THE NIGERIA PROJECT: IS IT WORKING?

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1 THE NIGERIA PROJECT: IS IT WORKING? BY PROFESSOR I.E. SAGAY, SAN. BEING A CONTRIBUTION TO A COLOQUIUM ORGANISED BY THE YORUBA NATIONAL FRONT. ON WEDNESDAY 8 TH MAY 2002 AT THE YORUBA TENNIS CLUB. 0

2 The Nigeria Project: Is it Working? 1. Nigeria: Federalism - Imperative, Indispensable, Inevitable. Nigeria presents a classic condition for the operation of a very loose federation. Indeed one can say that true federalism is a condition precedent for the survival of Nigeria as a voluntary Union of Nationalities and autonomous communities. Nigeria s antecedents establish clearly that there is no alternative to federalism, except confederalism, which nobody wants at present. Here are some authoritative pronouncements on this question. Let us start with the most recent i.e., 1) The Supreme Court in Attorney-General of the Federation v. Attorney-General of Abia State & Ors better known as the Resource Control Case. Until the advent of the British colonial rule in what is now known as the Federal Republic of Nigeria (Nigeria, for short), there existed at various times various sovereign states known as emirates, kingdoms and empires made up of ethnic groups in Nigeria. Each was independent of the other with its mode of government indigenous to it. At one time or another, these sovereign states were either making wars with each other or making alliances, on equal terms. This position existed throughout the land now known as Nigeria. In the Niger Delta area, for instance there were the Okrikas, the Ijaws, the Kalabaries, the Efiks, the Ibibios, the Urhobos, the Itsekiris, etc. Indeed certain of these communities (e.g. Calabar) asserted exclusive rights over the narrow waters in their area. And because of the terrain of their area, they made use of the rivers and the sea for their economic advancement in fishing and trade and in making war tools. The rivers and the sea were their only means of transportation. Trade then was 1

3 not only among themselves but with foreign nations particularly the European nations who sailed to their shores for palm oil, kernel and slaves. Much earlier, in 1947, when the future form of government of Nigeria s heterogeneous population was being keenly debated, Chief Obafemi Awolowo made this famous, but generally misunderstood, observation about Nigeria. Since the amalgamation all the efforts of the British Government have been devoted to developing the country into a unitary State. This is patently impossible; and it is astonishing that a nation with wide political experience like Great Britain fell into such a palpable error. If rapid political progress is to be made in Nigeria it is high time we were realistic in tackling its constitutional problems. Nigeria is not a nation. It is a mere geographical expression. There are no Nigerians in the sense as there are English, Welsh, or French. The word Nigerian is merely a distinctive appellation to distinguish those who live within the boundaries of Nigeria from those who do not. There are various national or ethnical groups in the country. Ten such main groups were recorded during the 1931 census as follows: (1) Hausa, (2) Ibo, (3) Yoruba, (4) Fulani, (5) Kanuri, (6) Ibibio, (7) Munshi or Tiv, (8) Edo, (9) Nupe, and (10) Ijaw. According to Nigeria Handbook, eleventh edition, there are also a great number of other small tribes too numerous to enumerate separately, whose combined total population amounts to 4,683,044. It is a mistake to designate them tribes. Each of them is a nation by itself with many tribes and clans. There is as much difference between them as there is between Germans, English, Russians and Turks, for instance. The fact that they have a common overlord does not destroy this fundamental difference. It is therefore not surprising that at the conclusion of the first Nigeria National Conference in January 1950, the conference unanimously adopted federalism as the only form of association of Nigeria s many and varied nations. 2

4 In the words of the great jurist and political icon, Dr. Udo Udoma, the conference made a strong case for the devolution of powers, or as it put it, increased autonomy to each of the Regions on the ground that the principle had been whole heartedly accepted and indeed welcomed. Dr. Udoma further noted that the General Conference was of the view that over-centralisation would be a grave error in this vast country with its widely differing conditions and needs, and that the policy which had received enthusiastic support throughout the country was the policy of achieving unity at the center through strength in the Regions. It was confidently expected that when the regions felt that they had wide powers to run their own regional affairs, they would be more likely ready to co-operate with the other Regions through their representatives in the Council of Ministers and the House of Representatives in serving the interest of Nigeria as a whole. This is the agreement and understanding that led (after other conferences between 1953 and 1958) to the independence constitution of 1960 and the nearly identical republican constitution of In other words, the negotiated and agreed basis of association of Nigeria s Regions was true federalism and this was also the basis on which independence was granted. The following features, which emphasized the existence of a true federal system composed of powerful and autonomous Regions and a Centre with limited powers are worth noting. i) Each Region had its own separate Constitution, in addition to the Federal Government Constitution. ii) Each Region had its own separate coat of arms and motto, from the Federal State or Government. iii) Each Region established its own separate semi-independent mission in the U.K. headed by Agents - General. iv) The Regional Governments had Residual Powers, i.e., where any matter was not allocated to the Regions or the Federal Government, it automatically became a matter for Regional jurisdiction. 3

5 The legislative lists of the 1960/63 Constitutions clearly demonstrate the intention of our Founding Fathers, to establish powerful and autonomous States or Regions. The following, for example, were included in the concurrent legislative list, thus empowering the Regions to legislate in those areas. i) Arms and Ammunition ii) Census iii) Commercial and industrial monopolies, combines and trusts. iv) Industrial Development v) Labour, conditions of labour, industrial relations, trade unions, and welfare of labour, vi) Regulation of the professions vii) Prisons and other institutions for the treatment of offenders. viii) Maintaining and securing public safety, public order. ix) Registration of Business names x) Statistics. Other matters of regional autonomy were as follows: i) Separate Regional Judiciaries and the power of the Regions to establish, not only High Courts, but also Regional Courts of Appeal. ii) The Regions had their own separate electoral commissions for Regional and Local Government election. However the Chairman of the Federal Electoral Commission was the statutory Chairman of the State Commission. iii) The Revenue Allocation system under the 1963 Constitution was strictly based on derivation. It is necessary to point out that any matter not included in any of the two legislative lists was a residuary matter and therefore a matter exclusively within state or regional jurisdiction. Thus matters such as Agriculture, and Fisheries, Land, Education, Public Health in a Region, Local Government, Direct Taxation, Forestry, etc., were matters of exclusive state jurisdiction. Federal Government competence in education 4

6 was limited specifically to those tertiary institutions it had already established, e.g., university of Ibadan, University College Hospital, Ibadan, University of Lagos, etc. 2. Resource Bases of the Regions and the Centre The Regional Constitutions, in the 1960 and 1963 Constitutions described each Region as "a self-governing Region of the Federal Republic of Nigeria". 1 To buttress the self-governing status of each Region, adequate provisions were made to guarantee the economic independence of the Regions, thus avoiding the hollowness of a declaration of self-governing status totally undermined by economic dependence. Moreover, consistently with the Federal character of the country i.e. a country of many nations, the basis of revenue allocation was strictly derivative. Section 140 which made provision for the sharing of the proceeds of minerals including mineral oil, stated that "there shall be paid by the Federal Government to a Region, a sum equal to fifty percent of the proceeds of any royalty received by the Federation in respect of any minerals extracted in that Region and any mining rents derived by the Federal Government from within any Region." For the purposes of this section, the continental shelf of a Region was deemed part of that Region. By Section 136(1) 30% of general import duties, were paid into a distributable pool for the benefit of the Regions. With regard to import duties on petrol, diesel oil and tobacco the total sum of import duty collected less administrative expenses, were fully payable to the Region for which the petrol or diesel oil or tobacco was destined. A similar provision was made for excise duty on tobacco. With regard to produce i.e., cocoa, palm oil, groundnuts, rubber and hides and skin, the proceeds of export duty were shared on the basis of the proportion of that commodity that was derived from a particular Region. As noted above, the derivative bases of the allocation of revenue and the proportionate share of such proceeds that went to the Region it originated from, clearly buttressed the operating base of true Federalism. 1 Preamble of each Constitution 5

7 Summary of Revenue Allocation 1960/63 Constitution Basis: Derivative Principle. i) Minerals including mineral oil: 50% of proceeds to all Regions from which they were extracted. S. 140 (1) ii) 30% went into the distributable pool (for all the regions including the producing region) iii) 20% for the Federal Government. iv) 30% of import duties went into the distributable pool. v) Import duty on Petrol and diesel consigned to any Region was refundable to that region. vi) This applied to excise duty on tobacco It can thus be seen that although the 1960 Constitution did not provide for the ownership and control of mineral resources by the producing State or community, the entitlement of the producer State to 50% of the proceeds, and a share in another 30% with the Federal Government being entitled to only 20%, was a true reflection of the derivative principles which is the economic indication of true federalism. In addition to the above, in consonance with international law, the antecedence of the Nations of Nigeria as independent sovereign states or communities and the negotiated basis of association in Nigeria, Section 140(6) Constitutions, provided that For the purposes of this section (Revenue Allocation) the continental shelf of a Region shall be deemed to be part of that Region 3. Post Civil War Subversion of Federalism With the intervention of the Military in the governance of Nigeria, a unitary chain of command system was progressively instituted into the Federal/State relationship, which completely undermined and subverted the federal basis of our association. The Petroleum Act 1969, 1971 Off-shore Oil Revenue Decree (No.9 of 197 ) and the 1979 and 1999 Constitutions, completely destroyed fiscal federalism, whilst the exclusive 6

8 legislative lists and some other provisions of these two constitutions dealt the same fatal blow to political aspects of federalism. The vital subject matter affected by federal absolutism now included: 1. Operation of a Police Force 2. Census 3. Mineral Resources 4. Labour, Trade Unions, Industrial Relations 5. Registration of Business names 6. Electoral Power (with the exception of rural electricity) 7. Funding of Local Governments. Since I have only recently written a paper entitled, The 1999 Constitution and the Subversion of Federalism, I do not need to go into further detail because that paper will be made available to this colloquium. I must however make more detailed reference to the constitutional provisions on mineral resources in Section 44(3) and 62(2) of the main body of the constitution and item 39 of the Exclusive Legislature List. Mines, Minerals including Oil Fields, Oil Mining, Geological Surveys and Natural Gas (Item 39). This issue is presently the most contentious and explosive in the national political agenda. Having been dispossessed for more than 30 years of their rights over their natural resources, the nationalities of the Niger-Delta are now demanding those rights back. This provision has merely worsened an already tense situation. It is most unlikely that the good government, order and peace of Nigeria can continue, if the Abuja government, claims 100% ownership the of Niger-Delta's natural resources. Obviously, this item (39 on the Exclusive Legislative list) sections 44(3) and 62(2) have to be radically modified or repealed completely if there is to be peace, unity progress and justice in this country. Sovereignty over Natural Resources. As has already been pointed out, 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. 7

9 Ironically, this is confirmed under section 44(3) which itself is contained in the Chapter four, the chapter on Human Rights. After providing in Section 44(i) that no property shall be compulsorily acquired in any part of Nigeria except in a manner and for the purposes prescribed by a law that requires prompt payment of compensation and gives the owner of the property right of access to court for the determination 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 this country, by stating that, notwithstanding the human and property rights provisions of section 44(i) and (ii), the entire properties in and control of minerals, mineral oils and natural gas in under or upon land, upon territorial waters and Exclusive Economic Zone of Nigeria, is vested in the Federal Government. This provision under the Human Rights Chapter, expropriates the properties of the mineral producing areas, 100%. This subsection is a most insensitive and contemptuous disregard for the rights of the people of the oil producing States in their own natural resources. In this context, the recent judgment of the Supreme Court in the so-called resource control case is bound to exacerbate the conflict between the Federal Government and the States supporting it, on the first part, and the southern minorities in whose territory, virtually all the oils and gas in Nigeria, is to be found, of the other part. Apart from the fact that the judgment is a clear negation of the rules of international law, under which the continental shelf is an inalienable and inherent part of the coastal state, the domestic Nigerian laws applied are those constituting a blatant expropriation of the natural resources of the southern minorities. It will be recalled that Section 140(6) of the 1963 (Republican) Constitution, provided as follows: For the purposes of this section (revenue sharing) the continental shelf of a Region (state) shall be deemed to be part of that Region What then was responsible for the abandonment of this fundamental corner stone based on the agreements and the negotiations of our founding fathers? The answer to this question lies in the weak political and physical condition of the owners of the mineral oil and gas resources, the southern minorities. 8

10 A superficial political analysis of the situation, will reveal that the fate of the mineral resources of the Niger Delta minorities, particularly the shift from derivation to federal absolutism, is itself a function of majority control of Federal Government apparatus. In 1960, there were no petroleum resources of any significance. The main income earning exports were cocoa (Yoruba West) groundnuts and Hydes and Skin (Hausa/Fulani North) and Palm Oil (Ibo East). Therefore it was convenient for these majority groups to emphasise derivation hence its strong showing in the 1960/63 Constitutions. However, by 1967 and certainly by 1969, petroleum, particularly, the mineral oil, was becoming the major resource in terms of total income and foreign exchange earning in the country. It was therefore not difficult for the majority groups in government to reverse the basis of revenue allocation with regard to petroleum resources, from derivation to Federal Government exclusive ownership. They were in control of the Federal Government and their control of the Mineral resources by virtue of that fact effectively meant that the resources of the Niger Delta were being transferred to the majority groups in control of the Federal Government at any point in time. The insensitive and indeed thoughtless manner in which section 140(6) of the 1963 constitution (confirming state ownership of the continental shelf) was repealed by the Federal Military Government of Gowon (Decree No. 9 of 1971) speaks volumes of the regard in which southern minorities have always been held by those in control at the Federal level. In order to fully appreciate the blatantly oppressive nature of this Decree on the minority oil producing States, and the utter contempt which the majority controlled Federal Government has for them, the relevant part of the Decree may be reproduced as follows: 1. (1) Section 140(6) of the Constitution of the Federation (which provides that the continental shelf of a State shall be deemed to be part of that State) is hereby repealed. (2) Accordingly - 9

11 (a) the ownership of and the title to the territorial waters and the continental shelf shall vest in the Federal Military Government; and (b) all royalties, rents and other revenues derived from or relating to the exploration, prospecting or searching for or the winning or working of petroleum (as defined in the Petroleum Decree 1969) in the territorial waters and the continental shelf shall accrue to the Federal Military Government. And that was it. With one stroke of Gowon s signature, the order of nature, law equity and justice were reversed. 4. Homogeneity of Political Units/Rrestructuring The territory called Nigeria is as much a victim of European colonial callousness as the rest of Africa. Many of the internal boundaries of Nigeria are as artificial as inter State boundaries of Africa. Was it not Lord Salisbury who stated thus about the Berlin Conference 1885 in an after dinner joke? We have been engaged in drawing lines on maps where no white man s foot ever trod; we have been giving away mountains and rivers and lakes to each other, only hindered by the small impediment that we have never known where the rivers and lakes and mountains were. * (Anene, The International Boundaries of Nigera, Longman London 1970, p.3) But this line drawing across communities and nations of Nigeria has not been funny for this country. We have been living with its bitter after taste for over 100 years. Another Briton, an official who participated in the drawing of the Southern section of the Nigerian-Cameroon border, is also recorded to have recalled, years after that- In those days we just took a blue pencil and ruler, and we put it down at Old Calabar, and drew that blue line to Yola I recollect thinking when I was sitting having an audience with the Emir [of Yola] surrounded by his tribe, that it was a very good thing that he did not know that I, with a blue pencil, had drawn a line through his territory. The carry over of this artificiality of boundaries into Nigeria, is evident when the Yoruba parts of Kwara and Kogi States are treated as Northern, instead of Yoruba (Western) 10

12 States, or when Asaba and Agbor (Oshimili, Anioma and Ika) are included in a Delta State. It is therefore clear that the Conference of Nationalities that one is proposing will involve, not only a restructuring of functions between the bloated Centre and the States, but there also has to be, a re-regrouping of the States along national/ethnic lines. To continue with the examples I have given above, the Yoruba parts Kwara and Kogi will merge with the Yoruba States and Asaba and Agbor (Oshimili, Anioma & Ika) should merge with their sister Igbo States east of the Niger. 5. Celebrating Injustice The final item in this presentation is entitled, celebrating injustice. This is a summary of the world view of Nigerian nationalities in their relation with each other. This is a reference to a pervasive tendency of one ethnic group taking advantage of the weakness or misfortune of another ethnic group and indeed capitalizing on it. This has far reaching and very devastating consequences. A few examples will suffice to illustrate this tendency. i) The So-called Resource Control Case It is a notorious fact that the Decree and constitutional provisions on mineral resources constitute a blatant oppression of the Southern minorities and an act of expropriation of their resources without compensation. Yet all efforts to ameliorate the condition of these oil producing minorities at the Abacha Constitutional Conference, almost resulted in a violent stalemate. The majority ethnic groups and significantly, even the Northern Minority Groups were hostile to even a partial recovery by the Southern minorities of ownership their resources, or even a mere recognition of that ownership without title. Suddenly, every resource found anywhere belongs to the whole federation. When the resource control case was filed, one would have expected the non-oil and gas producing States to have some sympathy for the beleaguered, Southern minorities. But this was not so. The case presented another opportunity to deprive the minorities of the crumbs they were getting from their natural resource and most of the 11

13 28 non-coastal states, simply plunged their daggers into the already open and bleeding wounds of the Southern minorities. Typical of this was the statement of defense and counter-claim of Bornu, Jigawa and some other Northern States, which not only supported the Federal Governing claim, but went far beyond it thus: Jigawa State 10. WHEREOF the 17 th defendant claims determination of this Honourable Court that:- (a) The natural resources derived from any part of Nigeria are deemed to be derived from Nigeria and not from a particular area where the resources may be physically located. (b) The Federal Republic of Nigeria is a state and not a section thereof when interpreting the economic agenda prescribed by the constitution. (c) That by section 162(2), all states represented by the defendants in this suit are equally entitled to at least 13% of the revenue accruing to the Federation Account directly from any natural resources (d) That the rule of not less than thirteen per cent enshrined in the constitution under section 162(2) shall be applied based on principle of equally and justice to embrace all the states forming the Federation. In its own counter-claim, Bornu state trivialized the grave situation in which the southern minority oil producing states found themselves by making the following claims: 2. The 8 th defendant avers that the plaintiff has been generating revenue from the Natural Resources which are from the 8 th defendant s State. 3. The 8 th defendant states that the Natural Resources referred to in paragraph 2 of the Counterclaim are:- Minerals and Agricultural products, namely:- Precious Stones and Metals, Potash, Gypsum, Gold, Livestock, Fish, Hide and Skin, Horns, Groundnuts, Beans, Mangoes, Grains, Pepper, Cotton and Gum Arabic. 4. The 8 th Defendant states that the plaintiff generates and/or derives revenue from these Natural Resources by charging export duties, levies, taxes and by issuing licenses for dealership, processing and mining of these Natural Resources. 12

14 5. That the 8 th defendant contends that the plaintiff failed and/or refused to pay the 8 th defendant that 13% of the revenue derived from these Resources. 6. Whereof the 8 th Defendant/counter claimant claims against the plaintiff the following:- (a) A declaration that the 8 th defendant/counterclaimant is entitled to 13% of the total revenue accruing to the Federation Account directly from the National resources mentioned above. Although this claim may appear humorous, it was clearly aimed at neutralizing the serious counter-claims of the coastal states by trivializing the meaning of natural resources and therefore the basis of the counter-claim of the Coastal States. For if groundnuts, beans, pepper, grains, etc. are all natural resources as stated in the constitution, then the primary basis of the claim of the Coastal States, is neutralized. These are clear evidences of what I refer to as celebrating injustice. For the plight of the Coastal States and peoples is well documented. Pollution of the environment, poisoning of the atmosphere, lands and waters, deprivation of livelihood, emergence of new types of cancers and other deadly diseases brought about by oil operations; the list of travails and devastation is endless. But in place of sympathy, the peoples, these victims are met by cynicism, opportunism and disregard. One more example and I am done. Delta State was created in August 1991 with the capital as Asaba. Asaba had never been part of Delta Province. It had always been part of Benin Province. It was deliberately transferred from Benin province, and added to Delta Province, in order to make it capital of a state of which it had never been a part. Warri had been capital of Delta Province from the early years of the 20 th Century. Naturally, the peoples of the real Delta, i.e., the old Delta Province, were and are still gravely upset by the transfer of their Capital from their territory, to an alien territory, which had just been joined to the Province. Again, instead of showing some sympathy for the people of the real Delta and understanding for their bitterness, the Asaba elites are announcing their intention of also capturing the state house at Asaba. Here again, fellow Nigerians are capitalizing on the unfortunate plight of another group of Nigerians. Should Asaba, which strictly belongs to the Igbo National Group, be Capital of a State of the Delta Peoples? If then by a gross anomaly, this wrong has 13

15 been inflicted on the Delta people, should this be further compounded by an extra injury of governorship? Would that not effectively make the Anioma the colonial overlord of the Deltans? These are but two illustrations of what I mean by celebration of injustice. If we are to have a harmonious relationship within a united Nigeria, we must eschew exploitation of each other s misfortunes and the exhibition of crass opportunism and selfishness. 6. Conclusion The Nigeria Project: Is it Working? My answer is clear. It is not working. i) Today s Nigeria is a unitary state, not a federation ii) there are too many artificial boundaries and the lumping together of unwilling bedfellows. We must move beyond colonial boundaries. iii) We do not have enough feeling for each other. We exploit each other s misfortunes instead of showing consideration, exercising restraint on the urge to grab what belongs to others. Only a National Conference, summoned to discuss and resolve these conflicts and disagreements can guarantee a united and harmonious future for Nigerians nationalities. 14