THE war between oil-producing communities and governors of the states – Ondo, Edo, Delta, Bayelsa, Rivers, Akwa Ibom, Cross River, Imo and Abia states – over who is constitutionally empowered to collect the 13 per cent monthly allocation from the Federation Account has assumed a worrisome dimension. The leadership of the oil/gas producing communities of Nigeria told the Elias Mbam-led Revenue Mobilization, Allocation and Fiscal Commission (RMAFC) at zonal hearing in Yenogoa, Bayelsa State, that anything short of direct allocation through National Derivation Board will not only unacceptable but will serve as an invitation to chaos. In a memo presented by Chief Wellington Okirika, Bolowei of Gbaramatu Kingdom, National Leader of oil/gas producing communities of Nigeria said if the Constitution of Nigeria is truly supreme, section 162(2) of the 1999 constitution is clear enough for anybody to know that 13 per cent derivation belongs exclusively to the communities. The presentation was signed by Chief William Igere (Delta), Comrade Sam Ebiwanno (Ondo), Princess Nomwen Uhunmwangho for (Edo), Chief Onyema Olujie (Abia), Chief Brisibe Opukime Nabena (Bayelsa), Chief Appolos Emenike (Rivers), Alhaji Abrahim Ikansin (Cross River) and Temple Okonji (Imo). In the memorandum entitled 13 per cent derivation under the proviso of section 162 (2) of the 1999 Constitution as amended, they argued that producing communities and not the states are entitled to receive and manage the funds. “In order to put this issue in proper perspective, a reproduction of Section 162 (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended thereof is imperative at this juncture. “That section provides thus: “The Federation shall maintain a special account to be called “the Federation Account” into which shall be paid all revenues collected by the government of the Federation, except the proceeds income tax of the personnel of the armed forces of the Federation, the Nigeria Police Force, the ministry or department of government charged with responsibility on Foreign Affairs and the residents of the Federal Capital Territory, Abuja. “The President, upon the 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, and in determining the formula, the National Assembly shall take into account the 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 constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any resources. “From the above, it is lucid that the principle of 13 per cent derivation is firmly entrenched under the proviso to Section 162 (2) above. “Accordingly, in whatever formula, the National Assembly adopts, it must constantly reflect 13 per cent derivation. “Consequently the leadership of the oil/gas communities said 13 per cent derivation is prior charge on the Federation Account and/or and Revenue Formula under Section 162 thereof and enacted at any time. “Indeed, having clearly set aside the mandatory 13 per cent derivation under section 162 (2) thereof, it becomes an entrenched right standing on its own. Accordingly, it must be treated sui generis of its own kind and specially too. “Thus it does not form part of any Federal Government or State Government’s Consolidated Revenue Fund. In this connection section 84 and 121 of the said 1999 Constitution, which establishes and regulates the Consolidated Revenue Fund, is clearly not applicable to 13 per cent derivation under Section 162 (2) of the Constitution.” Speaking further the memo said as regards the State and Local Government Joint Account under Section 162 (b) of the constitution, the position of the law is clear on this issue that an express mention of a word leads to the exclusion of those not mentioned. Consequently, the express mention of the words State and Local Government Joint Account, Leads to the exclusion of oil producing communities, because if the legislature had intended to include the oil producing communities into that Joint Account, the Constitution could have expressly so provided. In the light of the above, the State and Local Government Joint Account is also clearly not applicable to payment 13% Derivation under the Constitution. Intended Beneficiary of the 13% Derivation It is axiomatic that the intended beneficiaries of this 13 per cent Derivation Fund are the oil producing communities. This is because they directly feed the effects of oil and gas exploration and exploitation. The principle of derivation is thus introduced to cushion the effects of this devastation of oil exploration as well as to recompense them for divesting them of their proprietary right. The 13 per cent Derivation Fund belongs exclusively to the oil and gas producing communities which are the source of derivation. The oil facilities, flow stations etc. are located in the oil and producing communities where oil exploration, exploitation and production are being carried out causing monumental degradation, pollution and health hazard etc. 13 per cent Derivation Fund is compensation and reparation for loss of fishing right and loss of productive farm land. We recall that it was the great pressure mounted by the oil and gas producing communities during the 1994/95 Constitutional Conference that made 13 per cent Derivation Fund as one of the main decisions and resolutions of the 1994/95 Constitutional Conference. Thirteen per cent Derivation Fund then became a benchmark for Revenue Allocation based on derivation principle to oil and gas producing communities in Nigeria. During the drafting of the 1999 constitution, the oil and gas producing communities were around again exerting great pressure to ensure that 13 per cent Derivation Fund enshrined in the 1999 constitution. “Our People strongly believe that the 13 per cent Derivation Fund currently being managed by the State Governors in the oil and gas producing states is an aberration. They are all improper users because they manage the 13 per cent Derivation Fund without regard to the oil and gas producing communities who are owners of the Fund. “ In view of above, we demand the following: (a) that 13 percent derivation revenue accruing to the federation account directly from any natural resources be paid as first line charge from the federation account to the oil and gas producing communities through a national derivation board whose members shall be recommended for appointment by the president on the advice of leaders of oil and gas communities. (b)The national derivation board will have executive chairman, secretary and members including a member from the revenue mobilization, allocation and fiscal commission (RMAFC). The chairmanship of the national derivation board should rotate amongst oil and gas producing states every four (4) years. “The national derivation board shall receive and redistribute the 13 percent derivation fund directly to the respective state implementation committees (sic) whose members shall be solely nominated and appointed by leaders of the oil and gas communities. (c) Our present demand is in line with the position of the last RMAFC in its submission on new revenue formula to the 6th national assembly where it stated unequivocally that 13 per cent derivation fund was not part of any state government consolidated revenue. Meanwhile General Perebowei Ebibiowei, the dreaded Unit Commander of the movement for the Emancipation of the Niger Delta (MEND) has advocated for immediate probing of the 13percent derivation account, which has received over N8Trillion in the past 13years by the Economic and Financial Crime Commission (EFCC). According to General Ebibiowei expect the anti-graft agency carry out a detail investigations against the affected governors our people may be forced to believe that the agency is sleeping while the wealth of the oppressed people is been openly looted in the name of governance. Also at the International Conference Centre, University of Ibadan (UI), Omojuwa Adewale, Leader of Oil and Gas Producing Communities of Ondo State, in a paper presented last week, said the affected state governments have failed the affected communities. He said: “Government has failed us, we can’t trust them any longer. This unfortunate scenario from the state government unfolds as a result of overbearing tendencies arise because those in charge are not from oil producing Communities”. The spokesperson lamented that several billions of Naira derived from the allocations over the years have not translated into any meaningful development in the affected communities. “We have said it several times that oil producing communities are near to hell as a result of exploration and exploitation activities. These activities have rendered the communities inhabitable. The ecology and environmental degradation of the areas is a tale of woes, as virtually all the social amenities that make life worth living, such as road network, portable water and health facilities are not in place“, he stated. He also advocated the setting up of another bodies to be known as the National Derivation Fund, Committee and State Implementation Committee to manage the funds.
Posted on: Fri, 25 Oct 2013 09:07:45 +0000
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