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Beyond Oil: Implementing a Legal Reform Action Plan

Beyond Oil: Implementing a Legal Reform Action Plan. By Professor Paul Obo Idornigie, PhD, FCIS, MCIArb Nigerian Institute of Advanced Legal Studies Abuja, Nigeria. Introduction Analysis of State Activities Where were we before oil? Delta State Beyond Oil

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Beyond Oil: Implementing a Legal Reform Action Plan

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  1. Beyond Oil: Implementing a Legal Reform Action Plan By Professor Paul Obo Idornigie, PhD, FCIS, MCIArb Nigerian Institute of Advanced Legal Studies Abuja, Nigeria

  2. Introduction Analysis of State Activities Where were we before oil? Delta State Beyond Oil Implementing a Legal Reform Action Plan Conclusion A g e n d a 2 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  3. Let me thank the Delta State House of Assembly for organizing this One-Day Workshop It shows considerable foresight, perception and evidence of trail blazing After all the Nanas, Olus, Asagbas, Obis, Ovies and Peres were known for their industry and independence before the advent of colonial rule Agriculture, fishing, rubber plantation, cocoa plantations, plywood and palm oil existed in the Delta region before oil was found in Oloibiri in the 50s. Has oil really been a blessing or a curse? Has oil encouraged indolence and dependence? Introduction 3 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  4. The Niger Delta Region of Nigeria has, in recent times, featured prominently in the print and electronic media discussions locally and internationally, more for its environmental pollution and degradation than the oil wealth it generates Attributable to the global environmental consciousness engendered particularly by the 1992 Earth Summit in Rio de Janeiro, Brazil There has been air pollution, land pollution, chemical pollution, among others. …..Introduction 4 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  5. We shall contend that oil has been a blessing as well as a curse We shall contend further that Delta State shall survive beyond oil depending on how the present shapes the future We shall also articulate a Legal Reform Action Plan ….. Introduction 5 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  6. The traditional legal approach to the analysis of a State’s activity, especially when it takes place by means of control or legislation, tends to ignore questions as to whether the State acts in the interest of the whole population or principally in the interest of certain sections of the population or simply acts to protect itself Paradoxically, the development of the Niger Delta has witnessed a lot of State intervention by way of legislation and constitutional reforms. Is this one-day Workshop going to result in an intervention that is in the interest of all citizens of Delta State? Analysis of State Activities 6 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  7. Jurisprudentially speaking, we can adopt various perspectives in legal analysis when developing a legal framework However a perspective that is central to this presentation is that legal rules and institutions can only be fully understood by perceiving them in the context of the social structural formations and arrangements at any given historical period in which they arise Advocating use of law as an instrument of social control should be studied in its social context. ….. Analysis 7 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  8. Every society exhibits certain regular patterns of behavior, relationships and beliefs Every society has its peculiar problems – ecological, economic, geographical and topographical. What gives a particular society its uniqueness is the way in which these patterns inter-relate at any given time in history So what makes Delta State the Big Heart? What are the natural resources in Delta State? …… Analysis 8 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  9. The Federal Government of Nigeria has used constitutional and statutory instruments to shape the Niger Delta Region. From the Nigerian (Constitution) Order in Council 1954, Niger Delta Development Board Regulations 1960, Independence Constitution of 1960, Niger Delta Development Board Act, 1961, through the Republican Constitution, 1963, Petroleum Act, 1969, Niger Delta Basin Development Authority, 1976, as amended in 1979, 1987 and 1990, 1979 Constitution, the Oil Producing Areas Development Commission Act, 1992, the 1999 Constitution, as amended to the Niger Delta Development Commission Act, 1999 and African Charter on Humans & Peoples Rights …… Analysis 9 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  10. The fundamental question which the legal regime has failed to address is the issue of ownership of oil minerals in the Niger Delta Region. Two legal maxims are relevant here: first cujus est solum ejs est usque ad coelom et ad inferos (to whom belongs the soil, his it is, even to heaven, and to the middle of the earth); and second quid quid plantatur, solo solo cedi (whatever is fixed to the soil, belongs to the soil). We also have the UN GA Resolutions 1803 of 1962 and 3281 of 1974 on Permanent Sovereignty over Natural Resources and Art 21 of the African Charter on Human/Peoples Rt However, see sections 30 and 31 of the 1960 and 1963 Constitutions respectively, section 1 of the Petroleum Act 2004, section 1 of the Minerals and Mining Act, 2007, sections 40(3) and 44(3) of the 1979 and 1999 Constitutions respectively. See Schs to the Constitutions. …..Analysis 10 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  11. Another way of asking this question is where we were in the 50s? Before oil we had: Pamol at Ajagbodudu African Timber and Plywood Company Ltd, Sapele Cocoa Plantations Rubber Plantations We farmed – we have arable land - self-sufficient in food production We fished – Delta State is blessed with rivers Where were we before Oil? 11 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  12. Basically Delta State Beyond Oil will largely be shaped by Delta State from the discovery of oil till date. We shall examine the following Federal Allocations – how well utilized? Powers to make laws – s 4(6) & (7) of the Constitution Local Government system – s 7 of the Constitution Budgetary appropriations - s 121 of the Constitution Audit of Public Accounts – s 125 of the Constitution Delta State Beyond Oil 12 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  13. Power to Conduct Investigations – s 128 of the Constitution Power as to matter of evidence – s 129 of the Constitution Federation Accounts and Local Government accounts – s 162(5) of the Constitution. Maintenance of ‘State Joint Local Government Account’- s 162(6) of the Constitution ……Delta State 13 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  14. Total Revenue Collected and Local Government Councils – s 162(7) Constitution – laws passed by the National Assembly Distribution of the money standing to the credit of Local Government Councils of a State – s 162(8) of the Constitution - laws passed by the State How many laws have you passed since 1999? What is the nature and quality of these laws in terms of their impact on the citizens? ….. Delta State 14 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  15. How have entities like the State Universal Basic Education Board (SUBEB) fared given the impact of SUBEB on primary and junior secondary education? Are we passing laws like the Akwa Ibom State Former Governor and Deputy Governor’s Pension Law, 2014? Are we using the proceeds from oil to provide economic and social infrastructure? Are we investing and saving for the rainy day? How representative are we? What is your attitude to Constituency Projects? ….. Delta State 15 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  16. In preparing a reform agenda, we must ask ourselves how we have discharged our constitutional functions outlined above. We must examine the Constitution to determine our legislative competence. The Legal Reform Action Plan should include: the identification, classification and legislation in ours areas of competence Implementing of a Legal Reform Action Plan 16 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  17. Drafting of bills – either as executive or private member bills Aligning Delta State with Federal Government Agencies – SMEDAN, NDE, UBEC, Central Bank Commercial Agricultural Credit Scheme (CACS) set up in April 2009 and designed for large- and medium- scale farmers to complement the Agricultural Credit Guarantee Scheme (ACGS) set up to provide credit support to small scale agro-allied business. Empowering the LGCs to perform their constitutional and statutory functions. …. Implementing 17 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  18. Sensitizing the people especially that the future of this country lies in agriculture (including fishing) and the proper functioning of agro-allied industries. Setting up of Cooperative and Credit Societies. The core areas of reform include agro-allied industries, rubber plantation, plantain and banana plantation, cocoa plantation, plywood, canning, tourism and ‘native mango’ (dika tree) plantation (ogbolo soup). …..Implementing 18 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  19. The privatization exercise has shown that governments are not good owners and managers of public enterprises. Through legislation, Delta State Government should create the enabling environment for private sector participation through Public-Private-Partnership (PPP) in providing economic and social infrastructure. Delta State House of Assembly should, as part of this endeavor pass a law or laws on ‘Doing Business in Delta’ covering: ……Implementing 19 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  20. starting a business dealing with relevant government authorities for approvals, licences, authorizations, certification and permits getting electricity registering property, getting credit, protecting investors, the tax regime trading across states and across borders dispute resolution mechanism enforcing contracts and dealing with business re-organization and insolvency issues ……Implementing 20 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  21. Beyond oil, intensive agriculture and fisheries present huge opportunity in Delta State.  A viable environment and a healthy workforce is key to this.  A necessary corollary here is to ensure the following: Promotion of legislation to ensure the territorial integrity of our waters (in a consistent manner with our international and regional obligations) so as to ensure that local fishing fleets are protected; education and legislation to establish fishing quotas, thus establishing a sustainable industry; financial support for farmers in terms of land acquisition and equipment; ….. Implementing 21 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  22. establishment of 'downstream' manufacturing/processing industries such as canning to ensure that a value chain and the inherent inclusive growth is created; establishment of support industries such as fertilisers; a viable transport network to ensure that produce is quickly an efficiently transmitted for processing or for export; establishment of training and entrepreneurship centres; Establishment of an Export Processing Zone to encourage further investment ….. Implementing 22 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  23. Dependence on oil is such that the pipeline network in the Niger Delta region is bedevilled by frequent vandalisation and a makeshift 'refining' process (individuals actually boil the crude oil with the intention of refining it into petroleum products). The inevitable effects of this, amongst others, are the severe adverse effects on human health, and severe damage to the environment.   On a social front, therefore, there is an urgent need to educate local communities on the importance of environmental protection.   …..Implementing 23 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  24. Enacting legislation will not achieve this end.   Indeed, there is already legislation in place concerning compensation for and the cleaning up of oil spills, the control of gas flaring etc.  What is required here are effective Government social programs (involving NGOs, community heads etc.) to sensitise local communities on respect for the environment and to demonstrate viable alternatives to oil. …..Implementing 24 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  25. Central to all of this is power - power generation is the backbone for manufacturing.   Tourism should be developed. We should give some thought to renewable sources of energy   Security is also an important part of the solution …..Implementing 25 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  26. The Delta State as part of Western Nigeria and then Midwest State played a major role in the economy of Nigeria Delta State survived on agriculture, fishing, rubber, plywood, palm oil before Oil Constitutions and laws have been used to determine the exploration, exploitation and control of natural resources especially oil Have these instruments addressed the issue of ownership of these resources? The Plan of Action should include specific roles assigned to entities/individuals, time frame, key performance indicators, feedback mechanism and follow up actions. Concluding Remarks 26 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  27. To a large extent, Delta State Beyond Oil will be shaped by the present utilization of the proceeds of oil How have we carried out our constitutional mandate as representatives of the people? We should aim at social and economic infrastructure We should aim at empowerment, youth employment and social amenities. What should examine the laws already passed and their impact? …… Concluding 27 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

  28. What is the relationship between the earnings of political office holders and the public servants? How have we prepared the youths for the future? What signals are we giving to the youths – earn a degree or join politics? Don’t forget – ‘Delta no dey carry last’ Thank you for your attention and God Bless. …… Concluding 28 Being a Paper Delivered at the One-Day Workshop on Delta Beyond Oil: 2 June, 2014

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