Bayelsa Derivation Funds: A Long Walk to Justice


One of the hallmarks of a visionary leader is to fight for what is just, equitable and fair for his people. The aim of justice is to give each his due, and in order for each to be given what is his, it is necessary that it already belong to him; to 'give', in this sense,  means to protect the right of possession. Each man gets 'what belongs to him. Only when each man thereby gets what belongs to him, and someone wants to take it away from him, does a question of justice arise'. His Excellency, Chief Timipre Sylva, Executive Governor of Bayelsa State has once more demonstrated his doggedness in fighting for justice for his people.

  As far back as February 2010, Governor Sylva has asked for restitution of the offshore derivation on the ground of the severe ecological havoc perpetrated by multinational corporations (MNCs). Governor Timipre Sylva petitioned the Presidency on two grounds: namely, the debilitating environmental impact on the area and the mounting security burden borne by Bayelsa State.

  The situation is that Bayelsa State will earn more derivation revenue than any oil- producing state in the Country. The same mischief makers are indirectly instigating other states to agitate for payment of derivation for oil wells offshore. This action is provocative because when in 2009, revenues accruable to Bayelsa State dropped drastically amidst heavy expenditure on security, those begrudging the state now never made a case for the state. For instance in 2006, the state received only about 96 billion which was less than 50% of the projected revenue from the year. The culmination was that Bayelsa State dropped from her 2 nd position to a distant 4 th position with progressively diminishing accruals. It was the revenue shortfalls that prompted the State to resort to the N50 bond market for financing heavy infrastructural projects - some of which are ready for commissioning.

  For a couple of days now, most of the National Papers are awash with the propaganda, misconception and outright falsehood about the Federal Government's concession of offshore derivation funds payable to Bayelsa State. The general perception is that Oil producing communities may begin to earn additional revenues for offshore oil wells. In all intent and purpose, this action is in line with the derivation law. The Presidency has approved the 13% derivation on nine oil wells belonging to Bayelsa State but in some quarters this kind gesture has been misinterpreted.

  Whereas some uninformed commentators are given this act of justice a media type, most of the writers have blatantly failed to understand that it is not an act of favouritism but a matter of redressing wrongs done to the State in the past.    For those who know the genesis of the struggle, the Presidential approval as a memo that originated from the Venue Mobilization allocation and Fiscal Commission RMAFC offer to the president seeking the approval of payment of derivation   for offshore.

  The most provocative argument, which we regard as warped logic, is that the concession granted Bayelsa State is in breach of the National Assembly, which abrogated the Onshore - Offshore dichotomy in the application of the 13% derivation fund. It is most unfair for anyone to buttress the argument that the revenues available to the federation account for distribution to the 36 states and the 774 Local Governments Councils has been reduced.

  His Excellency, the Executive Governor of Bayelsa State, Chief Temipre Sylva in a memo titled REQUEST FOR ATTRIBUTION OF SOME LITTORAL OIL FIELDS . To His Excellency, President Goodluck Ebele Jonathan GCFR (then Acting President) dated February 16, 2010. In the said memo, the Executive Governor of Bayelsa State recalled that after the abrogation of the Offshore - Onshore Dichotomy Act of 2004, the National Boundary Commission (NBC) delimited the maritime boundaries of littoral States. After the exercise it was discovered that Bayelsa State had been gravely disadvantaged and short-changed.

  It was against the background of the historic neglect and the ecological damages of coastline erosion, which had washed away 1000 meter of land into the ocean, frequent oil spillages, and other damages attendant to the mining of crude oil that provided justification for Bayelsa State to appeal to the Federal Government to treat the State as a 'special case'.  

  The Executive Governor of Bayelsa State was very clear in his attribution request and pinpointed that the following oilfields and wells be considered. §   Akpo oilfield §   Chota oilfield §   N'golo oilfield §   Nuwa oilfield                                                 §   Agbami oilfield                      §   Aparo oilfield §   Bonga oilfield §   Oberan oilfield §   Ene oilfield

  These are the nine oilfields on which the attribution request was made.

  On the basis of this genuine request, the office of the Secretary to the Government of the Federation did a memo titled RE: REQUEST FOR ATTRIBUTION OF SOME LITTORAL OILFIELDS with Reference No.SH/VP/SEC/35 on March 9 th 2010 to the Chairman, Revenue Mobilization Allocation and Fiscal Commission.

  The Secretary to the Government of the Federation (SGF) also copied the Accountant General of the Federation. The letter requested the office of the Accountant General of the Federation to implement the new indices, which would be forwarded to his office that would be used for the disbursement of the 13% derivation funds for the month of October 2010.

  Consequently, on September 21 st , 2010, the RMAFC acknowledged the receipt of the letter with Reference No.RMC/ALO/51/52/12/383 confirmed that it had concluded consultations with all relevant authorities. The National Boundary Commission (NBC) recommended to Mr. President that Bayelsa State request be favorably considered especially given the volatile security issues involved and the environmental degradation generated from these oil wells.

  The NBC corroborated the ruling of the International Court of Justice in 2002 - which ceded Bakassi to the Republic of Cameroun. Thereupon, the NBC and the RMAFC advised Mr. President to approve that 50% production of the listed oil wells namely:   Abana, Adanga, ADSW, ADNH, Adanga South, Ebughu East, Ebgughu NE, Mimbo, and Bogl on the boarder of Akwa Ibom and Cross River States.

  Mr. President approved that recommendation via a letter with Ref. SH/AGP/SEC/81 dated may 5 th 2010. The recommendations of NBC and the subsequent approval of the above request was the precedent that had added a stamp of authenticity to the request made by the Bayelsa State Government and graciously approved by the Presidency. In legal parlance, it is Stare decisis" that is a legal principle that people should stand by decided matters". What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. The case of Bayelsa is also in line with ratio decidendi as the material facts of the case which informed the decision thereon are the same. Therefore any argument to the contrary would be a rape of the fundamental principles of justice.

  May we place on record that it was this model that Late President Umaru Yar'Adua employed in the execution of the Amnesty Programme in the Niger Delta Region. It should be recalled that Bayelsa State has the most difficult terrain to develop in Nigeria, and not even the Presidency has disputed that fact.

  Considering the centrality of Bayelsa State to the production of crude oil and gas and the national threat it poses in the event of any disruption, the Commission at its meeting of 16 th to 17 th September, 2010 carefully considered the request of the Bayelsa State Government and arrived at the decision that the Commission approved 50% of crude oil and gas production of the said nine oilfields be attributed to Bayelsa State. The letter was copied to the AGF for implementation effective from October 2010.

  From the foregoing, there is no scintilla of doubt that Bayelsa State is not given any extra-ordinary concession, as there exists a precedent on the matter. Similarly, there is no ground whatsoever for any State or group to instigate howsoever that the attribution derivation funds payable to Bayelsa State would short-change other States in terms of Federal Allocations to States and Local Government Councils. Such an argument is baseless because what is good for the goose is also good for the gander.

  Bayelsa State is the most disadvantaged state in terms of difficult terrain, environmental degradation, insecurity and their attendant problems. Therefore the implementation of the attribution derivation is in line with the principles of natural justice equity and good conscience. We had expected that other oil producing States would sympathize with Bayelsa and her developmental challenges and make a case for her.

  The Niger Delta Coalition for Good Governance commends President Goodluck Jonathan for adhering to the rule of law. The Coalition also hails the fighting spirit of Governor Timipre Sylva for painstakingly securing the rights of Bayelsa people. According to Theodore Roosevelt 'Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong' For us in the Niger Delta Coalition for Good Governance the derivation funds payable to Bayelsa State is a classic case of justice served; For Governor Timipre Sylva, it's a long walk to JUSTICE!  

Dr.Theophilus Ebikebina                                                     Miebi MacDonald Esq.