National Water Bill: A trial of Nigeria’s ‘pseudo’ federalism

OSARETIN OSADEBAMWEN writes of the proposed water bill by the Federal Government, concluding the provisions of the law further threaten the country’s own version of federalism.

THE status of Nigeria as a federation was recently set on trial in the Eighth National Assembly, as the extant chairman of the National Assembly and President of the Senate, Ahmed Lawan, sponsored a vexed bill on the management of the nation’s water wealth.

Lawan, then leader of the Senate, sponsored the executive bill: “National Water Resources Bill, 2017,” in line with the tradition of the legislature on behalf of the executive, headed by Muhammadu Buhari and the ruling All Progressives Congress (APC). The bill was said to be part of his party’s change agenda for Nigeria.

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However, at the third reading and deliberation on the bill, on May 24, 2018, the attention of senators in the Red Chamber was drawn to the vexed areas of the bill which sought to obliterate the powers of states to own and regulate water resources as well an age-long practice that has enabled Nigerians to access water for industrial and domestic uses. The bill provoked reaction and a stiff opposition followed. The thought of the ordinary Nigerian farmers and homes losing their natural prerogatives to use water, except by the permission of the Federal Government could not be swallowed by those who took their time to read through the bill.

The rejection of the bill by the minority leader and members of the opposition was based on the fact that the bill granted absolute powers and control of the water resources in and under Nigeria’s territorial area to the Federal Government and its representative like the Minster of Water Resources to regulate the use of water from natural water bodies across Nigeria.

Leading the protest against the bill was the then minority leader, Senator Goodswill Akpabio, who represented Akwa Ibom North-West. He identified clause three of the bill as a major concern for safe and unhindered water usage in all parts of the country.

According to the executive bill, its objective under the entitlement to use water states that: “(1) All surface water and groundwater wherever it occurs is a resource common to all people, the use of which is subject to statutory control. (2) There shall be no private ownership of water, but the right to use water in accordance with the provisions of this Act; (3) The right to the use, management and control of all surface water and ground water affecting more than one state, pursuant to Item 64 of the Exclusive Legislative list in Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and as set out in the First Schedule to this Act, together with the beds and banks, is vested in the Government of the Federation to be exercised in accordance with the provisions of this Act.”

However, for Lawan, the observation by Akpabio was but a mere story woven around the bill by the opposition to discredit it.

But this part of the bill alerted senators to the danger inherent in it. During the debate (on the bill), it was clear that it had divided the senators on regional lines, with the Southern senators, predominantly of the opposition Peoples Democratic Party (PDP) having a grasp of the dangers, while the bulk of Northern senators, except Senator Abdullahi Yahaya of the All Progressives Congress (APC), failed to see the danger or deliberately ignored the observation by the minority senators of the Senate in the Eighth National Assembly.

Further implication of the bill, as observed by Akpabio, to the APC who has since defected, was that in the event of any natural change to water area coverage, as had occurred and usually the case with the impact of climate change on the Lake Chad, what happens? A situation of river dry-off could lead to contention on who owns the dry land, between the Federal Government which exercises powers over water, according to the bill which cites “water bed” as part of the controlled area, and the community that would need the land for residential or farm use.

Senator Akpabio, while cautioning the lawmakers from taking a decision that would jeopardize access to water, a critical element needed for daily living in all communities of the country as well as land, espoused his argument further thus: “When they dry off, they become residential. So, it will cause a lot of confusion. We really need to be careful.”

Giving the example of Lake Chad that had about 25,000 kilometres of water coverage area, but lost 20,000 kilometres to impact of climate change, the former minority leader wondered what becomes of the 20,000 kilometres of land recovered by natural element; what would be the impact on the people of that area? This poser, he said, was necessary because the people would be required by this bill to apply to the Federal Government for permission to use such land, because this area was the bed of the earlier water area. The ambiguity in the clause demanded clarity, according to Akpabio, to prevent conflict that might lead to fatal reactions, especially as it has been noted by the bill that some water body connect two states.

“The kind of river we are talking about should be clearly defined. If we want to say that all waters in Nigeria must be legislated upon by the Federal Government, then, we will cause a lot of confusion, because there are lots of communities that depend on small rivers to survive.

“If the banks now belong to the Federal Government, we are doing what we are not supposed to do; we are centralising power at the centre. We are not devolving powers. We are bringing Nigeria back to a unitary state. We are now making sure that even communities are now dispossessed of their land. Some of those places are natural elongation of the land,” Akpabio submitted.

Although Lawan, chief proponent of the bill, called on the then president of the Senate, Senator Bukola Saraki, as chairman of the committee of the whole, and other senators to ignore the fears of Akpabio and other Southern senators who were calling for the review of the bill to meet good governance of the nation’s water asset, Senator Yahaya (Kebbi North), who has now assumed the office of the Senate Leader in the Ninth Assembly, formerly occupied by Lawan in the Eighth Assembly, who also supported the passage of the bill, was reluctant to address the thorny issue of “river bank.”

He wanted a definitive explanation on what “river bank” meant, so that it could be properly identified and understood by all, in view of the contention over the bill. This, he maintained, was to make for appropriate interpretation that would be acceptable to all affected.

Yahaya’s concern was that it might be likened to the Federal Government’s right of way on roads that enjoy extended measure of up to 50 metres on both sides. He pointed out that; “a lot of conflicts are going to arise,” because if applied to water bodies, “river banks are much more contentious than roads, because of agricultural and other activities.”

Akpabio was not done with his concern over the bill, as he stressed to all listening ears that laws were made to improve governance of a state or country and their people and not to set a chain of confusing outcomes to governance and assets, especially to a critical natural asset for daily living of the people in the future.

He stressed his warning in these words: “I am saying that the essence of making a law is for the law to stand the test of time and not bring more confusion.”

To drive home his point, the senator used empirical examples connecting some more senators to the issue at stake. Akpabio cited a small river in Akwa Ibom, part of which also flows in Abia State and stated that such river would be impacted upon, stripping both states their rights by the constitution which states that “the state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria.”

He noted that this was the responsibility the Nigerian constitution (as amended) has placed on the states of the Nigerian federation to carry out on behalf of the people in Chapter Two under the Fundamental Objectives and Directive Principles of State Policy.

The import of that, said Akpabio, who is currently the Minister of Niger Delta Affairs, was that irrespective of the size of the river or even the unknown and ignored water body, it would become subject of contention between the Federal Government on the one hand and, the state and communities that host the water body and use them on the second hand. He identified this as a matter that would clearly diminish loyalty to the Federal Government.

As Senator Yahaya, one of the strongest voices in support of the bill, did when he submitted to superior reasoning, calling for clarity of “river bank,” as used in the bill for general understanding, Akpabio called on the sponsors of the bill to “list” the water bodies or rivers to be taken over by the Federal Government under this bill when it becomes an Act of the National Assembly. The call by Akpabio, who led the legislative rebellion against the President Buhari-backed bill sponsored by the former Senate Leader and current president of the Senate, is now the controversy over the bill.

The executive bill was designed to empower the Federal Government as absolute manager of the nation’s water assets. It was to make the Federal Government assumed total control over the whole water wealth of the nation. This trampled on the rights of the respective states and federating units to exercise their rights of ownership and control of their respective water wealth.

More worrisome for the other senators, who stood against the bill, is the fact that it was coming at a time the call for devolution of power to weaken the centre and broaden the power base of the states and local government areas is gaining momentum nationally. It is widely believed that this would make for effective and efficient governance to make Nigerians feel the impact of governance and reap democratic dividends.

Many can recall that Nigeria’s practice of federalism states back to the time of Sir Benard Henry Bourdillon, a British colonial administrator who served as the Governor General of Nigeria between 1935 and 1945. He laid the foundation for Nigeria’s practice of federalism. This was enabled by the Richards Constitution and over this period, it has been in practice, even though some have argued that what Nigeria currently practises is not federalism but a unitary system fashioned to promote military command structures. It is argued that the Nigerian constitution defines the country as one and provides the basis for the advocacy on restructuring along the dictates of true federalism.

“Nigeria shall be a federation consisting of states and a Federal Capital Territory,” Section 2 Subsection 2 of the nation’s constitution states.

Again, Section 20 reinforces the powers of the state on management of the water resource in its domain. It conforms to the aspiration of Nigerians on national unity, justice and fairness as well as national loyalty which the constitution prescribes.

The rejection of the bill, it has been further argued, is not to deny the nation maximal benefits it intends, but for the provision in the subsections of Ssection 2 of the bill, namely; “(4) as the public trustee of the nation’s water resources, the Federal Government, acting through the minister and the institutions created in this Act or pursuant to this Act, shall ensure that the water resources of the nation are protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate.

“(5) States may make provisions for the management, use and control of water sources occurring solely within the boundaries of the state, but shall be guided by the policy and principles of the Federal Government in relation to Integrated Water Resources Management.”

Furthermore, this Act, while allowing the state to manage the water in Subsection 4, limits its access in Subsection 5.

Akpabio was not alone in his rejection of the bill from his observation. Senator Senator Emmanuel Paulker, representing Bayelsa Central, was also in agreement with Akpabio against the passage of the bill, but pitched his tent with Yahaya on the need to have a defined status for the word “bank” in the bill and submitted that; “most of these rivers dry off; they are seasonal rivers. If we say banks are owned by the Federal Government, definitely, it will create a lot of problems. We should look at it closely before we pass it. Most of the waters are drying off. So, how do we define the banks?”

He argued that the Federal Government was out to take over resources in the states, at a time when Nigerians were calling for devolution of powers.

He is of the opinion that only few weeks after screening of ministers, the president sponsored such a controversial bill to the Senate, seeking to take over resources in the states, at a time Nigerians are calling for devolution of powers.

He asked the Minister of Water Resources, Suleiman Adamu, to resend the bill to Senate, without making reference to the contentious issue raised by Akpabio and Yahaya for the Senate to consider and pass.

Lawan viewed the contentious issues of “river bank,” “river bed” and “control” that led Senators Yahaya and Paulker to call for definition of the terms and Akpabio seeking review of the powers of the Federal Government on all water assets as mere controversy story. He also debunked the call for list of the rivers to be controlled in the manner as prescribed by the bill which negates the essence of federalism and calls for devolution of power.

While giving his directive to Adamu to return the bill to the Senate, he said that “actually, Water Resources Bill was turned down unfortunately controversially by a senator and now, he is on the side of the government. I will just advise the honourable minister, because I sponsored the bill on behalf of the Federal Government.

“I think at that time, this development arose because, maybe, simple opposition somehow created a story around the bill. Then, the bill was opposed and we tried to manage the situation and we couldn’t. Now, that person is going to work for this bill to be passed. So, you should work with him, since he is going to be in the same cabinet with you.”

The president of the Senate was, obviously in this remark, referring to Senator Akpabio, who is now a member of the Minister of Niger Delta.

The question now is ‘will the return of the bill be without reviewing the areas of concern?’ And will Akpabio defend this bill which he once protested against? These and more questions would be answered as the bill makes its return to the Senate for deliberation.