By Pascal Chimezie
Land and mineral resources ownership can be quite complicated and controversial. The raging feud between former president Olusegun Obasanjo and Chief Edwin Clark over land oil and gas ownership in the Niger Delta region may linger for a long time to come since, it appears, there is not a single sincerity of purpose on the part of the Nigerian leaders to address the issue. When elders who should know better decided to engage in intellectual dishonesty and mischief, then the people are in for a long night of confusion.
Obasanjo first stoked up the fire. Speaking at an event organized by the Global Peace Foundation in Abuja on December 13, 2021, the former President reportedly said that “the oil found in the Niger Delta region does not belong to the people of the Niger Delta.” Chief Edwin Clark was rudely taken aback, and he described Obasanjo’s “unprovoked outburst” not only as “displaying a hate attitude against the people of the oil-producing States in Nigeria,” but also as “unstatesmanly.” According to Clark, “Natural resources found in regions, were controlled by the people of the regions in the country as enunciated in Section 140 of the 1960 Constitution.”
In a rejoinder, Obasanjo insisted on his earlier position that the oil in Niger Delta belonged to Nigeria, not to Niger Delta.
Quoting the defunct 1963 Republican Constitution, Obasanjo wrote:”The 1963 Constitution section 140 titled ‘Mining Royalties and Rents’ stated thus: (1) There shall be paid by the Federation to each region a sum equal to fifty percent (a) proceeds of any ROYALTY received by the Federation in respect of any mineral extracted in that region; and (b) any mining RENTS derived by the Federation during that year from within that region.”
“My dear Chief Clark,” he challenged, “Where in this constitutional provision is it said or implied that minerals located in any part of Nigeria belongs (sic) to that location? He added for effect, “For emphasis and to further buttress the point, the provision is even in the exclusive list – exclusively reserved to the Federal Government.”
Chief Mike Ozekhome, renowned constitutional lawyer, pooh-poohed former President’s argument. “Legally speaking,” Ozekhome said, “Obasanjo can be said to be correct, because he was part and parcel of successive military juntas that cleverly and systematically inserted expropriatory and inhuman laws concerning ownership of oil and gas into our statute books.” Ozekhome reminded the former president of a legal principle with the maxim, “quic quid plantatatur solo solo cedit,” which literally means that whoever owns the land owns everything on top of it.”
The argument, however, is not only about who owns what is “on top” of the land. It includes who owns the land and what is beneath the surface of the land. Quoting obnoxious laws, Constitutions and legal maxims will not resolve the matter, if the leaders continue to run away from clearly defining what constitutes land and its ownership structure. Nigerian leaders like to borrow almost everything American. They copy and paste, without critical thinking. Yet, it is surprising that these leaders have not looked at how the same America, as a federation of states, with natural resources deposits in many states, has been able to work out its own arrangement. How did the oil rich states such as Texas, California, Alaska, North Dakota, etc were able to benefit from their God-given natural endowments while remaining component parts of the larger Federation? The difference lies between having bullies and nepotistic rulers who are self seeking and honest and responsible leaders who think about the welfare and well-being of the people. The US Constitution and laws adequately recognize who owns what, and where; and properly accord that respect.
In the United States, natural resource ownership is closely tied to land ownership. And there are four main types of land owners: (1) citizens and corporations; (2) federal government; (3) state and local governments; (4) Native American tribes and individuals. There are also two types of owners for submerged lands under the ocean: (1) states and (2) the federal government.
Private individuals and corporations, as well as federal, state, local, and tribal governments, can own both land and the oil, gas, coal, and other minerals found below the surface. In fact, widespread private ownership of these resources makes the U.S. remarkably different from nearly every other country in the world, including Nigeria, where these resources simply belong to the national government. And that is the crux of the raging controversy in Nigeria about oil and gas, how much to pay as royalty or derivative percentage.
In the US, there is “Split ownership” of land. Sometimes the land’s surface owner is different from the owner of the minerals in the ground below. The party that owns the land’s surface has surface rights, while the party that owns the natural resources in the ground has subsurface rights.
When it comes to the natural resources found off the coast, the federal government and state governments split ownership. In general, states have primary authority and natural resource ownership in the three-mile area extending outward from their coasts. The federal government owns oil, gas, and minerals located in the submerged lands on the Outer Continental Shelf, which extend from the states’ offshore boundaries out to at least 200 nautical miles from the shore.
Is this arrangement too much for Nigerian leaders to understand, if not for their deliberate mischief?
Closely linked to the politics of oil in Niger Delta is the reason the civil war was fought bitterly and millions of people lost their lives on both sides. Obasanjo alluded to it in his letter. He said, “I would be the last person to celebrate the civil war (a tragedy of enormous proportion). Needless to say that the war was fought to maintain and secure the territorial integrity of Nigeria to which Niger Delta is integral.” Then he rubs it in:
“I leave you to second-guess what would have become the fate of the Southern minorities and the ownership of your claims of crude oil located in your backyard in the event of contrary outcome.” Here Obasanjo presents his argument from the angle of “an angel of light,” a saviour and defender of (Southern) minorities’ rights.
This has been the dummy ever sold to the people of Southsouth region by the Nigerian state against their own kiths and neighbours in the Southeast. “Igbos want to take over your oil. We’re your saviour!” Unfortunately, the lies appeared to have worked, although the people are getting wiser. Because Nigeria “saved” Niger Delta from Biafrans the best way the Niger Delta people will have to “pay homage” to the memory of those who lost their lives to ensure the “successful outcome” of the civil war is perhaps to cede their lands and everything therein to the federal authority as loots of war!
Since the Federal Govt has been exploiting these resources for decades, how well has it taken care of the region? How much revenue of the gold mined in Zamfara state, for instance, has been remitted to the national coffers for allocation to other states? I have not heard the former President talk or written about that in his letters. Or does that not belong to Nigeria as well? If he is not anybody’s lackey, he should, at least, try not to give out the impression that he represents some entrenched interests.
The defunct 1963 Republican Constitution gave the regions “50% royalties and rents.” But this was toppled by the successive regimes led by the same “Conquerors” of the Nigerian people. And as stated by Mike Ozekhome, Obasanjo was part of the successive military juntas. They too gave us the fraudulent 1999 Constitution, which Obasanjo relies for his argument. When a debate is first built upon wrong premise, its logical summation will inevitably be flawed.
Pascal Chimezie is former secretary general of Ohanaeze Ndigbo in Lagos and a public affairs analyst. He writes in from Lagos.