Introduction
Federalism
is the theory or advocacy of federal political orders where a final authority
is divided between sub-units and a centre. Unlike a unitary state, sovereignty
is constitutionally split between at least two territorial levels so that units
at each level have final authority and can act independently of the others in
some clearly designated areas. In the words of Nwabueze B.O.
Federalism presupposes that the national and regional government should
stand to each other in a position in relation of meaningful independence
arresting upon a balance division of power and resources1.
If
federalism is predicated on “autonomy
and independence” then its major problems lies in how to successfully allocate
power between the central and the component units and among the component units
so as to ensure equality of power
resources and independence, providing for their respective autonomy,
independence and non-interference by
either of the different levels of government.
The
issue of autonomy in the sphere of resources especially as it relates to
natural resources which includes independence in the management of same have
remained contentions in the relationship between the component units of most
federal states. This has directly impacted on their stability and unity. In Nigeria
militancy, kidnapping, oil bunkering with its attendant fatalities and
secession threat have all been directly associated with the contention over ownership
and management of natural resources.[1]
Federal
constitutions usually provided for resource ownership as well as its management
and distribution. While advance federations vest ownership and management of
most natural resources on the components units (states) of the federation, the
opposite has been the case in some developing federations like Nigeria. These differences
have been attributed to the mode of federating of these states. In the opinion
of Nwabueze, the extreme dependence of the state government on federally
collected revenue is as a result of the fact that Nigerian federalism evolved out
of an existing unitary state which merely devolved or surrendered part of its
power to a constitutionally created government units. It is his argument that
had the federation been formed by the coming together of an existing independence
states, the sub-units would have retained their respective resource autonomy as
they would not have surrendered their respective control over their individual
national resources2.
On
the other hand, other writers have traced the nature of Nigerian federation not
on the mode of federating but to the unequal relationship of the group to state
power with respect to the majority-minority dichotomy. To these writers,
Nigerian federation have remained as it is purely due to political reasons; to
maintain the marginalization and domination of the minority groups. Nwauche
E.S. adopted this argument when he quoted Kimse Okoko on the unequal nature of
Nigerian federal structure and why it has remained so:
…it is federalism
that has grown so insensitive to the political and socio-economic right of
minorities so much so that all the political calculations therein are based on
the need to sustain the tripodal hegemony of the three dominant ethnic groups.3
________________________________
2 Opcit
3 Cited
in Nwauche E.S. Ownership and Control of Mineral Resources; Minorities and
Human Rights in Federations. The African
Charter on Human and Peoples’ Rights,
The Nigerian Example and Comparative Lessons. (Port Harcourt Jite Books 1998)
p. 19.
Whatever is the cause
of the nature of Nigerian federalism, the question remains, to what extent can
resources especially natural resources be allocated to accommodate the very ideals
of federalism as well as carter for the rights and claims of the communities
whose land these natural resources are produced.
Our objective in
this paper is therefore to critically appraise the singular issue of resource ownership
and management in the context of Nigerian federalism. The paper will highlight
briefly the constitutional provisions of some selected African states as well
as those of advanced federations as regards the issue of resource ownership and
management.
For clarity and
objectivity, resources hereunder discussed are restricted to natural resources.
The paper will finally make recommendation for improvement toward true
federalism in Nigeria.
THEORETICAL CONCEPT
We
shall hereunder briefly define some base concept s that you will find recurring
in this paper. Such concepts are federalism, natural resources as well as the
concept of ownership and management of resources.
i. FEDERALISM
The
term federal is derived from a latin word ‘Foedus’, meaning covenant. It is
believed to have been coined by the Bible centred federal theologians of the 17th
century Britain and New England. In his essay on perpetual peace Emanuel Kant
explains the origin of the word ‘federal,’ according to Kant;
Federalism from the latin words ‘Foedus’ means contract, pact, treaty or
convention; it implies an agreement, thanks to which one or more heads of the
family, one or more local communities, one or more groups of communities or
states commit in equality, themselves and each other to achieve one or more
particular objectives4.
The common characteristic
of a federation is therefore the existence of (formally) independent political
entities which has come together as one while still retaining their individual
peculiarities.
A modern federal
state is one in which there is a central authority that represents, the whole
and act on behalf of the whole in eternal affairs and in such internal affairs as
are held to be of common interest and which there are also provincial or state
authorities with powers of legislations and administration within the sphere
allotted to them by the constitution5.
Thus two or more
levels of government may be created within a political unit such that there
will be a central government as well as component units with a constitutionally
shared powers, resources and functions between them so as to ensure operational
independence and autonomy in respects of matters concerning each.
While federal
theorists seems to agree on this fundamental division of powers and sphere of autonomy
in a federation by a constitution, they however disagree on the extent of
powers to be allocated and the relationship between the different levels. This disagreement
might have influenced the mind of the learned J.S.C, Niky Tobi when he stated,
_________________________
4 Stephen Woodard “The simple guide to the federal idea; in federalism and politics,
in Ventotene papers of the Allievo Spinella Institute for federal studies 1995.
5 See Appadorai, the substance of politics, (New York Oxford
University Press) 1968 p. 495.
…there is no universal agreement as to what
is a federalism or a federal government. Definition of words, including
federalism or federal government by their nature, concept or content are never
fully accurate all the time, like a mathematical solution/problem. Definitions are
definitions because they reflects the idiosyncrasies, inclination, prejudices,
states and emotions of the persons offering them…6
The learned J.S.C have however been criticized for reducing the word federal
to a concept without a specific meaning.7
Contrary
to the conclusion of the learned J.S.C, federalism has a distinct meaning and
characteristics. Federalism is an agglomeration of coordinate component
authorities with each exercising the powers allotted to it in a manner and
within the confines of the constitutional prescription. The constitution itself
being the source from which the central government and the government of the
component units draw their life none can terminate the existence of the other
and none can unilaterally change or modify or amend the constitution or any of
its provisions thereof. Of course any amendment must necessary be effected in
accordance with such process specifically provided in the constitution itself8.
Disagreement over the extent of powers and functions to be allocated or shared
does not in any way undermine the basic principle and feature of federalism.
B What
are Natural Resources?
The
Nigerian supreme court adopted the definition of natural resources by the Blacks
Laws Dictionary9 the supreme court defined natural resource thus:
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6 Olafesoye
V. Federal Republic of Nigeria
(2004) 4 NWLR (pt 864) 580
see pp 647-649.
7 Nwabueze, B.O. How President Obasanjo Subverted Nigeria
Federal System; (Gold Press Ltd. Ibadan 2007) p. 65 see also Sagay I.E’ . Nigeria.
The unfinished federal project; being lecture delivered in honor of late
justice Idigbe at University
of Benin. Benin City on Wednesday
April 30, 2008.
8 Nwabueze B.O. Nigeria
under Presidential Constitution opcit
9 6th edition
Any material in the native state which when extracted has economic
value. Timberland, oil and gas, wells, ore deposits and other products of
nature that have economic value. The cost of natural resources is subject to
depletion, often called wasting assets. The term includes not only timber, gas
oil coals, minerals, lakes and surbmerged lands but also features which supply
a human need and contribute to the wealth, welfare and benefit of a community
and are essential to the wellbeing thereof and proper enjoyment of property
devoted to park and recreational purposes. Oil, natural gas and coal come
within this definition but not … port wharves, mangoes, livestock hides and
skin, horns groundnuts, beans, grains, pepper, cotton and gum, Arabic mangoes,
livestock etc are no natural resources but agricultural products10.
The Webster’s New Twentieth Century Dictionary11
defined natural resources as “those natural and potential forms of wealth
supplied by nature as coal, oil, water, power, arable land etc.
Natural
resources therefore include something such as land, minerals or natural energy that
exists in a country and can be used to increase its wealth. While mineral
resources are within the meaning of natural resources, natural resources are
wider and include other substance not within the meaning of minerals12.
Note also that agricultural products are excluded from the definition of
natural resources. This might be due to the depleting nature of natural
resources. While agriculture products continue to exist as new ones are planted
by man, natural resources cannot be replenished. Natural resources therefore
include forests, water ways, mountains, hills, wild life, vegetation and even
cash crops in the wild etc.
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10
Per Ogundare JSC in Attorney General of the Federation V. Attorney General Abia
and 35 supra 609
11 Unabridged, 2nd edition, delue colour
12 For the legal
meaning of Minerals Act, cap 226 LFN
Natural resources are
not man made, they are rather provided by God (nature) in its original state.
What man does is to convert it to a useful; state for man’s benefit and
consumption. Natural resources are not like agricultural product or other
resources that came into existence by man’s effort, it is not planted nor manufactured
by man and that explains the tussle over who owns, manages or controls it.
Should it be those who by circumstances of nature found themselves living with
these resources? Is it those who through
state apparatus have appropriated it to themselves? The former claimed that it
is provided to them by God (nature) while the later relied on the over-reaching
power of the state. What does ownership and control of these natural resources
constitutes.
The theory and concept of ownership and management of natural resources
Traditionally
ownership is defined as the right of enjoying or disposing of a thing in the
most absolute manner. In practice however, this right is often limited in some
way or another. Ownership is composed of the following rights;
1. The power of enjoyment, to determine the use to which the
thing is to be put, to deal with, produce or to destroy it as the owner
pleases,
2. The power of possessing which include the right to exclude
others.
3. The power to alienate and
4. The power to charge as security
An owner may grant
to another person any or all his right for a stipulated time period and still
remain an owner.
The concept of
ownership of natural resources lies in the identification of the body or group
of whom natural resources are vested. On the other hand resources management refers
to the body vested with the responsibility of ensuring that natural resources
are wisely utilized and conserved.
The use of natural resources often raises
conflict among individuals and groups with special interest in the resources.
Conflicts may arise among industrial users of forests, minerals, and fish, the recreation
industry which depend on lakes, streams and forests, and naturalists who advocate
wilderness and wildlife preservation and conservation. There is also the very
important need of using the resources in such a way to ensuring sustainable
development, the need for resource preservation as well as the need to
harmonize the claims of native dwellers and settlers who make claim over those
natural resources therein. All these conflicts and others require careful
management strategies such that governments seem to be the most suitable body
adapted to these functions.
On
the other hand, those who advocate community control over natural resources are
of the opinion that nature can never be managed so well unless the people
closest to it are involved in its management. These set of advocates argues
that common natural resources were earlier regulated through diverse and
decentralized community control systems, and therefore demands in return to the
status quo.
Under
the Nigerian legal system, both ownership and management of natural resources
are vested on the federal government13. The implication of this on
the Nigerian polity we shall consider hereunder.
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13
Item 39(1) of the Exclusive Legislative List, sec 44(3) of the 1999 CFRN.
Federal Government Ownership and Management of Natural Resources are
National Stability
The
ownership and management of natural resources especially mineral resources by
the federal government have never been accepted by all Nigerian without
opposition. Indeed the period of oil boom in Nigeria in the seventies and its
attendant damage and neglect of the oil mineral producing communities led to a
high degree of resentment by the people. Different forms of resentment had been
manifested against the federal government in different forms as the communities
demands that ownership and management of these resources be vested on them to
enable them carter for the resultant consequences of degradation and pollution
of their environment. In 1958 the British government set up a Minority
Commission, to investigate the fear minority, unfortunately the commission
found the allegation of discrimination, victimization and oppression made by the minority tribe as unfounded and
exaggerated. The commission nevertheless recognize the genuineness of their
fear and therefore recommended the certain safeguards which included the
centralization of the police force, a constitutionally guarantee of rights,
establishment of a development board to advanced on the physical development of
Niger Delta among others. Other
commissions set up subsequently were disfavourable to the mineral producing communities
as they upturned the previous 100% derivation to 50% arguing that allowing the
then eastern region to retain 100% derivation would upset the balance of
national development and would give the eastern region “a source of income too
sizeable to ignore”14
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14
Subsequent military
regimes created a momentum to this agitation as they tinkered more with the
derivation principle against the oil producing states. The 1990’s witnessed a
rise in militancy as spear headed by the Movement for the Survival of Ogoni People
(MOSOP), Movement for the Emancipation of Niger Delta (MEND) and others. The inhuman
executing of Ken Saro Wiwa and other activist rather than quell the resentment
gave same a momentum as Niger Delta became a “war zone” with oil bunkering,
kidnapping and adoption of expatriates.
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There
is no doubt that for those from the area where natural resources are derive,
the desire to get access to the resources and the frustrations over lack of
local control and benefit from the resources bring them into conflict with
themselves, the exploiters, and the state. This conflict has been observed17
to follow a predicable pattern as follows:
1. Land over which this people have ancestral ties and most
times under effective cultivation are allocated to companies without
consultation with the communities;
2. The people protest to and make demand on the company and the
company makes promises of compensation and other enticement.
3. The promises are unfulfilled and nothing is done to meet
their demand and local people take action sometimes confiscating equipment,
occupying company site, preventing company staff from working.
4. The company hires local thugs or the military or the police
or call in the government who sends troops;
A vicious cycle
of violence ensues as violence on the part of authority and security personnel beget
more violence and lawlessness.
The Predictable response of government
by unleashing superior violence is often justified publicly on the basis of
threats to national security. This conceptualization of national security is
not only faulty but fictitious.
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Resources Ownership and Management in some other Jurisdiction
The
right over natural resources including the right of exploration and
exploitation of same for the benefit of the public are found either at common
law or under the constitutions or other statutory regulations of most
countries. Three approaches have been commonly adopted by different states. One
is to vest resources in the state, the second is to vest same with individual
land owners with a right to the government to appropriate and expropriate them
on payment of fair and adequate compensation. The third is the adoption of both
public and private ownership where resources in certain areas are exclusively
reserved for the state whereas others outside the state owned area may be
privately own.
States
that belong to the first category include Angola,
Algeria, Ghana, Equatorial Guinea, Nigeria etc. Canada would have been a good example from an
advanced federation except that in the case of Canada such ownership is vested on
the component state of the Canadian federation18.
On
the second category Botswana,
Burkina Faso, Gabon
are examples of African countries. Under this category government can only
compulsorily take possession of such natural resources where such taking of
possession or acquisition is necessary or expedient in order to secure the
development or utilization of such resources and provision must have been made
for prompt compensation19.
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Ownership and Management of Natural Resources in Nigeria – the way forward
Having concluded
our voyage into what federalism is as well as the ownership and management of
natural resources in other jurisdiction, we can confidently submit that
federalism is not in any way adverse to the ownership and management of natural
resources by a sub-unit of a federal state. It is also not against community
control of natural resources. In fact federalism is the only form of government
that allows a sub-unit of the state to own and manages its resources without
interference from the federal government. Federalism entails not only a
constitutionally shared obligation; it includes constitutionally shared powers
of control and management of resources. In the words of the renowned
federalist, KC Wheare, there should be no financial subordination ‘in fact
financial subordination makes an end of federalism”22.
The Nigerian Supreme
Court seemed to have accepted this argument when the court stated
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The independence required is not just independence with
regard to power to regulate and execute such matters. It requires in addition
independence with respect to resources or means necessary for the performance
of its legislative and executive functions. According to Nwabueze B.O. a
government invested with independent governmental power over certain matters
with no independent resources for carrying such functions has no real
independence24.
It
is however important to state that the mere fact that Nigerian constitution
adopted federalism is not conclusive fact that all theoretical doctrines of
federalism will apply in Nigeria.
The same Supreme Court has described the principle of autonomy and non
interference as mere “ideals to follow or guidance for an ideal situation”25.
What this therefore means is that federal principle can only apply in Nigeria
to the extent allowed by the constitution.
The 1999 constitution have therefore
provided for certain federal features26 the principle of financial
autonomy was not adequately provided, therefore at the ending of every month
each state government in Nigeria
has to wait for its own share of the federal allocation from the federation
account. In recent times, the accountant general of the federation has had
cause to withhold the allocation accruable to some states of the federation on
the instruction of the federal government. The provisions of the 1999
constitution are therefore an impediment to the demand for ownership and
management of natural resources by the mineral producing states and
communities.
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Exploration of human or natural resources in
any form whatsoever for reasons other than the good of the community shall be
prevented;
The state shall protect and improve the
environment and safeguard the water, air and land, forest and wildlife of Nigeria.
A sustainable solution to the
restiveness and resentment associated with the ownership and management of
natural resources by the federal government is tripartite. While it is
important that the constitution be amended so as to incorporate ownership and
management of natural resources by the component state, a sustainable
development does not singularly lie in that. This is because any constitutional
amendment in favour of state or even community control of natural resources
without tackling the endemic corruption and mismanagement that has bedeviled
our national polity will only worsen the Nigeria situation. While advocating
for constitutional amendment, political will is essential in ensuring the
development of the oil communities and in elevating their suffering. A massive
education aimed that involving the masses in issues of governance will be necessary
in fostering good governance and sustainable development.
In conclusion there remains a
pressing need for a genuine and fundamental restructure and transformation of
our federal society base on the universal norm of democracy and rule of law
fiscal federalism and good governance. This the only true part to national
unity national greatness enduring peace and stability growth and sustainable
development. A federation every Nigerian shall have a sense of belonging.
[1] Nwabueze B.O. Nigeria under the Presidential Constitution, (London, Sweet and
Maxwell, 1983) p. 181