Last Monday, Governor Adamu Aliero of Kebbi State spoke to the media, defending the August 6th decision of 19 northern state governors and two south west states to seek the Supreme Court interpretation of the abrogation of the onshore/offshore dichotomy by an act of parliament. If the court action succeeds, it means a reversal of the abrogation of oil dichotomy, which arose in the first place from the apex court ruling on April 5, 2002, that it was constitutional but which however, sparked off a firestorm of protest from the littoral states where it was condemned as a travesty, and a miscarriage of justice to deny them their just entitlements.
Indeed, eminent legal maritime authority, Professor Itse Sagay, had on that occasion denounced the Supreme Court in very strong language. “ The Supreme Court misdirected itself in so many areas. It was concentrating on common law, but common law has nothing to do with it. It was concentrating on maritime law, but maritime law has nothing to do with it. It was talking about shore line, low water mark, all these have nothing to do with it. The court did not seem to appreciate that maritime territory is territory; the fact that once you leave actual land, the state does not have land anymore is not correct. Under international law there is land territory, and maritime territory, and the closest to maritime territory is the land territory, and that is the continental shelf.
The continental shelf as you know is the sea bed and sub-soil, that adjoins the coast, which is hard soil too, but happens to be covered by water. If you look at the law of the sea conference of 1982, section 72 it is very clear. That coastal states have sovereignty over its continental shelf. And it goes on to describe the continental shelf as a natural prolongation of the land of the coastal states.”
The pressure opinions like this brought to bear on the system, and the sense of outrage from the region compelled the Federal Government to seek ways to halt further instability the whole agitation from the littoral states were causing. Talk about political solution was proposed, and adopted by the government as the most appropriate method to solve this problem before it spirals out of control. By reverting to political solution the government was returning to the position of Senator Udo Udoma, who had canvassed that the resolution of the crisis would not come from the courts, but from dialogue. Thus, having embraced the idea of political solution, the government inaugurated the Chief Anthony Anenih political solution committee.
After months of meeting and negotiations the Anenih committee came out with its recommendations , one of which asked for an enabling legislation to back the abrogation of the oil dichotomy pending the amendment of the constitution. “ Until (Permanent Solution)- which requires constitutional amendment is effected, the Committee further recommends that a Bill be presented to the National Assembly making it possible to regard the natural resources found offshore in any part of the Contiguous Zone adjacent to any of the littoral States as if they were found within the territory of that State solely for the purpose of determining its share of revenue from those resources under the derivation principle. This will be followed by the presentation and passage of a new Revenue Allocation Bill by the National Assembly.
61.The distribution of the of the 13% derivation on the off-shore revenue should be spread to all the nine oil producing States, taking into account some weighted criteria, namely, equality of States (30%); environmental degradation (20%) and quantum of production (50%).”
Acting on the basis of the suggestion of Anenih committee for an executive bill to be sent to the parliament for action, a bill entitled : “An Act to Abolish the Dichotomy in the Application of the Principle of Derivation for the Purpose of Allocation of Revenue Accruing to the Federation Account and for the Matters Connected Therewith 2004”, was dispatched for consideration by the legislature. After months of tinkering and tough negotiations in the National Assembly, the bill was passed entitled: “The Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act 2004” and President Obasanjo assented to it.
If it was generally thought that the Act despite its imperfection had settled the grievances of nine littoral states, the August 6th, court action of the 21 governors ended such delusions. Because it seems that as one section of the country was being pacified, the grievances of another was opened.
In their reliefs the petitioners want: “ A declaration that the Allocation of Revenue Act 2004 is unconstitutional, ultra vires and a declaration that all the defendants are without constitutional powers to rely on the Allocation of Revenue Act 2004 for the purposes of allocation of revenue to the states and local governments from the Federation Account; an order directing the defendants to forthwith stop the implementation and reliance on the said Allocation of Revenue Act 2004; an injunction restraining the eight littoral states by themselves, their agents or any other person or persons deriving authority through them from taking benefit from, insisting on or in any other manner, seek to take advantage from or under or in the said Allocation of Revenue Act 2004 ; an injunction restraining all the defendants, by themselves, their agents, servants, privies or any other person or body deriving authority from or through them from implementing, giving effect to or in any other manner enforce the provisions of the Allocation of Revenue Act 2004 and; an order setting aside, annulling and making void the said Revenue Allocation (Abolition of Dichotomy in the Application of the Principle of Derivation) Act 2004.”
Since this action was taken, opinion had been divided on what to do. The mood in the littoral states had oscillated between anger and frustration. On the other hand the attitude in the north had been that of defiance and a sense of triumph, a suggestion that the protagonists in this matter believe the court may likely ruled on their behalf, because the issues at stake were the ones decided at the apex court in 2002.
As matters stand today there is the view that notwithstanding what the petitioners are asking, the age old counsel of Udoma, that the courts cannot grant justice in this matter remains valid. Indeed, no less person than Mr Gamaliel Onosode, a leading moderate voice in the country had questioned the wisdom of the latest court action. “ It will be unwise to reopen at this point in time issues concerning the onshore/offshore abrogation, because in fact larger issues of resource control have not really be resolved.
While I am not competent to comment on the judgement of the Supreme Court on this matter, I want to add that even if a strict interpretation of the constitution provides ground to challenge the decision abrogating the dichotomy, I still do not think it is in the best interest of this nation to reopen this matter. I caution against this action, particularly when reopening it is done outside the structures of a national conference. I do not believe the action being taken is in the interest of those promoting it, nor in the interest of the nation as a whole. I appreciate the arguments of some people about some aspects of the constitution, but it must be understood that many of us are just coasting along with this constitution which opens with a big lie, that says ‘we the people’, when in actual fact the document was imposed.”
At the time Onosode was making his points, Asari-Dokubo and his Niger Delta Peoples Volunteer Force ( NDPVF) had not yet declared a virtual war against the Nigeria state, with the highly credible threat to blow up oil installations, that sent shock waves across the global oil market. Faced with a doomsday scenario, President Obasanjo, took the unlikely decision of negotiating with NDPVF. Today, a cease-fire has been announced, and decommissioning of arms from the militants about to begin.
But the lessons of the tensed period could not have been easily forgotten. Even as the militants lay down their arms, they have pledged themselves committed to three core issues of resource control, self determination, and sovereign national conference. For a long time as any one can remember, these three issues have been opposed by the northern political establishment.
Therefore, should the Supreme Court rule in favour of the petitioners, the perception whether real or imagined could that it was designed to continue the suppression and economic exploitation of the litoral states.
If this happens there is no telling what the already aggrieved youths in the littoral states could do.
Thus, Aliero’s position that they are in court because: “We are in a constitutional democracy whereby we have to obey the laws of the land and the supreme law of the land is the constitution. The Supreme Court has given a judgement and we expect that the judgement be obeyed by all including the federal government. And if the Act is implemented as passed in most northern states would be crippled to the extent that they might not be in a position to pay salaries because every state in the North will loose over N150 million monthly under the new law,” will not be found acceptable in the littoral states.
In his reaction to Aliero’s submissions, Prof Sagay, has faulted the Kebbi governor over the court action. “ Governor Aliero is wrong in defending the court action. A legislature can over rule what a court has done, what the court is there for is to interpret the laws, and not to make them. So what the Supreme Court ruled on was an interpretation of a law that existed then, which no longer exist now.
In any case his position is a continuation of the injustice against the people of Niger Delta, why can’t he be productive so that he can elevate the economic situation of his people. In fact, the way the dichotomy abrogation Act has structured it the littoral states are entitled to 13% of the resources on land, and 200 metres of sea bed, which is far short of the continental shelf. So, even the abrogation Act runs counter to the basis of establishment of federalism, which allows component parts to keep 50% of the revenue of resources derived from their area. It is in fact a breach of the basis of the federation and a deprivation of the just rights of the people of Niger Delta. Aliero if he keeps to this position should be prepared for a struggle to contain the situation because this is a tip of the iceberg.”
