Akpo Mudiaga-Odje
10 October 2008
The recent creation, or better still, purported establishment of a Ministry of Niger Delta by the President of the Federal Republic of Nigeria, Alhaji Umaru Musa Yar'Adua, has caused ripples in the Niger Delta specifically, and the nation in general.
These reverberations have necessitated a flurry of opinions and observations, some of which have led to this discourse.
Powers of the National Assembly under the 1999 Constitution: Section 4 of the 1999 Constitution, so far, as material for this discourse, provides that: "4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution. (3) The power of the National Assembly to make laws for the peace, order and good governance of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States..."
On the Exclusive Legislative List regarding the absolute powers of the National Assembly is Item 39 which relates to: "Mines and minerals, including oil fields, oil mining, geological surveys and natural gas."
On the procedure and authority of the House to make laws for the nation, Section 58 provides that: "58(1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President."
From the above provisions, it is axiomatic that the National Assembly, specifically from the construction of Section 4 and Item 39 of the 1999 Constitution, has exclusive and absolute powers to make laws in respect of any matter relating to mines and minerals, including oil fields, oil mining, geological surveys and natural gas. See the case of Attorney-General of the Federation Vs. Attorney-General of Abia State & 35 Ors. (No. 2) 2002 6 NWLR (pt.763) 264 at 485 paras. G-H per Uwais, CJN.
Ministry of Niger Delta relates to mines and minerals, including oil fields, oil mining, geological surveys and mineral gas: From the above, it is axiomatic that the Niger-Delta Ministry, as the name implies, relates solely to issues of mineral oil, oil fields, geological surveys and mineral gas as exclusively listed in Item 39 of the 1999 Constitution and exclusive to the National Assembly. This power flows from the doctrine of separation of powers which was ably propounded by Montesquieu, Charles-Louis de Secondat, Baron de la Brede ed de (1689-1755).
His classical work "Del'esprit des lois" (1748) sets out from the background of a dialogue of despotism, and recommended separation of powers among the Parliament, Executive and the Judiciary to forestall tyranny.
In that sequential order, the 1999 Constitution adopts that doctrine under Sections 4, 5 and 6 of the Constitution. For ease of reference and, so far, as material for our purpose, they provide thus: Section 4:
4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution."
Section 5: 5(1) Subject to the provisions of this Constitu-tion, the powers of the Federation - (a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws."
Section 6: "6(1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (6) The judicial powers vested in accordance with the foregoing provisions of this section - (a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law; (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966, for determining any issue or question as to the competence of any authority or person to make any such law."
It is based on the above that we strenuously contend that the purported creation of a Ministry of Niger Delta to deal on issues of oil and gas without an enabling law of the National Assembly is unconstitutional and ultra vires the powers of the Executive as personified by Mr. President under Section 5 above and a gross violation of the principles of separation of powers as firmly entrenched in the 1999 Constitution.
Powers of the President to establish a Ministry: Under Section 147 of the 1999 Constitution, it is pungently provided that: "147(1) There shall be such offices of Ministers of the Government of the Federation as may be established by the President. (2) Any appointment to the office of Minister of the Government of the Federation shall, if the nomination of any person to such office is confirmed by the Senate, be made by the President. (3) Any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of section 14(3) of this Constitution: Provided that, in giving effect to the provisions aforesaid, the President shall appoint, at least, one Minster from each state who shall be an indigene of such state.
(4) Where a member of the National Assembly or of a House of Assembly is appointed as Minister of the Government of the Federation, he shall be deemed to have resigned his membership of the National Assembly or of the House of Assembly on his taking the oath of office as Minister. (5) No person shall be appointed as a Minister of the Government of the Federation unless he is qualified for election as a member of the House of Representatives.
(6) An appointment to any of the office aforesaid shall be deemed to have been made where no return has been received from the Senate within twenty-one working days of the receipt of nomination by the Senate."
By this section, without more, one is tempted to conclude that the President has the powers to establish the Ministry of Niger Delta clearly without a law from the National Assembly. However, the peculiarity of the Niger Delta Ministry relating to oil matters, as exclusively listed under Item 49 of the Exclusive Legislative List, excludes such a Ministry from the provisions of Section 147 of the Constitution.
In other words, by simply tagging it a "Ministry" does not confer powers on the Executive to use Section 147 to obviate the provisions of Section 4 and Item 39 of the Constitution. If that is allowed, the Executive will be at liberty to be encroaching on its authority and powers by simply tagging the agency as a "Ministry".
Secondly, it is a germane point of legal principle that subsequent provisions in a statute are not intended to derogate from previous ones. Consequently, Section 147 of the 1999 Constitution by any stretch of the imagination cannot be held to derogate from Section 4 and Item 39 thereof. And, above all, it is not the intendment of the Constitution that Section 147 of the Constitution should be construed in isolation without having in mind the provisions of Section 4 of same.
Consequently, the President's power to establish a Ministry under Section 147 must, by necessary implication, be read subject to Section 4 and Item 39 of the Constitution. This principle of interpretation has been reported in the case of Mobil Oil (Nig.) Plc Vs. IAL 36 Inc. [2006] 6 NWLR (pt.659) 146 at 168 paras. D-E, wherein the proficient Karibi-Whyte, JSC declared thus: "It is an elementary principle and fundamental to the construction of the provisions of any statute to read the sections as a whole to enable the interpreter to gather the collective sense of the provisions. Where the subject matter construed concerns other sections of the same statute, all the related provisions must be read, considered and construed together as forming a composite whole. It is imperative in the construction of a section to read together all the sections and paragraphs.
This is because the sub-sections or sub-paragraphs may be and are necessarily compli-mentary to and explain the meaning and scope of the main section or paragraph. The meaning of a section may be controlled by other individual sections or sub-sections in the same Act..."
Funding of the Ministry: This is the crucial part of our skepticism of a solely Executive-created Ministry. If the Ministry of Niger Delta is expected to be like any other Ministry that will go cap-in-hand to beg for funds, then there is really nothing to celebrate. This is because, since independence 48 years ago, we have had Ministry of Power and Energy, yet, no light; Ministry of Works, yet, no good roads; Ministry of Health, yet, no hospitals; Ministry of Education, yet, teachers are still poorly paid and educational institutions are collapsing around us.
We have the Nigerian National Petroleum Corporation (NNPC), yet, no affordable prices for kerosene, diesel and fuel.
This will be the fate of the Ministry of Niger Delta if there is no specific law setting out, at least, a percentage of the total income of the revenue of crude oil and gas to be allocated to it. This is our fear. Without an enabling law, the Ministry will not be able to get SPECIAL FUNDING like the Ministry of the Federal Capital Territory. Consequently, we posit that a law be enacted to direct that, at least, 5% of the revenue accruing to the Federal Government be allocated to the Ministry of Niger Delta for its activities.
This is justified because it is the Niger Delta region by the grace of God that provides the resources that feed the nation. Afortiori, the Ministry that supervises the region must benefit exclusively from what it produces. In short, it should be a self-funding Ministry. The Ministry we need is that which will carry out gigantic infrastructural developments, including building refineries, housing estates, bridges, hospitals and industries for our people.
Consequently, without a law authorizing its funding, any purported charge on the Federation Account in favour of the Ministry will be unconstitutional and liable to be set aside. This is the decision in the case of Attorney-General of the Federation Vs. Attorney-General of Abia State & 35 Ors. [2002] 6 NWLR (pt.764) wherein Ogundare, JSC, of blessed memory, at page 689 paras. B-D whilst upholding the Delta State counter-claim on first line charges on the Federation Account, held inter alia that:
"...Funding of Joint Venture Contracts and the Nigerian National Petroleum Corporation NNPC Priority Projects cannot by any stretch of construction, come within section 162(3) of the Constitution which provides for the distribution of the Federation Account among the three tiers of government - Federal, States and Local Governments. All these charges on the Federation Account are inconsistent with the Constitution and are, therefore, invalid."
With the benefit of this judicial hindsight, we advise Mr. President to follow the due process of law in providing funding for the Ministry.
Niger Delta Development Commission (NDDC) and the Ministry of Niger Delta: Here is another infraction by the Executive on legislative authority and jurisdiction. Without even having the courtesy of consulting with the National Assembly, it has already announced that the Niger Delta Development Commission will be collapsed into a parastatal for the Ministry. Firstly, it cannot be done without amendment or an outright repeal of the NDDC Act passed in July 2000. So, the Niger Delta Development Commission (NDDC), being a creation of statute, can only be repealed by parliament, period!
Secondly, why collapse the Niger Delta Development Commission? It should exist side by side with the Ministry of Niger Delta in order for them to compliment each other. At least, we have the Ministry of the Federal Capital Territory existing side by side with the Federal Capital Development Authority (FCDA). We also have the Ministry of Petroleum Resources existing side by side with the Nigerian National Petroleum Corporation (NNPC).
Thirdly, where is the over N360b now being owed the Niger Delta Development Commission by the Federal Government as a result of its refusal to pay its statutory 15% contribution as set out in Section 14 of the NDDC Act? The President is being clever by a half, as my late father, Dr. Mudiaga Odje, S.A.N., O.F.R. (1923-2005), would always want to say.
If Mr. President is determined and sincere concerning this new Ministry, he should immediately first pay over the more than N360b it is owing the Niger Delta Development Commission (NDDC) and, thereafter, send a bill to the National Assembly for authority to establish and fund this Ministry.
If we don't do this, and there is a legal challenge to any excessive funding of the Ministry by any state of the Federation, the same fate that regrettably befell us in the so-called resource control case in April 2002 in the case of Attorney-General of the Federation Vs. Attorney-General of Abia State & 35 Ors. (supra) may not be far off.
Conclusion: We affirm that we are not in complete opposition to the creation of the Ministry of Nigeria Delta. What we respectfully demand as a condition precedent is for an enabling law setting out the functions of the Ministry as well as giving it legal backing for gigantic funding; if not, the Ministry of Niger Delta, as it is presently constituted, will not last.
It will be hopelessly incapable of even giving hope, not to talk of assurance, for the upliftment of the despoiled people of the Niger Delta region of the Federal Republic of Nigeria.
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