My attention has been drawn to the 7 days ultimatum handed down to the Delta State Government by Chief Mrs Rita Lori Ogbebor, a Niger Delta activist should it fail to repeal the DESOPADEC Law 2006 (as amended) as according to her the said Law is against the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides that the 13 percent derivation fund belongs to oil bearing communities and not 50 percent of the 13 percent derivation fund as provided in the newly amended DESOPADEC Law, and has threatened to institute a law suit at the end of her ultimatum.
While I agree with Chief Mrs Rita Lori Ogbebor and the host communities that the provisions of section 162(2) of the 1999 constitution of the Federal Republic of Nigeria (as amended) is specific about the real owners of 13 percent derivation fund, as the fund stands on her own separate from the consolidated revenue of the three tiers of government, a law suit as proposed by the activist would be fruitless. The real owners of the derivation fund according to the derivation principles in the 1999 constitution aforesaid are the oil and gas producing communities and as such it is illegal and unconstitutional for the State Governors from the nine States of Niger Delta Region to manage the said fund for their respective States. The result of the above abberation no doubt is the massive under development, hunger, and pandemic poverty in the oil and gas producing communities.
Having said that, I make bold to say further without holding brief for the Delta State Government or patronizing her, that any proposed litigation would be an ill fated exercise, this is because while Section 162(3)(4) and(5) of the 1999 constitution provides for how monies standing to the credit of the Federal, State and Local Government Councils in the Federation Account as consolidated revenues are to be managed by the three tiers of government, Section 162(2) of the same constitution is silent on the way and manner the 13 percent derivation fund should be managed. To this end the 13 per cent derivation fund which constitutionally belongs to oil and gas producing communities cannot be managed directly by them in the absence of an administrative structure and an Act of the National Assembly empowering them to so do, as they are not a self accounting unit such as Government Ministries or extra Ministerial departments. It is this gap that is created by the constitution that has given the State Governors in the Niger Delta Region the latitude to manage the Derivation Fund on behalf of the oil and gas producing communities. The lacunae created by the constitution requires a political solution as oppose to a litigation that would do the host communities no good.
As a way of resolving the above lacunae politically, a Derivation Fund Commission established by an Act of parliament was proposed in recent past by some Niger Delta activists, having seen the fruitlessness in embarking on litigation. A board membership consisting of a Chairman, secretary and members to be drawn from the nine States within the region and a staff of the Revenue Mobilization, Allocation and Fiscal Commission (RMAFC) was also suggested for the purpose of supervising the distribution of the 13 percent derivation fund in full to States with oil and gas producing commission while it manages in full the funds for those States within the region that are without such commissions.
To drive home my above point that a political solution is the answer in the above regard as oppose to a litigation, the case of the Judiciary Staff Union of Nigeria whose members went to court for the interpretation of Section 162(9) of the 1999 constitution (as amended) is very apt in this regard. The above provision of the constitution guaranteed the financial autonomy of the judiciary to the effect that any amount standing to the credit of the Judiciary in the Federation Account shall be paid directly to the National Judicial Council for distribution to the heads of court. However in January, 2014 an Abuja High Court delivered judgment in favour of the Union, but till date the said judgment has been largely unenforceable owing to the fact that the National Judicial Council whose main functions are to ensure the rule of law and justice is not a self accounting unit, and as such an Act of the National Assembly is required to give the Accountant General of the Federation power to deduct funds due the judicial arm of government directly from the consolidated revenue in the Federation Account and pay same to the National Judicial Council for onward transmission to heads of court Nationwide. Even with a valid judgment at the disposal of the Union, members are at a dilemma as to the way and manner to enforce the said judgment and have resorted to strike action in a bid to further press home their demand. Little wonder many State High Courts in the country are still under lock and key since January this year till day. Federal Courts and few State High Courts are operating the then Federal Attorney General and some State Attorney General and the striking Union having worked out a political solution on the issue.
Sincerely speaking, I think what all Deltans particularly those from the oil and gas producing communities should be concerned about at the moment until the above issues are resolved is to ensure that the 50 percent of the 13 percent of the Derivation Fund accruing to the State from the Federation Account is utilized judiciously for the benefit of the host communities ie the oil and gas producing communities by the yet to be constituted DESOPADEC Board devoid of undue political interference from the State Executive and the State Legislature as there is the urgent need to insulate DESOPADEC from undue political interference by appointing credible technocrats to man the Commission so that the body can realize her mandate to the host communities ie oil and gas producing communities. It is on this note that I call on the Delta State Governor, Senator Dr. Ifeanyi Okowa to be weary of the horde of politicians jostling for appointment into the DESOPADEC board in a bid to getting it right this time around.
Oghenejabor Ikimi, Esq., (Executive Director FJHD)
