Sunday, 3rd December 2023

Implications of Water Resources Bill 2020

By Bayo Ogunmupe
08 October 2020   |   3:23 am
In 2017, the Federal Government sent the National Water Resources Bill to the National Assembly requesting that it be passed into law.

In 2017, the Federal Government sent the National Water Resources Bill to the National Assembly requesting that it be passed into law. The bill sought to transfer the control of water resources from states to the Federal Government. Owing to a countrywide outcry against the measure, it was dumped by the Eighth Assembly. But earlier this year, the Chairman of the House of Representatives Committee on Rules and Business reintroduced it as an executive bill. The faulty manner by which the bill was reintroduced puts to question the motif of its sponsors. At present, the bill is being used to polarize the country along ethnic lines. Here, I am seeking to examine the implications of the bill, situating its status on the denial of access to potable water to the majority of Nigerians.

The first faulty aspect of the bill is that it is unconstitutional for the representatives to reintroduce and continue processing any bill that was not passed by a previous Assembly session. The sponsors of the bill ought to have been advised to present the bill anew. It was inconceivable that no member of the House saw that the bill breached the Rules of Procedure of the House and the relevant provisions of the Constitution.

From time immemorial, Nigeria has been blessed with water in abundance. From the 1970s, federal and state governments invested in river basin authorities and dams which made water to be available all over the country. Indeed, the urban areas were guaranteed regular supply of water to the extent that there was pipe borne water in every home and street then. But the dream of the rural areas to have pipe borne water extended to them was shattered in the regime of President Ibrahim Babangida when Structural Adjustment Programme (SAP) was introduced. Thus, SAP led to drastic reduction in public funds meant for social services under the Directorate of Foods, Roads and Rural Infrastructure. Thereafter, water supply was privatised and priced out of the reach of the poor. Then, water from boreholes started to be packed and sold in sachets to the poor while the rich could afford bottled water produced by factories. However, instead of collaborating with states and local governments to address lack of water supply in the country, Aso Villa forwarded to the Ninth National Assembly the bill rejected by the Eighth Assembly designed to further commercialise access to water by the people. Through the bill, the Federal Government will take over water resources from the states, license the supply and commercialise the use of water. What is more, government that has failed to supply water to the people will turn round to give approval and charge people for digging boreholes. Since the bill contravenes parts of the Constitution and relevant judicial authorities, some states and cultural groups have accused the Federal Government of seeking to take over the water resources of some sections of the country in order to implement the obnoxious rural grazing policy through the back door.

In its highlights, the national Water Resources Bill empowers the Minister of Water Resources to formulate water resources management strategy to guide integrated planning, management, development, use and conservation of the nation’s water resources and provide guidance for the formulation of hydrological area resources strategies under Section 94 of the bill. The bill creates a commission, regulate, protect, conserve and control water resources identified by the bill as water sources crossing state boundaries in accordance with Section 2 as well as the first schedule to the bill for equitable and sustainable social and economic development, and to maintain environmental integrity. In his own criticism of bill, a human rights activist and senior advocate of Nigeria, Chief Femi Falana (SAN) averred the following illegal provisions of the National Water Resources Bill: “Contrary to the provisions of the proposed bill, the Federal Government cannot authorise or license persons who may want to sink boreholes outside the federal capital territory. In Attorney General of Lagos State versus 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 physical planning outside of the federal capital territory. In Attorney General of Lagos State versus 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 follows that the National Assembly cannot make a law in the form and detail of the Nigerian Urban and Regional Planning Decree 88 of 1992. That will be in clear breach of the principles of federalism and an incursion into the legislative jurisdiction of the states. But the National Assembly can make planning laws for the Federal Capital Territory. 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 noncontroversial philosophy of federalism that the Federal Government does not exercise supervisory authority over the state government.”

Falana went further that in granting the reliefs sought by the plaintiff, the Supreme Court held that urban and regional planning as well as physical development was 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, the bill seeking to confer power on the Federal Government to give approval or licence for digging boreholes in any part of the country is illegal and unconstitutional. In Nkwocha versus Governor of Anambra State (1984) 1 SCNLR 634 at 652, 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 during the military regime of President Ibrahim Babangida, the people of Nigeria resisted attempts to takeover landed properties by decrees. The most daring decision to corner land in Lagos State and other states was the enactment of the Lands Decree 52 of 1993. The decree vested ownership, control and management of all land within 100 meters of the 1967 shoreline of Nigeria and any other land reclaimed from any lagoon, sea, ocean in Nigeria. The commencement date of that decree was to be January 1, 1975, a day when the Yakubu Gowon junta was still in power. In the ensuing Elegushi versus Federal Attorney General (2000) JELR 57863 the Constitutional validity of the decree was challenged. The 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 funding state and local governments to provide water to the people the Federal Government is only desirous of granting approval for the sinking of boreholes for commercial purposes. It is unfortunate that Federal Government is so ignorant that the indiscriminate sinking of boreholes will lead to upsetting the water table and thereby increasing the risk of earthquakes in Nigeria. Indeed, Lagos State successfully challenged the power of the Federal Government in unreported (CA/886/14) where the Court of Appeal held that the Inland Waterways within Lagos State are not and cannot by any interpretation be covered by 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.

Therefore, from the unambiguous provisions of the Water Resources Bill 2020, it is indisputable that its sponsors have not adverted their minds to the relevant cases decided by the Supreme Court and the Court of Appeal which have upheld the exclusive powers of state governments over land use, physical planning and inland waterways in the coastal states. Thus, the implications of the bill are that it is dead on arrival because the bill is illegal and unconstitutional. The bill should be withdrawn and the legislators should stop confusing the Nigerian people.