Sustaining Benefits to the Host Communities in the Niger Delta with IBAs

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The Presidential Amnesty Program and the Niger Delta?

Many Nigerians dwelling in the Niger Delta consider the Presidential Amnesty Program (PAP) as a success, especially because of the role it is perceived to have played in the distribution of benefits to the Host Communities in the Niger Delta area of Nigeria, primarily as a mechanism to ameliorate the negative impact of hydrocarbon extraction in that region and secondarily to quell the restiveness occasioned by the disillusionment of the dwellers of the region with the disproportionate appropriation of the benefits emanating therefrom. The pertinent questions however remain whether the PAP has been as successful as claimed and whether the program is sustainable?

 

The PAP was instituted in June 2009, by then President Umaru Yar’Adua, as a mechanism to stem the rising tide of unrest and insecurity then prevailing in that region, which was having a very adverse effect on crude oil installations, production, as well as the safety of both expatriate and domestic oil workers.

 

Is the PAP sustainable?

In spite of the much touted benefits of the PAP, there have been concerns as to its sustainability as well as its capacity to eradicate the root cause of the agitation. A probable basis of these concerns might be that the PAP, being an initiative of the Presidency, is not backed by an enabling Law. Consequently, it is incapable of being legally enforced in a Court of Law but is rather enforced by the over militarization of the Niger Delta, in a seeming take-it or leave-it fashion. Thus, it is liable to a whimsical or unilateral abrogation by the Presidency, though admittedly, such an action may incur dire consequences.

 

In seeking to proffer solution, this paper is of the opinion that the implementation of an Impacts and Benefits Agreements (IBA) regime, in the Niger Delta, may be a much more sustainable, peaceful and enforceable benefits sharing mechanism than the PAP.

 

The Concerns.

At a recent Stakeholders meeting in Yenagoa, Bayelsa State, held on June 17, 2018, the Leaders of the Niger Delta, warned the President of Nigeria not to toy with or in any way seek to abrogate the amnesty program, which they regard as responsible for the current peace being witnessed in the region. Stating further that the benefits emanating from the ‘funding of the amnesty program is the key towards sustaining the prevailing peace being witnessed in the region.’ That threat would have been superfluous if the PAP was backed by Statute.

 

PAP and the HCB

It would appear therefore that the Host Communities Bill (HCB) was conceptualized by the National Assembly to cure that defect. Although the 8^th Conclave of the National Assembly is yet to put finishing touches to the brewing HCB, there are also concerns that the HCB in itself might not yield the expected benefits of peace and equitable appropriation to the Host Communities.

 

In an interview published by the Guardian Newspapers on May 16, 2018, Dr Joseph Ellah, a former Group General Manager, Corporate Planning and Development Division, of the Nigerian National Petroleum Corporation, (NNPC), stated that, ‘except the National Assembly includes the payment of royalties to oil producing communities, as a component of the HCB, unrest in the Niger Delta will persist’. Stating further that, ‘the assumption that the HCB will enhance peaceful and harmonious co-existence between the International Oil Companies (IOCs) and Host Communities was illusionary’. Though such a worrisome contribution deserves a critical appraisal, it nevertheless underscores the fact that the search continues, for a sustainable and peace enhancing benefits sharing mechanism in the Niger Delta.

 

PAP vs. IBA

Such a situation informs this Writer’s position that well crafted Impact and Benefit Agreements (IBAs) may provide the much needed key to sustaining legally enforceable benefits to the host communities in the Niger Delta.

 

In an article published on June 12, 2018 in THISDAY Newspaper, this Writer had made a case for (IBAs) as a panacea for incentivising oil and gas investments in Nigeria. It is worthy of note that these same IBAs have, in other climes like Australia and Canada, been utilized as a sustainable and enforceable mechanism for sharing benefits to and engendering peace in their Host Communities. Besides, restiveness is an anathema in those Communities. IBAs have been described as formal contractual agreements between mining companies and local communities that ‘outline the impacts of the project, the commitment and responsibilities of both parties, and how the associated Host Community will share in the benefits of the operation through gainful engagements and economic development’.

 

Enforcement of PAP and IBA

In all honesty, if the PAP is as successful as it has been said to be, there would have been little or no need for the overwhelming presence of the Nigerian Military Men in the Niger Delta. As recently as June 11, 2018, THISDAY Newspapers reported that the Acting Director, Defence Information, Brig.-Gen. John Agim stated that ‘troops in the oil-rich Niger Delta region will remain deployed to take care of unforeseen developments.’ Adding that, ‘the presence of troops gives confidence to investors and businesses to remain in operation.’ Welcome to Nigeria. With no intention of sounding academic, this, to say the least, is an unsustainable peace enhancing project. An IBA on the other hand, being an agreement, is a quid pro quo (reciprocation mechanism) that places duties and obligations on both the Company and the Community with grievance resolution clauses and penalties for breach.

 

The legal basis of IBAs

The first step needed to guarantee peace in the Niger Delta is the recognition of the rights of the inhabitants of the Host Communities as ensconced in the copious provisions of the Nigerian Constitution and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which, according to the UN website, ‘was adopted by the General Assembly on Thursday, 13 September 2007, by a majority of 144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions, which included Nigeria. It is quite instructive that ‘the four countries that voted against the Declaration have reversed their position and now support the Declaration.’ They have since become the poster Countries for peace in the administration of their various host communities. Nigeria, in contrast, is yet to change her position.

 

Nigeria, her Indigenous People and FPIC

The Nigeria situation is probably hydra headed and may make this article appear academic. Nevertheless, does the abstention of Nigeria from voting for or against the adoption of the UNDRIP preclude her from abiding with its provisions? Especially because Article 10 of the Declaration required States (Countries), ‘to obtain the FREE and INFORMED consent of the indigenous people, PRIOR to the approval of any project affecting their lands and resources.’ (Emphasis supplied).

 

That requirement for Free, Prior and Informed Consent (FPIC) is the legal basis for internationally recognised IBAs between extraction companies and host communities. Moreso, FPIC has been described repeatedly as a “right” by almost all the bodies of the UN. In order to ensure its universal adoption and application, the UN published Guidelines on FPIC, which can be freely downloaded from this link, https://www.uncclearn.org/sites/default/files/inventory/un-redd05.pdf.

 

Notwithstanding what the position of Nigeria may be on the matter, the guidelines stipulate that, ‘International Law has now recognized that FPIC is a legal norm, imposing clear affirmative duties and obligations on States (Countries).’ It would appear therefore that over and above Nigeria’s dithering in recognizing and adopting FPIC, the Country’s subservience to International Law subjects (at least) the IOCs to international adjudication. Little wonder therefore that Members of the Bodo Community in Ogoni that filed a lawsuit against the Shell Petroleum Development Company in a London High Court in March 2012 received a whopping £55,000,000 (fifty five million pounds) about N24 Billion, out-of-court settlement and compensation from the company in 2015.  There might be many more cases to follow.

 

With such an overwhelming international endorsement of FPIC, the Nigerian Government is hereby advised to take a second look at recognizing the FPIC right of the indigenes of the Niger Delta as both a peace enhancing mechanism and a key to open the door to IBAs.

 

In the paraphrased words of Brad Armstrong, a Canada based QC, ‘before making decisions which may impact indigenous rights and interests in land, Government must meet legal requirements for consultation and accommodation respecting those rights and interests. In addition IOCs, on the other hand, seeking positive Government decisions that will enable their projects and activities to proceed, can and should assist the process and thus influence the outcome, by seeking to reach cooperation and IBAs with the appropriate host communities.’

 

President Buhari and the UN

The purport of this article became more topical when on Tuesday September 11, 2018; the Minister of Foreign Affairs, Geoffrey Onyema disclosed that President Muhammadu Buhari will be speaking at the 73rd United Nations General Assembly (UNGA) in New York on September 18, 2018. He said further that the President will use the opportunity to canvass for a permanent seat at the United Nations and for a Nigerian to emerge as the President of the General Assembly next year. “President Buhari will be addressing areas such as eradication of extreme poverty, maintenance of international peace and security, human rights, highlights on humanitarian activities, tackling climate change and promoting environmental sustainability”, Onyema added.

 

The General Assembly (GA) is one of the six main organs of the UN, with equal representation for member states. Besides FPIC principle or right is an enactment of the GA.

 

Most co-incidentally, the theme of the general debate at the GA would be, “Making the United Nations Relevant to All People: Global Leadership and Shared Responsibilities for Peaceful, Equitable and Sustainable Societies”.

 

Questions Begging for Answers

Is Nigeria ready to make the principles of the UN, like the FPIC, relevant to her people based in the Niger Delta? Are we ready as a Nation to provide ‘Global Leadership and Shared Responsibilities for Peaceful, Equitable and Sustainable Societies,’ both within and without Nigeria?

 

Talk, they say, is cheap. President Buhari, should be advised that perhaps more than all his predecessors, he has the opportunity to make history by directing the ratification and adoption of the universally accepted FPIC principle, which recognizes the rights of her indigenous people and thus pave the way for a global and wholesale adoption of IBAs that will usher in a sustainable regime of peaceful enjoyment of equitably shared benefits in the Niger Delta.

 

It is submitted that the PAP which requires militarization of the zone to fuel its efficiency cannot achieve that ideal of a peaceful and sustainable society and should be laid to rest.