Resource Control Judgment: Who to Blame

culled from http://www.gamji.com/NEWS1336.htm
The recent decision of the Supreme Court of Nigeria as far as it concerns the needless dichotomy between on-shore and offshore extraction of oil in Nigeria represents a monumental judicial error. It is unfair to the states concerned.  But what we must however admit is the fact that whatever the error in the decision might be, it is not the making of the Supreme Court, the nation’s pinnacle of justice, but squarely that of the lawyers who ineffectively argued the case of the states before their Lordship. 

Anyone who has followed the debates on resource control as it relates to the actual and perceived exploitation of the oil producing communities of the Niger Delta must concede that it is a very volatile issue which the government cannot afford to toy with. That there is a well-founded perception that some parts of the federation are enjoying the wealth of the peoples of the Niger Delta is simply an understatement. So intense is this politically engineered oppression by both the military and civil authorities constituting national leadership in Nigeria that it led to the brutal execution by the Abacha junta of Ken Saro Wiwa, a foremost crusaders for resource control in the Nigeria Delta under the auspices of MOSOP. This gruesome death, in many respects, opened the eyes of many people in the Niger Delta to the stark reality that they are up against a well-determined oppressor clique that would kill rather than let go the natural entitlements of the unfortunate peoples of the Delta. From al indications, the Niger Delta people have accepted this hard challenge.

It is important we know where the rising frustration in the Delta region is coming from. In the days before oil, the nation relied on cocoa, groundnuts, palm oil and other economic crops to run the economy. The colonial authorities devised a very fair allocation formula which gave about 50% of the income from these resources to the regions from where they were derived and we did very well.  But when cheap oil started to pollute the Nigeria Delta and, in turn, stuff the coffers of the national government, nobody cared about those other valuable resources anymore. Why invest in the future when you are confronted with a near-limitless quantity of US dollars? Why invests in long-term projects associated with solid minerals resources or agriculture when you can simply dig a hole in any of the swampy Delta villages and siphon billions of dollars to the surface? The result of these irresponsible policies is the devastation of the fishing and farmlands in the oil producing areas of the country with mass poverty and hopelessness as the real gains of the people. The civil war, which created the myth of an occupation army in the minds of certain generals, did not help matters, as the federal military government became a very strong weapon for undermining the rights of the federating groups within the Union.

Let us consider the facts that more than 80% of the nation’s wealth nowadays is derivable from oil alone and whatever riches and affluence any Nigerian controls today, especially those who had monopolized political power, is wholly from oil. For example, the billions of dollars the Abachas and the other ‘stinkingly rich’ generals and their cronies stole from the nation’s treasury are from the oil drilled from the Niger Delta. Sadly enough, I do not know of any of these roguish individuals who is from the Niger Delta. Since political powers in Nigeria has been turned into a powerful means of improper appropriation of national wealth, it is easy to understand the plight of these peoples as they did not have political generals to speak for them when it mattered most.

Now they want a stop to that unfair situation under which they suffer while others who have none of the w-a-h-a-l-a of oil production are enjoying? That is the remote basis for the calls for true federalism and, possibly, a Sovereign National Conference. I am always amused whenever I come across arguments against the re-structuring of the nation’s power relations as far as it concerns federalism, resource control and opportunities. It is like the same argument by those who deny the Palestinians their right to a homeland by citing irrelevant issues like terrorism and laying too much emphasis on the unbalanced military equation on the part of the Palestinians. The logic of the situation is that the strong always try to undermine history and reality but the factor of time is always on the side of the oppressed. Whether we like it or not the time to right the wrong in the Niger Dealt has come. Any delay would only aggravate matters for both the oppressors and the oppressed. It would seem we just missed an opportunity in the troubling Supreme Court judgment.   

I am concerned in this short intervention with the limited legal perspective to the whole debate and to douse the lingering fear amongst the peoples of the Niger Delta following the Supreme Court ruling that no peaceful means exists any longer for the resolution of this very important political and economic question. It is true that those whole benefit from an improper situation do not always see the point of view of those who suffer from the same situation. Maybe it is natural for the oppressors not to know about the plight of their oppressed until the oppressed take up arms or do something more drastic. We saw the same mentality with colonialism, with apartheid and other forms of man’s inhumanity to man. Today in Nigeria it is almost the case that those who rule the country do not care about the plight if the oil producing people. Naturally, peoples of the Niger Delta are disappointed in the judgment and, by implication, in the law and they are prepared to prove their case by all means possible. The military-backed arrogance of the national government does not help matters. This need not be so but it is, sadly.

It is our duty as commentators and analysts to always let the people know how the judicial system functions so as to prevent unnecessary public disenchantment with the judicial process because the alternative to the Rule of Law is always anarchy. Particularly as Nigerians, we are already witnesses to the horror of lawlessness and jungle justice that became our lot during the dark days of the military. It is therefore not advisable to refer to a court decision that does not meet our legitimate expectation as “supreme injustice”; “supreme persecution” or “supreme oppression” as some justly embittered critics have described the judgment. There is no doubt that the widespread disagreement with the decision is strong, passionate and persistent. It is understandable.

But in the interim, it is important that we pulse and reflect on what went wrong inside the courtroom during the trial so that we can meaningfully take the struggle to another level, including a return to the same court, someday. After all, it is an integral part of our legal system that the Supreme Court, as the apex court, can reverse itself on any issue in the face of new and superior argument. It has done so many times before; it can still do so again. What is more, the struggle for resource control in Nigeria, as was rightly pointed out by Gov. James Ibori, cannot be resolved solely through the judicial process. It must also be followed up through its political component. Our submission here is that, as a matter of law, the case was for the states a winnable one. What happened was that the court was not sufficiently educated by the lawyers that appeared before it. Simple.

There is no better authority for this proposition than that proffered by Prof. Itse Sagay, SAN, a renowned international lawyer with considerable expertise on matters bothering on territorial jurisprudence. The learned professor was very clear in his scathing review of the decision of the Supreme Court: The court clearly did not make use of the relevant legal materials that would have helped it in arriving at a just and equitable resolution of the question before it.

For example, the court relied heavily on the Common Law of England, a non-federal jurisdiction, in determining the issues of inter-state boundaries that are only meaningful in a federal polity. Australian and American precedents would have been a lot more relevant and, indeed, decisive, in this regard. Secondly, it failed to fully make use of the correct portion of the Law of the Seas, namely the regime of the Continental Shelf, which unequivocally treats the continental shelf as a natural projection of the inland territory, extending on a very well defined gradient, into the sea. This would have saved the revered Justices from the tortuous mental gymnastics that they had to go into in determing the proper connection between the so-called “littoral states” and all activities on their territorial waters. The duty to do that was however that of the lawyers for the states who are the attorneys-general. But they failed to do so persuasively.

There is yet another issue, on which the Supreme Court was denied proper elucidation. And that is the point that as a matter of fact, it is a fundamental principle of federalism that the federal government is not a territorial entity for the purpose of land and all the incidents of ownership. In other words, the federal government in any federal system does not own land because the understanding is that the aggregate of the nation’s landed territory is whatever the various states have contributed to form the union. It is instructive to note that the 1999 Constitution of Nigeria, Section 2(2) defines the Federation of Nigeria as one “consisting of states and a federal territory”. Therefore, the authority of the central government over the entire national territory has nothing to do with land, title and its ownership. That is why the Land Use Act, rightly designates the governors of the various states as trustees of the territories (including inland and seaward abutting waters as limited only by the high seas) of the states on behalf of the their people and not on behalf of the federal government. Unfortunately, the counsels for the states canvassed none of these very elementary issues of law that were supportive of their claims. Needless to say that the office of Attorney General, the chief legal officer of the realm, is too important to be filled by just any political loyalist with a wig and black gown.

Our court process is based on the adversarial system under which the judge is supposed to make his decision on the strength of the arguments presented by the parties. It is not the business of the court to be doing research about the law for the litigants. And that is why justice is often considered a function of three critical factors in litigation, namely, the Rules, the Facts and the Personality of the Judges deciding. It is the duty of any lawyer to diligently programme this equation, i.e., [RxF/P], which is supportive of his brief so as to get the best out for his client. Jerome Frank, a noted American jurist of the realist school made a great deal out of this theory in his very well written book, The Courts on Trial. Consequently, no matter what the justice of the resources control litigation was, as long as the facts presented were not equally matched by the rules marshaled out to the court by the counsels, the outcome was bound to be distasteful.

Happily, that is not the end of the matter. There would still be more political struggles for resource control by the oil producing states that continue to bear the brunt of its extraction, whether offshore or onshore. Hopefully, the legal battle would also continue. It was the federal government, ever shy of the courtroom over the contentious constitutionality of Sharia, which first went to the court over oil. There exists now a valid judgment that is binding on us as democrats. But that is not all. The finality of the decisions of the Supreme Court is meaningful only to the extent that no other authority outside of itself can overrule its decision. There is nothing legally stopping the states concerned from going to the same court again to initiate their suit in the light of the existing rules and the new facts now available to them. And like we noted earlier on, it remains the singular prerogative of the Supreme Court to reverse itself whenever the interest of justice requires such a move.

I appreciate the fact that some readers, especially my beleaguered colleagues from the oil producing states, would think I am overtly legalistic in the face of a well orchestrated tyranny by those who do not produce oil over those who do and that you do not go to a court of law with those who do not believe in the law in the first place or in a situation where you are predetermined to fail through a combination of ill-motivated legislations and unfair policies. That may be true. But as someone who believes strongly in the rule of law, I think all hope is not lost and that the Supreme Court of Nigeria continues to be a repository of both technical and substantive justice in the country and if we go back to it the story could be deferent. My hope is based on my belief that the judiciary does not or should not, suffer from the extreme myopism of the politicians, civil and military, which see state power as an instrument of internal colonialism. It is therefore not over until it is all over.