Nigerian Constitutions, Operation Of Federalism And The South South Zone

  

BY

 

PROFESSOR I.E. SAGAY, S.A.N.

 

 

 

A KEY NOTE ADDRESS AT THE ALL NIGER PEOPLES CONFERENCE 2006

  

HELD AT

 

 GRAND HYATT DFW DALLAS

TEXAS, U.S.A.

 

 24 – 27 AUGUST 2006

 

 

1.         Introduction: The Niger Delta – A region in Acute Distress

 

In order to put the subject matter of this address in the proper context, I have lifted commentaries and statistics on the Niger Delta from various Authors published in different issues of the Niger Delta News.  I shall quote them here as a befitting background to a discussion of the plight of the Niger Delta and its peoples.

 

“Nigeria regards the Niger Delta as an appendage.  So, successive administrations, both civilian and military, have treated the area since independence.  An appendage, by definition, is “anything appended, suspended, attached, affixed, or added as a supplement or an appendix”.  In biology, the dictionary goes on to say, “It is any subordinate or external organs or part as the branch of a tree or the tail of a dog”.  There it is, a tail good for wagging, perhaps.  An appendage in law, Webster continues: is a ‘subsidiary right attached to and passing with a major one”.  That is how Nigeria has seen the Niger Delta, specifically its Ijaw people, all these years; and now the matter has come to a head with the body aching from blows, all self-inflicted.

 

Indeed, if it were possible, the Nigerian state would carry out on the Ijaw people of the Niger Delta an appendectomy, that is, a surgical removal of the region in the inflamed condition that it is today. As an alternative measure, influential voices from the main body are now proposing that all dwellers of the Niger Delta should be left alone to burn in the gas flare that the Federal Government has allowed the oil companies to flay the Ijaw and their neighbours all these years, or faster still, that the Ijaw should be removed en masse from the area for the nation to get on with the business of expropriating its oil and gas in partnership with the multinationals from Europe and the United States of America, not counting the new Asian giants and tigers at the gate.  Where the poor people will be transported to and transplanted away from all that they hold dear in life these latter-day superior beings have not so far decided.  Whichever way, it really would be the perfect solution.” (Professor J.P. Clark, Niger Delta News, July – September 2006, vol. 2 Issue 3, p. 28).

 

“One question begging for answer is why a region that is generating so much wealth for the country is left neglected and allowed to suffer the way it is now.  The money we spend on education, health, power and other good things of life come from the black gold, yet the land that gives us the wealth, though now shared by few, is desecrated, defiled and abused.

 

Why is this so?  Why has it been difficult for the whole country to see the injustices done to these people?  Why do we play the problems of this most important region in Nigeria down?  Why do we keep insulting these people’s sensibility?  These and many questions are begging for answers.”

(Seyi Odubela, Niger Delta News, January – March 2006, Vol. 2 Issue 1, p. 29)

 

“The report – by World Bank environment specialist David Moffat and Professor Olof Linden of Stockholm University says that even official statistics suggest that every year the delta is polluted by 2.3 billion cubic metres of oil from some 300 separate spills, almost one a day, but that the true figure may be 10 times higher.  It confirms a report that gas flaring from oil production in the area emits some 35 million tons of carbon dioxide and 12 million tones of methane a year, making it the world’s  largest single contributor to global warming

 

The report adds that income in the area is below the national average, while health is substantially worse” than in the rest of south-east Nigeria.  Tests have found 85 per cent of drinking water samples polluted by sewage, and largely as a result water-related diseases account for four-fifths of all the illness.

 

Although oil provides more than 80 per cent of Nigeria’s foreign exchange the report says nearly three-quarters of the people of the Delta live in rural communities characterized by a lack of development, stagnant agricultural productivity negligible opportunities in urban areas, rapid population growth and tenuous property rights”

(Geoffrey Lean “Oil Bringing Untold Damage To Niger Delta” July –September 2006, vol. 2 Issue 3, p. 15)

 

 

2.         The Niger-Delta, Location, Description

 

            The Niger Delta, the main oil (and gas) producing area of Nigeria has been described as one of the worlds largest wetlands, and is certainly the largest in Africa.  It covers an area of about 70,000 square kilometres and consists of distinct ecological zones which are characteristic of 'a large river delta in a tropical region; coastal ridge barriers, mangroves, fresh water swamp forests'^[1]                      

 

            The mangrove forest of Nigeria is the third largest in the world and the largest in Africa.  Over 60% of these mangroves, or 6,000 square kilometres, is found in the Niger Delta.  The fresh water swamps are 11,700 kilometres in area.

 

            The area is generally inhospitable, and difficult to develop^[2]. It costs 10 times more to construct a one kilometer Road in the swampy Niger Delta, than to build one in the firmer and dryer terrains of the North.  The statistics of the cost of road construction in table 1 below, speak for itself.  The Communities which inhabit this area are made of mainly of fishermen and women in the purely riverain areas and farmers, in the drier upper areas.  They also had some local industries based on the mangrove and the surrounding swamp waters, e.g. local salt industry, mat making etc.

 

            The main Niger Delta Communities are to be found in Akwa-Ibom, Bayelsa, Cross River, Delta States, Rivers and Edo and Ondo States to a lesser extent.

 

            Petroleum was first discovered in commercial quanties in Oloibiri, in the present Bayelsa State in 1956.  Today it is produced across all the six South South States and also in Abia, Imo and Anambra States in the South East Zone.  It is responsible for about 80% of Nigeria's total revenue and 95% of export earnings.  Oil has been vital in financing the country's economic growth and development in the last 25 years.  Oil fuels state power and activity in Nigeria.  Government activity will grind to a halt, if oil money is not available to it.  Nigeria’s external debt of about 36 billion US dollars was paid off in 2006 by the payment of 12 billion dollars from the proceeds of Niger Delta Oil and a write-off of the balance of 24 billion dollars.

 

3.         Prelude to Nigerian Constitutions and Federalism

 

            Nigeria, is a conglomeration of distinct Nations and peoples who were brought within the same political territory and state by the force of arms of the colonial power and for its own convenience, rather than for reasons based on merit or the benefit of the colonised.  Thus in the beginning there was no Nigeria. There were Yorubas, Hausas, Fulanis, Nupes, Kanuris, Ogonis, Gwaris, Katafs, Jukars, Edos, Ibibios, Efiks, Idomas, Tives, Junkuns, Biroms, Angas, Ogojas Itsekiris, Urhobos, Ijaws and so on.  There were Kingdoms like, Oyo, Lagos, Calabar, Brass, Itsekiri, Benin, Tiv, Borno, Sokoto Caliphate (with loose control over Kano, Ilorin, Zaria etc.) Bonny, Opobo etc. Prior to the British conquest of the different Nations making up the present day Nigeria, these Nations were independent Nation States - Independent of each other and of Britain.

 

            The Process  of colonisation was started by a private British Company, Royal Niger Company, followed by the creation of the Oil Rivers Protectorate, (1891-93) and the Niger Delta Protectorate (1895), all based on the Commercial convenience of the British Traders.  The British Government established these Protectorates, for its own political and economic interests (namely to stop the French and Germans from extending their sphere of influence and authority to those areas and to promote British trade).

 

            The establishment of the Protectorate of Southern Nigeria and the Colony of Lagos and the Protectorate of Northern Nigeria, were based on British administrative and economic convenience, and not in the interests of the colonised peoples, who were not even consulted.

 

            Most ridiculous and humiliating of all was the true reason for the amalgamation

of the Southern and Northern Protectorates.  The British were not out to create a big black state as a testimony of their crusading genius.  NO.  They were spending British

tax payers' money in administering the North, which was not economically viable.  So they decided that the only way for them to cut their losses, was to amalgamate the North with the South and transfer money from the economically buoyant South, to run the North.  That was the sole reason for the amalgamation of the two incompatible parts of Nigeria.  Ralf Nwokedi made the following interesting revelation in his book Revenue Allocation and Resource Control in Nigerian and Federation[3]

 

“Of special interest also are facts relating to the financial positions of the North and the South on the eve of amalgamation being to some extent reversed in the source of the preceding thirty-two years.  As a matter of fact, the Phillipson Report disclosed that from 1906, when Southern Nigeria and Lagos became one Administration, the financial resources of the South had increased “with astonishing rapidity” whereas the North “largely dependent on the annual grant of the imperial government was barely able to balance its budget with the most parsimonious economy of native administration and revenue resulting from direct taxation.”

 

The Report further revealed that the North had received grants from His Majesty’s Government of Great Britain (the colonial masters) averaging 314, 500 Pounds for the eleven years ending March, 1912.  The revenue accruing to the North from customs dues as compared with that accruing to the South from this source was derisory.

 

It was thus for the purpose of relieving the burden on the colonial government of the dependence of the North on its financial grants and to tap the abundant financial resources of the South to offset the deficit incurred in running the Northern Administration, and also defraying the cost of the central government, that the colonial government introduced the process of Amalgamation.”

 

            The implication of this arrangement was that the North had to have power over the whole country in order to continue to appropriate the resources of the South, for the benefit of the North.  The British therefore ensured the political domination of the North by rigging the first census for the North in 1952, and with power in the hands of the Arewa North the census 'arrangement' has been maintained in all successive censuses since 1952, namely 1962, 1963, 1973, and 1991.  This enabled the Northern Delegates to insist successfully at the 1950 National Conference that the North should have at least 50% of the seats in the central legislative chambers of Nigeria.[4]

 

 

 

4.         The Meaning of Federalism

 

            To return to the issue of Federalism, the very nature of the country in terms of diversity of its peoples, the size of the Country, their separate histories, cultures etc. made some form of Federalism, inevitable.

 

            In 1947, the late sage, Chief Obafemi Awolowo, made the following observation:

"Nigeria is not a nation.  It is a mere geographical expression. There are no 'Nigerians' in the same 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.[5]

                       

            Not only was this statement absolutely correct, it is even more accurate about today's Nigeria than the Nigeria of the 40s.  Inter-ethnic intolerance which has become chronic, confirm that we are a country of many mutually distrustful nations, as is evident from the clashes we have experienced since the return of civil democratic rule in 1999.  There is clearly a need for the Nigerian nationalities as represented by states and zones to enjoy separate and autonomous existence, whilst uniting with each other through a Federal Government exercising some basic powers, and running some common services.

 

            Federalism is an arrangement whereby powers within a multi national country are shared between a federal or central authority, and a number of regionalised governments in such a way that each unit including this central authority exists as a government separately and independently from the others, operating directly on persons and property with its territorial area, with a will of its own and its own apparatus for the conduct of affairs and with an authority in some matters exclusive of all others.  In a federation, each government enjoys autonomy, a separate existence and independence of the control of any other government. Each government exists, not as an appendage of another government (e.g. the federal or central government) but as an autonomous entity in the sense of being able to exercise its own will on the conduct of its affairs free from direction by any government.  Thus, the Central government on the one hand and the State governments on the other hand are autonomous in their respective spheres.

 

            As Wheare put it, "the fundamental and distinguishing characteristic of a federal system is that neither the central nor the regional governments are sub-ordinate to each other, but rather, the two are co-ordinate and independent".^[6]  In short, in a federal system, there is no hierarchy of authorities, with the central government sitting on top of the others.  All governments have a horizontal relationship with each other.  Thus there can be no federalism under military rule. 

 

Nwabueze, has identified the following additional characteristics in a federal system.

i)          The power sharing arrangement should not place such a preponderance of power in the hands of either the national or regional government to make it so powerful that it is able to bend the will of the others to its own.

 

ii)         Federalism presupposes that the national and regional governments should stand to each other in a relation of meaningful independence resting upon a balanced division of powers and resources.  Each must have powers and resources sufficient to support the structure of a functioning government, able to stand on its own against the other.

 

iii)        From the separate and autonomous existence of each government and the plenary character of its powers within the sphere assigned to it, by the constitution, flows the doctrine that the exercise of these powers is not to be impeded, obstructed or otherwise interfered with by the other government, acting within its own powers.^[7]

 

5.         The 1951 Constitution

 

            In 1939, Southern Nigeria was broken into 2, Eastern and Western Nigeria.  The 1945, Richards Constitution, which came into effect on 1st January 1946 established a Central Legislative Council, and regional ones for the North, East and West.  The new central legislature was constituted by the Governor as President, 16 official and 28 non-official members.

 

            The Regional Houses were not competent to legislate, even for their own Regions.  They could only consider bills affecting their Regions and make recommendations or pass resolutions for the central Legislature in Lagos to consider.  Only the latter could pass Legislation. It is thus clear that although Nigeria was split into 3 Regions with their separate Legislatures, in addition to the Central Legislature in Lagos, the Country was still effectively governed as a Unitary State, with all the powers concentrated in the hands of the Governor and the Central Legislature over which he had total dominance.  The first real change since 1914 did not come until the Macpherson Constitution of 1951 took effect, although under it, the Federal Government was still empowered legally to override the Regional Governments in all matters.  This impediment to the Federalism was not removed until the introduction of the Lyttleton Constitution in 1954.

 

            The 1951 Constitution however, was the one that really introduced fundamental changes into the Imperial/Native relationship and the relationship between the Native Nigerian groups themselves.  The following points need to be noted.

 

            The 1951 Constitution came into being after an unprecedented process of consultation with the peoples of Nigeria as a whole.  In accordance with the directives of the Central Legislative Council, meetings and consultations were held at (a) village,

(b) district, (c) divisional  (d) and provincial levels before the (e) regional and finally

(f) the national conference.

 

            The reports of each region from village to the regional level were then submitted to the legislative Council. These reports and recommendations were published in October 1949 and reviewed by a drafting committee of the Legislative Council.

 

            On 9 January 1950 a General Conference of representatives from all parts of Nigeria started meeting in Ibadan to map out the future system of Government in Nigeria with the recommendation of the Regional Conferences as the working documents.

 

            The General conference was composed of 25 unofficial members drawn from the earlier regional conferences as representatives of the three regions, 25 unofficial members from the Nigerian Legislative Council, 3 official members and the non-voting Chairman who was the Attorney-General of Nigeria. The Conference rose on 29 January 1950 with recommendations, which were accepted and implemented by the Governor of Nigeria.

 

            The new Constitution represented a major advance on the existing state of

legislative competence of Nigerians by (i) introducing elected majorities in the Central Legislature and (ii) in the Regional Houses of Assembly (iii) endowing the legislative Houses with independent legislative power in many areas of state activity (iv) and establishing a Federal system for Nigeria for the first time.

 

            In his book, History and Law of the Constitution in Nigeria,^[8] the late Dr. Udo Udoma in his discussion of the 1950 Conference and the 1951 Constitution that arose from it stated that;

            "In this regard, the Conference made a strong case for the devolution of increased    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, by the Regional Conferences.  It was pointed out that under the Constitution of 1945, which the Conference was reviewing, the legislative functions of the Regional Legislatures were purely advisory and that the position was unsatisfactory; that the need for greater regional autonomy had become apparent; that in the realms of legislation, finance and initiation of policy members of the regional legislatures had in practice shown themselves anxious and capable of assuming and exercising responsibilities far beyond the limits prescribed under the 1945 Constitution."

           

            By way of emphasis, the General Conference then noted that "we have no doubt

at all that the process already given constitutional sanction, and fully justified by

experience, of devolution of authority from the Centre to the Regions should be carried

much further so that a federal system of government can be developed.

 

From the statement set out above, it is quite clear that the General Conference was obviously thinking in terms of creating a Federal structure of government for Nigeria comprising of two-tier system whereby the Central Government already vested with all the power in a unitary system of government would be made to devolve certain well defined powers to the Regional Governments set up in each of the three Regions.

 

            It should be noted that the North made it a condition for continuing to be part of Nigeria, that at least 50% of the seats in the Central legislature should be allocated to it.  Thus the political lopsidedness of the Federation was introduced by this concession.

 

            As a result of a series of constitutional conferences held in London and Lagos in 1953, 1954, 1957 and 1959, the 1960 or independence Constitution emerged.  It represented the outcome of the sustained negotiations after the 1950 National Conference, although, participants this time were the leaders of the political parties in power in the 3 Regions and at the Centre. 

 

            It can thus be said that the period 1950 to 1959 represented a 10 year period of negotiations between the major stakeholders in the Nigerian project and that what they finally arrived at in the form of 1960 Constitution was, subject to minor, non-structural modifications, the only legitimate basis of association of all the different nationalities in Nigeria.

 

 

6.         The Independence and Republican Constitutions (1960 and 1963)

 

            One important feature of the 1960 Constitution is the extensive powers granted the Regions, making them effectively autonomous entities and the revenue arrangements which ensured that the regions had the resources to carry out their immense responsibilities.

           

Under the 1960 and 1963 Constitutions, a true federal system made up of strong States or Regions and a Central or Federal 'state' with limited powers, was instituted.  Both the 1960 (Independence) Constitution and the 1963 (Republican) Constitution were the same.  The only differences were the provisions for ceremonial President (1963) in place of the Queen of England (1960) and the judicial appeals system which terminated with the Supreme Court, (1963) rather than the judicial Committee of the British Privy Council (1960).

           

The following Features, which emphasised 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.

 

            Thus apart from items like, Aviation, Borrowing of moneys outside Nigeria, Control of Capital issues, Copyright, Deportation, External Affairs, Extraction, Immigration, Maritime Shipping, Mines and Minerals, Military Affairs, Posts and Telegraphs, Railways, all other important items were in the concurrent list, thus permitting the Regions equal rights to legislate and operate in those areas.  The most significant of these included; Arms and Ammunition, Bankruptcy and Insolvency, Census, Commercial and Industrial Monopolies, Combines, and Trusts, Higher Education, Industrial Development, the regulation of Professions, Maintaining and Securing of Public Safety and Public Order, Registration of Business Names, and Statistics.

 

            It is important to observe once more that anything outside these two lists was exclusively a matter for Regional jurisdiction.  Other features indicative of the autonomous status of the Regions included;

            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 elections.  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 will be observed that Mines, Minerals, including Oil fields, Oil mining, geological surveys and gas were put in the exclusive legislative list in the 1960 and 1963 Constitutions.  This was a carry over from the provisions of the 1946 Minerals Act, under which the Colonial Government gave itself the exclusive ownership and control of all minerals in Nigeria.  This was understandable under a Colonial Regime whose objective was the exploitation of the colonised peoples, but certainly not acceptable in an independent country constituted by autonomous Federal Government and Regions.  It is therefore not surprising that what was lost by placing mines, minerals, oil fields etc. in the Exclusive Legislative List, was regained by the very strict adherence to the principle of derivation in the revenue allocation formula, particularly, the allocation of the proceeds from mineral exploitation.

 

 

7.         Resource Basis of the Regions

 

            The Regional Constitutions, in the 1960 and 1963 Constitutions described each Region as "a self-governing Region of the Federal Republic of Nigeria".^[9] 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.

 

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 (6)

            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.

 

           

8.         The Niger - Delta and the Constitutions

            It is obvious from what has been said so far, that the Niger-Delta and its resources were not featured separately or specifically in the constitutional developments, or the Constitutions up till the end of the first Republic in January 1966.

           

            The Willink Commission of 1958 presented the only opportunity for dealing with the special condition and situation of the minorities, including that of the Niger-Delta

peoples before independence in 1960.  Unfortunately, the recommendation of the Commission was less than cosmetic, and even that was less than half heartedly implemented by the Federal and Regional Governments which were under the firm control of the majority ethnic nationalities.

           

            At the Constitutional Conference of 1953, it was agreed that Nigeria should be a Federation of three Regions, the Northern, Eastern and Western Regions.  In each of these Regions, there was a majority ethnic group, consisting of about two-thirds of the population and minority ethnic groups constituting about one-third of the population.

 

            When the 1954 Conference resumed, some of these minority groups expressed fears about domination and marginalisation of their peoples by the main ethnic groups in each Region and demanded the creation of new states for themselves.  These included the Midwest State movement in the West, the Calabar, Ogoja and Rivers State (COR) movement, in the East and the Middle Belt State movement in the North.

 

            Regarding the Niger-Delta area, the indigenes, specifically the Ijaws made a strong case that their territory was swampy, hostile, difficult, and neglected and that their difficulties were not appreciated or understood by the majority groups (Ibo in the East and Yoruba in the West) who controlled the Governments at Enugu and Ibadan.

 

            It is common knowledge that for innumerable reasons put forward by it, the Willink Commission did not recommend the creation of a single new State but rather naively recommended the inclusion of human rights provisions in the 1960 Constitution as a solution to the fears of the minority ethnic groups.^[10]

 

            On the issue of minorities in the Niger-Delta specifically, the Commission refused to recommend the creation of a new state although it recognised the peculiar problems of that part of the country.

 

            It recommended instead the establishment of a special Board by the Federal Government with representatives from the Eastern and Western Regional Governments to deal with the developmental problems of the area.  The relevant portion of the Report states as follows:-

"We were impressed, in both the Western and Eastern Regions, with the special position of the people, mainly Ijaw, in the swampy country along the coast between Opobo and the mouth of the Benin River.  We were confronted, first, with their own almost universal view that their difficulties were not understood at headquarters in the interior, where those responsible thought of the problems in quite different physical forms from those they assumed in those riverain areas; secondly, with the widespread desire of the Ijaws on either side of the main stream of the Niger to be united.  We cannot recommend political arrangements which would unite in one political unit the whole body of Ijaws; we do however consider that their belief that their problems are not understood could be largely met without the creation of a separate state which we have rejected for the reasons mentioned elsewhere.

 

This is a matter which requires a special effort and the co-operation of the Federal, Eastern and Western Government; it does not concern one Region only.  Not only because the area involves two Regions, but because it is poor, backward and neglected, the whole of Nigeria is concerned.  We suggest that there should be a Federal Board appointed to consider the problems of the area of the Niger Delta.  In this we would include the Rivers Province without Ahoada or Port Harcourt and would add the Western Ijaw Division.

                                    We suggest that there should be a Chairman and Vice-Chairman        

appointed by the Federal Government, one representative of the Eastern Region Government and one of the Western Region Government, preferably Ijaws, together with four representatives of the people of the areas, who might conveniently be one from the Western Ijaws and three from the Eastern Ijaws, who would be chosen by local bodies.  We think

that the members of this Board should be appointed for, say, five years in the first place.  It should be concerned to direct the development of these areas into channels which would meet their peculiar problems."^[11]

 

            Reference was made to the Ijaws alone in the Report but other Niger Delta minorities, namely the Effiks, Ibibios, Anangs, Itsekiri, Isokos, part of Urhobo land, and the Ilaje area in the present Ondo State, and the coastal areas of Akwa Ibom and Rivers States must be included in the special area.

 

            As is well known, a Niger-Delta Development Authority with Headquarters in Port Harcourt, was subsequently set-up.  The body achieved nothing because the Federal Government did not give it the funding and powers necessary to do its job, and it died ignominiously with the first Republic.

           

            Typical of the ploy of the majority ethnic groups that control the Federal Government, when the Shagari Government come in 1979, the purpose of the Niger-Delta Development Board (NDDB) was defeated, when a River basin authority was constituted for every stream in every nook and corner of the country.  These became avenues for greedy politicians to siphon of the annual allocations of these River Basins for themselves, without any attempt at disguising their action.  So at the end, there was no special area anymore.  Every area was special.  Another dream of the peoples of the Niger-Delta had died.  Indeed since the Willink Commission the following federally controlled agencies and Reports have been thrown at the “Niger Delta Problem” with deleterious consequences. 

 

            The common factor in all these agencies is that power, control and decision making vests on persons (the Prime Minister of President) at the Federal level and not with Niger Deltans – a latter day form of internal colonialism.

 

“1960 - Niger Delta Development Board (NDDB)

 

1970 - River Basin Development Authority (this was to develop the entire country’s River Basins)

 

1993 - Oil Mineral Producing Area Development Commission (OMPADEC) following report of Belgore Commission.

 

1998 - Maj. Gen. Popoola Committee formed by Head of State, Gen. Abdusalam to look into the problems of the Niger Delta.  Report was not implemented.

 

2000 - Act of the National Assembly forming the Niger Delta Development Commission (NDDC)

 

2002 - Lt. General Alexander Ogomudia Special Security Committee Report on Oil Producing Area – Not Implemented.

 

2003 - Presidential Committee on Peace and Reconciliation headed by Maj. Gen. A Mohammed (rtd.), chief of Staff to the President.

 

April 2004 - Standing Committee on Good Governance and Corporate Responsibility headed by Dr. Edmond Daukoru, Minister of State for Petroleum.

 

July 2004 - Presidential Standing Committee on the Niger Delta headed by Gov. James Ibori of Delta State.

 

18 of April 2006 - 50-member Consolidated Council on Social and Economic Development of Coastal States of the Niger Delta.”[12]

 

 

9.         Unitary Constitutions and Centripetal Developments: 1967-99

 

            With the military take-over in January 1966, centralisation of governmental powers, followed centralisation of command.  General Gowon who was military Head of State from August 1966 to July 1975 was mainly responsible for this development. It was under Gowon's government that the Regions, later States, became systematically emasculated.

            Apart from various individual Decrees, the very first Decree issued by every successive military regime usually destroys the foundations of Federalism. Thus Sections 3 and 4 of Decree number 1 of 1966 state as follows:

 

            1.         The Federal Military Government shall have power to make laws for the Peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.

 

            2.         The Military Governor of a Region:

 

                        a)         shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and

                        b)         except with prior consent of the Federal Military Government, shall not make any law with respect to any matter included in the Concurrent   Legislative List.

 

            3.         Subject to subsection (2) above and to the Constitution of the Federation the Military Governor of a Region shall have power to make laws for the peace, order and good government of that Region.

           

            Thus the first Federal Military Government, completely undermined the Federal status of Nigeria by giving itself the power to make laws for the peace, order and good government for the whole of Nigeria with respect to any matter whatsoever. It is as if the Regions or later states did not exist.

 

            The matter reached its apogee in the Abacha era, when by Decree 12 of 1994 the Federal Military declared itself as being established "with absolute powers to make laws for the peace, order and good government of Nigeria or any part thereof (including of course all the States) with respect to any matter whatsoever"

 

 

10.       1979 and 1999 Constitutions

 

            The 1979 and 1999 Constitutions, maintained the trend towards centralisation, even though they were made "by the people" for the operations of a democratic and federal system of government.  Thus instead of the 45 items in the Exclusive Legislative list as in the 1960/63 Constitutions, there were 66 items in the 1979 Constitution and 68 in the 1999 one.  Basic State matters like (i) drugs and poisons, (ii) election of State Governors and State Houses of Assembly (iii) Finger print identification and criminal records (iv) Labour and trade Union matters, (v) meteorology, (vi) Police, (vii) Prisons, (viii) Professional Occupations, (ix) Stamp duties (x) taxation of incomes, profits and capital gains, (xi) the regulation of tourist traffic, (xii) registration of business names, (xiii) incorporation of companies (xiv) Traffic on Federal Truck roads passing through States, (xv) Trade and Commerce and census, were transferred from the concurrent to the exclusive List.

 

 

11.       The Expropriation of the Natural Resources

of the Niger-Delta Minorities           

 

            This unitary absolutism in the political sphere has been complemented by unitarism in the economic sphere since 1966.  Thus by the Petroleum Decree (No. 51)

of 1969, the Federal Military Government declared that the entire ownership and control of all petroleum resources in, under or upon any lands in Nigeria was vested in itself.  Section one spells out in detail, for the avoidance of any doubt, the type of territory covered by this exclusive Federal Government ownership. These are, all lands in Nigeria. (including land covered by water) land under Nigerian territorial sea and land forming part of our continental shelf.

 

            Ownership of Minerals by the Federal Government is thus absolute. Not only are individuals on or under whose land minerals are found denied any right to them, so too

are mineral producing communities, local government areas and states.  What could be the basis and justification for this wholesale expropriation of the properties of peoples, communities and stage governments?

 

            It should be noted that it was the Colonial Government which claimed ownership of all mineral resources in Nigeria under the 1946 Minerals Act.  Whilst this was understandable on the part of a predatory colonial Government, this is intolerable in a free democratic and Federal Republic.  A unit of Government cannot exercise oppressive colonial authority over autonomous federating units.

 

            It should be noted that the Federal Government's assumption of absolute ownership of all minerals in Nigeria's land and maritime territory was progressive.  The claim to absolute and total ownership of all minerals, no matter where found or located only reached its climax in 1971.  Thus by section 140(6) of the 1963 constitution, for the purposes of exploitation of minerals, including mineral oil, the continental shelf of a region was deemed to be a part of that region.  But by offshore oil Revenue Decree 1971 (No. 9 of 1971), the rights of the regions (states) in the minerals in their continental shelves were abrogated and ownership and title to the territorial waters, continental shelf as well as royalties, rents and other revenues derived from or relating to the exploration, prospecting, or searching for, winning or working of petroleum from these seaward appurtenances of the states became vested in the Federal Government.

 

            This has been repeated in all subsequent constitutions.  Thus in Section 40(3) of the 1979 constitution (repeated in section 44(3) of the 1999 Constitution) it is stated as follows:

 

            "Notwithstanding the foregoing provisions of this Section, the entire property in and control of all minerals, mineral oils and natural gas, 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 is not only contained in the human rights chapter of the constitutions, but more specifically in the subsection protecting the right to property.  Thus every Nigerian is entitled to own property with the exception of the people of the Niger Delta just because of their oil and gas.

 

            The Shagari Government (1979-83) initially 'conceded' one and half percent of oil proceeds as against fifty percent in the negotiated independence and Republican constitutions, to the oil producing States.  Later this was increased to three percent by the Babangida Government, which established, the Oil Mineral Producing Areas Development Commission (OMPADEC).

 

            It is conceeded of course that section 162(2) of the 1999 Constitution makes provision for at least 13% of the proceeds derived from natural resources being paid the producing state.

           

            However 13% cannot be compared with 50% and a proportion of another 30% provided for under the 1960/63 Constitutions. Moreover, the so-called 13% was paid with effect from January 2000 rather than from 29th May 1999, and off-shore production had been illegally excluded from the 13%, until February 2002.  Even the Abrogation of the On-shore/Off-shore Dichotomy Act, only brings a tiny proportion of the continental shelf into the derivative principle.

 

            Even a superficial political analysis of the situation, will reveal that the fate of the mineral resources of the Niger-Delta minorities, particularly the trend from derivation to Federal absolutism, is itself a function of majority control of the 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), Rubber, Palm Oil and Palm Kernel in the Midwest and Timber in the Midwest and present Rivers State.  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 group in control of the Federal Government at any point in time.