In a badly divided polity, it is no surprise that a number of stakeholders have expressed opposition to the recently re-introduced National Water Resources bill in the House of Representatives. But in describing it as “another version of Ruga which objective is to create grazing areas in the 36 states of the federation for herders and their livestock,” Governor Sam Ortom of Benue State has further raised the stakes. Consequently, he merely re-echoed the statement by the Southern and Middle Belt Leaders’ Forum (SMBLF) that had earlier advocated that “Freedom-loving Nigerians should be ready for protracted resistance to this move to grab land around waterways for Miyetti Allah by the executive arm of the government.”
While I agree that this administration has mismanaged our diversity, a great deal of ignorance is being peddled on this bill. And controversial as some of the provisions may indeed be, what I find more interesting is that the man who actually raised the red flag about this bill is now a member of the ruling All Progressives Congress (APC) and serves as Minister for the Niger Delta. But by the time of his intervention, he did so in his capacity as the Senate Minority Leader and member of the opposition Peoples Democratic Party (PDP).
Before I conclude with my own position, I want to take readers through what transpired in the 8th Senate. It all happened on 24th May 2018, when the Senate Committee on Water Resources chaired by Muhammed Ubali Shitu (from Jigawa State) presented its report on the executive bill by President Muhammadu Buhari. According to Shitu, the bill sought to provide a regulatory framework for the water resources sector in Nigeria; ensure that the nation’s water resources are properly protected, developed, conserved, managed and controlled; meet the basic water needs of the present and future generations; enhance citizens’ right of access to clean water and sanitation; promote public-private partnerships in the development and management of water resources infrastructure, etc.
Shitu gave the highlights of the committee’s work, beginning with a public hearing. He also listed eight legislations that cover different aspects of the water resources sector and conflicting provisions that needed to be harmonised. “The effect of this is that there is no single comprehensive legislation dealing with water resources sector in Nigeria, with the resultant poor management of this important sector.” This gap, according to Shitu, made the Federal Executive Council to, in 2016, approve the draft Water Resources Bill and two policies—National Water Policy and National Irrigation Policy. He explained in detail what each of the policies was set out to achieve and that the Water Resources Bill was designed to consolidate these laws.
When Shitu concluded his presentation, he received commendations from colleagues, beginning with Senator Mohammed Adamu Aliero, former Governor of Kebbi State, who described the bill as straight-forward. “I happened to be a member of the committee that worked seriously and diligently on this bill and even the World Bank is waiting for its passage so that they can bring in money to improve irrigation facilities in Nigeria. Right now, we have well over $2.5 billion that is waiting to be utilized and I urge my colleagues to support this bill so that the water sector can be regulated properly”, said Adamu. In his contribution, Senator Emmanuel Bwacha (from Taraba State) said he could not see any contentious issues in the bill and that “It is one key sector that we need to work upon to bring smiles on the faces of Nigerians; I want to urge my colleagues that we should expedite the passage of this bill.”
The then Senate President, Dr Bukola Saraki, said he needed clarification on Section 87 that talks about 2 per cent ecological fund. “Can we put that in the bill mandating the 2 per cent ecological funds when there are already clear guidelines on how ecological funds should be applied?” Saraki asked. It was Senator Ahmad Ibrahim Lawan, (current Senate President who was at that time Senate Majority Leader), who replied: “It has often been a very difficult and dicey situation when you have to take money from the ecological fund because what this means is that we have to amend the Act itself otherwise, they cannot afford to give money. That is the implication.” This prompted Saraki to prod further: “So how are we to be guided by that?”
Senator Barnabas Gemade (from Benue State) responded by saying that “when laws are made and we realize that the importance of such law is superior to existing laws, we do by compelling reasons amend others laws to suit it. This water bill is so important to this nation that we need to do whatever is possible to ensure it functions.”
The arguments regarding the 2 percent to be taken from the ecological fund went on with Senator Emmanuel Paulker (Bayelsa State) and Senator Francis Asekhame Alimikhena (Edo State), making their contributions. At the end, it was agreed that the issue could be resolved without stopping the passage of the bill and with that the Senate dissolved into Committee of the Whole to consider the report, clause by clause, for passage. Taking his chair, Saraki laid the ground rule and then said: “Distinguished colleagues, this bill has 152 clauses. It is the leader’s first bill and it is the president’s bill so we are going to have a very swift movement in passing it.”
The first contribution came from Senator Yahaya Abdullahi (Kebbi State) who argued that the senate needed to define river banks “because it is a very serious thing otherwise, a lot of conflicts is going to arise. You take the Niger river for example; that traverses several states, and then we will say the bank. What do you mean by the bank? You have to be very clear about where the bank extends, from the centre of the river to either side of the river system?” Abdullahi said further that the senate might consider the system normally adopted in the Road Sector, where 50 metres from the centre of the road is the determined area where the governmental authority and responsibility rests. “River banks are even much more contentious than roads, because of agriculture, fishing and several other activities that take place there. So, 50 meters under this circumstances may be too much, but we have to be able to define exactly where the authority of the government lies, otherwise I have no objection to the bill.”
This comment, according to Gemade, who responded on behalf of the committee, was well taken, “but I would like to point out here very clearly that when you come to road infrastructure, you have definite measurement. Rivers do not have definite measurements, so you cannot define banks by the way of measurement from centreline.” Besides, Gemade further argued, the riverside can change even in the cause of one year.
It was at this point that Senator Godswill Akpabio (former Akwa-Ibom Stae governor) said he would disagree with a clause on the description of the river bank. “First, we have a lot of decisions on this, that the river banks are natural elongation of the surface of the land, and then of course the last government that had to deal with the issue of even the offshore oil said it should be allowed up to 200 nautical miles. There is already a statutory position to that also which was reconciled by the Supreme Court. Then most communities in Nigeria that have rivers, sometimes those rivers dry up, so when we start making laws to recover some of those places, when they dry up, they become residential quarters and all that, and then it will cause a lot of confusion here.”
Akpabio went further: “We need to be careful. If we want to say that all waters in Nigeria must be legislated upon by the federal government, then we will cause a lot of confusion because there are a lot of communities that depend on small rivers to survive, whether in terms of fishing or in terms of planting rice and other things. If we now say the river banks that they utilise for their daily bread belong to the federal government, and subject to federal legislation, we are doing what we are not supposed to do, we are concentrating power at the centre. We are not adopting devolution of power, we are bringing back Nigeria as a unitary state and we are now even trying to dispossess communities of their land, because some of those places are natural elongation of the land. I do not know how we are going to implement it in order to make sure that the communities are not short-changed.”
Apparently now seeing the bill differently, Senator Paulker Emmanuel who had earlier praised it said he had a rider to what Akpabio had just said. “There is a need for us to define the types of rivers in the present situation where we are making changes in the law. Most of these rivers even dry up, that is seasonal rivers. So if we define banks as being owned by the federal government, definitely that will be tantamount to creating a lot of problems. There is a need for us to look at it closely, and then define what these banks are, because when you talk about rivers, you talk about the weight of the river, there are some rivers that if you go there in the dry season, around November, December they do not have water. So how do you define the banks? It will create more problems.”
The Senator from Bayelsa then added: “We should look at it closely before we endorse it. If we just say a river bank, it makes no sense. The Leader should look at it closely and think about the definition of what he means by river bank. Like I said earlier, there are some rivers that are seasonal, so you cannot even define the banks of such rivers. So when they dry up what is the bank? There is need for us to define this river bank, if not it will create a lot of problem for the federal government. More so, every person is talking of devolving powers, now you say federal government should take care of the river bank in Zamfara or in Bauchi. Take the Lake Chad for example, it is drying up, most of the rivers and lakes are drying up, how do we define the banks? I believe it will create more problems, so we should just remove that one.”
Responding again, Senator Gemade said the controversy being generated by “this little clause here can be avoided completely by removing together with beds and banks, so that nobody is now concerned about definition of beds of rivers and banks, which are just changing, because the schedule is definitive. Therefore, we remove this clause, together with the beds and banks and that should solve the problem.”
Not so fast! As far as Akpabio was concerned: “My respected senior, Senator Gemade, there is an issue even in the rider before then, that there be no private ownership of water in accordance with the provision of this Act. A lot of people have bought property where within the property it includes a small river and then of course they use it either as fish ponds or for other things. When we make a law like this, and it becomes all encompassing, it will lead to a lot of confusion. We really need to know what it means by river in this case, because I can give you an instance sir.”
As a former governor of a coastal state, Akpabio now cited an example to drive home his point: “Between us (Akwa Ibom State) and Cameroon there are many communities in Ogoja area that are sharing very small rivers. By the time you make this thing a law, it means that the small river they enjoy, which they use for agricultural purposes, will now become a federal government property. So, when we say that there shall be no private ownership of water but the right to use water, even the water in your swimming pool can be interpreted to mean it belongs to the federal government of Nigeria!”
Not done, Akpabio now concluded: “I believe we should get legal experts to look at these things and proper definitions should be done. If we have to rush and pass this kind of bill now, you are not only creating more problems but we are further reducing Nigeria to a Banana Republic at a time that we should devolve power to the states. I do not know how we intend to describe it but I am saying that let us not do something that cannot stand the test of time even in the court and with that, cause more confusion for the communities.”
Apparently sensing that the mood of the senate had changed following Akpabio’s intervention, Senator Ahmad Lawan tried to explain the import of the contentious clause but not before replying Akpabio, “Your swimming pool cannot be a federal government water body, affecting more than one state.” Lawan then explained: “There are few rivers in Nigeria that go through more than one state and this is what this particular clause is talking about. There are some rivers that belong to communities, some within one local government. The federal government does not have control over those. It is not like we are trying to bring every water under the control of the federal government, that is not correct.”
Lawan continued: “This is an attempt by the federal government to ensure that rivers like Benue, Niger that cut across many states are really under its control and utilization. Other rivers are not affected by this. I have River Yobe in my state. It is not under the control of the federal government and it will not be because of the nature of that river. So we are not saying all rivers would be under the control of federal government and no community would be denied the utilization of their water body that is local to them, that is within their area. No one should assume that the federal government will have a total control of all water bodies in Nigeria. That is not even practical. I want to appeal to my colleagues, please; this is one bill that we need to pass to reform the water resources sector in this country and everybody is waiting. The submission by the minority or the opposition leader definitely was off the mark and I urge that he should understand it the way it is here.”
Akpabio would not let this go without a challenge. “I do not want to argue with the Senate Leader but I believe that we are all here in a bipartisan manner so the issue of opposition leader does not come in. I am only Minority Leader. And I will only have my say, he can have his way. But I am saying that the essence of making law is for it to stand the test of time and not to bring more confusion to the community.”
And then, Akpabio provided another example of the problem with the bill: “In a place in Akwa Ibom, there is a state polytechnic where we have a small river that the students use. That river goes into the next community in Igwa. It is a very small river but because Igwa is in Abia State, it means that this law will affect that small river in front of the polytechnic next to Peter Memorial Seminary in Ikot Ekpene where I come from and this is not up to two kilometres.
Akpabio continued: “The moment you say any small river that crosses more than one state automatically belongs to the federal government, it means that small river is now going to be managed by the federal government. The intention here is to look at certain rivers that the federal government wants to have control over. Let us list them and those must be rivers like Benue, Niger etc. There is nothing wrong in listing them here; but when we put this kind of ambiguous clause about federal government’s total control of ground water, surface water and particularly the one that crosses into another state, there is no river that starts and ends in one state.”
Akpabio had other examples to cite: “The Cross river for instance takes its roots from the Cameroon mountains before crossing Rivers State and then enters into Akwa Ibom State. And from Akwa Ibom it goes into Abia State. In some areas, it becomes a very small river while in other areas, it is quite large. If you can deny our people just mere small water in their area because that water touches the next village which is another state, we are over legislating.”
After highlighting all the challenges, Akpabio then provided a way out of the lacuna: “The way out is that we must go back and design the rivers that we are talking about. If we want to talk about River Benue or River Niger, Nigeria is not so large that we cannot list the rivers that we think the federal government should have control over. But if you are going to say rivers, I am saying sir, it is going to be something that will cause confusion. We must make laws to protect our citizens. In fact, this is going to lead to more war, more communal clashes in future because people are going to stand up and say ‘look, this your river here belongs to the federal government because it has passed my backyard which is in another state’.”
Akpabio then posed a rhetorical question: “Can you even define the boundaries of states today? We have had problems since 1976 and many states have no boundaries because the National Boundary Commission has not been able to even define their boundaries. Some local governments have no boundaries. If we are talking about internal rivers in Nigeria and they must now be owned by the federal government, we are over-legislating. We are supposed to remove a lot of things from the Exclusive List and devote powers to states and yet we are now denying the states and the communities on even the use of common water. We must take a second look at the bill but I am not against it.”
And the final word from Akpabio: “We should get legal experts and if there is need for us to list the rivers we think federal government should have control over, let us list them and legislate on those ones because there are too many tiny rivers that communities are depending on for their daily bread and we cannot legislate on that naturally.”
By this time, Akpabio had succeeded in making the bill unattractive to a good majority of his colleagues. All the earlier enthusiasm about its passage had also vanished. This prompted Senator Shitu to intervene. “I believe he (Akpabio) misunderstood the whole concept. If you have seen clause 2 on public trusteeship of water you will see that sub-section 4 and 5 have provided for that which says, ‘States my make provision for management, use and control of water solely within their boundaries but shall be guided by the policy and principle of the federal government in relation to integrated water resources management’. I believe he (Akpabio) misunderstood it.”
However, the battle was already lost. Senator Bareehu Olugbenga Ashafa (Lagos State) who spoke next said he was going to support Akpabio’s line of argument “for the first time and the reason is not too farfetched.” In Lagos right now, according to Ashafa, “we are in court with NIWA (Nigeria Inland Waterways Authority) based on our waterways. Those are creeks that should be left to the state government to control, but what you find is that NIWA has extended its federal might in controlling the navigation and all other things. There will be need for us to identify the rivers that belong to the federal government as well as the states if we want to avoid any problem.”
Senator Ibrahim Abdullahi Gobir (Sokoto State) countered that a clause in the bill already covered that aspect while Senator Binta Masi Garba (Adamawa State) prefaced her contribution on the need for senators to “be more Nigerian when we want to discuss national issues”. She then argued that the same principle guiding Trunk A roads controlled by the federal government would apply to waterways. She said the bill “has covered the fears of whatever each and every one of us is saying but the federal government have a responsibility for its citizens and I think this is one of those things.”
That offered no comfort to Senator Adeola Solomon Olamilekun (Lagos State) who said “from the word go, this bill has sounded controversial and I want you” (addressing Saraki) “to use your leadership quality and style to let us take our time before going forward to pass this bill.”
Olamilekan added: “I also have reservation concerning this clause. As we speak we are currently at the Court of Appeal with NIWA concerning the right over our waterways in Lagos. These rivers mean a lot to these states and even to host communities. I believe we can set up a committee to go ahead and look into the nitty-gritty of this bill in line with the constitution and the existing Act. We have done it in the past in this chambers; we should also use this medium to address all the inadequacies or controversial issues that this bill contains so that together we can pass it and everybody can be happy going forward.”
And then Saraki ruled: “Distinguished colleagues, I think for a bill like this, despite my eagerness and enthusiasm to pass it quickly, it is important that we carry everybody along. If we agree, the chairman of water resources committee and the vice chairman, as well as the chairman and vice chairman of Judiciary committee together with the Director of Legal should go back and look at all the issues. Let us give them maximum of one week. I would like them to look at the suggestion by Senator Binta Masi on Section 5 that if you change ‘States may’ to ‘States shall’ make provisions, does that satisfy those that have concerns? Or do we really believe that these issues truly trample on the powers of the states?”
That committee never reported back. And with that, the National Water Resources bill was consigned to the dustbin of history by the 8th Senate!
Now that the bill is back to the House of Representatives, the controversy has returned. But the real issue is more about the inordinate ambition of the federal government to amass more powers at a time Nigerians clamour for devolution. So, whatever may be the merit of the National Water Resources bill, I do not see it sailing through the House when members resume from their recess. I doubt if there is any governor in Nigeria today, whether in the North or in the South, who would sign off on this bill that takes away the powers granted them by the Land Use Act.
Incidentally, if there is anything Lagos has successfully done in the past 21 years, it is to challenge any attempt at power grab by the federal government at the supreme court. Most times the state has won. The current case between the state government and NIWA is precisely over this same issue. So, with Speaker Femi Gbajabiamila as an important stakeholder in Lagos, this bill is already doomed. But the whole controversy is really unnecessary. I wonder why the federal government did not deem it necessary to tinker with the controversial clauses before returning it to the National Assembly. Afterall, Akpabio actually provided some leeway.
When an atmosphere of ethno-religious suspicion has replaced our previous harmonious coexistence, introducing a controversial bill without consensus and wide consultations with critical stakeholders was always going to be a problem. This bill may contain some good clauses, but it is ill-timed. First, it is coming under a presidency that has increasingly found it difficult to shake off the tag of being deeply parochial and sectional. Two, it trespasses into the terrain of land and water resources and therefore conflicts with powers conferred on state governors by the Land Use law. Three, the bill presupposes a unitarist federalism which runs counter to the current agitation for power devolution and restructuring in the country.
Like the Companies and Allied Maters Act, 2020 (CAMA 2020), an otherwise necessary and important legislation that has become divisive, the National Water Resources bill has also strayed into our delicate fault-lines and lost in the brackish waters of Nigeria’s perennial political brickbats. But the president should be worried that almost his important policies continued to energize certain subliminal impulses in our society. And that Nigerians now appear incapable of having any decent conversation without resorting to ethnicity and religion.
All factors considered therefore, this National Water Resources bill has become a problem. Conceived in a time of mutual suspicions, promoted by divisive interests and opposed by the current politics of ethno-religious distrust in the country, this bill and the debate around it now amount to a quantum waste of legislative time and energy. It is dead on arrival!