Let me congratulate my Lord, the President of the Court of Appeal, Honourable Justice Zainab Adamu Bulkachuwa, the Justices of the Court of Appeal, the entire Judiciary of the Federal Republic of Nigeria, the President of Nigerian Bar Association, Mr. Paul Usoro SAN, all the Branch Chairmen and members of the nine Branches of the Nigerian Bar Association in Delta State and the Government and people of Delta State, on the commissioning of the Court of Appeal Complex of Court of Appeal Division, Asaba, Delta State, today, February 3rd, 2020.

This commissioning represents a great step forward in our administration of Justice. The positive impact of which can never be over emphasised. Apart from directly addressing the problem of delay and congestion at the Benin Division of the Court of Appeal, the sighting of the Asaba Division will not only reduce the cost of seeking justice but will also make it more assessable to the people.

I am particularly happy at this positive development in our Judiciary because just a few weeks ago in my interview published by ThisDay Newspaper I was making a case for why every State should have a Division of the Court of Appeal with a view to proactively and strategically address the issue of delay and congestion in our justice system, not knowing that some steps such as these are already being taken. Once again, I congratulate my Lord, the President of the Court of Appeal, Honourable Justice Zainab Adamu Bulkachuwa, and I hope and trust that the incoming President of the Court of Appeal will take the development further.

DELE ADESINA SAN, FCI. Arb*

Deacon Dele Adesina, SAN has urged the Federal Government to enhance police efficiency by providing  requisite security equipments and communication machinery to aid in detecting and combating crime.

Mr. Adesina, SAN made this statement via his social media handles while commenting on the abduction of Zainab Kishimi, a member of the Nigerian Bar Association, Jalingo Branch, Taraba State.

Mr Adesina said “the criminal abduction of Zainab Kishimi Esq., the Vice Chairman of NBA Jalingo Branch came as another rude shock. Information has it that Zainab was kidnapped right at her residence behind Central Bank Headquarters, Jalingo, Taraba State at around 8:00 pm on Thursday, the 30th of January, 2020.

This kidnap incident is one too many and I totally condemn it. The question is if one is not safe in his or her home which is his or her sanctuary, where else will one be safe. I urge the Police and other security agents to urgently rescue Zainab from her abductors, arrest the abductors and have them prosecuted accordingly.

I seize this opportunity to call on the government to provide requisite security equipments and communication machinery to the Police in order to enhance their efficiency and effectiveness, particularly in detecting and preventing criminal activities of this nature.

Mr. Adesina also prayed for the safe return of Zainab Kishimi Esq. to her home & family.

Introduction
The African Charter on the Rights and Welfare of the Child (ACRWC) entered into force in 1999 under the auspices of the African Union (AU). The ACRWC was promulgated upon the consideration of the consideration of the Declaration on the Rights and Welfare of the African Child, adopted by the Assembly of Heads of State and Government of the Organization of African Unity, at its 16th Ordinary Session in Monrovia, Liberia from 17 to 20 July 1979, that recognized the exigency of taking appropriate measures to promote the rights and welfare of the African Child.  

It is worthy of note that the ACRWC further consolidated the central theme of the Charter of the Organization of African Unity centered around the promotion of human rights and that of the African Charter on Human and People’s Rights which proclaims the egalitarian nature of humans and the dire need to protect their rights as enshrined in the African Charter on Human Rights, without any distinction as to race, ethnic group, color, sex, religion or other status.

Inherent Problems with the Convention on the Rights of the Child (CRC)
At this juncture it is important however that we avert our mind to the fact that, prior to the promulgation of the ACRWC, the CRC was already in existence supposedly covering the field on issues bordering on children’s rights. However, as encapsulated by Lee Muthoga, the idea to promulgate a separate ACRWC “originated from a desire to address certain peculiarly African problems”. 

This was coupled with the fact that the CRC was rife with certain inadequacies regarded as threefold; the underrepresentation of Africans during the drafting process of the CRC, omission of potentially divisive and emotive issues in the search of consensus between states from diverse backgrounds, insufficiency of specific provisions addressing certain aspects peculiar to Africa in a bid to reach a compromise among United Nations Member States. This was further bolstered by the school of thought which advocates for regional arrangements such as an African equivalent of the CRC; because each region, with its unique culture, traditions and history is best placed to handle and resolve its own human rights situations; as opposed to meddling in certain Eurocentric and more sophisticated rights in Europe (such as the right of children conceived through artificial insemination to know their origin) .  Some of the peculiarities of the African situation omitted from the Convention were; the situation of children living under apartheid, harmful traditional African practices such as female genital mutilation and circumcision, socioeconomic conditions such as illiteracy and low-levels of sanitary conditions with all their threats to survival, issue of child-soldiers and minimum age for conscription, position of children in prison and that of expectant mothers amongst many other issues. 

The ACRWC was thus promulgated with an aim of substantially addressing this issue. Hence, Frans Viljoen’s statement regarding the ACRWC being apace with African traditions and values and well-suited to its unique socioeconomic, political and cultural environments, yet still retaining its Universalist outlook is apt.

Afrocentric Innovations of the ACRWC
The provisions of the ACRWC clearly put primacy over African cultural practices.  In article 2(1) of the Charter, states are required to abolish customs and practices harmful to the welfare, normal growth and development of children. In article 21, reference is made to pertinent cultural practices that are prejudicial to the health or life of a child and those customs and practices that are discriminatory to the child on the grounds of sex or other status.  There is specific proscription of harmful practices such as child marriage and the betrothal of boys and girls through legislation specifying the minimum age of marriage to be 18 years and the compulsory registration of all marriages in an official registry.  It is of crucial importance to bear in mind the fact that this despite not making specific references, this provision also serves as a blanket provision for a host of other harmful traditional practices such as killing of twins, female genital mutilation and dietary taboos. It is imperative to note that this provision ought to be read with the guideline that the best interests of the child “shall be the primary consideration” , and not merely “a primary consideration as required by the CRC”.
Bearing in mind the fact that Africa has a number of conflict-torn zones, owing to incendiary interests, revolutions, overthrow of governments and children being at the center of these direct hostilities, a case in sight is Rwanda, there is a broader protection of children in armed-conflict under the ACRWC. There is an effective effort at stemming the phenomenon of child-soldiers, as no person under the age of 18 is allowed to be conscripted.  There are equally direct measures obliging states towards the protection of children in armed conflicts, taking cognizance of the African context rife with internal armed conflict, tension or strife . Flowing from this, the ACRWC explicitly recognizes internally displaced children as refugees.  

The kind of displacement is not restrictive as it could be political, from breakdown of socioeconomic order or however it is caused. In sync with the socioeconomic affairs at the time of promulgation, specific reference is made to special needs of children living under apartheid and areas subject to military destabilization by the apartheid system. 

The ACRWC in cognizance of current world realities realizes the need for partnerships for the realization of the protection of this right. Hence, duties are set out for not only states, but parents and children. Hence, it is no surprise that implementation for this Charter is stronger under the auspices of the African Committee. Further, in order to keep a pulse on the yearnings of right-holders, these efforts are strengthened by the explicit provision for dissemination of information on the rights of the African child. 

Conclusion
Without any gainsaying, the ACRWC covers the inherent lacunae in the global instrument; through specific provisions on socioeconomic crisis plaguing the region which gives it its unique African undertone; making it a more Afrocentric equivalent of CRC. It certainly succeeds in achieving a higher benchmark for child rights in Africa. There are even better efforts at implementation through the mechanism which makes room for individual complaints about violations of these rights to be filed. Certainly, it heralds an era of higher threshold for the protection of the rights of children in Africa, as Member States even have the volition to make written requests for the amendment or revision of the present Charter subject to an approval by a simple majority of the committee.

 – African Charter on the Rights and Welfare of the Child, 1999 preamble.
 – SA Wako, “Towards an African Charter on the Rights of the Child (paper delivered at a workshop on the Draft Convention on the Rights of the Child, Nairobi,9-11 May 1968).
  – African Charter on the Rights and Welfare of the Children, article 21(1)
 – African Charter on the Rights and Welfare of the Children, article 21(2)
  – African Charter on the Rights and Welfare of the Children, article 4(1)
 – Convention on the Rights of the Child, article 3(1)
  – Convention on the Rights of the Child, article 38(2)
 – African Charter on the Rights and Welfare of the Children, article 22(3)
 –  African Charter on the Rights and Welfare of the Children, article 23(4)
 –  African Charter on the Rights and Welfare of the Children, article 26
  – African Charter on the Rights and Welfare of the Children, article 42(a)

The author is a fourth year law student at the University of Lagos. He is an avid researcher with  interests in crossroads between law, finance and technology.  In his spare time, he is the deputy editor-in-chief of the Unilag Law Review.

BEING A DINNER SPEECH BY DELE ADESINA LLM SAN FCI ARB. DELIVERED AT THE NIGERIAN BAR ASSOCIATION, CALABAR BRANCH LAW WEEK ON 31ST DAY OF JANUARY, 2020. 

I consider it a great honour and privilege to be invited to this Law Week Programme and particularly to give this dinner speech on a topic that is so dear to my heart. My profound thanks to the Branch Chairman, Dr. Paul Ebiala, a Bar man per excellence. My profound thanks also go to the Chairman of the Law Week Planning Committee, the immediate Past Attorney-General and Commissioner for Justice Cross-River State. Your acceptance to serve in this capacity notwithstanding the high level and status you have attained in this Profession epitomises your desire to serve the Profession and it is my hope that many, both from within and beyond this Branch, will learn from this that the greatest thing you can do to immortalise your name, the greatest legacy you can leave for humanity is SERVICE. I must also extend my appreciation to members of the Executive, the Leaders and members of this great Branch of our beloved Association.

I have been asked to speak briefly on the topic “Rule of Law: A Panacea for Good Governance.” I recognise that the theme of the Law Week is “Good Governance: Utilities, Social Services and the Law in Nigeria.” You also have sub-themes such as “Right to Light, Right to Water, Right to Shelter and Right to Clean Environment.” I want to believe that you have been treated to a great dose of good diet on these various topics. Permit me to say that, things like right to light, water, shelter and clean environment by now ought to be taken for granted after sixty (60) solid years of Independence. I wonder if these “rights” still constitute concerns even in Ghana, our neighbouring Country. That we are still battling with environmental issues; light, for lack of adequate power generation and distribution; clean water; and housing puts to question whether indeed we have had good governance in our Country over the years.

Life is a practical entity, only those who take a practical approach to life make the best out of it. The question is, “Are we taking a practical approach to the issues of life in our dear Country?” Somehow, it is my opinion that the role played by leadership or lack of it is by far the greatest obstacle to sustainable development as demonstrated by the ravaging poverty in our society. Mr. Gbenga Omotosho, a very erudite writer, said in an article titled “We are all Guilty” published in the Nation Newspaper in 2016 that: “Nigeria is a nation blessed by God, but cursed by the very hands that should nurture and nourish it.”   A significant percentage of our problems as a Nation is caused by us. I believe our woes are self-inflicted.
Let me remind myself at this point that my discuss is the Rule of Law: a Panacea for Good Governance. Instructive in this topic is the meaning of Rule of Law and Good Governance.

RULE OF LAW
Recognising my audience, I am not going to bother you with a long definition of the Rule of Law because I strongly believe that we have a firm understanding of what Rule of Law means, its definition, contents, scope and even its application. Suffice it to say that “Rule of Law primarily means that everything must be done according to law. It means also that government should be conducted within the framework of recognised rules and principles which restrict discretionary powers, which Coke colourfully spoke of as ‘Golden and Straight Rule of Law’ as opposed to the uncertain and crooked cord of discretion.” 
In the words of Honourable Justice Oputa J.S.C., “Rule of Law presupposes: (i) that the state is subject to the Law; (ii) that the Judiciary is a necessary agency of the Rule of Law; (iii) that Government should respect the right of individual citizens under the Rule of Law; (iv) that to the Judiciary is assigned both by the Rule of Law and by our Constitution the determination of all actions and proceedings relating to matters in disputes between persons, governments or authority.” 
As far back as 1995, the International Commission of Jurists (I.C.J.) in calling attention to the apparent disregard of the Rule of Law in many Nations of the world, solemnly made the following declaration (which has become my darling statement) in the Act of Athens that:

i. The State is subject to the Law;
ii. That Government should respect the right of individuals under the Rule of Law and provide effective means for their enforcement;
iii. That the Judges should be guided by the Rule of Law, protect and resist any encroachment by the Government or Political Parties on their independence as Judges;
iv. That Lawyers of the World should preserve the independence of their profession, assert the rights of the individual under the Rule of Law and insist that every accused is accorded fair trial.

GOOD GOVERNANCE
The word “governance”, I believe is derived from the word “government”. The Black’s Law Dictionary, defines “government” to mean “the structure of principles and rules determining how a State or organisation is regulated.”   It also means “the sovereign power in a Country or State.”   The Black’s Law Dictionary added that “government” also means “an organisation through which a body of people exercise political authority; the machinery by which sovereign power is expressed.”   For instance, you talk of Canadian Government, American Government or Nigerian Government.

I could not find the definition of good governance in any dictionary but I found help from Google who took me to the United Nations Economic and Social Commission for Asia and the Pacific Report entitled “What is Good Governance.” It defined “good governance” to mean “that processes and institutions which produce results that meet the needs of society while making the best use of resources at their disposal. Good governance has eight (8) major characteristics. It is participatory, consensus, oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive, and follows the Rule of Law. It assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of the society.”

On the other hand, Cambridge Online Dictionary defines “good governance” to be “the effective and responsible management of an organisation, a Country etc. which includes considering society’s needs in the decisions it makes.”

Good governance can also be defined as “the active and productive cooperation between the State and citizens, and the key to its success lies in the powers participating in political administration. Only when citizens have sufficient political power to participate in elections, policy making, administration and supervision can they prompt the State and join hands with it to build public authority and order. Apparently, democracy is the only practical mechanism that can safeguard the fully-free and equal political power owned by citizens. Hence, good governance is organically combined with democracy. In an autocratic system, it is possible to have good government when the system is at its best, but it is impossible to have good governance. Good governance can only be achieved in a free and political system, as it cannot emerge without freedom and democracy.” 
From the above definitions, I submit that there is a close relationship between Rule of Law and Good Governance. Indeed, if there is no Rule of Law, you don’t talk of good governance. Both of them are in a symbiotic relationship.

Nigeria is a democracy with a written Constitution called the Constitution of the Federal Republic of Nigeria, 1999, as amended with provisions that are sacrosanct. The Constitution is the fountain of all laws. It is the composite document setting out how the Country is to be held together. In the case of Attorney-General of Ondo State v. Attorney-General of the Federation,   the Supreme Court said: “Our Constitution is an organic instrument which confers powers and also creates rights and limitations. It is the supreme law in which certain first principles of fundamental nature are established. Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of Law. All agencies of government are organs of initiative whose powers are derived either directly from the Constitution or from laws enacted thereunder.”
Obedience to the provisions of the Constitution in all its ramifications is evidence of the Rule of Law in its application and a clear evidence of good governance. On the contrary, a threat to Rule of Law is not only a threat to the Constitution and good governance but also a threat to the society itself.

One of the wrong understandings that people have of our Constitutional Democracy is people think that good governance provides for construction of bridges, roads, houses and so on. While these are important, I submit that they are not dividends of Constitutional Democracy because any dictator can provide them. I hasten to recall that one of the greatest legacies of Military Dictatorship in Nigeria is the construction of the Third Mainland Bridge. For me, the dividends of democracy must be found in the defence and protection of Fundamental Rights of the people; the independence of Lawyers and Judges, free from harassment, intimidation or blackmail in the practice of their Profession; the formulation of strategic policies of governance in accordance with the Fundamental Objective and Directive Principles of State Policy as contained in Chapter Two of the Constitution. It would be recalled that this Chapter makes copious provisions for political objectives of government such as national integration and prohibition of discrimination on the grounds of place of origin, sex or religion.  The Section also makes it obligatory for the State to foster a feeling of belonging and of involvement among the various people of Nigeria. Also, as part of the political objective of government, the State is to abolish all corrupt practices and abuse of power.

The economic objectives include but not limited to formulation of policies and programme to promote national prosperity and a self-reliant economy. This is in addition to the obligation to control the national economy and to secure the maximum welfare, freedom and happiness of the citizens.
The socio objectives, foreign policy objectives and environmental objectives are also clearly stated in the Constitution in order to ensure good governance. Chapter Four of the Constitution is also instructive in that it details out the proofs of good governance such as right to life,  right to dignity of human persons,  right to personal liberty,  right to fair-hearing   etc.

Regarding these rights, this is what the Court of Appeal said in the case of Akila v. The Director-General of State Security Service and Ors.: 
“The Constitution of Nigeria is very clear, unambiguous, uncompromising and categorical about the rights of its citizens both those who are on the right side of the law and those who reasonably suspected of being on the wrong side of the law. When it comes to matters of curbing or curtailing a citizen’s rights, it does not leave us in any doubt as to what should be done or as to how we should proceed, nor does it leave matters to chance or to the discretion of individuals who may be inclined to subject such inalienable and immutable rights to abuse.
The civil rights contained in the Constitution against unjust arrest and detention of a citizen which is protected by the enforcement of the Fundamental Rights provisions should not be restricted in anyway by technicalities where none is justified by the Constitution.”

A dispassionate consideration of the realities of the moment vis-à-vis these very compelling provisions of the Constitution as interpreted by our Courts will throw-up issues as to whether Rule of Law and consequently good governance are not under threat and if the answer is Yes, then something has got to be done and urgently too.

WHAT IS THE COMPLIANCE STANDARD WITH THESE PROVISIONS TODAY?
Bishop Matthew Kuka once said that in Nigeria today there is no difference between “sin and the sinner”. Media trial and conviction of suspects standing trial has become the order of the day. Notwithstanding the admonition of our Courts or the Constitutional provision of presumption of innocence enshrined in Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
Honourable Justice Akhiero, in a paper titled “The Impact of Media Trial on the Constitutional Presumption of Innocence” had this to say: “Anything that undermines public confidence in the judiciary is inimical to the judicial process the media should be wary of this. Trials by the media of criminal matters prejudice the mind of the populace and make them hold the Court in contempt and dishonour them when it ultimately reaches a conflicting or different verdict. More often than not, allegation of compromise and corruption are made against the Judge. This is very unhealthy for the development of our legal system and judicial process.”
Today, everybody, both learned and unlearned, educated and stack illiterates, freely discuss and render “legal opinions” on matters that are pending before the Court and when the decision of the Court goes contrary to the opinion expressed in the public space, to them the Judge has taken bribe. This again I submit is a threat to Rule of Law and good governance. Some of us Lawyers are no less guilty in the current low esteem of the nation’s judiciary and decimation of the integrity of the Legal Profession. I have heard Lawyers argue that our criminal jurisprudence should be changed from acquisitorial to inquisitorial procedure whereby a suspect shall be presumed guilty until he has proved his innocence. For me, these are clear cases of threat to the Rule of Law and good governance in our society.

Where Rule of Law operates, trials take place in the law Courts according to the Rules and laid down procedure. And when Orders and Judgments are handed down by the Courts, they must be obeyed subject of course to right of appeal as guaranteed by the Constitution. In particular, Rule of Law, good governance and principles of democracy demand that where the Supreme Court delivers its decision/ Judgment on any issue submitted to it, no matter the degree of dissatisfaction by the litigating parties or disagreement with the Judgment, we must accept the finality of the decision of the Supreme Court otherwise we shall be heading for chaos. It must be noted that the Supreme Court is not final because it is infallible, No! It is infallible because it is final. There must be an end to litigation.
Let me also consider the political angle to good governance. In its simplest form, Abraham Lincoln said that “Democracy means the government of the people, by the people and for the people.” I did not understand this eternal definition to mean the government of some people, by some people, and for some people as our system seems to show. A few days ago somebody in a write-up said that “Nigeria’s democracy is fast becoming the government of the politicians, by the politicians and for the politicians.” This position, if it is not true at all, I submit is arguable having regards to our daily democratic experience. Not subject to any argument, however is the definition propounded by Judge Bola Ajibola SAN, former President, Nigerian Bar Association, that “democracy is about people, and people are at the very centre of democracy. Therefore, for democracy to endure, it must necessarily guarantee the improvement of the lives of the people. Democracy and development are two sides of the same coin.”   He continued: “For democracy to endure, it must guarantee the improvement of the lives of the people.”  

Perhaps, this is the reason why good governance to some may mean the provision of good roads, regular supply of electricity, food on the table and security of lives and property. Even if these are to be regarded as evidence of good governance, we still have a long way to go. The enthronement of Rule of Law and good governance is a responsibility of both the government and the governed. The government must be ready and willing to take decisions no matter how hard, formulate policies and programmes that are of practical and positive advantage and benefit to the people. They must formulate and implement policies and programmes that will enhance the standard of living of the people. On the other hand, the people themselves must be civil, be law abiding and be ready to hold the government accountable from time to time.

Rule of Law is very key. It is not just a solution for good governance; it is also the basis for any true and functional Constitutional Democracy. Where the Rule of Law operates, there can be no room for impunity, little or no discretion, no room for dictatorship, arbitrariness, authoritarianism, abuse or misuse of power. The duty therefore is on all of us first as Lawyers and second as citizens to hold the government accountable for the defence, protection and promotion of the Rule of Law and good governance. If we fail to do this, we are to blame ourselves and not anyone else.

Let me take few seconds to talk briefly about Rule of Law and our Association. Please recognise that Rule of Law and due process does not apply to governments alone. It applies to organisations and individuals, particularly, organisations that have written constitutions. As Lawyers and members of Nigerian Bar Association, can we confidently say to ourselves that we are Rule of Law and due process compliant? It is arguable if we are.
Like the malaise in the national polity, you see desperation and outright impunity on the part of some of our members. For instance, the party some represent in a case decides how fast or slow they handle their matters in Court. To others honour, respect, dignity and honesty have little or no meaning. Can our Association be devilled with the same vices and still be able to correct the ills of the larger society? It is not what you want to be that matters but your purpose to be what you want to be. We must recognise that purpose does not target possession but contribution. Leadership is therefore not about status but about service. May I conclude by saying that the time has come when we have to accept responsibility to look directly into history and begin to ask: “What must we do differently to achieve a better result?”

I have always believed that the Nigerian Bar Association has the capacity to play the leadership role to reconstruct and transform our Nation, but we must first and foremost reconstruct and transform our Association. Only transformed people can transform their world.

Thank you for listening, God bless you.

Deacon Dele Adesina SAN, appreciated the Young Lawyers’ Forum of the Nigerian Bar Association on the Young Lawyers Forum Induction Training with the theme: “Practice Development; the Infusion of Ethics & Skills”.

He lauded the Executive of the Forum for the theme as the 21st Century is one that skills need to be developed and utilized in order to be relevant to the world.

He also commended the Executive for the Facilitators chosen as they are legal practitioners that know, understand and practice ethical values and relevant skills.

He wished the YLF success in the training and we all forge a path to making Nigeria, the Bar and her Members reach greater heights.

Dele Adesina, SAN, on the 29th of January, 2020, paid a courtesy visit to the International Federation of Women Lawyers (FIDA) Nigeria, Lagos Branch. 

During the Courtesy visit, the SAN commended the efforts of FIDA ‘super women’ who continually promote the rights of women and children in the society as this role is a tasking one albeit, important. He further commended the President of NBA, Paul Usoro SAN, for re-constituting the Women’s Forum of the NBA under the leadership of Prof. Yemisi Gbamigbose SAN who is a very erudite scholar from the University of Ibadan. The SAN affirmed that the interest of women who are ‘Mothers of the Nation’ will be continually promoted. 

Whilst interfacing with the members of the Branch, one of the concerns raised was the persistent police brutality on legal practitioners and the lack of a conducive atmosphere for the profession to thrive and triumph. He stated that the level of responsiveness by the NBA to these national issues need to be improved upon and suggested that the NBA should work in collaboration with governmental agencies and its auxiliaries in forming policies that focus on improving the welfare of the society.

The Learned Silk, in addition stated that only adequate policies will curtail the ills prevalent in the society and the NBA has to be fully involved in the process of formation and implementation of such policies.

Speaking specifically to lawyers, he stated that lawyers are being regarded as men and women of integrity and honour. Hence, we all have a responsibility to live up to and beyond these remarkable attributes as the attitude and charisma of lawyers are the mirror through which the viability and vibrancy of the Nigerian Bar Association is been reflected.

The Calabar Branch of the NBA has been holding its Annual Law Week and one of the events scheduled was an evening with Olumide Akpata, Senior Partner, Templars. 

Mr. Akpata spent the evening with the members and executives of the Calabar Branch. 

See photos from the event below- 

Being a dinner speech by Dele Adesina LLM, SAN, FCIArb
at the NBA Akure Branch Law Week on Wednesday the 4^th of December,
2019[i]

Before the legal regime of oil and gas in developing nations (like Nigeria), developing nations had little or no right over their natural resources as developed nations were taking advantage of the developing nations.  Eventually, developing nations could concede almost all their territories to the powerful foreigners, as obtained in Nigeria by the Colonial government in 1938 which gave Shell BP all the territories in Nigeria (357,000 square miles).

The old way of acquiring right to explore natural resources in the developing countries is through concession. Concession was the term used to describe the grant, by a state to private persons or companies, of the right to explore for, and if found, to produce oil. A concession connotes or implies a relationship between the weak and the strong. It contains an element of capitulation and the nature of a gift. The very liberal terms of the earliest concessions appear to support these points of view. The transactions appeared one-sided, between a king who knew very little about the possibilities of the commodity and was too easily satisfied with his royalty of a few gold sovereigns and the oil company; rich, powerful and knowledgeable.(1)

The term concession was therefore regarded as a transaction in which a monarch “unminded of the interests of his people, gave too much for little, and gave to foreigners who were only too eager to build a colonial system upon the grant”.2

The features of the concession regime are:
• It lasts for very long duration.
• It covered a vast expanse of territory.
• The consideration of the concession to the host government was minute and ridiculous. In some instances, a bottle of Scotch whisky was said to be sufficient.

The foundation for Nigeria’s mineral and mining law was laid down shortly after the Berlin Conference3 by the Petroleum Ordinance of 1889 which was followed by the Mineral Regulation (oil) Ordinance of 1907.4 These pieces of legislation therefore established the basic framework for the development of mineral mining in Nigeria.

However, after the amalgamation of 1914, Sir Lord Lugard passed the 1914 Mineral Ordinance to repeal the 1907 Ordinance and thereby making mineral mining in Nigeria a wholly British concern. Section 6(1) of the Ordinance provides:

“No lease or license shall be granted except to a British subject or to a British
company registered in Great Britain or in a British Colony and having  its
principal place of business within her majesty’s dominion, the chairman and
managing director (if any) and the majority of the directors of which are British subjects”

The import of this section is ostensible; it maintains the legacy of imperialistic concession by vesting the right to search for, win, and work minerals exclusively in British subjects or companies controlled by them. 

Moreover, the natives were given no right to challenge the lessee during the currency of the mining lease agreement while the mining company retained the sole right to commence exploration of the minerals found on such land.
The 1961 Ordinance was promulgated. It would be worthy to note that the 1916 Ordinance was a reproduction of the 1914 Ordinance to the extent that it re-affirmed the control and ownership by the British Crown over mining and oil rights in Nigeria.5 However, it differed significantly from the 1914 law as it gave some considerations for the local land owners by providing for the payment of compensation to owners of properties damaged in the mining process.6 This Ordinance failed to address the problems existing of it time. About 40yrs later, the 1959 Mineral Oil Act repealed and replaced it.
After the Second World War, the devastating impact of the war had serious effects on the world powers.. They had relied so much on the developing countries. They felt that going individually will make little or no success, but going as an organization could help achieve their aim. They had to come together and look for a way forward.

The name “United Nations”, coined by United States President Franklin D. Roosevelt was first used in the Declaration by United Nations of 1 January 1942, during the Second World War, when representatives of 26 nations pledged their Governments to continue fighting together against the Axis Powers. The United Nations struggled to handle the oppression of developing nations and on the other hand the interest of industrialized countries.
On 24 October 1945 The United Nations officially came into existence. In 1945, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organization to draw up the United Nations Charter. 

The delegates deliberated on the basis of proposals worked out by the representatives of China, the Soviet Union, the United Kingdom and the United States at Dumbarton Oaks, United States in August-October 1944. The Charter was signed on June 26, 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, signed it later and became one of the original 51 Member States. 

The United Nations officially came into existence on 24 October 1945, when the Charter was ratified by China, France, the Soviet Union, the United Kingdom, the United States, and a majority of other signatories. United Nations Day is celebrated on 24 October each year. 

The controversy over mineral resources was between the industrialized nations and the developing nations, while the former canvassed the idea of investor ownership and control of a state’s natural resources, the latter clamored for a shift in balance of power and control of natural resources in their favour. An attempt to resolve this gave rise to the passing of the resolution conferring on member states generally the right to permanent sovereignty over natural resources. This is the United Nation’s General Assembly Resolution 1803 (Xvii) Of 14 December 1962, “Permanent sovereignty over natural resources”.

The principle of permanent sovereignty over natural resources otherwise known as the landmark resolution, was first raised by the Chilean delegation at the Eight Session of the Human Right Commission, when it was working on the preparation of the Draft International Covenants on Human Rights in pursuance of the General Assembly Resolution No. 455 (IV) of February 5, 1952.7

In this Resolution, the General Assembly decided to include the right of all peoples and nations of self-determination as part of the Human Rights Covenants and requested the commission to prepare a draft on the subject.8

After a long discussion, the Commission’s working party agreed to include in the draft covenants the following paragraph:

“The right of the people to self-determination shall also include permanent sovereignty over their natural wealth and resources. In no case may a people be deprived of its own subsistence on the ground of any rights that may be claimed by other states”.

It also decided further that, in the conduct of the full survey of the status of the permanent sovereignty of peoples and nations over their natural wealth and resources, due regard should be paid to the rights and duties of States under international law and to the importance of encouraging international co-operation in the economic development of developing countries, bearing in mind its resolution 1515 (XV) of 15 December 1960, in which it recommended that the sovereign right of every State to dispose of its wealth and its natural resources should be respected, considering that any measure in this respect must be based on the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States.9

Historically, the principle of permanent sovereignty over natural resources is a logical outcome of the principle of self-determination which brought about the dissolution of the colonial empires after the Second World War.10 After attaining political independence, it was meaningless if foreign control endured in the economic sector all the more since for most developing countries soon realized that by political independence, their natural resources generally represented their only economic asset.

It was therefore, not surprising that the objectives which the developing countries established for their natural resources conflicted with the interests of foreign based companies protecting their usually advantageous investment conditions.11

The developing countries regarded the principle of permanent sovereignty over natural resources as inalienable, as a rule of ius cogens (compelling law), a norm accepted and recognized by the international community of states as a whole and from which no derogation is permitted unless by a subsequent norm of general international law having the same character. The effect of this proposition put forward by the developing countries is that foreign investment agreements which are inconsistent with the principle of permanent sovereignty over natural resources would lose validity in law.12

As a corollary to this resolution, member Oil nations made municipal laws governing their natural resources. The effect of the resolution in Nigeria is the enactment of section 44(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and the Petroleum Act of 1969. The Federal Government of Nigeria, under the leadership of President Goodluck Ebele Jonathan (GCFR), in March 2010 signed into law the Nigerian Local Content Act which aimed at promoting  industrialization  of  the  nation’s  oil  and  gas  industries and  thereby improving  the economic and social well-being of citizens engaged in the industries, which is a paradigm shift from the old arrangement.
The above enactments feature some novel provisions which include, but not limited to:

• The conferment of the entire ownership and control of all petroleum in, under or upon any land to which the Act applies shall be vested in the state;
• Introduction of oil exploration license, oil prospecting license and oil mining lease;
• The emergence of National Oil company (NOC);
• Provides for operation of refineries with the licence from the Minister;
• Mandatory participation of Nigerians in the oil and gas industry;
• Mandatory training of Nigerians to be proficient in the oil and gas industry.
Flowing from the foregoing, it is evident that developing nations (Nigeria inclusive) owing to the landmark resolution now have a firm grip of their natural resources through these measures, and other measures in the Acts such state may deem expedient.
On the other hand, OPEC formed in 1960 by 5 member states which Nigeria joined in 1971, also aids member nations to have control of their natural resources and for the economic, political and social development of member nations.
In conclusion, United Nation played a vital role for the sovereignty over natural resources by 3rd world countries.

Author: 
Chinedu Innocent Nwobodo (LLB, BL, ChMC)
He is an Associate under the litigation department of Chris Ogunbanjo LP, a leading commercial law firm in Nigeria which has been in existence for over five decades.
He holds a Bachelor of Laws Degree from Enugu State University and Barrister at Law Degree from the Nigerian Law School, Lagos campus. He is an Associate of the Institute of Chartered Mediators and Conciliators.
chineduinnocentnwobodo@gmail.com
08165191968

REFERENCES:
1. Lawrence Atsegbua, “Oil and Gas Law in Nigeria: Theory and practice” (Third Edition) Benin, Fifers Lane Publishers, 2012, p.36
2. Ibid.
3. 1885 Berlin Conference for the Balkanization of Africa
4. Lawrence Atsegbua, Op. Cit at 42.
5. Section 3(1) of the Ordinance provides that the entire property in and control of the minerals, and mineral oils, in under or upon any land in Nigeria, and of all Rivers, streams and water courses, throughout Nigeria, is and shall be vested in the Crown, save in so far as such rights may in any case have been limited by the express grant made before the commencement of this Ordinance
6. Section 34(1) of the 1916 Ordinance provides that the mining lessee shall pay compensation to the owner of any building, or any economic trees, or crops removed, destroyed or damaged by the lessee, his agents workmen: provided that compensation shall not be payable in respect of any building erected or trees or crop planted on land in respect of which surface rent is paid by the lessee under section 32 after the date of which such rent commences to be payable.
7. S.K Benerjee. “The Concept of Permanent Sovereignty Over Natural Resources” (1968) 8 Indian J. Int’l Law 515 @ 517
8. Ibid.
9. http://www.ohchr.org/EN/ProfessionalInterest/Pages/NaturalResources.aspx
accessed at 12:10pm on Jan., 20, 2020.
10. Benerjee, supra, note 2 at 515.
11. Lawrence Atsegbua, Op. Cit, at 306
12. Ibid, at 313