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The diverse ethnic groups in the region have a long history of participation in trade and travel, which has led to the widespread exchange of idea and art forms, among the various groups and with the Western nations. 2The best national estimates, which also apply to the Niger Delta States, indicate that life expectancy had dropped to 47.5 years in 1999 and 46.8 years in 2000. Life expectancy also tends to be lower in the most deprived communities in the extreme wetland areas in the Niger Delta Region, such as the Barier Island Forest Zone and the Mangrove Swamp Forest Zone, where access to health care is poor. 3The states comprised in the territorial area called the Niger Delta Region can be classified into two; namely:
Problems and challenges afflicting the Niger Delta Region, particularly the core Niger Delta States: The Petroleum Industry is the backbone of the Nigerian economy, accounting for over 90% of Nigeria’s total foreign exchange revenue. Nigeria is the seventh largest producer in the world and the largest in Africa. Current daily production of crude oil in Nigeria is over 2 million barrels; most of it is produced from the prolific Niger Delta Region. 4The Niger Delta Region, as noted above, produces the oil wealth that accounts for the bulk of Nigeria’s foreign earnings. Paradoxically, however, these vast revenues from an international industry have barely touched the Niger Delta’s own pervasive local poverty. The Niger Delta Region today is a place of frustrated expectations and deep-rooted mistrust. Unprecedented restiveness at times erupts in violence. Long years of neglect and conflict have fostered a siege mentality specifically among youths who feel they are condemned to a future without hope and see conflict as a strategy to escape deprivation. Persisting conflict while in part a response to poor human development, has also entrenched it, serving as a consistent drag on the region’s economic performance and expectations for development. While turmoil in the delta has many sources and motivations, the preeminent underlying cause is the historical failure of governance at all levels. Declining economic performance leading to rising unemployment or underemployment; the lack of access to basic necessities of life like water, shelter, food and clothing; discriminatory policies that deny access to positions of authority and prevent people from participating in shaping the rules that govern their lives – these all indicate that governance overtime has fallen short of the people’s expectations. Many Reports have chronicled the Region’s monumental problems. The magnitude of the problems of the people of the Niger Delta is best illustrated in the Report by the World Bank in 1995. in a 1995 two volume study entitled; "Defining an Environmental Development Strategy for the Niger Delta" conducted by the Industry and Energy Operations Dividion of West Central Africa Department of the World Bank. The region is described in the following words. The Niger Delta has been blessed with an abundance of physical and human resources, including the majority of Nigerian’s oil and gas deposits, good agriculture land, extensive forests, excellent fisheries, as well as a well developed industrial base, a strong banking system, a large labour force, and a vibrant private sector. However, the region’s tremendous potentials for economic growth and sustainable development remains unfulfilled and its future is threatened by deteriorating economic conditions that are not being address by present policies and actions. The Report goes to lament that …. Despite its vast reserve, the region remains poor (GNP) per capita is below national average of $280 The Report continued: Education levels are below the national average and are particularly low for women. While 76 percent of Nigerian children attend primary schools this level drops to 30% in some parts of the Niger Delta. The poverty level in the Niger Delta is exacerbated by the high cost of living. In the urban areas of Rivers State, the cost of living index is the highest in Nigeria. Other devastating dimensions of the state of anomie of the people of the area that only one-fifth of rural housing is considered physically sound; water-borne diseases are considered common; electrification (despite enormous energy resource) is poor; so are water supply and sanitation; with only 12% of Rivers State residents percent having access to adequate sanitation (the national average is 28 percent). The estimated cost of erosion along the sea coast is N8.5 million annually. Some studies indicate that the sea rise occasioned by earth warming a one-meter rise in sea level can submerge the bulk of the Niger Delta underwater. Again the United Nations Development Programme – Niger Delta Human Development Report (2006) identifies the Region’s many problems. Some of the most serious relate to environmental sustainability which is fundamental to the peoples’ well being and development. Wide ranging and usually destructive environmental changes have stemmed from oil and gas extraction, industrialization and urbanization. Oil spills and gas flares in particular have destroyed natural resources central to local livelihoods. The data presented in the report reveal some troubling findings and deep ironies. Life expectancy is falling in an age of block buster oil prices. Energy availability is poor in a region that provides one-fifth of the energy needs of the United States. The Region needs to import fuel despite producing over two million barrels of crude oil per day. There is an almost total lack of roads in a region whose wealth is funding gigantic infrastructural development in other parts of Nigeria and expensive peacekeeping activities in other parts of Africa. The Region accounts for upwards of 80% percent of Nigeria’s Foreign exchange earnings and about 70% percent of government revenues. Water related diseases are one of the most critical health problems in the Niger Delta and the health issue most closely linked with environmental degradation. Water related diseases represent at least 80% of all reported illnesses in the region.5 These monumental problems have been acknowledged by both National and International Institutions as stated above. Development experts and policy makers have engaged in many debates about the Region’s human development dilemma questioning why abundant human and natural resources have had so little impact on poverty. Why do conflict and youth restiveness simmer despite years of development interventions? What should be done to calm the situations? How can environmental sustainability and poverty reduction be achieved given continued extraction of oil and gas resources? Finding lasting answers to these pertinent questions requires a complete overhaul of the legal and justice sector to develop a model one. This invariably involves:
Generally speaking, communities are dissatisfied with the consequences from oil operations. This disaffection is expressed in various forms, including violent demonstrations, blockages of their operations, the sabotage of pipelines and other oil installations and hostage-taking. Some groups have produced charters, declarations, agenda and resolutions to express their demands. These began with the Ogoni Bill of Rights in 1990 and the Kaiama Declaration by Niger Delta youths, containing "100 reasons why we want our resources"; the Oron Bill of Rights in which the Oron people of Akwa Ibom State resolved to take their destiny into their own hands; and the Warri Accord in which the Itsekiri people of Delta State sought ways to maximum benefits from the oil production in their area. Many conflicts have centred on renegotiating the memoranda of understanding that communities negotiate with the oil companies for the benefits meant to compensate everyone in the community for the consequences of the oil exploration and exploitation activities. Since there are no standard or regulated compensation rates for either exploitation or spillage, different rates are paid to different communities. Conflicts arise when communities realize that they have not bargained hard enough and have not secured as many benefits as other communities. Directly or indirectly, however, the government and its agencies through negligence and outright failure are implicated in most conflicts. The government has failed in establishing a proper legal and social environment for peaceful conflict resolution which has contributed significantly to the emergence of parties that resort to violence in the Niger Delta. In the light of the foregoing, it is inevitable and timely to discuss "Developing a model legal and justice sector in the Niger Delta Regio n".Recognition by Government Functionaries of the Problems of the Region: The Federal Government of Nigeria is fully aware of the agitations and crisis situation in the Niger Delta Region. Indeed the former Vice President once noted that:
With these words the former Vice-President, His Excellency Atiku Abubakar in a press conference in far away Santa Domingo, Dominican Republic on Friday November 26, 1999 acknowledged, like his President had earlier done, the travails and the injustices suffered by the people of the Niger Delta over the past four decades and more. But this recognition came with a veiled warning. For, declared the former Vice-President. At this juncture I must stress that Nigeria cannot hope to build democratic foundations on anarchy and disregard for constitutionally laid down procedures and the rules of conflict resolution. The government will, however, keep faith to its covenant with the people of the Niger Delta. But we also believe that the people of the area have a responsibility to cooperate with the government in ensuring that policies formulated are fine tuned and well focused towards generating maximum impact on the lives of the people. There is absolutely no alternative to dialogue under a democratic dispensation.
The President, His Excellency Umaru Musa Yar-Adua, in his Inaugural Address on May 29, 2007 stated that: "The crisis in the Niger Delta commands our urgent attention. Ending it is a matter of strategic importance to our country. I will use every resource available to me, with your help, to address this crisis in a spirit of fairness, justice and cooperation. We have a good starting point because our predecessor already launched a master plan that can serve as a basis for a comprehensive examination of all the issues. We will involve all stakeholders in working out a solution. As part of this effort, we will move quickly to ensure security of life and property, and to make investments safe. In the meantime, I appeal to all aggrieved communities, groups and individuals to immediately suspend all violent activities, and respect the law. Let us allow the impending dialogue to take place in a conducive atmosphere. We are all in this together, and we will find a way to achieve peace and justice. As we work to resolve the challenges of the Niger Delta, so must we also tackle poverty throughout the country". The President further noted through the Minster of Education, IgweAja-Nwachukwu, at the 24th Convocation Ceremony of the University of Port Harcourt thus: "I want to take the liberty of this ceremony to, once again, appeal to our brothers who have taken to arms in the Niger Delta to give peace a chance".He noted further that: "Meaningful development cannot and has never thrived in an atmosphere of rancour, resentment, in-fighting and civil disobedience. "Let us bury our hatchets, sheath our swords, lay down our arms and give peace a chance. Let us give government an opportunity to redress the perceived injustices suffered by the region in the past". The above statements of former Vice President and the present President and Commander in Chief of the Armed Forces are acknowledgment of the existence of crises in the Niger Delta Region arising from deprivation of a fair share of the natural resources tapped from the region. It was once suggested by Government that the alienation of some constituencies arose from the inadequacy of available instruments. One question that begs for answer is whether it is merely the inadequacy of available instruments and institutions that has resulted in the alienation of the Niger Delta Region as a constituency. It is unarguable that the alienated constituencies include not only the down-trodden Nigerian masses but some ethnic communities particularly those of the Niger Delta. It is self evident that the near total neglect of these
constituencies particularly the Niger Delta Region has let to serious social
agitation, unrest and sometimes strife. The present Legal and Justice Sector System It is evident that the present legal and justice sector structures have not been able to solve the many problems of the Niger Delta Region. As already identified the problems of the Niger Delta Region are economic, political and social. The question is what is the present legal regime and the justice sector structure and in what ways have they failed to provide answers to the problems and consequently entrenched the lack of social justice? The legal regime as it affects the Niger Delta Region and indeed other parts of Nigeria has been and remains the ownership and control of Nigeria’s Natural Resources. As already noted earlier, the Niger Delta Region is the heart of Nigeria’s hydrocarbon industry contributing the largest in Nigeria’s foreign exchange earnings. Let us then take a cursory glance at the various provisions in the Constitution of the Federal Republic of Nigeria, 1999 which is the Supreme Law of the land and the provisions in the Mineral and Mining Act Cap.M.12 Laws of the Federation of Nigeria, 2004. a. Section 44(3) of the Constitution of the Federal Republic of Nigeria 1999 states thus: "Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria Shall Vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly". b. Section 1(1) of the Mineral and Mining Act-Cap M12 Laws of the Federation of Nigeria 2004 states thus: "The entire property in and control of all minerals, in, under or upon any land in Nigeria, its continental shelf and of all rivers, streams and water courses throughout Nigeria, any area covered by territorial waters or constituency, the Exclusive Economic Zone is and shall be vest in the Government of the Federation for and on behalf of the people of Nigeria". c. Section 162(2) of the Constitution of the Federal Republic of Nigeria 1999 states thus: "The President, upon the receipt of advice from the Revenue Mobilization Allocation and Fiscal Commission, shall table before the National Assembly, proposals for revenue allocation from the Federation Account and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of states, internal revenue generation, landmass, terrain as well as population density. Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen percent of the revenue accruing to the Federation Account directly from any natural resources". The ownership, control and distribution of the wealth (Natural Resources) of Nigeria have over the years continued to generate varying degrees of actions by successive governments and reactions by the people. The Governments at each epoch trying to contain such reactions, had always come up with one law or the other but such laws have fallen short of achieving any more than they cause more reactions. On this, Senator David Dafinone in a paper titled: "Resource Control", the Economic & Political Dimension observed as follows: "To be fair, the statutory distribution of revenue from the Federation Account had been controversial as well as contentious. The Political Bureau Report of 1987 observed that the issue is so contentious that "none of the formula evolved at various times by a commission or by decree under different regimes since 1964 has gained general acceptability among the component units of the country". The current laws on the ownership, control and distribution of national resources i.e S. 44(3) of the Constitution of the Federal Republic of Nigeria, 1999, Section 1(1) Mineral and Mining Act Cap M12 Laws of the Federation of Nigeria 2004 and S. 162(2) of the Constitution of the Federal Republic of Nigeria, 1999 like the ones before them are unanimously clear on who owns, who controls but have made a party as to what constitutes natural resources. Under Section 2(c) of the Mineral and Mining Act, the Minister is to monitor the development and exploration of all minerals considered strategic. This provision contrasts sharply with the intendment of Section 44(3) Constitution of Federal Republic of Nigeria, 1999 which does not contemplate such classification and may have led to some minerals not qualifying as natural resources. The exclusive federal jurisdiction over natural resources applies only (or so it seems) to oil and gas and not to palm oil, cocoa, hides and skin, bitumen, marble etc. This seemingly restrictive application of the meaning of natural resources to oil and gas is perhaps, the genesis and continuing basis for the various adverse reactions witnessed across the Niger Delta region of the country. The principle of derivation is no longer given prominence as those of population, population density, equality of states, landmass, terrain etc. Reacting to this, Senator Dafinone in the paper cited above, stated thus: "The British administered the country initially from the proceeds from oil Palm trade derived largely from the then Eastern Region. Derivation was not given any prominence. But when groundnuts and tin from North and cocoa and rubber from the West became major earner of revenue, derivation to use the words of Dr. S. J. Cookey in his report "was catapulted into major criteria for the allocation, thus underscoring the linkage between regional control of the Political process and the dominant criteria for revenue allocation at any given time". Dr. Chimaroke Nnamani (as Governor of Enugu State) in an address to the conference of Southern Governors in 2001 stated thus: "In the days of the groundnut pyramids, cocoa and palm oil derivation was fashionable, probably because some saw some perceived advantage in resource distribution. Has some one stopped to ask why the regional governments all over Nigeria were able to execute independent political programmes without reference to the centre? The simple answer lies in the autonomy which the regions enjoyed in generating and husbanding revenue and only remitting to the centre the royalty necessary for operating the Federal exclusive list. Why did the military dump this derivation formula once oil started laying the only golden egg in the economy? This is the question that will continue to be asked particularly as Public Revenue as envisaged by Section 162(1) & (2) of the 1999 Constitution seems to have targeted oil and gas as its sole source, at least, in practice. Both Section 44(3) Constitution of Federal Republic of Nigeria 1999 and S. 1(1) Mineral and Mining Act Cap M12 Laws Federation of Nigeria, 2004 are in agreement that the ownership, control and management of "natural resources" as envisaged by the proviso to Section 162(2) of the Constitution shall be the exclusive right of the Federal Government. However, the mode and manner of the control and management particularly in relation to distribution is the centre of all concern. The increased apprehension in many quarters is due to the apparent lack of transparency in accounting for and distributing the resources of the country over the years.
A legal regime existing in any place basically should provide for the general administration of justice in the area. The totality of the paraphernalia offered by a particular legal regime should constitute the model of the legal and justice sector in the area. Thus in considering the legal and justice sector, what should readily come to mind is what structures exist in the area for the smooth administration of justice. That is, what laws are to be administered and then the machinery that will be used in the administration of the justice. The question of what laws are to be administered borders more on the role of the law-maker in the sector and the machinery for the administration of justice has to do with trained personnel such as Lawyers, judges and other agencies. If it is accepted that in the Legal and Justice Sector, both the roles of the lawmakers and the law enforcement organs are important. It has been said that the role of the lawmakers and those charged with the administration of justice is to enthrone a just legal order and the individuals in the society are to be guaranteed access to the just legal order. Suffice it to say that it has generally been accepted that the primary duty of the lawmakers and those charged with the administration of justice is to enthrone a Just Legal Order. The individual’s place in that society is to be guaranteed Access to the Just Legal Order. According to the authors Marasinghe & Conkline (ed): A just legal order is a hollow shell if a minority or an individual is denied access to that just legal order, access in the sense of understanding the law and its procedures, access in the sense of being capable of effectively utilizing the law, access in the sense of participating in the rule-making process, and experiencing positively the benefits of his society. 6Again, Hon. Justice Oputa, formerly of the Supreme Court of
Nigeria, expressed similar views. He said: In developing or third world countries like ours the perspective of jurisprudence must as a necessity concern itself with access to justice – both in the narrower concept of access to the courts and in the wider context of access to social justice and the right to the full development of his personality by the individual. Access to "Social Justice" will embrace access to the political order and access to the benefits accruing from all the economic and technological developments in his country. Any political order is unjust if the majority of our people are shut out from the political order and or denied access to the organs of government. A legal order is unjust if the majority of the people are so ignorant of that legal order that they are unable to avail themselves of its protection or else benefit therefrom. Access to justice will therefore comprehend and include access to the machinery of the law –the Courts) – as well as access to social justice and rights to benefits of development and economic progress.7 A model legal and justice sector should therefore provide a just legal order that will guarantee the individuals and the minorities access to justice. Access to justice has been expressed to be access in the sense of understanding the law and its procedures, access in the sense of being capable of effectively utilizing the law, access in the sense of participating in the rule-making process and access in the sense of experiencing positively the benefits of the society. The question of access to the legal order in the legal and justice sector is so crucial that it deserves to be considered to an appreciable extent. I will therefore consider the question of access to justice in the following senses:
A model legal and justice sector must have men who understand the law and procedures. The contents of the law as drafted must be understood first. That knowledge is important and it is the knowledge already acquired that will assist in the smooth administration of justice to make the sector work. Lawyers and Judges and indeed other persons who are involved in service delivery in the legal and justice sector must exhibit high learning in the day to day demands of their offices. Lord Brougham, L. C. once observed thus: "The interest of justice cannot be upholden; the administration of justice cannot go on; without the aid of men skilled in jurisprudence, in the practice of the courts and in matters affecting rights and obligations which form the subjects of all proceedings". 8Also talking about the qualification required in understanding the law and its procedures Best, J. observed thus: "There is nothing which has so great a tendency to secure the due administration of justice, as having the courts of the country frequented by gentlemen so eminently qualified by their education and principle of honour as at this time appear to discharge the duties which they are called upon to fulfill". 9Nowadays the administration of justice cannot simply go on without an organized legal profession which is its intimate and necessary adjunct. If every one in the profession – Judges, Magistrates and Lawyers – do but realize that the quality of justice dispensed in the courts will largely depend on the caliber of members of this profession; then it will behove each and everyone to be well prepared to assume and discharge creditably the various and onerous responsibilities pertaining to the due administration of justice. 10B. Access in the sense of effectively utilizing the law: In the sociology of law, it is said that law is an instrument of social engineering. Thus one of the primary functions of the law is to regulate the conduct of men, to restore in some cases and to punish in other cases. 11The extent to which the law can be seen to restore, regulate and punish the conduct of men will largely depend on the ability of men to set it into motion to effectively utilize same. Ignorance, poverty and lack of confidence are some of the things militating against the effective utilization of the law. Unless and until the law is effectively utilized there cannot be true access to justice in the legal and justice sector. C. Access in the sense of the rule-making process The rule-making process has to do with the processes required for bringing into life the law that will be the guiding document in various facets of the society’s aspirations. Taking the constitution for example, it is always argued that sovereignty belongs to the people and it is the people that should decide how and what should be included in the body of laws that will apply to them. The question remains to what extent are the individual members of the society or at least their true representatives involved in the law-making process. It has been argued that any law that undermines the people’s participation in its coming into being and then in pursuing their aspirations is a worthless collection of words.12 In the Niger Delta, the agitation remains that the 1999 constitution for instance was a fraud against the people in that the people were not consulted before the passage of same into law. In a model legal and justice sector, the people must be consulted in the law making process to ensure that the law finally made is a reflection of the people’s aspirations. If this is done, we can be sure that access to justice in the sense of collective participation in the rule making process will be guaranteed. It seems to me, therefore, that a just legal order is not merely one that guarantees access to justice in the sense that it provides a functional machinery to enforce due process but one that enthrones social justice for the benefits of every individual within that society. Independence of the Judiciary The question of an independent judiciary is a crucial one in the legal and justice sector of any civilized society. This is because the extent to which judges are free to perform their roles in any legal and justice sector may depend largely on the level of independence enjoyed by the totality of the judges in the state which can be collectively called the judiciary. 13The existence of the judiciary in any civilized society is an indication that in conflict times and situations, recourse may be had to the law for resolution that will bring about peaceful co-existence and orderliness. Thus it has been rightly observed by Lord Denning that if recourse must be had to the law, then it follows that judges must be independent. This classic statement of Lord Denning is a tacit expression that unless the judiciary be granted independence, recourse to the law may not offer any recipe for the enthronement of the tenets of a civilized society namely, peace, orderliness and the rule of law. Recognizing the importance of the independence of the judiciary in a free society under the rule of law, it was concluded at the New Dehi conference of the international Commission of Jurist thus: "An independent judiciary is an indispensable requisite of a free society under the rule of law. Such independence implies freedom from interference by the executive or the legislature with the exercise of the judicial functions …" We may then consider how this independence can be secured or enhanced. It has been argued that one important safeguard of the independence of the judiciary is that the salary and allowance of judicial officers should be charged upon the consolidated revenue.14 It is important that judicial officers are paid from a fund that is not held completely under the control of the executive, such as the consolidated fund. In this way, independence may be guaranteed in that judges will be free from any executive influence through remuneration and other welfare packages. As rightly observed by Lord Denning, judges must be free from any influence by those who wield power. Otherwise they can’t be trusted to decide whether or not the power is being abused or misused. The practice to charge salaries and allowances of judicial officers on the consolidated revenue is now an acceptable one that appears to have universal recognition. 15Judicial independence has two main attributes, the external and the internal. The external attributes involve the erection of sound constitutional structure nurtured by the growth of judicial tradition. Whilst the internal attributes involve those qualities of professional competence and incorruptibility by which a judge may be said to have integrity. 15aJudicial Immunity Another important safeguard of the independence of the judiciary in a model legal and justice sector is that a judge is immuned from legal proceedings arising from the performance of his duties and functions to the state. According to De Smith: "Judicial immunities from suit are conferred not for the benefit of judges but for the benefit of the administration of justice…"16 It is clear therefore, that the essence of judicial immunities is to enhance a smooth administration of justice which every model legal and justice sector should be able to provide for the citizen. In Egbe V. Adefarasin17 the Supreme Court exhaustively dealt with the question of judicial immunities and stated inter alia that persons exercising judicial functions at common law are immuned from court liabilities for anything done in the judicial capacity. Judicial Comportment & Learning The question of independence of the judiciary in a legal and justice sector will remain an illusion unless judges appointed show good comportment in terms of honesty, patience, tolerance, alertness of mind, firmness, courage, intelligence, probity and good learning. A judge must be a man of integrity, who can resist corruption and appreciate that the judicial office is a place of honour and not a place for wealth. Hon. Justice Oputa has observed rightly thus: "A judge should be a man of learning and a man of character. His qualification for appointment should command universal respect and approval. It is a tragedy to have a weak man on the bench. The passing away of a great advocate does not pose such public danger as the appearance of a weak judge on the bench for in the latter instance the public interest is bound to suffer. Learning and character are for the judge necessary co-relatives. One without the other is a tragedy"18 It has also been noted that "the expectation of the lawyer, as a Judge (and in this term we include the Magistrate) is to be steadfast in his conduct and by singleness of purpose discharge his duties and obligations to the administration of Justice without fear or favour with ill-will towards none, stubbornly resisting all evil influences whether of power, of wealth or social pressure in the undiluted resolve (which only moral rectitude can bestow) to do justice to all manner of persons before him.19 In a similar vein it was observed by Bernard Stwartz that unless those appointed to the bench are competent, upright and free to judge without fear or favour, a judicial system however sound its structure may be on paper is bound to function poorly in practice. Self Accounting System The judiciary must be allowed to have its own self accounting system as a way to also enhance its independence. To have a self accounting system presupposes that it has to manage its own funds without any external interference. The question of self accounting system has been however caught in great debate. The debate featured in 1977 and 1979 Constitution Drafting Committee and Constituent Assembly respectively. It resurfaced at the 1988 Constitution Review Committee. The members of the committee made a provision for this but the Armed Forces Ruling Council did not approve it. The question remains that a true model legal and justice sector must have in place a safeguard towards a self accounting procedure or system for the judiciary. Every legal and justice sector which is concerned with the administration of justice must be built on a philosophy which unequivocally seeks to promote the independence of the judiciary if recourse must be had to the law in conflict time for peace, orderliness and the rule of law to prevail. If this is done, there can be no doubt that such a legal and justice sector can be simply described as a good model. Challenges and prospects of evolving a Model Legal and Justice Delivery Structure: The magnitude of the problems facing Nigeria and in particular the Niger Delta Region is enormous. Some of these problems have been highlighted above. Poverty is still widespread, though the measurement of income level in Nigeria is generally a major problem in Nigeria, the estimates of earned income per month in the formal sector which excludes individuals’ consumption directly from their production activities, indicate that 46% of the employed persons in the surveyed household earn less than N5,000.00 per month. The proportion declines to 20% in the income group N5,000.00 to N10,000.00 per month and falls to 11% within the N10,001 to N15,000.00 income range. The proportion of the employed declines further to 9% in the N15,001 to N20,000.00 monthly income group, while only about 14% earn N20,000 and above.20 Poverty is not only the major concern or challenge facing Nigeria and in particular the Niger Delta Region, the education and health systems are in shambles and the critical factor in productive endeavour, regular power supply, is unavailable. In sum, Nigeria is 158th on the development index out of 177 countries surveyed in both the 2005 and 2007/2008 UNDP Human Development Index Reports.21 Suffice it to say that the quality of life of the people is central, must be the final goal, and the yardstick to measure the relevance and impact of the "vision" of leaders. Developmental Goals: As already stated earlier in this paper, the government at home and internationally, through the United Nations (UN) have acknowledged the existence of these problems and its magnitude. Successive governments in Nigeria including the present regime have not only acknowledged the magnitude of the problems but had set goals on how to solve the problems. In the same way the United Nations (UN) has also set goals on how to eradicate or solve the world’s most pressing problems. The goals set by the UN are contained in the Millennium Development Goals (MDGs). The eight Millennium Development Goals (MDGs) were agreed upon at the United Nations Millennium Summit in September, 2000. Nearly 190 countries have subsequently signed up to them. The eight MDGs are Eradicate extreme poverty and hunger Achieve universal primary education Promote gender equality and empower women Reduce child mortality Improve maternal health Combat HIV and AIDS, Malaria and other diseases. Ensure environmental sustainability. Develop a global partnership for development. The call to action will engage a broad set of players not just governments in the developed and developing world. It also involves the private sector, professionals, non-governmental organizations, faith groups etc. The Nigerian Government in a bid to attend to the problems afflicting its citizens has developed a number of policies. The policies are geared toward attaining the Millennium Development Goals (MDGs). The immediate past democratic regime in 2003 initiated the National Economic Empowerment Development Strategy (NEEDS). According to Prof. Charles Soludo, NEEDS is Nigeria’s Poverty Reduction Strategy. This was replicated at the state and local council levels as SEEDS and LEEDS respectively. Four years into the implementation of NEEDS and its clones, the key indices of human development in our country are not at all impressive as the quality of life of the people has not improved. The present government in a further bid to attain the Millennium Development Goals (MDGs) announced the lofty idea of Nigeria becoming one of the top 20 economies of the world by the year 2020, Vision 2020. Four committees to work on the realization of the vision were recently inaugurated by President Yar’Adua. Topping the list is the National Visioning Council. The group is given a 13 point terms of reference which reflect many salient issues of national concern. The four groups have the task of developing a "roadmap" for the attainment of the vision. The idea of vision 2020 sounds noble and attractive. Even on the strength of the terms of reference it is difficult to fault the idea. But in this clime, the obstacles to translating good ideas into reality are insincere and/or incompetent leadership, a lack of a firm commitment to implement the ideas and a failure of planning. However, as correctly noted by the Speaker of the House of Representatives, Hon. Dimeji Bankole, until the tide of corrupt practices is seriously reduced and the anti-corruption war won, the "2020 Vision" will only remain a vision. The Federal Government did not stop at policy formulation on how to meet the Millennium Development Goals (MDGs). They have gone beyond that to establish at different times some interventionist agencies to attend to the problems of the Niger Delta Region and other Regions or constituencies. The latest of such interventionist agency in the Niger Delta Region is the establishment of the Niger Delta Development Commission, (NDDC). The NDDC, no doubt is doing a good job but the Commission alone cannot solve all the problems in the Region. It remains an interventionist agency. The Federal, State and Local Governments must therefore live up to their responsibilities to the people of the Niger Delta Region in particular and Nigeria in general. However, at the present, as noted by the Director-General of the United Nations Industrial Organisation (UNIDO), Mr. Kandeh Yumkellah, Nigeria is far behind on the mid-term targets of the MDGs set in 2000 for countries of the world to attain by 2015. According to Yumkellah, "…Nigeria is not yet there, looking at the poverty and health indices for instance". The looming food shortage in the world today and the crisis in human capital development in the Niger Delta Region which is a critical factor in development must be addressed early to avoid crisis later. One very important question arising from the above is how can the law tackle these multitude of problems. Evolving a model law and justice system presupposes that the existing legal regime and the justice structure is insufficient to meet the demands or concerns of our ever changing society or that they are not in existence at all. An overview of the Constitutional Provisions: The provisions of some of the laws have already been highlighted in this paper. A model law and justice system will include both an examination of the model in terms of the Constitution (i.e. the Supreme Law of the land). The model in terms of the Constitution will be discussed in relation to the nature of the Federalism operated in Nigeria under a Presidential Constitution and the problem with Nigerian Federation and the provisions of Chapter 2 of the 1999 Constitution of Nigeria. Prof. Ben. O. Nwabueze identifies six different principles as being involved in the definition of Federation. 22 One of such principles he identifies as the notion of "Separateness and Independence of each government". This in otherwords means the autonomy of each government.Section 162 of the 1999 Constitution has made provision for the sharing of the national wealth. It is evidently based on the assumption that the revenue from natural resources belongs to the nation, not to the federating states. The question as to the ownership of mineral resources and natural gas under the 1999 Constitution is the same as under the 1979 Constitution. Section 44(3) of the 1999 Constitution is a re-enactment of Section 40(3) of the 1979 Constitution. The other area of anxiety is the issue of management and control of Nigeria’s oil resources. The present legal regime which was a carry over from the colonial administration vested all minerals on the Federal Government which has led to the agitation for what is called "Resource Control". This agitation is one that the law can attempt to redress. The agitation of the ethnic minorities that make up the Niger Delta Region is based on the provisions of Sections 44(3) and 162(2) of the 1999 Constitution and other laws with similar provisions. This agitation has relevance to the provisions of Section 140(1)(a) and (b) of the 1963 Constitution of Nigeria which directed that 50% of any royalty and mining rents received by the Federal Government from any Region should be paid to that Region. Sub-section (5) of the same section defines mineral to include mineral oils. It is on this basis that the peoples of the Niger Delta Region have rejected the derivation principles or formula in preference for a return to Fiscal Federalism Principle under which the federating States (or Regions under 1963 Constitution) owned, controlled and developed the natural resources which are located on their land. By that arrangement the owner and producer States would then cede an agreed percentage of their revenue to the Federal Government as tax for the maintenance of common services of the federation. In that case the derivation principle will only be relevant in the sense that the Federal government derived revenue from the States and no distribution or allocation back to the states would be required. The twin issues of Derivation Formula and Resource Control stand out and constitute the greatest test of the political will of the Constitution Review Process to effect the desired restructuring of the Nigerian Federation so that justice is done to all stakeholders in the Nigerian nation.23 The provisions of Section 162(2) of the 1999 Constitution appear not to be limited to the hydrocarbon sector. However, under Section 2(c) of the Mineral and Mining Act, as noted earlier, the Minister is to monitor the development and exploration of all minerals considered strategic. This contracts sharply with the intendments of Section 44(3) of the 1999 constitution. There is merit, therefore, in the recommendation that all minerals whether solid or hydrocarbon should be given parity of the treatment. By and large the problem is one of exercise of political will, that is to say; that all that has been happening from the Willink’s commission to the observations made in the recent visit of the members of the National Assembly to the Niger Delta Region there can be no doubt that the Region is a disaster area. There is in essence a sunami devastating the Region and the appropriate call to the Government of the Federation is declare a "State of Emergency" for the purposes of addressing the education; economic and social catastrophy sweeping across the region. It does not have to solely rely on intervention agencies such as the Niger Delta Development Commission (NDDC). It is however surprising that the same Federal Government that established the NDDC finds it very difficult to make its due payments or contributions to the Commission it set up to intervene in the crisis in the Region. There is also a call on the States and Local Governments to take active part in the development of the Region in order to enthrone a regime of a just social order not only in respect of having access to judicial reliefs but also to the benefits of the goods of existence that abound in the land. Most of the problems afflicting Nigeria today are already highlighted in Chapter 2 of the 1999 Constitution of Nigeria dealing with Fundamental Objectives and Directive Principles of State Policy. As Roscoe Pound said: "Justice applied to law is not an individual virtue among men nor is it the ideal relation among men. It is merely such an adjustment of relations, an ordering of conduct as will make the goods of existence go round as far as possible with the least friction." It is accordingly not a matter of beneficence. Section 13 of the 1999 Constitution provides that it shall be the duty and responsibility of all organs of government, and of all authorities and persons to apply the provisions contained in Chapter 2 of the 1999 Constitution. The said Chapter provides for the relationship between the Government and the people and the social, economic and political responsibilities of the Government to the people. The provisions of the Section 14(1) of the 1999 Constitution is instructive as it provides that: "The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice" Sub-section 2(b) of the same section provides that "the security and welfare of the people shall be the primary purpose of government". The chapter makes adequate provisions inter alia for the social, economic, political, educational, environmental etc. responsibilities of the government. Should these fundamental directives be followed to the letter and spirit of the provision, the many problems confronting Nigeria and the Niger Delta Region in particular, will be addressed. The Nigerian Government contrary to the directives in the said Chapter, such as that in Section 16(2)(c) which forbids the operation of the economic system in such a manner as to favour the concentration of wealth or the means of production on a few individuals or group, has gone ahead to sell and continues to sell most of its public assets to a few individuals in the name of globalization, commercialization and privatization to the detriment of most Nigerians. The situation is made worse by the provisions in Section 6(6)(c) of the 1999 Constitution which makes non-justiciable the provisions of chapter 2 of the Constitution. By this provision, the judiciary cannot inspite of any deliberate effort at judicial activism overcome this provision of non-justiciability. However, by the simple expedient of amending the Constitution to remove Section 6(6)(c) all the provisions in Chapter 2 will be made justiciable and the governments at all levels in Nigeria will live up to its responsibilities. The Relationship between Law, Peace and Development: In political discourse we often hear of war and peace having some symbiotic relationship to development. Where it is self evident that government has failed in the provision of needed developmental projects for its citizens, its functionaries often rationalise that no meaningful development can take place in the absence of peace. This nationalization is usually made in reaction to situations of conflict not bordering on war. It is sometimes made in anticipation of conflict situations falling short of war. In all such situations it is without any doubt a consequence of the violence suffered by the people. The stated rationalisation assumes that in its conceptualisation of peace, peace is the absence of war and conversely war is the absence of peace. But as clearly stated by Oke Ibeanu:24 "War is only one form of violence, which is physical, open and direct. But there is another form of violence which is not immediately perceived as such. This has to do with social conditions such as poverty, exclusion, intimidation, oppression, want, fear and many types of psychological pressure" These situations have been identified as "Structural Violence". As Oke Ibeanu further points out, in modern sociological terms, peace refers to a condition of social harmony in which there is no social conflict and individuals and groups are able to meet their needs and expectations. For example, in order to survive, a society needs to educate its children, produce goods, govern its affairs and provide security for its members. When these functions are properly performed there is order in the society and society inherently moves in the direction of order and stability.25 In view of these observations, it seems wholly mistaken to rationalise that peace is a sine qua non for development. Much too often Government functionaries forget that governments exist for the purpose of executing the public good; that unhealthy government policies which fail to enthrone social justice result in social dislocation and disequilibrium and institutionalised inequality. And that the resultant consequence of such social dislocation is social unrest and the eventual breakdown and disintegration of that society. From the above, law is used to solve the problems or many concerns of the people bringing about peace which in turn’ creates a good atmosphere for development. This development is not only in terms of the infrastructure but also in terms of human capital as one cannot do without the other. There must be a balance between human capital and infrastructure. Immediately this is achieved the many agitations from the various alienated groups and constituencies will be reduced dramatically and the legal order so created will lead to social justice which in turn will reduce some if not all, the sociological basis of unrest. Conclusion: From the foregoing, it is evident that the Niger Delta Region is confronted with serious problems and in fact, is at a crisis point. The Region is confronted by widespread poverty, poor health care and educational facilities, environmental degradation and social restiveness and conflict. I have also examined the Model Legal and Justice Sector and the need for reforms. In conclusion, from the various reports of several panels, committees and commissions set up by the Federal Government in the recent and not so recent past, it has been recommended that:
* Note that the Federal Government has made some attempt at addressing some of the Environmental concerns through the enactment of the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007. I identify myself with these recommendations and it is my considered opinion that if the above recommendations are incorporated into our laws a model legal and justice sector will be developed for the Niger Delta Region and Nigeria in general. It is only by this means that a just and fair distribution of the goods of existence can be ensured and thereby providing for a just social order. In addition the Federal Government must demonstrate its
exercise of political will by intervening directly to redress the acknowledged
injustices suffered by the people of the Niger Delta Region. It does not have to
act solely or primarily through the Agency of the Niger Delta Development
Commission (NDDC) or any other agency however beneficial that may be. Its reward
will certainly outweigh the option of armed conflict. * B. M. WIFA, OFR, SAN is a Legal Practitioner based in Port Harcourt. 1. The Niger Delta Regional Development Master Plan, P. 49 2. ibid, P. 53 3. ibid, P. 59 4. ibid, P. 72 5. ibid, P. 92 6. Essays in Third World Perspectives in Jurisprudence (Singapore, 1984) P. 431 7. In an Article Published in the Journal, Law, and Practice, Vol. 1, 1998 8. Greennough v. Gaskel (1933) 1 myl & 98. 9. See Morris v. Hunt (1819) 1 Chit . Rep. 555. 10. The Hon. Justice Chukwudifu Oputa Jsc (as he then was) in his lecture delivered to the law students of lmo State University on the 29th day of Sept. 1997. 11. The dynamics of the law & the Individual, Cyprus (1970) P. 231. 12. See the Legal column Vol. 17 No. 19, December 2006 13. B. O. Nwabueze; Judicialism in Common Wealth Africa, Nwamife Publishers, 1975, P. 265 14. Prof. Niki Tobi, in a paper presented at the Rivers State Law Conference, 1989 titled: 15. See Article 3(1) of U.S.A Constitution which recognizes this practice 15a. Hon. B. M. Wifa, SAN, Towards a Just Society through Just Laws: Selected Papers, P. 24 16. Constitutional and Administrative Law, Penguin, 4th ed. P. 372 17. 1985) 1 NWLR (Pt. 3) 549 18. Then Justice of the Supreme Court in paper delivered at Law Dev. 97. 19. Hon. B. M. Wifa, SAN, Towards a Just Society through Just Laws: Selected Papers, P. 81 20. Niger Delta Regional Development Master Plan. Pages 69 - 70 21. The Guardian Newspapers of Monday, April 28, 2008, Vol. 25 No. 10715 at P. 18 22. B. O. Nwabueze, Federalism in Nigeria under the Presidential Constitution, Sweet & Maxwell, P. 1 23. Report of the Presidential Committee on the Review of the 1999 Constitution, Vol. 1, February 2001. Chapter 2 Para. 7. 24 See Conceptualising Peace in “Peace and Conflict Studies in West Africa” edited by Shedrack Gaya Best, chapter 1 25. See John Galtung “Cultural Violence” Journal of Peace Research 27 – 2- 1990 OP cit. P. 6 - 7
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