15 October 2013, Abuja – The people of the oil-bearing communities in the Niger Delta have challenged the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC), saying that anything short of direct allocation of the 13 per cent derivation through National Derivation Board to the people is not only unacceptable but will remain a direct invitation to unimaginable crisis.
They lamented that the present arrangement of paying the money to the governors of the oil producing states was no longer acceptable as it had not impacted on the people and their communities.
The people in a position paper presented by Chief Wellington Okirika, leader of the Oil-Gas Producing Communities of Nigeria told the Elias Mbam-led RMAFC at the zonal hearing in Yenogoa, the Bayelsa State capital, that if the constitution is truly supreme, then section 162(2) is clear enough for anybody to know that 13 per cent derivation belongs exclusively to the people of the oil-gas bearing communities as compensation and reparation for the lost of their productive farmland and fishing rights and not for state governments to use as they pleases as it is being done presently.
The statement which was also signed by Chief William Igere (Delta), Mr. Sam Ebiwanno (Ondo), Nomwen Uhunmwangho (Edo), Onyema Olujie (Abia), Brisibe Opukime Nabena (Bayelsa), Appolos Emenike (Rivers), Alhaji Abrahim Ikansin (Cross River) and Temple Okonji (Imo), warned that unless the constitution was respected fully, the people would have no choice but confront the government directly.
In the memorandum titled: “13 per cent Derivation Under the Provision of Section 162 (2) of the 1999 Constitution as Amended”, the oil/gas producing communities stressed that the states are entitled to receive and manage the 13 per cent derivation.
“In order to put this issue in proper perspective, a reproduction of Section 162 (2) of the Constitution as amended thereof is imperative at this juncture. The federation shall maintain a special account to be called “the Federation Account” into which shall be paid all revenues collected by the fovernment of the federation except the proceeds income tax of the personnel of the armed forces of the federation, the Nigeria Police Force, the ministry or department of government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja.
“The president, upon the receipt of advice from the RMAFC, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of states, internal revenue generation, land mass, terrain as well as population density;
“Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than 13 per cent of the revenue accruing to the Federation Account directly from any resources.”
They insisted that “it is lucid that the principle of 13 per cent derivation is firmly entrenched under the proviso to Section 162 (2) above. Accordingly, in whatever formula, the National Assembly adopts, it must constantly reflect 13 per cent derivation.
“Consequently the leadership of the oil and gas communities said, 13 per cent derivation is prior charge on the Federation Account and/or and Revenue Formula under Section 162 Thereof and enacted at any time. It is a mandatory provision and/or a condition precedent to the constitutionality of any revenue formula in Nigeria.
“Thus where there is no provision for 13 per cent derivation in any revenue formula, such a law will be null and void for violating a mandatory provision of the constitution.
“This Principle has been notoriously applied by the apex court. 13 per cent derivation is not part of Consolidated Revenue Fund of any tier of government nor does it also form part of the fund to be included in the Joint State and Local Government Account. Indeed, having clearly set aside the mandatory 13 per cent derivation under the proviso to Section 162 (2) thereof, it becomes an entrenched right standing on its own.
“Accordingly, it must be treated sui generis of its own kind and specially too. Thus it does not form part of any federal government or state government’s Consolidated Revenue Fund.
“In this connection Section 84 and 121 of the said 1999 constitution which establishes and regulates the Consolidated Revenue Fund, is clearly not applicable to 13 per cent derivation under Section 162 (2) Of The Constitution.”
Okrika said as regards the state and Local Government Joint Account under Section 162 (b) of the constitution, the position of the law is clear on this issue that an express mention of a word leads to the exclusion of those not mentioned.
Consequently, the express mention of the words State and Local Government Joint Account, leads to the exclusion of oil producing communities, because if the legislature had intended to include the oil producing communities into that Joint Account, the Constitution could have expressly so provided.
“In the light of the above, the State and Local Government Joint Account is also clearly not applicable to payment 13 per cent derivation under the constitution.
– This Day