Memorandum Submitted By The People And Government Of Delta State To The National Conference THIS memorandum by the people and Government of Delta State to the National Conference is the culmination of a long process. Its thematic focus on fiscal federalism and decentralisation of powers can be traced to the sustained struggle of the people of the Niger Delta over the years. Since the inception of civilian government in 1999 and especially since 2001, the campaign for fiscal federalism assumed a new momentum in Delta State and the other oil-producing states. Over time, the demand became the anthem of the governments and the people. The convoking of the National Political Reform Conference (NPRC) in February 2005 and the ongoing National Conference were responses to the mass mobilization for fiscal federalism and decentralisation of power. Delta State, being a major oil and gas producer in the country, welcomes the Conference initiative. As a prelude to the National Conference, three conferences were held to adequately sharpen the focus of the people and governments in the South- South and Southern Nigeria in general about the festering issues of fiscal federalism and decentralisation of powers. The cardinal principle of federalism underscored in this memorandum is that the federating units of Nigeria should exercise one hundred per cent right to own, explore, manage and use their natural resources and human capital. Thus, from the revenue earned, each State should pay tax to the Federal Government, part of which may be available in a distributable pool for sharing by all states. For the avoidance of doubt, this memorandum contains lists of precious mineral resources with which each State of the Federation is abundantly endowed. The practice of fiscal federalism will challenge and inspire all States to devote attention to exploiting these natural resources to fund development at whatever pace they may choose. It should be noted that the Delta State Government constituted a seven-person Think Tank as contained in Appendix I of this memorandum to support and provide intellectual resources to delegates of Delta State origin to the 2014 National Conference. Delta State: A Synopsis State had a population of 2,570,181 in 1991. However, due to the se in sustained fertility with a corresponding decline in mortality by 2006, the national population census recorded the population of the State at 4,098,391 comprising 2,074,305 male and 2,024,086 female. By the end of 2013, the population of the state was projected to reach 5,109,415 using the approved growth rate of 3.2%. The total area of the State is 17,440 square kilometres. Of this geographical scape, about 60% is made up of water and swampy areas, and 40% of upland area. The traditional occupation of the state is mainly agriculture (farming and fishing). In addition to solid mineral resources, the State is also endowed with enormous oil and gas reserves. Delta State has been the major producer of crude oil and natural gas in Nigeria since 1958 when the first wells were drilled by the Shell Petroleum Development Corporation (SPDC). Information provided by the Department of Petroleum Resources shows that Delta State hosts 83 of the 159 oil fields comprising 1,481 oil wells in the country. In each single day, Nigeria harvests about 2.3 million barrels of crude oil from these wells. The volume of oil from Delta State has averaged 25% of the national production since 1999. From 1999 to 2004, oil wells in Delta State yielded a total of 196,055,490 barrels per year. The total for Delta State in the six years was 1,176,332,940 barrels (One billion, one hundred and seventy-thousand, nine hundred). Natural gas in Delta State is even more abundant than crude oil. Delta State’s reserves, account for about 40% of national total of 167 trillion cubic feet of gas. Natural gas from Delta State fires three thermal electricity turbines in Ekakpamre, Sapele, Okpai, and Egbin. The installed city of the four plants is about half the total for the country from this source. The Nigerian National Petroleum Corporation (NNPC) Gas Plant located in Ondo State and the West Africa gas line are fed with gas from Delta State oil fields. Unfortunately, this great deposit of oil and gas has become a mixed blessing for the people of Delta State who are denied the benefits of this wealth and are exposed to environmental pollution and degradation. This devastation is due, in part, to the unwillingness of the oil firms to engage in best oil field practices. For example, associated gas from the region is being wasted through continuous flaring. There are over one hundred and fifty flare sites in the Niger Delta whose effect causes environmental devastation such as acid rain, climate change, and biodiversity loss. Networks of aged and unsafe pipelines crisscross neighbourhoods, farmlands and waters, which threaten all forms of life. A notorious case in point occurred in September 1998 when over one thousand peasants and other innocent souls perished in the pipeline inferno in Jesse, Delta State, ranking as one of the worst oil-induced disasters in the world. Oil spillages have become recurrent in the Niger Delta. It is now well known that these spillages in combination with other toxic wastes and effluents dumped into the waters and lands at virtually every stage of oil exploration and exploitation destroy farmlands, economic crops, waters, including groundwater resources, biodiversity, etc. There has been a growing concern that some of these toxins have already entered the food chain, thereby placing the health of the human population of these areas at risk. Furthermore, the people are impoverished and marginalised due to the inequitable and defective federal system of government practised by the Nigerian State. The existing structure is characterised by over-centralisation of powers, imbalance among the onstituent units, and consequently inequitable distribution of resources. The structural inequity is further institu-tionalised by a host of obnoxious Laws and constitutional provisions. The pain, anguish and the deep-seated resentment of institutionalised injustice, amongst the grossly neglected communities of Delta State, are heightened by the genuine concern that these wasting assets will be completely depleted in a few decades. This scenario of simultaneous presence of a modern global oil and gas industry, backed by Federal might, which harvest enormous wealth from communities in a manner that dislocates the ecological foundations of their traditional modes of livelihood, yet exclude them from participation in the new wealth. This nexus has created desperate levels of poverty and anger. It is this new social ecology that has created conditions for frequent agitation and restiveness, hence the unrelenting demand for true federalism by the people. They realise that there is an urgent need to invest in the process of environmental rehabilitation, regeneration and protection, as well as in alternative economic activities to ensure the sustainable development of the State. Federalism After carefully considering all the salient attributes of a federal system as well as the historical antecedent relating to federalism as practised in Nigeria, we are persuaded to uphold that Nigeria should continue as a Federation but with a truly federal structure. Some of the salient features that qualify a political system to be referred to as ‘federal’ include, among others; • acceptable and legitimate division of powers among different tiers of government; • a written constitution delineating such division; • the coordinate supremacy of the levels of government with regard to their respective functions; • a considerable measure of fiscal self sufficiency of the component and federating units and• a Supreme Court that exercises powers of judicial review of the relationship between the centre and federating units as well as co- operative relationship amongst the components. The foundation upon which Nigeria was built was federalism which was adjudged to be ideal for Nigeria’s ethnic, linguistic, religious and cultural diversities - a federalism that recognized the federating units and the central government as mutually coordinate and not subordinate one to the other yet cooperative among themselves. The diverse character of the ethnic nationalities, kingdoms, empires, communities etc. which constitute the present state of Nigeria made, and continue to make, proper federalism inevitable. Even an institution as apolitical as the Nigerian Supreme Court has taken judicial notice of the diversity of Nigeria’s ethnic nationalities and their distinctly independent existence before colonization. In the case between the Federal Government and the coastal States in respect of Nigeria’s continental shelf, the Supreme Court pronounced in the following manner. Until the advent of the British colonial rule, there existed at various times sovereign states known as emirates, kingdoms, empires, unities etc. Each was relatively independent of the other its mode of government indigenous to it. At one time or the other, these states or communities either conducted wars with other or conducted alliance or peace on equal terms. In the Niger Delta area for instance, there were (and still are) Okrika, Ijaw, Kalabari, Efik, Ibibio, Urhobo, Itsekiri, Isoko, Ndokwa etc. Indeed some of these communities asserted exclusive rights over the resources in their areas. The failure of the 1999 Constitution to provide adequate powers and resources for the federating units in the federal structure has become a major source of difficulties and problems of governance. The undue concentration of powers and resources in the Federal Government under the 1999 Constitution, has led to a series of crises since the commencement of the Fourth Republic on 29 May 1999. Arising from the foregoing, the people and government of Delta State propose a renewal of the Nigerian federation who’s Constitution should provide for a radical decentralization of powers to the federating States, each of which should be co-ordinate with the others and with the centre. The people of Delta State demand that the Nigerian Federation should consist of a Federal Government and the States as federating units. Each level of government should have powers to legislate as the new Constitution shall provide. In this connection the structure of powers in the 1963 Constitution should be the guide. The 1963 Constitution, for example, had forty-five items on the Exclusive Legislative list and twenty-nine items on the Concurrent list. Central to this power structure is fiscal federalism. Quite apart from being a major source of the subversion of Federalism, the present over-concentration of powers at the centre has resulted in the struggle by the different ethnic nationalities to control the centre, bad governance, corruption, and intermittent crises in the polity. The people and government of Delta State strongly believe that there should be decentralization of powers, which entail the reduction of the items in the Exclusive List in the 1999 Constitution while increasing the legislative areas for the State Governments. Creation Of States Over the years, there have been agitations for the creation of more states out of the present Delta State. Specifically, there are demands for the creation of two states, namely, Anioma State comprising the nine Local Government Areas in the Delta North Senatorial District, and New Delta State made up of the sixteen Local Government Areas in Delta Central and states has been made and submitted to the National Assembly for consideration. The people and Government of Delta State endorse these requests for consideration by the National Conference with a view to recommending a review of the appropriate sections of the 1999 Constitution to facilitate the process of creating the two states. Creation Of Local Governments We believe that only the federating units should be listed in the Constitution of the Federal Republic of Nigeria. Consequently, the States as the Federating units shall have powers to create and cater for local governments. Fiscal Federalism We uphold the principle of ownership and management of resources by the States as a fundamental element in fiscal federalism. There is abundant evidence that each of the federating units has enormous natural resources within its territory to sustain its government and people. The principle of derivation should apply in such a manner that each federating unit receives an agreed percentage of the proceeds from the resources derived from its territory while the balance should go the Distributable Pool Account (DPA). The provision of Economic Development Fund is intended to foster the strengthening of internal capacity of states to develop and exploit their own resources in order to attain balanced national development. Furthermore, the Federal Government should support critical national infrastructure, development assets and boost industrial development with recourse to this fund. The On-Shore / Off-Shore Controversy As noted earlier, the Independence and Republican Constitutions (1960/1963) respectively made it clear that mineral resources in the continental shelf of a Region or State, belong to the State. Hence, the provision in Section 140(6) of the 1963 Constitution which states that for the purposes of the derivation provision, “the continental shelf of a [State] is deemed to be part of that [State)”. This concept was sufficiently established in our political history. Unfortunately, the Obasanjo Administration rejected this view and sought interpretation from the Supreme Court. The Supreme Court in its wisdom denied the coastal States of ownership of their continental shelves. This judgment, which totally negates established principles of International Law, particularly the 1982 Convention of the Law of the Sea which states categorically that the continental shelf is the natural prolongation of the land mass of coastal States, also creates a problem for the Federal Government. For if the continental shelf does not belong to the coastal States it cannot belong to Nigeria. Professor Ben Nwabueze put the argument impeccably in his book, Constitutional Democracy in Africa Vol.1. Nwabueze argues that ‘’this judgment was devastating to both the Federal and State governments, it settled nothing, gave satisfaction to neither side and merely aggravated the controversy over the sharing of the money and may intensify the agitation for resource control among the oil producing states.’’ Explaining further, he opined that: ‘’Sections 2(2) and 3(1) of the constitution provides that Nigeria shall consist of 36 named states and a Federal Capital Territory, not that it shall consist of 36 named states, a Federal Capital Territory and the territorial sea (with its bed and subsoil).’’ Furthermore, the author states that: The territorial sea can only be part of the territory of Nigeria, as it undoubtedly is according to the international conventions, local statutes and decisions from other common law jurisdictions if it is part of territory of the littoral states. It is the Nigerian Constitution that governs the matter, not that of some other country.” With the greatest respect, the Supreme Court should not have tried, as it did, to avoid the clear, inescapable effect of international conventions, local statutes and decisions from other common law jurisdictions mentioned above taken together with sections 2(2) and 3(1) of the Constitution of Nigeria. The territorial sea is and must be part of the territory of the eight littoral states for it to be part of Nigeria’s territory, as it certainly is by international law and by the statute law of Nigeria.” (Nwabueze, 2003, Constitutional Democracy in Africa). Possibly conscious of the international backlash and seething discontentment by the oil producing states with the 2002 Supreme Court judgment, the Obasanjo Administration opted for a political solution for resolving the controversy over the on-shore/off-shore dichotomy through a 200 metre isobath solution. This was subsequently enacted into Law. The implication of this new Act is that the derivation principle only applies to those areas between this 200 metre depth line and the Nigerian coast or low water mark. Thus, any part of the Nigerian Continental Shelf, deeper than 200 metres, is outside the derivation zone and proceeds of resources in this area of the sea will go from this vast area to the Federal Government. By far the most disturbing consequence of the Coastal States’ limitation toa 200 metre depth belt for derivation purposes is that all the major off-shore oils and gas finds are now in the deep off-shore zone between 1000 and 2500 metres as against the 200 metre limitation for coastal States. This is a far cry from the 200 miles of the Continental shelf of the Niger Delta States as stipulated in the founding Constitutions of 1960 and 1963 and Article 76 of the 1982 Convention on the Law of the Sea. Recent developments in the oil industry have shown that there is a remarkable shift from on-shore to offshore activities with the with its attendant environmental impact on the oil producing states. Against this background, we propose that the 200 nautical miles should replace the 200metresisobathinthespiritof justice, equity and fairness. Obnoxious Laws For fiscal federalism to thrive, Laws that impede its true practice should be abrogated. Consequently, we propose that the following Laws should be repealed: • Petroleum Decree 51 of 1969 (now the Petroleum Act, Cap 351, Laws of the Federation of Nigeria, 1990) • The Land Use Act, Cap 202, Laws of the Federation of Nigeria, 1990 • The Exclusive Economic Zone Act, Cap. 116, Laws of the Federation, 1990 • Revenue Allocation Act, Cap 16, Laws of the Federation of Nigeria, 1990 • Revenue Mobilization, Allocation and Fiscal Commission Act, Cap. 392, Laws of the Federation of Nigeria, 1990 • Oil in Navigable Waters Act, Cap 337, Laws of the Federation of Nigeria, 1990 • The Oil Terminal Dues Act, Cap 339, Laws of the Federation of Nigeria, 1990 • Minerals and Mining Act No 34, 19(ix) On-shore, Off-shore Act • Associated Gas Reinjection Act • National Inland Waterways Authority Act • Petroleum Profit Tax Act, Cap 354 • Lands (Titles Vested, etc.) Act. The 1999 Constitution Item 39 of the Exclusive Legislative List gives the Federal Government the sole and exclusive power to legislate on mines, minerals including oil fields, oil mining, natural gas etc. Ironically, this is confirmed under Section 44(3) which itself is contained in Chapter IV on Fundamental Rights. After providing in Section 44(1) that no property shall be compulsorily acquired in any part of Nigeria except in a manner and for the purposes prescribed in a law that requires the prompt payment of compensation and gives the owner of the property right of access to court for determination of his interest in the property and the amount of compensation he is entitled to, the Constitution immediately contradicts itself by excluding the human and property rights of minerals (oils and solid) producing communities of Nigeria, by stating that, notwithstanding the human and property rights provisions of Section 44(1) to (3), “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.” This provision under the Fundamental Rights Chapter, expropriates the properties of the mineral producing areas, at 100%. The National Conference should resolve that all the foregoing obnoxious laws and constitutional provisions should be abrogated in the interest of justice, equity, humanity and fair-play. Protection Of Ethnic Minorities Nigeria is a multi-ethnic country comprising over 350 ethnic and linguistic groups. The ethnographical situation of Nigeria shows that most of the language groups are demographic minorities. Also, there has been a chronic instance of oppression of minorities by ethnic majorities in Nigeria. This problem gave rise to the agitation of minorities for the creation of States from the 1940s and the setting up of the Henry Willinks Commission in 1958 on the fears of the minorities and how to allay them. In order to promote justice and equity in the country, specific provisions should be introduced in the Constitution and made justiciable for the protection of the rights, languages, culture and identity of the minority groups. We, therefore, recommend that in addition, there shall be established a Commission for the protection of minority rights at State d Federal levels. The Police In consonance with the ideal or true federalism, which Nigerians strongly desire, we recommend the establishment of State Police in addition to the existing Federal Police. The point should be made that although State Governors are described as the Chief Security Officers of their States, Sections 215 (3) - 217 (1) and (2) of the 1999 Constitution make the President of the Federal Republic of Nigeria the de facto and de jure Chief Security Officer of both the Federation and of each of the 36 States. In the light of the proper federalism, which we have advocated here the retention of the present structure of the national police force would be anomalous. We are persuaded that State Police could be established side by side with the existing national police to handle the security of the States and Local Government Areas much more effectively. Religion And The State The 1999 Constitution of the Federal Republic of Nigeria provides for a secular State where neither the Federal government nor the States shall establish or promote any religion. Regrettably, religious intolerance has continued to be a source of divisive and violent flashpoints, which undermine security and stability of the nation. Consequently, we propose that the secularity of the Nigerian State should be upheld and Governments at all levels should desist from being involved in sponsorship or promotion of religious pilgrimages and selective issuance of Certificates of Occupancy to religious groups. Environment The quest for environmental protection and sustainable development is in the front burner of international discourses. There is therefore a compelling need for the Nigerian State to adhere to best practices in environmental management by ensuring that industries and other socio- economic activities comply with laid down guidelines and standards. Towards this end there is a need to sensitise the people on environmental management. Accordingly, we recommend that all tiers of government should have the authority to make laws that will safeguard ecological degradation, and enhance habitation and economic activities. Census We observe that population census has become highly politicized in Nigeria. There is no denying the fact that accurate census figures are required for planning - education, health-care delivery system, socio-economic and political welfare needs of the people, etc. The absence of reliable census figures has also accounted for the inequitable distribution of social amenities. In view of the above, we suggest that population census should be devoid of political considerations. In this connection we advocate that the following items, amongst others, should feature in our national population census exercise: · Name, gender, state and local government · Religion · Dwellings and types · Age brackets · Ethnicity · Place of birth · Place of residence Conclusion This memorandum has endeavoured to demonstrate the aims, objectives and logic of federalism and the form of intergovernmental relations in a federation. It has been amply demonstrated that structurally and, in terms of actual operation, the existing relationships between the Federal Government and the States constitute the antithesis of a proper and legitimate federalism. Federalism is not about uniformities, but the recognition of diversities as well as the autonomy of the different components. The imposition of a central authority on all spheres of activity as has occurred even with the return to civil rule and democracy violates the independence of the federating units. This memorandum has argued that if Nigeria is to move forward there must be appropriate decentralisation of powers to the federating units. The decentralisation of powers will entrench fiscal federalism and attendant ownership and management of state resources.
Posted on: Mon, 09 Jun 2014 12:27:34 +0000
Trending Topics
Recently Viewed Topics
© 2015