By Anthony George-Ikoli, SAN
When I was invited to provide a Keynote Address to this eminent gathering on a subject that has in recent times become very topical and in some ways, seems to be trudging along under its own steam of a multiplicity of opinion ranging from the rational to the absurd; I wondered to myself what more in terms of valuable intervention could be added to deepen and enrich the current discourse.
Subsequently, it dawned on me that engagements that elicit such widespread contributions as these have been a missing ingredient in the lawmaking, albeit the rebuilding process of a country that has seemingly lost its way. If this is what it will take for a national rebirth, then I pray we have many more attempts at distortions to our system of Federalism.
Taking a critical look into the much-heralded National Water Resources Bill, 2020, that is currently making its way across our national legislature and national consciousness, I am at once compelled to align myself with more eminent speakers who in recent times have come to the difficult conclusion that such a bill can only be the product of a yet undisclosed, I fear ultimately deleterious agenda.
K The interesting thing about the bill in itself is the many contradictions the authors may have overlooked in its concoction and wherein I submit possibly lies its Nunc Dimittis. For a piece of legislation whose veiled intendment is a grand usurpation of rights due to an autonomous federating unit, there exists within it, the strangely implicit recognition of the rights of ownership by the federating units of the water bodies within their jurisdiction. There being consensus all round that, federalism serves to recognize the rights of the constituent units to ownership and protection of same, the bill therefore in and by its vesting sections, its statutes, agrees, confesses, professes, and confirms itself to being an egregious distortion of federalism.
In the words of the learned author, Professor Ben Nwabueze, in his book, Constitutional Democracy in Africa, Volume 4;
"Federalism is an arrangement whereby governmental powers within a country are shared between a national, country-wide government and a number of regional (i.e territorial localized) governments all equal in status as governments, in such a way that each of the national and regional governments exists separately and independently from the others and operates directly on persons and property within the territorial area of its jurisdiction, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority in some matters exclusive of all the others.
Nu In the words of OSEJI, J.C.A, in the case of EDOSACA v. Osakue & Ors (2018) LPELR-44157(CA):
"To properly address this issue it will be expedient to embark on forage of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 2 (1) and (2) provides:- 2 (1) Nigeria is one indivisible and indissoluble Sovereign State to be known as the Federal Republic of Nigeria. 2 (2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory. From the above provision, Nigeria operates a federal system of government. Federalism is defined as the mixed or compound mode of government, combining a general government i.e. (Central or 'Federal government') with regional governments i.e. (States, provincial, cantonal, or other sub-units of governments) in a single political system. It can thus be defined as a form of government in which there is a division of powers between two levels of government. In modern terms, it is a system based upon democratic rules and institutions in which the power to govern is shared between the Central and State provincial governments in accordance with the terms and conditions proscribed by the subsisting Constitution. In Nigeria as in a number of other countries, the Constitution provides for a three-tiered system of government. That is to say, the Federal, the State, and Local governments. Hence Section 3 (b) of the 1999 Constitution provides for Local Governments as follows:- 3 (b) "There shall be seven hundred and sixty-eight local government areas in Nigeria as shown in the Second Column of Part 1 of the First Schedule to this Constitution and six area councils as shown in Part 11 of that Schedule."
The Supreme Court once agreed with the former Lagos State Attorney General, Prof Yemi Osinbajo's argument that Section 20 of the Nigerian Constitution, which provides that "The State shall protect and improve the environment and safeguard the water, air, land, forest, and wildlife of Nigeria," is not an exclusive legislative function of the National Assembly."
"It must follow that the (National Assembly) cannot make law in the form, and to the detail, and territorial extent of the present Nigerian Urban and Regional Planning (Act) 88 of 1992."
J"To do so," it was argued, "will be in the breach of the principles of federalism and an incursion into the jurisdiction of the States."
What is deducible from the quotes above is that each of the States of the Federation is independent of each other in terms of government apparatus and none is an appendage of the other. Each has the power to regulate the affairs of its people and the property within its territory; and such power is not to be "impeded, obstructed or otherwise interfered with by the other government while acting within its own powers" (the words of Prof. Ben Nwabueze).
The question then is, why a Bill which was sponsored by the Federal Government of Nigeria is now being referred to as a "distortion of Nigeria's Federalism"? Before I seek to answer that question very briskly in order not to usurp the space of the main speaker who I believe will do real justice to the theme, I must provide a brief background of the bill and how it came to be.
Brief History of the Bill:
The President, saddled with the constitutional responsibility of preserving and maintaining the principle of federalism, and who ought to be making decisions which will promote the provisions of the Constitution and by extension, the independence of each of the States of the Federation to make laws and policies over the limited resources left for them to administer for the interest and benefit of the people of their respective States, had in his first term in office (2015-2019), particularly in the year 2017, to the consternation of the larger segment of the `Nigerian populace, forwarded a Bill to the National Assembly known as the National Water Resources Bill whose sole purpose was to control and manage the water resources across all states of the federation.
Being an executive Bill, it was presented by the then-Senate Majority Leader, Ahmed Lawan, who is now the Head of the Senate.
The Bill was, however, largely criticized, opposed, and subsequently stepped down as same was not favored by the larger legislative body corporate or for that matter the general public. Precisely, in May 2018, the Bill was stepped down in the course of it being deliberated by the Senate Committee on Water Resources.
Under this new 9th National Assembly and its Principal Officers, in the face other more pressing and critical national issues such as disaster relief after a debilitating pandemic, widespread economic dislocation, rising energy costs, skyrocketing inflation, rampant and pervasive insecurity to mention a few; has seen it fit to make this Water Resources Bill its main priority, lending credence and due confirmation to the notion of a subterranean agenda whose timeline must be faithfully executed despite more pressing challenges critical to our nation-state.
The timing, the pace, the sheer autocratic temerity behind and implied by the bill, marching aggressively, swinging wildly at everything standing in its path, and eventual creating a command and control structure for the benefit of a central government far away from water body they sought to control. This was an assault on our vaunted federation and federalist pretensions.
The level of unilateral arbitrariness of the bill is another serious cause for concern, that a central government would repeatedly sponsor this bill to the national assembly without ever thinking it necessary to engage with the state who are the direct stakeholders, but who are only acknowledged in passing as footnotes to the grand larceny that is afoot.
I have been plagued by the question, why? What is the actual motive behind these calculated actions? I have been one of the hardest people to convince of any systematic invasion plan against Southern Nigeria by rampaging herdsmen invaders, be they Fulani or any other variants thereof, but the evidence being laid before our very eyes seems indubitable and leaves one to wonder aloud "What if?"
Now, the Bill has passed the first and second stage at the House of Representatives
Still the question why a Bill which was sponsored by the Federal Government of Nigeria, has now earned itself a reputation of a "distortion of Nigeria's Federalism"?
The answer will not be out of reach if the provision of the Bill is examined vis-à-vis the provisions of the Land use Act as well as the realities on the ground in each of the federating units of the Country.
The Federal Government has not only deprived the States of the "minerals and mineral oils" in the land within their territories, but it is also now plotting to take the only "resource" left for the States to administer for the benefit of their people through the so-called National Water Resources Bill. The Bill is an incursion into the power of the States in relation to property within the territorial area of their jurisdiction which the Land Use Act has vested in them, and it is an infringement of their distinct will and apparatus for the conduct of their respective affairs.
According to Section 2 of the Bill:
All surface water and groundwater wherever it occurs is a resource common to all people, the use of which is subject to statutory control. There shall be no private ownership of water but the right to use water in accordance with the provisions of this Act.
The right to the use, management, and control of all surface water and groundwater affecting more than one State pursuant to item 64 of the Exclusive Legislative List in Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 and as set out in Schedule 1 to this Act, together with the beds and banks thereof, is vested in the Government of the Federation to be exercised in accordance with the provisions of this Act.
As the public trustee of the nation's water resources the Federal Government, acting through the Minister and the institutions created in this Act or pursuant to this Act, shall ensure that the water resources of the nation are protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its Constitutional mandate.
What does this suggest? That any strange individual, irrespective of where they may be migrating from, may have the rights and legal access to that body of water at the back of our ancestral homes, even if they have to illegally traverse and willfully trespass upon our lands, travel across our fields whilst trampling on our crops whilst seeking to exercise that right of usage, or in the process even remove whatever shelter that is obstructing their right of passage to the waters. The Fulani Herdsman in faraway Yobe can elect to migrate his cattle to the water behind our homes anywhere in the South; and no one dares challenge them because it is now entrenched in our laws that they have equal rights to the use and enjoyment of the waters and are prepared to in the process, undermine any rights conferred on you by the Land Use Act.
Section 64 of the bill again goes so far as to arrogate exclusive powers to the Central Government to decide what constitutes "interstate waters" and in the same breath goes on to contradict itself by acknowledging that management and control of water resources within the boundaries of a state resides in that state government. Now if contiguous states are desirous of implementing an economic project across the waterways that crisscross their states, which jurisdiction do they defer to?
It is therefore no wonder that Nigerians from different works of life and backgrounds as well as renowned Groups have spoken against the Bill. Their reactions have best summarised the reason the Bill is indeed a DISTORTION OF TRUE FEDERALISM.
To the spokesperson for Afenifere, Yinka Odumakin, the moves towards passing the Bill have the capacity of destabilizing Nigeria "given how sensitive land issues are and which are safely vested under the governors in our laws".
To Pan Niger Delta Forum (PANDEF), the Bill:
is not only obnoxious but draconic and imperialistic. It is anti-people. That was why it attracted wild condemnation. And the eighth National Assembly heeded to the voice of the people, by throwing out the bill. It would therefore be awful if the ninth National Assembly acts otherwise, and allows itself to be used against the people. It is absurd that while citizens are clamoring for the restructuring of the country, to divest more powers to the federating units, the federal government is wanting more powers to control waterways and resources in an already over-centralized, unitary system. Instead of initiating constructive dialogue processes to address the yearnings of Nigerians for true federalism. The people of the Niger Delta region, particularly of the South-south geopolitical zone, are against the bill in its totality. We consider it an attempt by the federal government to divest Niger Delta communities of their exclusive control of the waterways; seas, rivers, and creeks, in the region. They have plundered our oil and gas, our hitherto luxurious ecosystem has been devastated, without any meaningful development; they tried to take our lands through the so-called Ruga scheme. Now they want our waterways, Niger Delta Region people will resist it.
To Professor Wole Soyinka, the Bill has the potency to hand the absolute control of the nation's entire water resources to the President. In his words, "The National Water Resources bill is a deliberate, flanking move towards RUGA colonization. It must be resisted across board. No compromising or this nation is doomed since it will be resisted by any and all means."
According to the Benue State Governor whose people have suffered immense cruelty in the hands of the Fulani Herdsmen,
A bill that was outrightly rejected in 2018 cannot be passed through the back door. It will not be accepted in Benue State. I enquired from members of the National Assembly from Benue and none of them accepted that the bill was returned when it was rejected in 2018. I told them it is wickedness as you want to control the waterways and extend it to about three kilometers radius which means that even Benue Government House that is close to River Benue will be removed or taken over….. It is very wrong and we will not continue to keep quiet on things that affect our land and our people. We cannot allow this injustice to continue in our country and we keep quiet. That law will not be accepted in Benue State because we have Rivers Katsina/Ala and Benue which we will not allow anybody take away from us for the purpose of grazing cattle.
As far as Senator Anietie Okon, an Elder statesman and a former member of the Upper Chamber of the National Assembly, is concerned, the Bill is an "evil" document and "a Bill of iniquity" which should not be allowed to stand. In his words,
Buhari is trying to get the bill by stealth and that's the lowest form this government can fall to. This shows the lack of empathy for people other than the president's people. It is obvious that they are casting some eyes of evil possession over the waters. When you claim a river, you claim it's banks because this is the most fertile portions in the country. They want to use his people, the Fulani people but that will be the end for his people, for Nigeria. I dare him to send the National Assembly to pass that bill of iniquity. When you believe that your government owns any piece of land, owing to the rights to deploy them anywhere, then you are in for a surprise. This is a backdoor approach to reintroduce RUGA, but RUGA itself will die. The national labor leaders have spoken. Leaders of PANDEF, UMBC have also spoken. Leaders of the South East have spoken through Ohaneze and other groups and that the President wants to dare the people and we are going to be ready for them. As I said, it's a law of impunity and it has to be stopped. Every member of the National Assembly has it as a duty to stop the conflagration that will follow this rubbish.
The present reality in this Country remains that the cities that make up the Niger Delta region are coastal cities; and the Ijaw people are "water people". Everything about us is "water"; and the only thing that has been left for us in the present entity called Nigeria is "water" albeit polluted water. They have despoiled every good thing that is underneath our land. The remnants of the land are contaminated and poisoned already; now the only thing left of our identity is that water which they now seek to spirit away to some shadowy individual sitting in Abuja.
What is more, the Bill, if passed into law, has the effect of depriving the Ijaw people of our natural cause of action arising from any oil spillage on our waters which we suffer daily through the degradation of our livelihoods; in deference to the new owner who to all intents and purposes will be the President of the Federal Republic of Nigeria.
We must arise now with utmost alacrity coupled with determination and intensity and shout from our various lofty heights using all means, both legal and material, at our disposal to prevent this evil from been cloaked with the garb of enactment before we are put in a situation of lamentation just as we have been rendered in relation to the mineral resources underneath our land which they had taken away from us.
I will look to conclude my address with a few recommendations and a corporate call to action on all Sons and Daughters of our Ijaw heritage:
The Ijaw nations must not sit aloof and seemingly oblivious of the hole being dug all around it, it must set an agenda for its legislators. The time for sitting idly in Abuja whilst noxious legislation is passed is at an end. Rather than wait for these types of pernicious legislation to be thrust upon us and then begin to scramble for a reactionary response, our legislators must act proactively to repeal the current laws that act against the interest of Federalism and the rights of the people to their God-given resources.
Indeed, it is because of this long assumed state of lassitude that our rights and interests have been so pushed back, suppressed if you will, that they have now decided that the injustice of all that has been taken from us is insufficient since we are so docile and lack a common front, it is indeed time to take even more.
My suggestion to this August body is that rather than accept this bill through our now predictable legislative demeanor of quiet acquiescence, our legislators must counter this affront with a proactive counterpunch by demanding ownership of that which is rightly ours rather than only the return of that which they now conspire to take from us.
Our senators and representatives from Bayelsa, Delta, Rivers, Edo, Cross River, Akwa Ibom, Ondo, and any other littoral states that have inadvertently been thrust into the front lines occasioned by this new challenge must stand to be counted. Those amongst us in the legal profession must also dust up our wigs and gowns ready for the legal battles ahead, this saga will no doubt snowball into.
What is at issue here is not just strictly a question of constitutionality or one begging for legal interpretation of an offensive proposition, but one of the long-postponed questions of self-determination and the right to ownership of that which is already owned.
G aWithin what we call a Federalist system, where by definition, convention, natural justice, and common sense, we own everything beneath our feet and with that ownership; automatically the rights to work, win, farm, exploit that which we own to the best of our ability and good conscience, whilst recognizing our responsibility to contribute an agreed fixture of that which we have worked, won, farmed and exploited to the central government; we have wallowed for too long in acceptance of this pittance wrapped in all manner and texture of brightly colored ribbons.
I draw your attention to the recent Presidential Artisanal Gold Mining Development Initiative ("PAGMI") recently introduced by the government of President Muhammadu Buhari as I look to draw my concluding propositions on this vexed and provocative issue.
I reference a few quotes from some of the literature that heralded the launch of the initiative:
"The Presidential Artisanal Gold Mining Development Initiative ("PAGMI") is a comprehensive artisanal and small-scale gold mining development program, launched in 2019 to foster the formalization and integration of artisanal gold mining activities into Nigeria's legal, economic, and institutional framework."
"PAGMI is designed as a broader strategy to address the structural and institutional factors such as rural poverty, lack of alternative livelihoods, and difficulties in meeting legal and regulatory requirements that tend to push artisanal gold mining operators deeper into the informal economy."
"The catalyst for the integration is the provision of access to markets for the artisanal miners through a National Gold Purchase Program and the deployment of enhanced mining methods at artisanal and small-scale mining sites".
The summary of these quotes is the following:
Nigeria recognizes the right of ownership of the natural resources by those who are indigenous to a locality where said natural resources exist;
Nigeria acknowledges that there is an urgent need to address rural poverty and lack of alternative livelihoodsq
Nigeria can stand as a global offtaker of natural resources mined by indigenes who reside within a given locale or geographic area.
I applaud and even go as far as to salute the Federal Government for this fantastic initiative as this is what all lovers of the laws of the concept and precepts of constitutional Federalism and ineed natural justice have been clamoring for, for many decades in Nigeria.
Accordingly, I draw the attention of the Federal Government to the following:
a. The Niger Delta is home to millions of artisanal miners who have oil & gas resources right under their feet much like the artisanal miners in Zamfara and Osun State;
b. There exist unbelievable levels of rural poverty across the Niger Delta region and a crying lack of alternative livelihoods, a scenario foisted upon the long-suffering people of the region by wanton pollution of their natural farmlands and fishing grounds stemming from an unbridled legacy of oil exploration and which this new front known as the Water Resources bill seeks to exacerbate ;
Gc. The Niger Delta artisanal miners are also able to make the oil and gas products that reside underfoot available to the CBN, NNPC, IOCs, NOCs, or any other interested offtaker under agreed terms that include paying a tax to the central government.
TWhy include this PAGMI in a discussion focused on the obnoxious Water Resources Bill? The answer is simple. They are the same argument with different names, complementary sides of the same Rubik's cube that is Nigeria. However, like the paradox that is the Rubik's cube, what should be apparent to the naked eye is often distorted and disfigured beyond recognition.
I posit that is the same rights that the Nigerian Federal Government acknowledges by omission accrues to those artisanal miners in a Federal system that must accrue to the artisanal miners in Brass Bayelsa State or those in Ilaje, Ondo State. That in a Federal system, the land, waterbody, river, and the natural resource that reside therein belongs to the indigenous people for their continuous benefit and livelihood.
Accepting this as a given within the context of the artisanal mining initiative only confirms what we all know to be true of our country but fail to uphold because we are bent-over pandering to the whims of an ancient political hegemony.
The current operators of the system recognize our weaknesses and are happy to enact contradictory legislation because they believe we are not wise enough to connect the dots.
I humbly submit that the question is not one of an ill-thought Water Resources bill or Artisanal Mining Rights, the question is the same question of Federalism; the question is one of a right to ownership of that which is already owned.
Thank You for your kind attention.
(George-Ikoli served as the Attorney General of Bayelsa State under the administration of former Gov Timipre Silva)