creation of the State originated; the result of the referendum is then approved by a simple majority of members of the Houses of Assembly; and the proposal is approved by a resolution passed by two-thirds majority of members of each House of the National Assembly”. Section 8 (1c) underlined above is the major impediment to the creation of a new State under an elected, democratic dispensation. In its present form, it is impossible for any area to get a new state created. Furthermore, the forbidding intent of the sub-section is a violation of the democratic principles of federalism and the freedom of association celebrated in the same 1999 Constitution. Consequently, the Delta State Memorandum calls for the abrogation of Section 8 (1c) “to facilitate the creation of the two states” (Anioma and New Delta State). (Part IV loading...)
Posted on: Sun, 22 Jun 2014 22:08:20 +0000
Trending Topics
Recently Viewed Topics
© 2015