Peterclaver Egbochue writes on the immediate tasks before the in-coming National Assembly
In political parlance, government is said to be a continuum. It therefore follows that whatever responsibility left behind by the 7th National Assembly would have to be executed by the in-coming National Assembly. As Nigerians earnestly await the inauguration of the 8th National Assembly, it is believed that the knotty issues of constitution amendment, National Conference report, Petroleum Industry Bill (PIB) and other related Bills would be given urgent attention as soon as they settle down. Interestingly, both houses have a fair share of experienced legislators who were part of the bills in the 7th assembly whose experiences would come to bear. It would be recalled that in the twilight of President Goodluck Jonathan’s, administration, the executive and the legislature had a protracted face-off over Constitution Amendment.
The former president had rejected amendments to the 1999 Constitution by the National Assembly citing its failure to satisfy the strict requirements of Section 9(3) of the 1999 Constitution. He had queried the decision of the National Assembly to whittle down some Executive powers of the President of the Federal Republic of Nigeria.
He also faulted some amendments, which would give Executive powers and duties to the Legislature and the Judiciary. The President had listed 12 errors in the amendments, which includes: Non-compliance with the threshold specified in Section 9(3) of the 1999 Constitution on amendments, Alteration to constitution cannot be valid with mere voice votes unless supported by the votes of not less than four-fifths majority all members of National Assembly and two-thirds of all the 36 State Houses of Assembly, Right to free basic education and primary and maternal care services imposed on private institutions, Flagrant violation of the doctrine of separation of powers, Unjustified whittling down of the Executive powers of the Federation vested in the President by virtue of Section 5(1) of the 1999 Constitution; Others were; 30 days allowed for assent of the President; and Limiting expenditure in default of appropriation from 6months to three months, Creation of the Office of Accountant General of the Federation distinct from the Accountant General of the Federal Government, Empowering National Economic Council to appoint the Accountant-General of the Federation instead of the President, Allowing NJC to now appoint the Attorney-General of the Federation rather than the President, Unwittingly whittling down the discretionary powers of the Attorney-General of the Federation.
In a letter to the National Assembly, the president said, “In view of the foregoing and absence of credible evidence that the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 satisfied the strict requirements of Section 9(3) of the 1999 Constitution, it will be unconstitutional for me to assent to it. “I therefore withhold my assent and accordingly remit Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act 2015 to the Senate /House of Representatives of the Federal Republic of Nigeria.” The letter reads: “May I draw Your Excellency’s esteemed attention to the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act, 2015 that has been passed by the National Assembly and transmitted to me for assent.
“I have accordingly examined the substance of the provisions and the procedure adopted by the National Assembly to pass the Act and wish to observe as follows: “Section 4 of the Fourth Alteration Act, 2015 seeks to alter Section 9 of the 1999 Constitution by the insertion of a new subsection 3A, which dispenses with the assent of the President in the process of constitutional amendment. “However, this alteration can only be valid if the proposal was supported by the votes of not less than four-fifth majority of all the members of each House of the National Assembly and approved by a resolution of the House of Assembly of not less than two-thirds of all the States as provided by Section 9 (3) of the 1999 Constitution. “ This is a fundamental requirement of the Constitution and in the absence of credible evidence that this requirement was met in the Votes of Proceedings of the National Assembly, it will be unconstitutional for me to assent to this Bill.
“In light of the above, I am of the respectful view that I should withhold assent until it can be shown that the National Assembly has complied with the threshold specified in Section 9 (3) of the 1999 Constitution. “However, assuming without conceding that the necessary thresholds were met by the National Assembly, there are a number of provisions in the Act that altogether constitute flagrant violation of the doctrine of separation of powers enshrined in the 1999 Constitution and an unjustified whittling down of the executive powers of the federation vested in the President by virtue of Section 5(1) of the 1999 Constitution.
“This is because, a right unless qualified or restricted must be observed by all. It follows therefore that the right to free basic education under this provision if taken to its logical conclusion, will invariably apply to private schools, which could not have been the intendment of the legislature. “This same argument applies to Section 45B, which guarantees unqualified right to free primary and maternal care services. The implication of this is that private institutions will be obliged under Constitution to offer free medical services since it is a right and this is not only impracticable, but also could not have been the intention of the law giver. “ There is therefore the need for these provisions to be redrafted to restrict the enjoyment of these rights and place the obligation to provide the conditions necessary for the enjoyment of the rights on the government.”
Jonathan had also queried the limitation of the power of the President to withhold assent to bills to 30 days, adding that 30 days might not be sufficient for a President to go through such bills. He further said, “The power vested in the President to withhold his assent to Bills passed by the National Assembly is part of the checks and balances contained in the Constitution. “Withholding of assent therefore constitutes a check on the exercise of legislative powers in a constitutional democracy especially as the Executive Branch has the responsibility of enforcing laws passed by the National Assembly.
However, some of the Acts of the National Assembly emanate from Private Members’ Bills, which in many cases, the Executive may not have had sufficient input. “ It is also instructive to note that in some cases, more than one Bill is transmitted to the President for assent and that the President requires the advice of relevant agencies of government before he can assent to the Bill. “Against this background, the 30 days allowed for assent of the President may not be adequate in some cases for the President to make a decision as to whether or not to assent.” The President disagreed with the lawmakers for restricting the President’s right to spend funds in default of appropriation to three months instead of six months.
He said the amendment by the lawmakers does not take into cognizance unforeseen circumstances the nation might go through any time. The former president added, “This alteration seeks to limit the period when expenditure can be authorized in default of appropriation from the 6 months provided in the Constitution to 3 months. “I am of the view that this provision has the potential of occasioning financial hardships and unintended shutdown of government business particularly where four unforeseen reasons and exigencies in the polity, the National Assembly is unable to pass the Appropriation Act do not justify the reduction of the six-month time limit in the Constitution.
I am of the respectful view that the current position should have been maintained.” He had blamed the National Assembly for recommending that the National Economic Council (NEC) should henceforth appoint the Accountant-General of the Federation. He said, “The provision of section 84(A) that creates the new Office of Account-General of the Federation distinct from Accountant- General of the Federal Government has not addressed the funding requirement for the establishment of the office.
“ It is necessary to clarify for instance, who staffs and funds the office of Accountant General of the Federation and from whose budget he will be paid since he serve the three tiers of Government.“ It is also important to state who will exercise oversight powers over the office. Furthermore, the National Economic Council, which is mainly an advisory body, is now charged with the responsibility of recommending those to be appointed to the Office of Accountant General of the Federation.” Jonathan described the amendment on the separation the Office of Attorney General of the Federation from the Minister of Justice as ambiguous.
He stated, “These alterations encapsulate wide-ranging provision that seek to separate the Office of Attorney General of the Federation from the Minister of Justice and the Attorney General from the Commissioner for Justice in the respective States of the federation. They also provide for the independence of the Office of Attorney General by guaranteeing tenure and funding. “However, as desirable as the separation is, there are some provisions that validate the doctrine of separation of powers and also negate the age-long independence and absolute discretion that the office has enjoyed for centuries since it creation in middles ages.
The potential challenging provisions are discussed below: “The first noticeable set back is that the Fourth Alteration Act 2015 is silent on who is the Chief Law Officer of the Federation/State. This is serious lacuna, which may create implementation challenges.” It is expected that the 8th assembly would critically examine the observations made by the former president. Another Bill expected to be passed into law is the Petroleum Industry Bill (PIB). Senate president, David Mark had severally assured Nigerians that the seventh assembly would pass the bill before it raps up its proceedings but that was not kept. The idea of the PIB began in 2007 following the recommendations of a Presidential Committee set up to carry out oil and gas sector reforms in the country. The reforms were expected to form the nucleus of Nigeria’s aspiration to become one of the most industrialised nations in the world by the year 2020.
The promising yet problematic PIB was first introduced to the National Assembly in 2009. Since then it has suffered a number of setbacks. The delays have been on account of diverse interests scrutinising its provisions. Amongst these are the interests of legislators from the country’s North pitted against those of their Southern counterparts. The bill is meant to change everything from fiscal terms to overhauling the Nigerian National Petroleum Corporation (NNPC) but its comprehensive nature has caused years of disputes between federal lawmakers, oil ministry/ presidency and oil majors.
The issues in contention:
The 10 per cent Petroleum Host Communities Fund is one of the contending issues. Another is the alleged enormous powers granted the Petroleum minister under the bill. A third contentious issue is the opposition of international oil companies (IOCs) to the proposed fiscal regime, which they claim is unfavourable to them.
10 per cent Petroleum Host Communities Fund:
Lawmakers from the northern states have consistently rejected the 10 per cent Petroleum Host Communities Fund, a provision contained in the PIB that was meant to bring Nigeria’s host community relations in line with international best practice. For example, the Economic Commission for Africa (ECA) provides some guidance for improving community participation in the sustainable development of mineral resources in Africa.
•The Papua New Guinea Act of 1992, which stipulates that a minimum of 20 per cent of royalties received by the government, should be paid to land owning communities of the mining lease area (In this case royalties are paid directly by mining companies to the agreed beneficiaries and then reconciled to central government for audit). • Special Support Grants (also in Papua New Guinea) paid to a given provincial government, which represent about one per cent of the gross value of mineral sales of companies operating in the said province. • Preferred Area Status (also in Papua New Guinea), which requires companies to provide preferential treatment in terms of employment employment, education and training and business development assistance to communities located in the area in which the company mines. • The holding of mineral rights to platinum and other resources in the Merensky Reef in Northwest South Africa by the baFokeng tribe. The tribe is a shareholder in the Impala Platinum Holdings Ltd, which is the second largest producer of platinum in the western world. Southern lawmakers are the most vocal supporters of the PIB because they see in it an opportunity for Nigeria to atone for the many infractions of the land rights of host communities where extractive industries are active. Also, the PIB provides for compliance with sections of the NEITI Act 2007, which emphasise management of the nation’s extractive industry wealth to the benefit of the people.
Evolution of the Land Law:
Up to 1861 when the British entered Nigeria, customary land tenure systems were in vogue all over Nigeria including the northern part of the country. Family members held land subject to the approval of family heads, village administrators and traditional rulers. This was the situation when in 1913 Britain enacted Foreign Jurisdiction Act giving the British Parliament an excuse to exercise legislative power over Nigeria. This singular development unleashed a chain of events culminating in English Common Law, doctrines of equity and statutes of general application in force in England on 1st day of January 1900 becoming applicable in Nigeria. 1900, the Charter of the Royal Niger Company (forerunner of UAC) and the Proclamation of the Protectorate of Northern Nigeria ceased to operate. Subsequent agreements between the High Commissioner and the Royal Niger Company were made under the Land Proclamation 1902, which declared all land in northern Nigeria, native land. Further powers of the Governor over land came in 1916 with promulgation of the Land and Native Rights Ordinance. This was the situation until 1962 when the Northern House of Assembly enacted the Land Tenure Law. The Northern region thereafter followed the Eastern and Western Regions by enacting a number of property laws including the Land Registration Law 1963.
Military Intervention and Roots of Discord:
The military made a deliberate effort to unify land tenure across the country oblivious of the fact that definition of property rights in land was proceeding at various stages in communities across the country depending on demographic and economic profiles. Government therefore, set up the Land Use Panel in 1977 which report gave rise to the Land Use Decree 1978 (now Cap 102, Laws of the Federation of Nigeria 1990).
The Act made the Governor of a state the custodian of all the land in the state without necessarily extinguishing the rights of the current owners. In fact, the Act, which was later inserted in both the 1979 and the 1999 Constitutions of the Federal Republic of Nigeria, asserts, “all land which was already developed remained the possession of the person in whom it was vested before the Decree became effective”.
The law, however, did not provide such persons any means to protect or contest their “possession” if someone had gone behind them to secure a Statutory Certificate or Customary Right of Occupancy from the state or local government.
As a matter of fact, the Land Use Act has bred a lot of confusion and introduced numerous distortions in the management of land resources in the country.
Many argue that this has been the root of discord in the Niger Delta and other parts of the country where conflicts exist over the utilisation of land resources. Conflicts between nomadic pastoralists and sedentary farmers over fodder resources can also be linked to this. The 10 per cent Petroleum Host Communities Fund proposed in the PIB is thus one small step towards ensuring sustainable community participation in the nation’s extractive industry. It deserves to be applauded and supported.
Again, the in-coming legislators are expected to promptly address these conflicting interests that has stalled the passage of this bill. Just like the others, the report of the National conference organized by the last administration is expected to be implemented after the national assembly has taken a critical look into its provisions.
President Jonathan had in the twilight of his administration forwarded the confab report to Senate for consideration.
Jonathan in a letter to that effect addressed to the Senate President, David Mark, said the reports of the Confab, which held between March and August 2014, having been considered and approved at the Federal Executive Council level in March this year, needed to be forwarded to the National Assembly for legislative consideration and approval.
He had explained that the forwarding of the report to NASS, was sequel to a resolution to that effect at the Federal Executive Council level on March 18th this year when the report was considered and approval. The letter titled, ”Approval for the Implementation of the Recommendations/Resolutions of the National Conference 2014″ reads in part, ” May I draw the attention of the Senate of the Federal Republic of Nigeria to the enclosed report of the National Conference, 2014 which was deliberated upon and approved for implementation by the Federal Executive Council at its meeting of 18th March 2015.
“Your Excellency may recall that the National Conference was inaugurated on the 17th of March 2014, with the mandate to among other things: (a) discuss any issue about Nigeria with particular emphasis on finding solutions to the problems of national unity and development. (b), come up with strategies to strengthen rather than weaken Nigeria’s unity and enhance a participatory and inclusive democratic system of government. (c)’ recognise the need to move the country forward and de-emphasise the narrow interests that define our fault lines. d), spell out the modalities for the implementation of these recommendations and resolutions. (e) suggest any constitutional arrangement they consider best for Nigeria. “Although, the national conference was not given any no-go areas, it was enjoined to refrain from discussing the breakup of the country.
Distinguished senators are invited to note that at the end of the conference, a report was submitted with recommendations and resolutions covering the following thematic areas: “Agriculture and Water Resources, Citizenship, immigration and related matters, civil society organisations, Labour, devolution of power, economy, trade and investment, energy, environment, foreign policy and diaspora matters, law, judiciary, human rights and legal reform.
Land tenure matters and national boundaries, national security, political restructuring and forms of government, political parties and electoral matters, policies and governance, public finance, public service, social sector, religion, science technology and development and transportation. “The recommendation of the conference on the implementation modalities of the resolutions is contained in Chapter six of the report. The resolutions are classified into three broad categories, constitutional, legal and policy issues.
The report further indicates that the nature of the actions to be taken, the objectives to be achieved and the agency that needs to take the actions. The conference also submitted draft bills of resolutions that require constitution amendments or legal amendments.” Observers say the in-coming national assembly would endear itself to Nigerians if they rise up to these tasks as against pursuing pecuniary interests which had been the hallmark of the previous assemblies.