Niger Delta: Revisiting the littoral state verdict

By Bobson Gbinije

“I say to you that if democracy survives in Nigeria,

Nothing can stop the inalienable rights of the sons and daughters of

 Niger Delta to control their resource” (Dr. Chimaroke Nnamani)

The perpendicularity and pulchritudinous nature of the truth cannot be dampened by the metastatic malady of pettifogging raconteurs; democratic despotism masqueraded in legal terminologies, evil incarnadine, institutionalized biodegradable prebendalism and weapons of oppression. In brevity. “Cicero’s Philippic” reads “…….. the seaward boundary of a littoral State within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the federation account directly from any natural resources derived from that state pursuant to section 162 (2) of the constitution of the Federal Republic of Nigeria 1999 is the low – water mark of the land surface”. This is a millennial lie, but the truth is now incubating in the womb of time.

The Epic, historical and landmark judgment delivered by the Apex Court on 5^th April, 2002 was consequent upon the suit instituted on February 6, 2001 by the late Chief Bola Ige (Cicero of Africa), former Minister of Justice and Attorney General of the Federal Republic of Nigeria. In the said suit against 36 States of the Federation the (Plaintiff) asked the court to – determine the seaward boundary of a littoral State within the Country for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that State pursuant to section 162 (2) of the 1999 constitution (as amended).

In the hearing of October 29, 2001, the Late Chief Bola Ige, had told the full court that with regards to land or waters over which Nigeria exercises sovereignty or authorized under the constitution to exercise sovereign powers, the Federal Government alone is the competent hand to exercise such sovereign governmental powers. The Federal Government further contended that the matter for consideration on this vital issue is as to the exact boundary of the area comprising each of that littoral limit of the territory of each of the states adjacent to or contiguous to the open sea. The on shore/offshore dichotomy question.

As soon as the Apex Court established its adjudicatory rights of jurisdiction to adjudicate on the matter, it also became imperative to adjudicate on the various claims and counter-claims in the action. The questions for determination were: (a) what is the procedure for making provision for the formula for distributing the amount standing to the credit of the Federation Account pursuant to section 162 of the constitution (b) what time do the State Governments become entitled to receive their share of the amount standing to the credit of Federation Account (c) what provision should be applied to the distribution  of the amount mentioned in question? (d)whether there is any legal basis for the Supreme Court to make an order against the plaintiff on account of monies in the Federation Account (e) whether it is lawful for the Federal Government to appropriate 1% of the amount in the Federation Account to the Federal Capital Territory (f)whether it is lawful to deduct monies intended for the Local Governments for purposes of Primary Education to b e paid to any person or authority other than the State Government and whether the Apex Court has jurisdiction to grant a declaration which serve no useful purpose.

One must concede from the on-set that the ruling or verdict was written and couched in esoteric legal terminologies and will put a lot of people, even some lawyers in interpretational culdesac. But one thing is clear, that the ruling was aimed at the total deradicalization of the Resource Control struggle and to willy-nilly protect the Principles of  Federalism as practiced in the Federal Republic of Nigeria.  But to whose detriment? The exploited in the world are very conscious of the genocidal policies of governments in their no-holds-barred desire to protect the interest of the ruling class. The Niger Delta is no exception.

The ruling through the invented myth that “the seaward boundary of a littoral state within the Federal Republic of Nigeria……………… is the low-water mark of the land surface” remains the most ingenious manipulation of morphological categorization of thought since the issue of “12^2/3” of a State”. In making its judgment the Apex Court held that “the Southern boundary of Nigeria is the Atlantic Ocean that is the sea”. It however failed to realize that there is a cantankerous difference between nautical marine, axial longitudinal, latitudinal terrestrial and Oceanic boundaries. It’s reverting to Nigeria’s political History to support its case was playing to the gallery and upholding British colonial oppressive Marine laws; by colonial surrogacy. What a shame to Nigeria’s  Statutes and Ordinances etc in the 21^st century, that is why Bakassi remains an albatross till today. What are the limits of coastal states and their continental shelves?

A case in point is North America, which is the third largest (U.S.A., Canada and Mexico) continent being next to Asia and Africa. In Canada the River Ottawa separates  the Ontario from Quebec, the lake Ontario separates Toronto from Welfrand etc. and the Appalachian Plateau borders the country to the South. It’s Laurentian shield and Niagara Escarpment have definite lines. It has features like the Canadian Arctic Archipelagos (Baffin islands, Devon and Ellesmere Islands). Lake Ontario is 245 feet above sea level and in its 180 miles course the river Montreal passes through the throes Islands then 48 miles of rapids known as the inter national rapids section along the Canada/U.S. border.

Then the river flows through Canada territorially on both banks and then the Lonlanges section and finally the Lachine rapids sections.The Lachine rapids  are just above Montreal. Though the Lachine and other canals are access to the “Great Lake” for Small Ocean going vessels, Montreal has thus been the effective head of Ocean navigation. A position now changed by the Construction of the seaway. The St. Lawrence lowlands may be described therefore as the lowlands on either side of the St. Lawrence which lie east of the Frontenac axis.

This laborious example has become necessary to show that Canada and the U.S.A enjoy economic advantages from the use of the Montreal River, but they understand that they are two different Countries with mutual interest guided by the law of the sea conference. America and Canada agree that the “east of  Frontenac axis” constitute the line of demarcation or boundary on both sides. This should have formed the bases of the Apex court verdict on the matter of the littoral state and seaward boundaries .The Apex Court misdirected itself on common law instead of international law. The law of the sea conference of 1982, section 72 states that “the coastal states have sovereignty over its continental shelf”. There was also legal lethargy on the part of some Attorney’s of State in depending and limiting their submissions to municipal law. What has happened is that the Federal Republic of Nigeria applied the anachronistic Marine colonial law of land based on its whims and caprices. The littoral States have therefore been delimited and cocooned out of their real economic boundaries by a so-called Federal might. The sole solution lies in our fight for CONFEDERATION, to enable us to possess our possessions.

In it’s ruling on Gas, it said “Gas should be part of derivation”. This is however a welcome development as it will put paid to many years of exploitation by the Federal Government on this gas issue. But don’t we deserve compensation for many years of gas flaring resulting in seismographic despoliation, fauna depreciation, ecocidal devastation and ecoterrorism? I foresee that in the future when gas begins to yield large scale revenue the federal government might invoke its federal might to create GAS LANDMARK BOUNDARIES (GLB) to checkmate the growth of GAS producing states. We hope that payment on gas will also take retrospective effect.

Its ruling that “Derivation should begin on May 29,1999” shows that when you hold up for too long the legitimate legacy and inheritance of a small boy…………. Weariness of your hands and qualms of conscience will bring them down. Do we need a Supreme Court verdict to know that derivation should have commenced on the very date of the installation or swearing in of a democratically elected government? Common sense is not really common to most governments. We hope and pray that bureaucratic bottlenecks will not be used to clog this legitimate retrospective payment as approved by the Apex Court. We read in papers that the shock waves from the Supreme Court verdict has started reverberating (AGF) to suspend the payment of the 13% percent revenue derivation formula hitherto enjoyed by the littoral states. Is this not justice delayed and justice denied? The suspension will last until the Revenue Allocation, Mobilization and Fiscal Commission properly determines the onshore/offshore boundaries.

We also hope that by the time these monies are belatedly disbursed our various governors and their executives will not sit down and share it among themselves as they have been doing .  We have come a long way in this fight and not one person can claim honours  for this meager victory. It has been a collective effort. But the battle ahead is more darling. So let us  be prepared for the worse.

We strongly advice that the Apex court verdict that “some of the beneficiaries will not only cease to benefit from the derivation funds but may have to refund what has been wrongly paid to them since January 2000”. We need no ghost to tell us that the Federal Government’s stand is self-indicting as it says “wrongly paid to them”. Who paid and why? It show’s that they committed the mistake. They should therefore bear the onus of blame. They should waive any issue of refunds as this is likely to open a new vista of mutant unrest and controversy. The escrow account into which the suspended derivation funds will be paid must be kept sacrosanct. The Senate President, the Speaker of the House of Representatives, the state Governors and the Minister of Finance must keep an eye on it. It must at long last be made public for Nigerians to know what is happening to their birthright.

The Apex Court  halted the Federal Government from Unilaterally making the 1% direct allocation to the Federal Capital Territory (FCT). This is a great victory for Democracy and the rule of law, as monies were frivolously allocated to institutions, projects etc. under the guise of a bogus and unconstitutional Federal Fiscal might. The question however arises, will the Federal Capital Territory make refunds of its previous collections? The provisions of section 1 (3) 313 and 315(1) of the constitution must give way to the constitution. The provisions of section cap 16 that are inconsistent with the constitution must give way to the constitution, and it has become so by virtue of the Apex Court ruling. The baboon de work monkey de chop syndrome has been partially checkmated.

The Apex court ruling also discountenanced the unconstitutionality and the fiscal irresponsibility of the Federal government in the servicing of external debts, the judiciary, NNPC priority projects via first line charge on the Federation account, the non-payment of derivation on capital gains tax and stamp duties. The Federal government was restrained from further violating the constitution on first line payments. This is good , but the Federal government was not prevailed upon to make refunds for previous collections, then why will states that were “wrongly paid” derivation funds refund their inadvertent collection. A vast majority of the counterclaims of the feudal oligarchy’s interest was embroidered in the jargons of fiscal federalism, saccharined with phantasmagorias and the beatification of terrorism on the Niger Delta.

But where do we go from here? It is now glaringly clear that the Niger Delta has very powerful enemies that will stop at nothing towards ensuring its genocidal economic extermination. The only way forward is to part ourselves on the back and continue the struggle (Aluta continua).  The strategy this time around is to use the “Confederation Secession bait”- A Confederation that will enhance the political and economic individuality of each of the states in the Confederation.  The fundamental intentions of Bismark of Germany in convoking the Berlin conference of 1884-1885 was to orchestrate strategies, establish the modus operandi, modus Vivendi and to fine tune Logistics for the arbitrary delimitation of the continent of Africa into puppet states and to work out a code of conduct for the scramble for Africa amongst pathological colonialist. This politically lethal action successfully embroiled Africans into the ponderous albatross of enforced co-existence. This weird scenario is being re-enacted in today’s Niger Delta by surrogate colonialists in Nigeria, God  help us.

We should demand 50% as a derivation fund and nothing less. But the then Edo State Governor Lucky Igbinedion said during his welcome address to the (17) south-south governors in his State that “Every state in the Federation should be entitled to keep all wealth that accrues to it by natural endowment or the industry of its people. Anything less can only result from the myopia of seeing co-existence as a zero sum game, that is, that the progress of one unit can only come at the expense of another’s regression”. How true. Speaking in the same vein Dr. Chimaroke Nnamani ,then Governor of Enugu state said “ I say to you that if democracy survives in Nigeria, nothing can stop the inalienable rights of the sons and daughters of Niger Delta to control their resource. I say to you that if democracy prevails in our land, Nigeria will be restructured to respect and reflect true physical and fiscal Federalism”. But whither the Niger Delta?

To maintain the effervescent surge of the struggle all hands must be on deck. The fight for our birth right must now begin to take a new dimension. Alexander Pope asserts that “let the ends of things disjoint, it is the whole world that suffers’. We need cohesiveness and unity amongst all Niger Deltans more than ever before. And the gusto of the struggle must continue to gain ascendancy. The  major arrowheads are the Governors of the Niger Delta States, whilst commending them for a job well done so far, they admonished in their own interest to sustain the fight and never ever capitulate on grounds of political expediency, Party loyalty and personal interest. They must remember that Lagos and Abuja were built with our monies while we suffer under the yoke of purgatorial poverty and existential anxieties. Look at Warri, Sapele, Evwreyin, Okobia etc. They are nauseatingly ghoulish in the midst of plenty.

Finally, the key word in this whole matter is JUSTICE.  Niger Deltans, in the words of the poet Matthew Arnold are “wandering between two worlds, one dead, the other powerless to be born”. But we must rise to fight the good fight . Horace the poet said ‘to die fighting to save the soul of a nation, there is no death more redemptive”. In Napoleon’s oraculum he said “As the volcano burst with a louder explosion, when the combustible matter is confined within its bosom, so will a nations revenge find vent, the more their wrongs are repressed” The essayist Cornelius Tarcitus said “Ubi solitudinem faciunt pacem appellant (they (Federal Government) create desolation and call it peace) and the English playwright William Shakespeare said “Mischeif thou art afoot, take what course thou willeth”, God Bless Nigeria.

Chief Bobson Gbinije is of Mandate Against Poverty (MAP), Warri