Alleged 13% Derivation Injustice: Fresh Rumpus As Delta Oil Communities Urge Buhari To Right Wrong

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  • Insist only President has prerogative, jurisdiction to legislate on 13% Derivation Fund
  • Plead with Buhari to redeem the situation, correct anomaly
  • Say it’s illegal, unconstitutional for 3rd line charge to manage what belongs to 1st line charge
  • Alleges state govt’s has  failed to address plight of oil producing communities

From Ameachi Prosper (The New Diplomat’s Delta State Correspondent)

An oil producing area advocacy group in Delta State, known as the Concerned Leaders of Oil and Gas Producing Communities(CLTOGC), has pleaded with President Muhammadu Buhari to authorize a direct disbursement of the 13% derivation fund meant for Oil producing communities to host Oil and gas producing communities to address existing under-development in the highly devastated oil producing communities.

According to the CLTOGC, this measure  would remedy an existing anomaly where the funds first go to the hands of governors of the oil producing states, a move that is not only ethically incongruous, unconstitutional, and inappropriate but amounts to a violation of  the 1999 Nigerian Constitution.

The elders and leaders of thought of the host Oil and Gas producing communities further aver that the management of the 13% derivation by host oil and gas communities would   bring about concrete socio-economic development and accelerate  positive infrastructural transformation of the oil and gas producing communities of Delta State and other states in the South South geo-political zone.

The group which consist of members from oil and gas producing ethnic nationalities in Delta State, addressed a press conference in Warri, Delta State, where it re-echoed its appeal to President Buhari to right the existing wrong by authorizing a direct disbursement from  of the 13% derivation fund accruable to the oil and gas producing communities in the Niger Delta, particularly in Delta State, to host Oil producing communities who directly bear the impact of Oil exploitation and environmental degradation.

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Presenting the position of the Concerned elders and leaders of thoughts of host oil producing, its chairman, Chief (Dr.) Wellington Okirika recalled the origin of the 13% derivation fund, noting that it was a product of the advocacy and agitation of the people of the oil and gas producing communities during the 1994/95 Constitutional Conference under late Head of State, Gen. Sanni Abacha’ regime.

Alleged 13% Derivation Injustice Fresh Rumpus As Delta Oil Communities Urge Buhari To Right Wrong

Chief Okirika, who was pioneer chairman of the Delta State Oil-Producing Areas Development Commission(DESOPADEC) said the current  existing 13% derivation is based on the agitation of the oil and gas communities for equity, justice and development in Oil producing communities that encouraged the regime of late Gen. Sanni Abacha to promulgate and gazette the 13% derivation fund as part of the Federation Allocation fund to the communities.

Recall a recent survey conducted by The New Diplomat in the six states of the South-South namely, Akwa Ibom, Bayelsa, Cross River, Delta, Edo and Rivers had revealed the popular position of people in the South South region on who should directly access the fund.

According to the survey, people of the geo-political zone said the derivation funds should rather be paid directly to the host communities, which suffer the brunt of environmental devastation, as a first line charge as enshrined in the 1999 Constitution.

The findings revealed that “81 per cent of South-South people demand a situation where the existing 13 per cent derivation is released directly to the host oil-producing communities as first line charge.”

“While 10 per cent of the people believe that it is better to maintain the existing structure, nine per cent were somewhat reserved, wanting more clarity by demanding that the National Assembly should be encouraged to legislate a direct disbursement legal protocol for the host oil-producing communities,” the report stated.

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Okirika, while canvassing support for this position recalled that no state governor participated in the agitation and advocacy for the 13% derivation fund during the 1994/5 constitutional conference, adding that none of the governors who are superintending over the management of the fund today assisted in any way to persuade the then military government to decree and gazette the 13% derivation fund into law to be paid directly to  host Oil and Gas producing communities of the South South region.

He said: “It is pertinent to recall that the advocacy and agitation for the actualization of 13% Derivation Fund was carried out solely by the Oil and Gas Producing Communities under the Leadership of Chief (Dr.) W.O. Okirika (aka Mr. 13% Derivation Fund) at 1994/95 Constitutional Conference during the regime of General Sani Abacha.

“There were no State Governors or any other persons that assisted us financially or otherwise. General Sani Abacha’s regime promulgated and gazetted the principle of increase of Federation Allocation to the Oil Producing Communities as 13% Derivation Fund. 13% Derivation Fund is therefore a benchmark for Revenue Allocation to the Oil Producing Communities of Nigeria.”

The Group further recalled that after the promulgation and gazetting of the 13% derivation fund into law by Gen. Abacha, the oil and gas producing communities led by Chief Okirika piled up pressure on the regime of Gen. Abdulsalam Abubakar to ensure the 13% derivation fund was enshrined in the 1999 Constitution of the Federal Republic of Nigeria, adding that “the fund was not MANNA that fell from heaven, rather it was fought for by the oil and gas communities.”

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“It is necessary to recall also that during the government of Gen. Abdulsalam Abubakar who took over from Gen. Sani Abacha, Oil and Gas Producing Communities still under the leadership of Chief (Dr.) W.O. Okirika (CON), piled great pressure to ensure that the 13% Derivation Fund was enshrined as Section 162(2) of the 1999 Constitution, as amended.

“It is clear that 13% Derivation Fund is NOT MANNA from Heaven. Oil and Gas Producing Communities fought for it and they should benefit from it”, the group said.

On the alleged illegality and unconstitutionality of the payment of the 13% derivation fund to the state governors, Chief Okirika noted that the procedure is not only against natural justice, it is illegal and unconstitutional, adding that it violates the two mandatory provisions in the 1999 Constitution, as amended, in Section 162(2) and the Exclusive Legislative List.

The group further argued: “The payment of 13% Derivation Fund to the governors of the Oil and Gas Producing States is not only against natural justice, it is also illegal and unconstitutional as a violation of two mandatory provisions of the 1999 Constitution, as amended.

“The provision of separation of powers, Second Schedule, Legislative Powers Part I, Exclusive Legislative List listed Oil and Gas as number 39.  It defines that item to include “Mines and Mineral including Oil Fields, Oil Mining, Geological Surveys and Natural Gas.  What this means is that Oil and Gas is not on concurrent list.

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“Section 162(2) of the 1999 Constitution, as amended also stated that “Provided that the
Principle of Derivation shall be constantly reflected in any approved formula as being not less than 13% of the revenue accruing to the Federation Accounts directly from any Natural Resources.

“Again, what this means is that the 13% is a first line charge on the Federation Account. The Federal Government is a 2nd line charge, state government is a 3rd line charge while Local Government is the 4th line charge of the Federal Account.

“In practice, 13% of the total Oil Revenue is removed and kept aside for the oil and gas producing communities, while the 87% of the total Oil Revenue is shared among the Federal, States and Local Government Areas. Therefore, it is illegal and unconstitutional to pay first line charge through a third line charge as all first line charges are paid directly to the beneficiaries, in this case, Oil and Gas Producing Communities.”

While stressing that the President exclusively has the right to take any decision on the Army, Navy, Air Force and the Nigeria Police, as provided for in Item 38 of the Exclusive Legislative List, the group noted that in the same taken, the President is the only person empowered to take decision on the provision of Item 39 of List for which oil and gas falls into.

Chief Okirika also emphasized that the payment of derivation fund to the oil and gas producing communities was not new. He recalled that President Shehu Shagari set a precedent by setting up a Presidential Monitoring Committee and State Implementation Committee comprising leaders and stakeholders from the oil producing communities, to administer the then 1.5% derivation fund. According to him, he (Chief Okirika) and Chief (Col) Satchie Etoromi (rtd) were members of the State Implementation Committee.

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Chief Okrika explained further: “The Army, Navy, Airforce and the Police are number 38 on the Exclusive Legislative List. The President does not consult anybody as it is mandatory for him to take any action on any matter on the Exclusive Legislative List. Mr. President issues Executive Order and appoint anybody fit to head the Army, Navy, Airforce and Police.

“In the same manner, as a mandatory provision of the 1999 Constitution, Mr. President can issue Executive Order on Oil and Gas, that is number 39 on the Exclusive Legislative List. When Derivation Fund was 1.5%, President Shehu Shagari issued an Executive Order and established Presidential Monitoring Committee and State Implementation Committee to manage the 1.5% Derivation Fund. I, Chief (Dr.) Wellington Okirika and Chief (Col.) Etoromi were members of the State Implementation Committee, from the then Bendel State.”

The group noted that although the 1999 Constitution, as amended, expressly provided for the prerogative and jurisdiction of the President to make pronouncement on the 13% derivation fund, former President Olusegun Obasanjo, out of pressure of then restiveness in the Niger Delta, erroneously and mistakenly told the oil and gas producing states to set up commissions to manage the funds, thus depriving the oil producing communities from benefiting from the fund.

Okirika said: “President Shehu Shagari was an elected President and there were elected State governors as at then. President Shehu Shagari did not allocate or disburse the 1.5% Derivation Fund to the State governors to manage because Oil and Gas is on the Exclusive Legislative List.

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“President Shagari then complied with the mandatory provisions of the Constitution. There is a precedent set by President Shehu Shagari in the use and management of 1.5% Derivation Fund.

“13% Derivation Fund was implemented during the first tenure of the presidency of Chief Olusegun Obasanjo. Against the two mandatory provisions of the 1999 Constitution, as amended and natural justice, President Olusegun Obasanjo allocated the 13% Derivation Fund to the governors of Oil and Gas Producing Communities. This is the beginning of the woes and pains of the Oil and Gas Producing Communities.”

According to the group, it  was this error by Chief Obasanjo, ” that gave an illegal feeling of power to the governors to inappropriately appropriate the 13% derivation fund to themselves and families, thus depriving the oil and gas producing communities the benefit of the compensation for their losses in terms of their fishing occupation, lack of potable water, environmental degradation and unemployment.”

The group expressed  delight and confidence that President Buhari will exercise his prerogative and jurisdiction to redeem the control and management of the 13% derivation fund from  governors and hand over same to the oil and gas producing communities to manage as it was during the Shagari administration in line with justice, equity and the law.

“Encouraged by the change mantras of President Muhammadu Buhari to right all wrongs, the Oil and Gas Producing Communities are confident that Mr. President will use his power of prerogative and jurisdiction as contained in the Exclusive Legislative List to issue an Executive Order to pay directly the 13% Derivation Fund to Oil and Gas Producing Communities in line and in conformity with the two mandatory provisions of the 1999 Constitution, as amended, to return 13% Derivation Fund to the source of derivation, which is the oil and gas producing communities.

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“This will save the people of oil and gas producing communities from abject poverty, hunger, penury and environment vandalism and this is the only panacea to the Niger Delta crisis”, the group said.

Fielding questions from newsmen shortly after the briefing, Chief Okirika stated that the creation of the Delta State Oil Producing Areas Development Commission, DESOPADEC, was a child of necessity, saying that former President Obasanjo, rather than creating a Presidential Monitoring Committee and State Implementation Committee as President Shagari did to manage the 13% derivation fund, he(Obasanjo) erroneously told State governors to set up committees, adding that that was what gave birth to DESOPADEC, where he became the pioneer chairman.

Okirika further noted that the state governors capitalized on the unconstitutional, and inappropriate directive  of President Obasanjo to take over the control of the derivation fund and started mismanaging it up till today.

He said: “The Commissions were created out of difficult circumstances. President Olusegun Obasanjo allocated the 13% derivation fund to the governors of the oil producing states. And that created the problems. He mandated the governors to create the commissions where we could be part of the team to manage the fund.  That led to the creation of DESOPADEC where I became the chairman.  But not long thereafter, the governors of those states transformed themselves as the chief executives of the Commissions.

“It was a temporary measure to bring peace to the Niger Delta.  But you can see that the peace and development expected are not there. So, we better go back to the drawing board.”

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Okirika averred that the DESOPADEC under his watch is not the DESOPADEC of today, adding that his administration tried its best to positively impact on the oil and gas community by executing some critical infrastructural projects. According to Chief Okrika, during his administration of DESPODEC, “the commission was getting the 50% of the 13% according to the law creating the commission, but today the Commission was not getting that fifty percent because the governors have become the chief executives of the commission.”

Also, speaking to newsmen, Chief (Col) Satchie Etoromi (rtd) noted that President Obasanjo, on realizing that he had made a mistake in bringing an item in the exclusive legislative list to the governor to deal with, now mandated them to set up Oil Commission and incorporate representatives of the oil and gas producing communities to manage the fund. But the governors have become czars in the management of the fund.

He said: “Obasanjo took an item in the exclusive legislative list to the governors as if it is a matter in the concurrent legislative list.  And that is the source of the problem we are facing now. I want to appreciate Chief Okirika that he is still very strong in bringing out this issue.  And I’m very pleased that Mr. President is giving us a listening ear.  I hope and plead that the error should be corrected at this time.”

On his part, Chief Johnny Arevua from the Ijaw nationality from Odidi, stated that there is no presence of the impact of the 13% derivation in the area. According to him, his area which is OML 42 covers Odidi I and II, Batam, Gbaramatu, Egwa I and II, Jones Creek – altogether produces well over 90,000 barrels of oil per day.  He said “there is no evidence of the presence 13% derivation sponsored project in all the communities that make up the OML 42.”

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He said: “Seeing is believing, if not because of time, I would have said you travel to the communities and see with your eyes. There is no evidence of 13% there. The governors formed Commissions for themselves and their families.  Go to Odidi, go to Jones Creek, go to Batam and other places, there is nothing to write home about 13% derivation fund.

“And that is why the youths are now annoyed and resort to restiveness.  The only solution is to pay the 13% derivation fund to the communities.  Do this and I bet you, give us just two years and we will transform our communities to Dubai.”

Mrs. Nneka Obi from the Ndokwa nation was also at the occasion.  When asked how the women will feel should the government grant the request to pay the 13% derivation fund directly to the communities, she said: “The women will be relieved because, right now the women are suffering, the youths are suffering.  There is nothing to show for the 13% derivation fund in our communities.

“Our fishing rights and our farming rights have been eroded due to the activities of oil exploration and production.  You can see that nobody is going to farm again because our soil is no longer producing anything.  There is no fish again in the rivers because of the exploration of oil.

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“Right now, the women are just there.  They have no money for business and no money to take their children to school and pay school fees.  No work for their husband and their children.  They are just there, suffering.

“But the governor is doing away with the communities’ money with their political boys and men, sharing the money among themselves.

“So if we are given the money we are requesting for now, the women will be so happy if Mr. President will do it for us. The will engage in doing business and their children will get jobs. We have been agitating for this for a very long time.”

Princess Grace Fregene from the Itsekiri nation in the occasion said: “Change will come when the money comes.  If you are not given what belongs to you, you will be provoked.  So, we are begging our President, Muhammadu Buhari to right the wrong.”

Olorogun Onovwie Orugho Luke from the Urhobo nation also spoke in the same vein, saying that his community, Arhavwarien, “which is an oil producing area, has no road, no light, no water and no market”, adding that “the only water project in the community was the one constructed by DESOPADEC about thirteen years ago during the time that Chief Okirika was the chairman of the commission.”

Other members of the group present include: Rev. Meleye Emmanuel from Benekuruku in Gbaramatu kingdom, Madm Grace Ese Oghenekevwe from Urhobo nation, Arc. Sylvester Dowe from Ogbe Ijoh kingdom, Sunny Avrakoghene Onoriobe from Udu kingdom and Engr. Michael Emuedafe from Ozoro kingdom.

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