PEOPLE AND POLITICS

The Resource Control Conundrum

Mohammed Haruna

Not many people outside his constituency or outside the National Assembly may have heard of one Honourable (Dr) Mike Ogar, the ANPP member of the House of Representatives for Bekwara/Obudu/Obanliku Federal Constituency in Cross River State. I, for one, never did, until I came across his interview with The Lawmaker, a monthly newsmagazine published in Kaduna by Abdulsalami Zabair, a former senior reporter with the New Nigerian and Chief Press Secretary of a couple of military governors in his home state of Kwara.

As the magazine’s name suggests, it specializes in reporting legislative news at both the federal and state levels. The cover story of its edition of October 31 was an interview with Honourable Ogar under the somewhat rhetorical headline “PDP GOVT IS A FRAUD?”. One of the highlights of that interview was Ogar’s strongly held opinion that President Obasanjo’s onshore/offshore abrogation bill was a fraud.

“The president”, said Ogar, “as far as I am concerned is playing games as usual. He is not interested in obliterating the onshore/offshore dichotomy”. Earlier Ogar had expressed perplexity over how the whole story started. “Who”, he had asked, “introduced dichotomy? Where? In what document is this stated? I think that Mr. President is playing with the South-South geo-political zone”.

As Ogar probably knows very well, the onshore/offshore dichotomy has a long contemporary history going back to the years of our civil war when the military regime of General Yakubu Gowon used oil politics to divide and conquer Biafra and subsequently tried to use oil money to revive the nation’s ravaged post-war economy. After that, subsequent military regimes found it very convenient, given their command structure, to maintain the dichotomy which, of course, hardly endeared the central government to the people of the oil-rich Delta region, a people who, going back to the Ijaw radical Isaac Adaka Boro’s rebellion against Nigeria, had started agitating for complete autonomy over the oil resources. Boro’s rather amateurish rebellion, as readers old enough would remember, had actually pre-dated Biafra but was soon overtaken by it.

The end of the first military intervention in our politics, which lasted 13 years, and the beginning of the Second Republic in 1979, by definition, should have witnessed the revival of the agitation by the people of the Delta region for autonomy over their oil wealth. Nothing of the sort, however, happened. At first glance this may look strange.

On closer looks, however, it was not exactly so strange. First President Shagari, with hindsight, was clearly a more sagacious politician than President Obasanjo. Second, but far more importantly, the 1979 Constitution did not list any revenue allocation principles, nor did it prescribe any revenue formula. Section 149(1) of that constitution, the equivalent of Section 162(1) of the 1999 constitution, merely provided for the maintenance of a “Federation Account” into which all revenues collected by the Federal Government were to be paid, except for the personal income tax of members of the armed forces and the police, the staff of Ministry of External Affairs and residents of the Federal Capital Territory.

The 1999 constitution, on the other hand, not only listed the revenue allocation principles of “population, equality of states, internal revenue generation, land mass, terrain as well as population density” in Section 162(2), it categorically prescribed that “the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account DIRECTLY FROM ANY NATURAL RESOURCES (emphasis mine).

Herein, I think, lies the answer to Honourable Ogar’s seeming perplexity about the controversy that has surrounded the onshore/offshore dichotomy. Obviously behind that perplexity is the legislator’s conviction that Obasanjo’s introduction of the dichotomy early in the life of his administration, was absolutely gratuitous. But was it?

Not according to the late Chief Bola Ige, the assassinated attorney general of the federation. In a somewhat combative interview with The Tempo newspaper on March 22, 2001, Chief Ige denied he ever went to court over resource control. “You know”, he said, “people just talk glibly that I have gone to court for resource control. I have not gone to court for resource control. I have gone to court for an interpretation of Section 162(2) and that is the territorial limit of littoral state”.

The immediate cause of Ige’s resort to court, I am reliably informed, was an altercation between President Obasanjo and the governor of Akwa-Ibom State, Chief Victor Attah, during a Council of State meeting not long after the return to civil rule. The oil-rich states in the Delta region, had taken strong exception to President Obasanjo’s reluctance to immediately implement the constitutional provision of allocating at least 13% of the Federation Account to the principle of derivation. Akwa-Ibom State, as the oil-state with the smallest on-shore oil production was the worst hit. It was hardly surprising therefore, that its governor led the confrontation with the Federal authorities over the issue.

President Obasanjo reportedly took personal offence over Attah’s seeming audacity and decided to teach Akwa-Ibom and the rest of the resource control crowd the lesson of their lives. Thus, it was that his minister of justice, Ige, got his marching orders to go to the Supreme Court and seek for its interpretation of Section 162(2), as it affected natural resources mined beyond the country’s territorial waters which is limited to 20 miles of the coast.

But was Ige’s court action really necessary? Not according to one, Chibuzo N. Ziggy Azike, a lawyer and politician, writing in the September 30^th edition of The Week newsmagazine. Azike obviously shared Honourable Ogar’s view that the Ige resort to court was gratuitous.

Azike’s argument in the article, titled “Messing with the Supreme Court”, was that since Obasanjo knew the final solution to the problem had to be political, not legal, he simply had no cause to go to court in the first place. “I had councelled in an article published on these pages before the Supreme Court passed its judgement” “on the ‘Resource Control Suit’”, said Azike, “that the appropriate thing to do was for the government to adopt whatever political solution it had in mind into a Terms of Settlement with the other parties and this could have been filed before the court as consent judgement of the parties”. Obasanjo’s resort to court, Azike said, in effect, was obviously a deliberate attempt “to undermine (the) Constitution and its institutions by deviously manipulating different organs and arms of government in a Machiavellian plot to serve a misguide sense of narcissistic messiahhood.”

Very strong words, these, but difficult to dispute, even if you agree with Obasanjo, as even some leading citizens of the Delta region like Professor Isaac Sagay, Chief Frank Kokori and Chief Edwin Clark, do, that it was foolish for the region to have insisted on 100% control of oil as government’s biggest source of revenue. If you think Azike – and our perplexed Honourable Ogar – are wrong to accuse Obasanjo of acting in bad faith over the resource control issue, consider his response to the Supreme Court decision on the matter, a decision which turned out to have been a pyrhic victory of sorts for the federal government; as was almost predictable, the Supreme Court ruled that oil found outside the country’s territorial waters i.e. beyond 20 miles of the coast line, belonged to the Federal Government not to the littoral states and therefore was not subject to the 13% derivation principle. This apparent gain, was, however, more than offset by (1) the president’s alienation of the people of the region at a time he was seeking for re-election, (2) the federal government’s loss of First Charge deductions amounting to 7.5% of the Federation Account and (3), far more importantly, the alienation of the people of the Delta region from the Nigerian state.

This last point was pretty evident from several adverts that associations like the Ijaw National Congress and the Niger Delta Youth Congress published in newspapers, as well as comments by many leading Deltans like Chief David Dafinone, and of course, all the governors and legislators from the region, condemning the Supreme Court ruling. Even level headed legal experts like Professor Sagay who should know better were not left out in the condemnation of the court’s ruling.

The Ijaw National Congress (INC) for example, said in an advert in the Vanguard of April 29, that it considered “the judgement as a violent assault on the Nigerian Constitution even as it is tantamount to a declaration of war against the defenceless people of Niger Delta”. A more militant Niger Delta Youth Congress (NDYC) had gone even farther to say, in an advert in The Punch of April 20, that the court ruling could only force he people of Niger Delta “to renegotiate their membership or otherwise withdraw from a Nigerian federation which has its laws and constitution significantly skewed in favour of an unnecessarily large, powerful and domineering central government”.

Sagay, as a legal expert and an intellectual was, of course, far more sober than the INC and the NDYC, but it was obvious from his article in the Vanguard of April 12, titled The Supreme Court and Resource Control: A Solomon come to judgement? that he was no less convinced that the Supreme Court was wrong. He based his criticism of the court’s decision on the grounds that (1) no one asked it to pronounce on the constitutionality or otherwise of the series of military decrees which created the onshore/offshore dichotomy, decrees which, he said, “negated the revenue allocation formula that had been freely negotiation by the federating Regions and embodied in the Constitution” and (2) that the federation had no separate identity distinct from the collectivity of states that comprised the Federation and for that reason it was false to argue, as the Supreme Court did, that the waters adjoining the littoral states beyond the 20 miles limit, belonged to the federal government. For these reasons, said Sagay, the Supreme Court’s ruling was “somewhat specious if not disingenuous”.

With due respect to Sagay, who is a Senior Advocate of Nigeria, it does seem to me even as a layman, that it is his arguments, not the Supreme Court’s, that were specious and disingenuous. First, the military decrees which created the onshore/offshore dichotomy were based on the fact that it is a nation-state, not its constituents, that lay claims to Exclusive Economic Zone according the Law of the Sea to which we are signatories. Second, as has been crystal clear, particularly with regards to our dispute with Cameroon over the Bakassi peninsula, it is the nation-state, not its constituents, which is responsible for defending the EEZ to which it lays claim. So that in the event of a war over the peninsula, it is not the citizens of the littoral states alone who may get killed or maimed. And blood, I am sure Sagay would agree, is thicker than oil.

Third, when he talked about the untenability of military decrees over-riding the revenue allocation formula that the federating regions in the First Republic had enshrined in the 1963 Constitution, he conveniently forgot to add that the regions seized to exist in 1967 and that the states that replaced the regions and the Constitution that replaced that of 1963 were both creatures of the military. As a constitution which was not subject to military veto, the 1963 Constitution may have been superior to that of 1979 as well as to the present one, but then this view is purely academic.

The practical and the right thing to do, as was rightly argued by Azike, was to implement the Supreme Court’s decision. Either that or initiate an amendment of the constitution to eliminate the dichotomy implied in Section 162(2).

Obviously for political reasons, President Obasanjo seems to have chosen to do neither. Instead he chose to send in a bill to the National Assembly for the abrogation of the onshore/offshore dichotomy, even though he knows all too well that such a bill is unconstitutional and is certainly in contempt of the Supreme court decision. As Azike has argued, in effect, the bill “was a political trap set to blackmail anybody who would challenge its legality as the real enemy of the littoral states…”

Now that the National Assembly seems to have avoided that trap by passing his bill last month – but in the process colluding in an unconstitutional act – it seems the president is about to be hung by his own petard. Given the speed with which he sent in the bill against the background of the impeachment threat that was hanging over his head, many people, myself included, had thought that the president would break the record with which he signed the controversial Electoral Bill 2001, last year. It is now more than two weeks since the bill was sent to him and one month after he received a delegation of titled women from Akwa-Ibom who had gone to thank him for the bill and had urged him to sign it as soon as it is passed. He seems, however, to have suddenly developed cold feet.

In the end, he would have to sign it. When and not if, he does so, he would have proved once again that, in his second coming, he has become so obsessed with remaining in power he thinks very little of subverting the very constitution he has sworn to uphold. He would also have proved the poignancy of the Hausa proverb which says when you dig a hole for your enemy dig a shallow one, for you never know if you may not be the one to fall into it.