“Poor Funding bane of Niger Delta”

Barr OCJ Okocha (SAN) stressing some points
Barr OCJ Okocha (SAN) stressing some points

This is the continuation of The Tie Roundable encounter with Barr OCJ Okocha (SAN), published Friday July 17, 2009. Continued from Page 17

Petroleum act?

I don’t think that it has become an Act yet. It is still going through the process in the National Assembly. The last we reviewed that was April or there about when we went for the session of the business law conference. The Act is proposed as a bill now has made for reaching proposals for the reform of the petroleum industry in Nigeria if these proposals are finally passed, that becomes law and if they are faithfully applied there will be nothing adverse to the interest of the people of the Niger Delta. What is usually the problem is the implementation of prepositions of law and the political will of those who are charged with the implementation of the law to do what is right as stipulated in that law.

Either and above the provisions of that bill, the critical point which needs to be addressed is constitutional divesting of all the minerals in the country in the Federal Government.

That is where the problem mainly arises because all the talk about the greater share in revenue derived from oil and petroleum product.

We are all sitting here and they are prospecting for the crude oil and natural gas. At the end of the day what we get is nothing compared to what we should be getting because the story there was fairness and apathy in the system, there should be no reason why the Niger Delta states should not be getting a higher percentage based on the derivation principle which everybody agree is something to be applied to assuage the sufferings of the people in the Niger Delta or wherever minerals are prospected.

So let us hope that the effort to amend the constitution will address the fundamental problem, and then all other laws will fall in place. Then we must hope that those charged with the implementation of all those laws that lead to petroleum and natural gas will also faithfully implement them, having in their minds the interest of the Niger Delta.

Does that mean the petroleum Act is the major problem in the petroleum industry?

No. No, …… the principles in the constitution that all minerals belong to the Federal Government is a major problem. The Land Use Act is just a law, is not part of the constitution. It was only entrenched in the constitution as a statute which you needed a special majority to amend. The Land Use Act is still an Act in the National Assembly and as you know, the President himself has sent certain proposals for amendment to the National assembly. The Land Use Act vest all the land in the territory of each state in the concern of that state, excluding land vested in the Federal Government so that has to do with land use and land management. The point I was making is that the right and interest of the people of the Niger Delta will best be provided for by radical amendment to the constitution particularly the section of the constitution that says that all minerals are invested in the Federal Government and of course the revenue allocation formula which is in the constitution that now stipulates 13 not less than 13 percent for all mineral producing areas.

Those are the areas we want to quickly attend to.

Let me just follow up in the last question, not too long ago, Governor Amaechi said, if that Bill being discussed is passed, it will impoverish the Niger Delta people

I wouldn’t know why he said so. I would like to be directed to the particular provision in the bill, because you see, what that bill does is to break up the companies that are in the petroleum industry. NNPC would be broken up into several different companies and each will have the relevant faction of the oil industry to deal with so, I’m at a loss to answer that question because I don’t know what particular section or sections the governor was referring to.

Simply because everything didn’t go well. The Electoral Act is currently as was obviously and still need to be reformed I would take you to the panel headed by the former, Chief Justice of Nigeria Uwais panel that looked through our electoral system decided that not only the electoral Act but also the constitution of 1999 as far as sections relating to election were in need of dire reform. You see the way elections are structured now under the old electoral Act, is that much power is given to the Independent Electoral Commission but there is no check on the activities that the commission can engage in to receive what we would ordinarily say are democratic principles.

The situation is such that INEC has turned out to prove to all of us that it was incapable of conducting free elections in this country. INEC does not have financial independence, they ended up depending largely on the wishes of the sitting president of the day to conduct elections and we remember what happened, uptill three months to the elections; they were still talking about funding to produce voters registers and so on and so forth. And for logistic reasons, both helicopters and the vehicles they needed to carry electoral materials to places. So INEC as it was under the current law did not have true independence.

Again the Electoral Act did not provide, elections time table, it was left to the discretion of INEC to wake up one morning and told us that presidential and governorship elections will hold on one particular day. That can not be democracy.

Again INEC as you remember played to the right to either disqualify candidates or refused to accept the nomination of candidates, who were properly nominated, or supposedly properly nominated by their parties and remember the case of Atiku and Obasanjo. That went up to the Supreme Court a week to election, was when that case was decided, so those were the few difficulties that emanated from what was and still is our Electoral Act. I don’t practise much in the field of election petition, but these are the obvious lapses that were in that practice and of course the actual conduct of the elections did not prove to be free and fair INEC apparently was compromised, law enforcement Agencies were compromised and many people ended up not voting, because they didn’t have the opportunity to vote, that was a reality.

Independent Monitors from outside the country were present on ground, Nigerian Bar Association (NBA) set up an election monitoring committee and the report nationwide was that the elections were not free so that is the reason for the clamour for the amendment of the Electoral Act so that the process can be democratized such that people will be allowed to choose their representatives, look at what happened in Rivers State, candidates were being imposed on particular ward, particular electoral district by so called political godfathers. Our Governor now suffered the same fate. He was duly elected at the party primary held by the PDP only to have his election, you know somebody said that there was a K-leg, I think it was Obasanjo who said that Rivers State had a K-leg. At the end of the day, the court had to intervene to resolve that matter. The Electoral Act stipulated in clear terms, that for you to withdraw the name of candidate that you have elected, you must have cogent and compelling reasons.

So you don’t just say error of choice, there must be cogent and compelling reason, and that was the matter that went to the Supreme Court and the court up held that there were no cogent and compelling reasons for the withdrawal of the name of the candidate who had been nominated.

So the electoral system in Nigeria in my opinion had not been properly articulated. You and I sit in our houses and you hear that somebody has been selected as your representatives. The people had no right in the choice.

There should be free electioneering processes when a man comes out and say he is serving the people and the representative of the people you would be satisfied that it was indeed the people who elected him.

You are Shell legal consultant, what can you say of oil spill?

Let me say this with all sense of responsibility, Shell that I represent, as one of their numerous legal consultants or external counsels, is one of the most responsible oil operating companies. You see the reality of the situation is that anywhere in the world where there is oil production, there is bound to be incidents of oil pollution, leakages here, spills here and there.

And for every genuine cases where there was a spill that I have been involved in, I know as a fact that Shell has made immediate move to one, stop the leakage, two contain the leakage and its spread, and three clean up the mess. The problem always arises on the area of compensation. Of course, any body whose properties had been damaged under the Pipeline Act, who has suffered a serious damage on his property land or water or whatever is entitled to compensation, and that is a right which the person has and our obligation which the oil company involved has to be stressed.

As I said the problem always arises on what is fair and adequate somebody can claim, one billion, if you claim one billion, well the quantity of oil that is spilled is not up to two barrels everybody will know that this claim is obviously exaggerated, and Shell as responsible corporate citizen and indeed all other Oil companies will be interested in enquiring into that matter because if you cannot reach agreement on what is fair and adequate, the laws stipulate that you must go to court and settle that matter and the court will now determine this is fair, this is just, this is adequate compensation and I know that in most cases, the courts have raised those determinations. Shell has gladly paid so much as I am also an indigene of Rivers State, it will interest you to know that I have done two cases against Shell and won against them, before Shell hired my services as far back as 1992, 93 to become their external counsel. So is always a controversial matter.

And you know that this new incident that most time we have used as our bases of defence, sabotage. If there is sabotage on a pipeline, you don’t expect an oil company to pay because that has been unlawful act of an unknown third party, Sometime the third party who caused the breakage of the pipeline is known and some are being prosecuted for damage and destruction to oil pipeline in their vicinities. Yes is a controversial matter, but thank God, we have the court, it is here in court that we know the extent of it, the damage caused and the value which you have claimed, and I know that the courts have been very active in doing those cases and giving judgment to whom judgment is due.

What are the benchmark for compensation?

The Department of Petroleum Resources (DPR) stipulates what you should pay. And like I told you the figures they are using are not really commensurate with reality. They will tell you that a palm tree should be valued at N80 or so. You know a palm tree is something that regenerated and somebody said every part of the palm tree is valuable. The stem, the frond, the fruit the nut you understand.

So first you must look in the direction of DPR. They should stipulate fair and adequate bases for assessing the cost of damage caused to any body who has lost properties as a result of an oil spill. Those rates unfortunately are stipulated by DPR and of course everybody will like to use that as the rate to pay you compensation; but I can tell you speaking from experience some of those claims are not realistic.

How can stem of plantain cost N20. One bunch of plantain is worth more than N20. So those rates were made long ago and there is no effort on the part of the DPR to review the rate which is why the courts are now relying on the values put on those items and properties by evaluation experts, estate surveyors and valuers.

Even they and us say that you must pay market price. Economic price, economic value.

Our problem; that is the problem of Nigeria today is the Niger Delta issue. Federal Government created the NDDC, created the Niger Delta Ministry, and MEND took up arms to press their case, recently Federal government has offered amnesty to militants, but some Nigerians feel that the problem of the Niger Delta is the problem of irresponsibility on the part of Niger Delta leaders, considering the amount of money that has been coming to the areas since 1999, Sir, what do you think government has left undone to solve Niger Delta problem?

Well, is a good point, irresponsibility of our Niger Delta leaders, had led us to this sorry part where we are now; is a good point.

Some have argued and I agree that most of our leaders, especially our elected leaders have not applied the funds that are coming to the Niger Delta in a judicious manner. Indeed you remember the national Political Reform Conference, the story was that the Northerners, who were asking, Oh; you people should go and ask your governors what they have done with the money, you are getting 13 percent. But that is an argument which any body can write. The reality is that what is being advocated to the Niger Delta states is not commensurate with what is expected. And we want to recall that before we had a region, the principles of derivation was fixed at 50 percent, and with 50 percent, most of the regions were able to develop their infrastructures.

Now the federal government is taking more than the lions share and apaltry 13 percent is coming to oil producing states, that cannot be sufficient to develop infrastructures in this long neglected region.

There can be no argument about the fact that 13 percent will only scratch the surface. They tried with OMPADEC, even the 3 percent under OMPADEC was not getting to OMPADEC. NDDC 13 percent, the states 13 percent, the money was not getting to those states. Now they created the Niger Delta Ministry, something which I thought was misplaced. Still the problem is sufficient funding is not going to the ministry and you are now having two parallel agencies, ministry of the Niger Delta and the NDDC, which one are you looking at. You know my people have a proverb that, goat that belongs to many people usually die of starvation. Because somebody is expecting somebody to feed that goat. So the reality is, Is an argument which I am not prepared to throw my hat into this point whether our leaders have faithfully applied the funds. But the real problem is, sufficient funding is not coming to the Niger Delta. Let us face it, Agriculture is relegated, Agriculture, including arable land agriculture and acquatic agriculture, fishing, farming and all that relegated to the background.

The mainstay of Nigerian economy now is the oil revenue and they will tell you that over 90 percent of the federation account is the oil revenue.

That little that we should get for derivation should be given to us the Niger Delta states. That little should also be increased to a reasonable percentage so that there will be some thing meaningful to this neglected area and it will take more than a super human effort to rebuild, restore the area to also rebuild infrastructures. So that is my answer to the question.

The argument by Ijaw National Congress that more states should be created for the Niger Delta region is that the solution?

Let me say this, and let us be frank, the problem of the Niger Delta is not creation of States. Is money. Whether the money goes to ten states, or to one state, is neither here nor there. Indeed, it makes more sense to me that the money goes to one state and let that State use that money because the lower the percentage the existing state will get. What I am saying is the quantum of fund. Instead of dividing 13 percent to how many states we have now in the Niger Delta; Six states, Edo, Delta, Bayelsa, Rivers, Akwa Ibom and Cross River. If you are getting 13 percent, you created ten states, the same ten states will be sharing the 13 percent so the quantum going to individual states will be reduced. As for me is better to have the money in bulk.

Sorry Sir, just follow up if you look at Bayelsa State it has eight recognized local Government Councils, Kano has 44, now when these go to the federation allocation committee, they share funds to these local Governments, Kano gets that of 44, Bayelsa gets that of eight, don’t you think is right if another state is created out of Bayelsa and perhaps ten more councils created, Bayesla then will be getting for eighteen that is the question, he is trying to ask?

You know the object that is being shared is a fixed amount it is unfortunate that they have politicized this matter of creation of state and local governments. The Northerners and political leaders of the past thought that was agimmick in which they will use to get more money to their states.

You know, I like to say, let every state generate its own revenue, all this junketing to Abuja to share federation account or federation Allocation Account monies is meaningless. And it is meaningless because everybody is looking at oil revenue as that being shared. If we had each state catering for itself, getting just a subvention, based on acceptable principles, I’m sure the clamour for more states, the clamour for more local governments will die down because we are using it now as a basis, yes there is a valid argument to say, we need more states, we need more local governments, but if we realised that what is being shared is a fixed amount, the more we are, the smaller the share we would get from that fixed amount then we would see that more states, more local governments are only irrelevant.

We should not be tied up with revenue allocation, each state should generate its own revenue and any state that cannot survive on its own should merge with other states. And you will see that the thousand and one state that you have there in this country cannot survive on their own without this money from federation account allocation. Is a political matter and that is the reason why everybody now wants more states and more local governments.

Are you now saying, we don’t need creation of more States?

For overriding progress of this country, creation of more states will not solve our problem, it will not because you see, we started as regions. We have been fragmenting this country to smaller units, smaller units and unless we put a stop to it we would continue to fragment this country.

Most communities in the world are coming together. There is the Europen Union (EU), there is the Organization of American States (OAS), there is SADC in South Africa, we even have the African Union.- (AU).

You make more progress as a large group than as a small entity, because what you get is bigger and how you planned to use that which you get is more focused in your articulation of it. The current states cannot survive, infact, if you look really true, only ten states can survive in this country, without federation allocation.

So you don’t subscribe to calls for confederation?

That is a political matter, you know, we haven’t really practice true federalism in Nigeria and some people are now saying, lets us be confederation, that principles arose during the days building up to the Nigerian Civil War and I was already a secondary school student, 1964 and I knew that , that argument was a political argument. There was nothing wrong with the regions, the way they were structured in the first place yes there was ethnic domination in some parts. We the minorities in the East had difficulties with the majority tribe that was dominating the day but I still believed that regions, particularly those that were properly managed made more progress as regions than we are now making as states.

Go to the west for instance, so we have to evaluate it very critically, is not something one can say, I think that the principle is that, you make more progress when you are a strong entity. The smaller you are the more marginalized you are. The less revenue, you would be getting, the less ability you would have, where is that lead to, because issues of fragmentation will continue to arise.

Q: ??????

Okocha: My father served in the Colonial police the only problem, my father ever had in the Police was that of tribalism. Because, he was minority in the old Eastern Region, Ikwerre man. Whoever heard of Ikwerre people becoming Police Officers but even at that his promotions came as at when due.

He went to Police Colleges in England, out of merit and then the Police was dedicated.

Your character needed to be examined before you enter the Police my father was recommended to join the Police by an old headmaster from Ohafia, through his relation that was in government in the Eastern Region. That was how my father got into the Police.

As a minority, hewent to Police Colleges and was able to perform and on merit. He got deployed to the branch alled special branch.

Special branch is the brach of the Police, that eventually became NSO and became SSS.

Chief Horsfall served under my father, in special branch in the Eastern region, and that time just before the civil war broke out, he was the deputy to MD Yusuf in a special branch. Then a Police man was really a friend, you would walked along the road and you stopped a Police man, very knowledgeable.

You are going to Aggrey road, Policeman will take pains to tell you where Aggrey road is, in fine language. You know they used to carry buatons in those days and alone Policeman standing at the end of the street was enough to drive criminals away, but now Police is for all kinds of people.

I can tell you that the stories we have indicate that some of these check points that you see armed robbers operating, some of them are wearing Police uniforms.

Some Policemen have also been implicate in armed robbery. Police need to be trained you know, overhaul, thoroughly overhaul. Any and any person cannot be recruit into the Police; because the Police is a civil force for maintenance of low and order. When you have criminals in the Police you have difficulties.

You know in those days, if you are a Police constable, and you bought a motorcycle, you need to explain where you got the money to buy a motorcycle constable, everybody knew your salary, but today, you see a constable operating 20 buses, 20 taxis, in the days of Okada, there were Policemen who owned 20 Okadas.

So the Police now is not what it was my father used to tell me stories of how they used to investigate cases. Detectives were trained. Now you go to the Police, they asked you who do you suspect.

How can you suspect, you are sleeping in the night somebody came to steal.

Your properties, and you know there was something the Police had, they had this supernunary Police Officers. They had what they called Police informant.

By the time, you go to an informant, he would know where, armed robbers came from to operate in Elechi street Diobu.

Is o longer the same, they are not trained, they are not properly motivated, they are not properly equipped.

And in those days, every Policeman who signed for Rifle will signed for the number of cartridge what do they cacled it bullet, that will go into that rifle.

They had an Armoury, you had hand writing experts, you have forensic analysts in the Police in those days and you know what they say, just by dusting this envelope now, they will tell you how many people had handle this envelop and they had record, without record, you can’t to police anywhere I had a problem once with a young man in America, and I wrote a letter to Chief of Police in Boston. They picked up the man finger printed him and told him they don’t want him any where within three miles of where I was staying in Bostom, and they were able to monitor that young man, and they succeeded in making sure he was nowhere near me for the three weeks I stayed in Boston that is what the police want to do. They know the criminals, they monitor them on a daily basis. So we need to retrain the police properly equipped the police and then properly motivate them.

Q: What is your comment on the current ASUU strike

Okocha: Yes, is unfortunate progressively, I will says I won’t want to use the word responsible, but I will say government has been unfaithful to its obligation to the educational sector. The time, we went to the university late early 70s, we were satisfied that we entered university in September of 1973 and graduated in June of 1977 four years for a degree programme, we were satisfied that lecturers were being paid their salaries as at when due and their salaries were commensurate with the work they were doing.

Government as we however and heard, had several agreements with ASUU and the university teachers, but government had not been faithful to implement those agreements.

Why should that be so. And we are talking of universities. The some thing goes down all the way to secondary education, primary education. I don’t know whether government actually recognizes that without education without proper education foundation this country is in jeopardy. Who will take over tomorrow from those of us who have gone through these processes. Most people are now sending their children to school in places like Ghana, Togo, because our educational system cannot guarantee a proper education for our children. Is unfortunate, and I think that government would wake up to its responsibilities.

The educational sector must be given immediate attention. All agreements signed with university teacher must be implemented and without any delay.

Q: Sorry before we go back to the police, let go back to Niger Delta, if you are in position to suggest what percentage should come to the Niger Delta, what will you suggest?

Okocha: 50 per cent because they are precedents. We started with 50 percentage should be anything less. And people are telling you those who want to play the politic of Nigeria Oh nobody is producing the oil, the oil was put there by God. Have they for gotten that in the traditional principles of land ownership, the man who owns the land owns everything under the land. So we leave me with my land and if any oil company wants to take oil from my land or gas, let that company negotiate with me.

In that case I will have 100 per cent. Isn’t it. The argument cannot be sustained that any body should tell us, that God put the oil there yes, but we came and live here where we migrated from, everybody ended up somewhere and that place you ended up to is your own land. For Nigeria to claim Oh: that the oil is there, God put it, so did he put gold and other minerals in other lands. Let everybody exploits his own and what ever you can make of it, make of it and take it 100 per cent.

So the principle that exist, and the principle is fair is that Nigeria as a federation started with 50 per cent derivation as in the 1960, and the 1963 constitutions. That is the principle that already exist. The principle we should go back to.

Barr OCJ Okocha (SAN) stressing some points
Barr OCJ Okocha (SAN) stressing some points