By Olu Fasan

THE year 2021 ended with a controversy involving heated altercation between three of Nigeria’s prominent elder statesmen. The intense disagreement was over the long-running issue of resource control. For context, let’s briefly rehash the arguments.

At a summit on December 13, former President Olusegun Obasanjo said that oil found in the Niger Delta belonged to Nigeria, not the Niger Delta region. Enraged, Chief Edwin Clark, leader of the Pan Niger Delta Forum, PANDEF, fired off an open letter to Obasanjo on December 22, questioning his position on the issue.

Characteristically, Obasanjo fired back. In an open letter to Chief Clark on December 28, Obasanjo reasserted his position. “The territory of Nigeria is indivisible, inclusive of the resources found therein,” he said, adding: “You cannot have two sovereign entities within a state.”

The irrepressible archbishop emeritus of Lagos, Cardinal Anthony Olubunmi Okogie, swiftly joined the fray. On December 31, he issued a statement titled: “Who owns the oil?” Cardinal Okogie challenged Obasanjo’s view on the ownership of the Niger Delta oil wells. “The owner of the land own whatever is on the land or under the land,” he said. “To deprive them of that right is to be patently unjust.”

Now, it would be churlish to say that these respected elder statesmen don’t believe in the positions they espoused. The efforts they put into crafting their well-written open letters, and the depth of their analyses, show that their views are firmly held. Thus, the best way to approach the debate is not to dismiss their positions out of hand but, rather, to understand where they are coming from, and then start the analysis from there.

In jurisprudence, there’s a distinction between what is and what ought to be, between prescriptive or positive law and normative principles. Obasanjo’s position is anchored on what is based largely on the 1999 Constitution.

Indeed, in his open letter, Chief Obasanjo said that his position on resources “is the legal and constitutional position”. By contrast, Chief Clark and Cardinal Okogie based their arguments on what ought to be, and, in fact, on what used to be, drawing on the pre-independence system and the 1963 Constitution.

Well, President Obasanjo’s unitarist position is flawed. By focusing on what is, and defending the status quo, he puts positivism above normativism, and Nigeria’s legal existence above its internal cohesion. What’s the purpose of saying “Nigeria is indivisible” when it’s internally convulsing, due to inequity and abuse of indigenous rights?

In the UK, supposedly a unitary system, there exist both English law and Scottish law, and an act of the UK parliament defined the UK North Sea Maritime area as being under the jurisdiction of Scottish law, putting 90 percent of UK’s oil resources under Scottish jurisdiction, with Scotland reaping huge revenue from its oil resources.

So, you may not have “two sovereign entities within a state”, as Obasanjo said, but you can have an internal arrangement that accords due recognition to each component part of a state for resources derived from its territory.

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That was the situation under the 1963 Constitution where the Federal Government owned no resources but acted as “agent” of the regions in relation to export and the collection of export duties. Understandably, the Federal Government controlled customs and, thus, export trade. But once it collected export duties, it must, under Section139, pay the duties, after deducting drawbacks and refunds, to the region where the export commodity was derived.

For proof that the Federal Government didn’t own anything produced by any region, see s.139(4), which says: “For the purpose of this section, any amount of a commodity that is derived from the federal territory shall be deemed to be derived from Western Nigeria.” In other words, because the federal territory was based in Lagos, any commodity derived from there belonged to Western Nigeria. That was genuine federalism in action!

The same principle of regional ownership of commodities should apply to mineral resources. However, with minerals, necessarily involving foreign companies, only the Federal Government could grant licences and extraction rights and collect royalties and rents. Thus, the 1963 Constitution put minerals in the exclusive legislative list.

However, under Section 140, the Federal Government must pay 50 percent of royalties and rents to each region for any minerals extracted from that region. Few would doubt that this arrangement was an acknowledgment of the primary ownership of natural resources by the regions.

Of course, the military jettisoned the 1963 Constitution and the regional autonomy and federal system that underpinned it. The subsequent military-imposed 1979 and 1999 constitutions gave the Federal Government ownership of natural resources. The Land Use Decree of the Obasanjo regime in 1978 vested land in state governments but gave the Federal Government ownership of any minerals found under the land.

Obasanjo framed the resource control issue as having multiple sovereign entities within a state. But it’s not. Rather, it’s about property and indigenous rights. The federating units should control resources within their territory and make contributions to the Federal Government.

But if the Federal Government wants to control natural resources found within a federating unit, presumably “in the national interest”, then it must pay a substantial percentage of the revenue from the natural resources to the region. Sadly, neither the ownership principle nor the derivation principle works in Nigeria.

Think about it. Over 90 percent of Nigeria’s exports and over 70 percent of government revenues come from oil extracted from the Niger Delta. Yet, the region is one of the most deprived in Nigeria. Neither the current 13 per cent derivation nor the 18 per cent recommended by the Committee for Goodness of Nigeria would tackle the injustice done to the Niger Delta.

But the issue goes beyond Niger Delta. Every region is rich in natural resources. Nigeria needs an ownership or derivation system that allows each region to benefit meaningfully from resources within its borders. That won’t happen under the anomalous 1999 Constitution. It must go!

Vanguard News Nigeria