By Femi Falana
Sometime in 2017, the Buhari administration forwarded the National Water Resource Bill to both chambers of the National Assembly with a request that it be passed into law.
The bill which sought to transfer the control of water resources from states to the Federal Government was rejected by many Nigerians.Hence, it was dumped by the eighth edition of the National Assembly.
But Honourable Abubakar Fulata, the Chairman of the House of Representatives Committee on Rules and Business, recently reintroduced the executive bill.
The faulty procedural manner of reintroducing the bill has put into question the motive of its sponsors. As usual, the bill is being used to further polarise the country along ethnic and sectional lines.
This intervention, however, seeks to examine the constitutional status of the bill and the denial of access to portable water to the majority of the Nigerian people.
The National Water Resource Bill 2020 being debated in the House is incurably defective on procedural ground. While members of the ninth session of the National Assembly are at liberty to sponsor bills that were previously rejected by their predecessors, it is unconstitutional to reintroduce and continue to process any bill debated but not passed by members of the eighth Assembly.
The sponsors of the National Water Resources Bill ought to have been advised to present it de novo.
Even though the bill has been passed and forwarded to the committee of the whole House for third reading and final passage it should be withdrawn as it has breached the Rules of Procedure of the House and the relevant provisions of the Constitution.
Commercialisation of Potable Water.
Until about three decades ago, there was abundance of water for domestic and agricultural purposes in Nigeria.
In fact, our urban areas were guaranteed regular supply of water to the extent that there was pipe borne water in homes and even on the streets.
The dream of rural areas to have pipe borne water extended to them was shattered when the Ibrahim Babangida junta imposed the Structural Adjustment Programme (SAP) which led to the drastic reduction of public funds earmarked for the provision of social services.
In particular, the available water resources were privatised and priced out of the reach of the poor. Water from boreholes is packed in sachets and sold to the poor while the rich can afford bottled water produced in factories.
Even the commercialisation of pure water has become a source of the internally generated revenues of universities and other tertiary institutions that should have researched into how water could be produced, purified and supplied to the Nigerian people on a massive scale.
Instead of collaborating with state and local governments to address lack of water supply in the country the federal government has repackaged and forwarded to the National Assembly a National Water Resource Bill designed to further commercialise access to water resources by the people.
Specifically, the federal government will take over water resources, licence the supply and commercialise the use of water.
In particular, a government which has failed to discharge its responsibility of supplying water will turn round to give approval and charge people for digging boreholes.
Instead of reviewing the proposed water policy in the light of the provisions of the Constitution and relevant judicial authorities some state governments and regional socio cultural have accused the federal government of taking over the water resources of certain sections of the country.
Indeed, the federal government has been accused of using the proposed water resource bill to implement a controversial policy through the back door.
Highlights of the Bill
Section 13 of the Bill empowers the Minister of Water Resources to formulate national policy and water resources management strategy to guide the integrated planning, management, development, use and conservation of the nation’s water resources and provide guidance for formulation of hydrological area resources strategies under Section 94 of this bill.”
The bill recognises the right of Nigerians to take water from a water source to which the public has free access for the use of his household or for watering domestic livestock and for the purposes of subsistence fishing or for navigation to the extent that such use is not inconsistent with this bill or any other existing law.
Section 75 states that no corporate organisation or individual shall commence borehole drilling business in Nigeria unless such driller has been issued a Water Well Driller’s Licence by the commission.
The bill creates a commission to regulate, protect, conserve and control water resources identified in this bill as water sources crossing state boundaries in accordance with Section 2 as well as the first schedule of this act for equitable and sustainable social and economic development and to maintain environmental integrity.
The commission shall also regulate the allocation, supply and distribution of water resources for all uses, and to promote equitable, sustainable and efficient best practices and conduct. Section 37 provides that whatever the commission decides is binding and enforcement may be done by the federal high court “as if the decision is a judgment of such court provided that the commission has issued a certificate to the complainant for leave to proceed to the court for enforcement of the decision.”
Illegality of the Bill
Contrary to the provisions of the proposed bill the federal government cannot authorise or licence persons who may want to sink boreholes outside the federal capital territory.
In Attorney General of Lagos State v Attorney General of the Federation the Supreme Court held that the power over physical planning in any state of the federation is exclusively vested in the state government and that the National Assembly lacks the power to legislate on the physical planning outside the federal capital territory.
In Attorney-General of Lagos State v Attorney-General of the Federation (2003) 4 WRN 124 the Supreme Court (per Uwaifo JSC held that “In the circumstances, I have to say that Professor Osinbajo is right, in my view, in his submission that urban and regional planning for the Federal Capital Territory, Abuja is within the exclusive legislative function of the National Assembly but only by virtue of Section 299(a) conferring residual power on it and not the controversial Section 20 of the Constitution. Similarly, each State House of Assembly has the exclusive function to make planning laws and regulations for the state under its residual power. It must follow that the National Assembly cannot make a law in the form and to the detail and territorial extent of the present Nigerian Urban and Regional Planning Decree No.88 of 1992. To do so will be in clear breach of the principles of federalism and an incursion into the legislative jurisdiction of the States. But it can make planning laws for the Federal Capital Territory, Abuja only on the basis of its residual powers. Again, the National Assembly cannot enact any law, in contravention of the Constitution, imposing any responsibility on a State and expect obedience to such a law. It is a non-controversial political philosophy of federalism that the federal government does not exercise supervisory authority over the state governments.”
In granting the reliefs sought by the Plaintiff the Supreme Court held that urban and regional planning as well as physical development were residual matters within the exclusive legislative and executive competence of the state governments.
It is, therefore, submitted that on the authority of the Supreme Court judgment the provision of the bill seeking to confer power on the federal government to give approval or licence for digging boheholes in any part of the country is illegal and unconstitutional.
The power of the federal government to grant licenses for dredging and other related purposes in Lagos state was also successfully challenged.
It is trite law that the Land Use Act is one of the laws entrenched in the constitution by the defunct military junta. To that extent, it enjoys statutory flavour and cannot be altered via the National Water Resource Bill or through any other bill.
In other words, the bill is illegal in so far as it seeks to take over water resources on landed properties without amending Section 315 of the constitution in accordance with Section 9 thereof.
In Nkwocha v. Governor the Supreme Court held that the Land Use Act is not an integral part of the constitution but claims the special protection of Section 9(2) of the Constitution in terms of its amendment.
It was, however, made clear by the court that the land comprised in a state is vested in the governor of that state. Even when the country was ruled by military despots the people of Nigeria resisted the attempts to take over their landed properties by decrees.
The most daring decision to corner land in Lagos State and other coastal states was taken by the Ibrahim Babangida junta which had enacted the Lands (Title Vesting etc.) Decree No. 52 of 1993.
The said Decree vested the ownership, control and management of all lands within 100 metres limit of the 1967 shoreline of Nigeria and any other land reclaimed from any Lagoon, Sea, Ocean in the Federal Military Government of Nigeria “without any further assurance than this Decree.”
The commencement date of the obnoxious decree was said to be 1 January 1975, a date when the military Government of General Yakubu Gowon was still in power.
In Elegushi v Attorney-General of the Federation (2000) JELR 57863 the constitutional validity of the obnoxious decree was challenged. The learned trial judge, Odunowo J. struck down the decree on grounds of inconsistency with the rights of the indigenous land owners in Lagos State.
Instead of collaborating with state and local governments to make water available thorought the country the federal government is desirous to grant approval for people to sink boheholes.
It is unfortunate that the governments have failed to realise that indiscriminate sinking of boreholes will lead to unnecessary incursion into the water table and thereby increasing the geological risk of tremors.
In Lagos State Waterways Authority & Ors. v. The Incorporated s of Association of Tourist Boat Operators & Water Transportation in Nigeria (unreported CA/886/14) where the Court of Appeal held that that the Inland waterways within Lagos State are not and cannot by any stretch of interpretation be covered by any item in the exclusive legislative list under Part 1 to the Second Schedule of the Constitution.
It was the unanimous decision of the Court that the Lagos State House of Assembly has exclusive powers to legislate on inland waterways in Lagos State.
According to the Court of Appeal:
“The more obvious area of coverage under the exclusive list are the sea tidal waters and maritime ports declared by the National Assembly to be Federal Ports. But one finds nothing in the Exclusive List dealing with intra-state water ways either in Lagos or any other State in the Federation. The burden is on the Respondents to show that any of the Lagoons, creeks or water ways used for intra-state navigation has run across the parameters of Lagos State into international or interstate boundaries and is so declared in a law promulgated by the National Assembly. Item 64 is couched in no narrower scope as it deals with water from such sources declared by the National Assembly to be sources affecting more than one State. The inland waterways within Lagos State are not and cannot by any stretch of interpretation be covered by any item on the Exclusive Legislative list under Part 1 to the Second Schedule of the Constitution and I so hold… ”
The Court stated that the Lagos State House of Assembly is competent to make laws in respect of the intra-inland waterways in Lagos State except the inter-State waterway declared as International or Interstate Waterway under item 5 in the 2nd Schedule to the National Inland Waterways Act.
From the clear and unambiguous provisions of the bill it is indisputable that sponsors have not adverted their minds to the relevant cases that have been decided by the courts on Land Use Act, Inland waterways, physical planning and acquisition of coastal landed properties by the federal government.
In view of the current state of the law the sponsors of the National Water Resources Bill should be told that it is dead on arrival.
It is unconstitutional.
In particular, they are advised to study the relevant judgments of the appellate courts above.They should withdraw it and stop confusing the Nigerian people.
Femi Falana, a Senior Advocate of Nigeria writes from Lagos.