THE NIGER DELTA PROBLEMS AND SOLUTIONS: The Equilateral Resource Control (ERC)

model as an Alternative Dispute Resolution (ADR) concept.

by

Clement Ikpatt; L. Glenn Scott, Esq.

"Justitia suum cuique distriduite - Justice renders to everyone his due" Cicero.

Despite government efforts through the NDDC, the Land Use Act 1978 (amended 1993),
the Petroleum Act 1969 (amended) 1991, Land Title Vesting Decree 1993, National Inland
Waterways Authority Decree 1997 and other initiatives engaged over the intractable
problem of resource control in the Niger Delta, it is obvious that a clear and workable
template of resolution is yet synthesized by the stakeholders toward lasting regional peace
and socio-economic prosperity. One reason is traced to the fact that major stakeholders in
the region – the Niger Delta peoples, the Federal Government and trans-national
conglomerates – have each cast firm positions that allow little room for compromises.
Another reason can be traced to failure in harmonizing existing isolated solutions into a
workable method of replication. Minimizing each of three stakeholder positions has proven
to be ineffective and a catalyst for conflict because genuine constitutional, human rights,
federalism and economic concerns are involved.

Therefore, this proposal seeks to derive a workable template that reflects the
harmonization of isolated solutions – i. the NDDC; ii. a Legally Enforced Redistribution
Plan; and iii. the Declaration of Indigenous Rights - into a resolution model that neutralizes
conflicts and ensures regional development. It is anticipated that these inevitable key
solutions will work simultaneously, albeit interdependently, to shift from intransigent
positions to common interests. It is also anticipated that these actors can equilaterally
position as mutual regulators and enforcers of each other while promising universal
adaptability (as both pre-emptive and resolution models) for present and future resource
conflicts in other African regions. For the purpose of this paper, resources are valuable
commodities based in a natural setting within a particular region.

ORIGIN OF CONFLICT: A general review of causes

The Niger Delta region comprising of present day Akwa Ibom, Bayelsa, Cross River, Delta,
Edo, and Rivers States of Nigeria and with an estimated population of over 30 million
Nigerians has been the foremost economic resource generator for the Nigeria state since
1937 when crude oil was first struck at Oloibiri in Bayelsa State. It is estimated that over
USD 300 billion has accrued the Federal Republic of Nigeria from sales of crude oil over
forty years of exploration.

With exception of three and one half years of civil war time, Nigeria and her several
Federal Governments have enjoyed relative peace times with unrestricted access to
resource exploration in the area. However, due to developments ofretrogressive laws (i.
The Petroleum Act of 1969 and 1991, ii. The National Waterways Decree of 1997, iii. The
Land Use Act of 1978 and 1993) and corruption by unjustifiably unitary republics and
military governments, the peoples of the Niger Delta region have suffered gross social and
economic infrastructure neglect, poverty, frustrations, ecological catastrophes and other
deprivations despite their contributions to the Nigeria prosperity. There are no standing
legislative histories behind these laws mostly decreed by military governments (some have
been amended by elected legislature). It is of importance to note, however, that all
aforementioned laws have been variously protested against by indigenes of the Niger Delta
region. The legacy of non-participation of constituent indigenous groups makes the
Declaration of Indigenous Rights (DIR) and its Standing Committee imperative.

The history of protests and conflicts of acrimony by the Niger Delta peoples against forced
union and exploitation dates back to 1957 when testimonies were made in respect thereof
before the Willink Commission of Inquiry into Minority Fears. Subsequently, several
protests and clamors for justice have been registered to no avail. Characteristically, both
military and civilian governments have ignored clamors for equitable remedy and forcibly
smothered protests through use of overwhelming military might and other
documented acts of state sanction political violence.

The prevailing concept of federalism in Nigeria today falls short of expectations in both
definition and practice. To the extent that it is being practiced as quasi-federalism, there
has been an overly centralized control of resources by the Federal Government. This
aberration continues to generate perpetual conflict with indigenous rights, hence, it has
become a major cause of conflict in the Niger Delta region especially from notorious
Derivation Principles for revenue allocation to State in the region.

1953 1960 1970 1975 1982 19841992 1999

100% 50% 45% 20% 25% 1.55% 3% 13%

* In 1999, Actual Derivation is 7.25% up to December 2001. Source: The Niger Delta Bill of Rights submitted to the United Nations.

Figure 1: Derivation Principle for Revenue Allocation to Niger Delta States of

proceeds from crude oil sales – 1953-2000

The third stakeholder – trans-national oil conglomerates (about 15 corporations have been
known to explore crude oil in the Niger Delta region) – have systemically played roles as
cohorts with governments in entrenching regional destitution as a means of maximizing
profits and are considered avaricious by local communities. Elitist management of oil
conglomerates segregate against indigenes in employment, development of local
infrastructure and is known to poorly compensate for ecological catastrophes resulting
from processes and wastes of oil exploration.

A continuing environmental degradation of the region poses another major threat of

devastation to local indigenous communities. Oil corporations deposit wastes of varying
toxic levels with impunity and are unchecked by an indolent environmental protection
agency. Corporations have adopted the pile exploration methods that consistently threaten
bio-diversity and ecological stabilization (source: Niger Delta Environmental Survey –
NDES). These have translated into continuing decline in indigenous farming industries and
frustration of peoples whose livelihood directly dependent on riverine land farming.

EFFECTS OF CONFLICTS

1. Today, the most potentially devastating effect of conflict in the Niger Delta is arguably
the threat to democratic concepts of federalism that may dovetail into violent clamors
for secession if not handled properly. As a result of conflicts in the region, Nigeria directly
fits into a profile created by the US National Intelligence Council in Global Trends 2015
Index (NIC 2000-02 document) for Sub-Saharan Africa. The NIC argues that "as sub-
Saharan Africa’s multiple and interconnected problems are compounded, ethnic and
communal tensions will intensify, periodically escalating into open conflicts, often
spreading across borders and sometimes spawning secessionist states." The tripartite
clamors for "true federalism", a "Sovereign National Conference" and "100% resource
control" by most indigenes of the region represent a leading precursor to realities of the
NIC report and are borne by frustrations at failure to secure equity and lasting resolutions
of regional conflict.

2. As a result of gross neglect by both successive Federal Governments and trans-national

conglomerates, the peoples of the region have lived with widespread poverty and deaths,
complete lack of socio-economic infrastructure, high rates of crime and unemployment.
Psychological effects of continued victimization and marginalization are underscored in
aversions to political leadership and governmental authority, inter-ethnic strife,
unmitigated actions of vandalism, aggression and social anomie. These authors estimate
that the region might become politically ungovernable by 2010 as regional security will
have collapsed if proper resolutions are not put in place immediately.

3. Effects of conflict are not only incident to indigenous communities in the region.
Escalating violence has threatened optimal exploration and production activities of
petroleum resources. Staffs of trans-national corporations are known to be victims of
murder, kidnapping and several other felonies and misdemeanors. The Federal
government is expending considerable funds allocation on security in the area as her
agencies are ceaselessly involved in fatal clashes with indigenes of the region. Therefore,
there are no outstanding net benefits for any stakeholder in the sustenance of the present
conflict. Avoiding long term violence or socially destructive reductions has, therefore,
necessitated the Equilateral Resource Control model presented below.

PRESENT MODELS OF CONFLICT RESOLUTION

Where there are government efforts at resolution, such efforts have been limited in
representation, haphazardly coordinated, repetitive and incomplete. All efforts at conflict
resolution have been generated by the Federal government and imposed upon all
stakeholders. For example, the Niger Delta Development Act 2000 recently adopted is a
variation of the Oil Mineral Producing Areas Development Commission (OMPADEC) Decree
enabled by General Sanni Abacha in 1995. It is known that both structures and scope of
the OMPADEC could not resolve entrenched causes of conflict in the region and its
variation in the NDDC Act 2000 is not estimated to prove better in addressing inadequacies
of the OMPADEC decree.

The OMPADEC or its progeny - the NDDC Act 2000, assuming it shall be properly managed
according to its charter of creation - by self-merit, are partly authentic means to an
ultimate resolution of conflicts. Despite their inexorability, neither one can not singularly
resolve crises as a stand-alone model nor is encompassing enough in representation of
indigenous peoples and their varied interests. Both represent unbalanced creations of the
majority stakeholder - the Federal government - that considerably favors
already protected multinational corporations and without equity to indigenous peoples and
their interests. Historically, Commissions so created by the Federal government are
notoriously challenged in management styles while epitomizing as hotbeds of corruption
and excessive government bureaucracy. It is, as a result, madeaccording to pattern that
present Niger Delta Commission has no satisfactorily delineated purpose, scope and
structures expected of such important roles and offices it is created to execute.

Another reason that contradicts the well-intentioned NDDC is traced to parallel

retrogressive laws that are nuances in present regional conflicts. These laws (outlined in
Origin of Conflicts, sub-section 1), constitute another model handed down by earlier
governments and legislatures toward resolving conflicts through revenue allocation. These
authors are inclined to indicate unreasonableness in most sections of such laws and
suggest immediate legislative and judicial reviews.

Against these inherent natures of self-service, ineffectiveness and limitations that

characterize earlier Commissions created by Federal governments for regional resource
control and developments, it cannot be overemphasized the desirability for an Equilateral
Resource Control model – created to provide checks and balances while ensuring equity for
all stakeholders.

PROPOSED MODEL AND TEMPLATE FOR CONFLICT PRE-EMPTION AND

RESOLUTION

The Niger Delta problem is prototypical of most anticipated regional conflicts in Africa due
to the fact of the submerging of ethnic primacies to the rapid emergence of the modern
state. A delimitation of this continental problem would seemingly have a solution that can
be vicariously used and extemporized throughout the region. Such an academic pre-
emption may lie in the implementation of a model such as the ERC. As in the case of
Nigeria, the Constitution of the Federal government rests on a check and balance system
between the three traditional branches of government (executive, legislative, and
judiciary). A further synthesis should consider the historical disenfranchisement of
indigenous peoples. To protect their interest and extend the elaboration of human values,
another tripartite checks and balances system is as inevitable as it is necessary. An
academic pre-emption that suggests such a model will save both unnecessary capital
expenditure and political instability.

THE EQUILATERAL RESOURCE CONTROL (ERC) MODEL

The ERC model involves a universal tripartite template of checks and balances that
addresses regional resource control conflicts with distinct, yet interdependent structural
constants. It provides an umbrella for interest definition between the stakeholders. It is
anticipated that this standardized model shall become useful and amenable in adaptability
for resolving many regional resource conflicts as conflict variables (colonization, rapid
political modernization, and trans-national corporate penetration) apply.

x
NDDC – Niger Delta Development Commission

LERP – Legally Enforced Redistribution Plan

DIR – Declaration of Indigenous Rights

Figure 2: An illustration of the ERC Model

APPLICATION OF THE EQUILATERAL RESOURCE CONTROL MODEL: A review of

structural frameworks

The NDDC (Niger Delta Development Commission) represents the Commission created
from the NDDC Act 2000 and vested with responsibilities as the institutional framework for
special development in the Niger Delta region of Nigeria. Unlike OMPADEC (Oil and Mineral
Producing Areas Development Commission) established by an earlier military government,
the poorly funded NDDC Act 2000 does not delineate the purpose of the Commission and
its structures are widely criticized as potential hotbeds for corrupt practices. However, the
importance of this institutional framework, as a valuable factor in the ERC model is
underscored and it is expected that those appropriate legislative amendments in the
purpose, scope and structure of the NDDC must ensue. In the ERC model, it is expected
that the NDDC will embark upon physical and human capital development of the Niger
Delta region while compensating communities and States for environmental and ecological
deprivations resulting from the processes of crude oil exploration and decades of systemic
deprivation.

The LERP (Legally Enforced Redistribution Plan) is expected in the ERC to be an expedited
judicial review by the Supreme Court of existing laws governing derivation principles and
such other laws that the legislative branch may enact or amend regarding resource control
or conflict. It is expected that the Supreme Court shall use its plenary powers (a first
instance judicial review) and shall decide and issue a decree or any decree involving the
fair distribution of revenue from local resources. The Court’s Finding of Facts may include
hearings with expert testimony of adverse impact from indigenous population and any
other probative evidence that it may deem appropriate – i.e., global and national economic
indicators or other social conditions of the region. The ERC model recommends that LERP
shall provide an incremental review of any decree or a decree (i.e., every five years) based
upon prevalent indicators and conditions suggested above. The ERC model also proposes
that LERP shall consider an equitable standard revenue distribution formula to indigenous
states (e.g., 33% Derivation principle that is subject to periodic review upon prevailing
economic and social indicators).

The DIR (Declaration of Indigenous Rights) is expected in the ERC model to optimally
include all pro-active indigenous groups in the region within its Standing Committee.
Participation in the Declaration should by consensus as opposed to election or
appointments sponsored by the Federal government. The ERC model recommends that
drafting of principles of the Declaration will be based upon utilization of non-governmental
organizations (NGO’s) and individuals. This will ensure impartiality and fairness. At the
time of this writing, a well-intentioned declaration is before the United Nations
Organization (UNO). However, ERC model envisions a more equitable Declaration that
ensures fairness in resource control while piercing the veil of trans-national conglomerates
legally protected as the minority joint-venture shareholder in controlling agreement. The
ERC model envisions that the NDDC and a Standing Committee for the Declaration of
Indigenous Rights shall both serve as partners in the implementation of the LERP. When
there is a dispute, each party may have an expedited access to the Supreme Court for
resolution. Often, indigenous population is without adequate means to sustain prolonged
legal challenges. Conversely, a government created Commission may need immediate
judicial review to help diffuse potentially destructive reactions involving the indigenous
population and other stakeholders. The DIR may also proffer the insistence of input in the
joint venture agreement that may specifically address issues of environmental destruction,
criminal acts and intentional torts.

CONCLUSION

It is estimated that resource control conflicts in Africa shall replicate with undesirable
consequences threatening several countries and may spawn secessionist states.
Procedures for resolving these issues in Africa should be normalized through continental
conventions sponsored by regional organizations such as ECOWAS, SADCC and/or the
OAU. In the case of Nigeria’s Niger Delta region, all stakeholders need to review their
positions and take advantage of arbitration and reconciliatory efforts, such that can be
institutionalized through the universality and effective application of the ERC model.

The ERC model does not minimize an urgent need for economic diversification in all newly
independent states because overly depending on a particular resource exacerbates
economic entropy that can catalyze conflict and promote political instability. As a political
risk analysis for emerging markets suggests, it can be seen that when certain factors are
present or prevalent, the cauldron will boil, i.e., non-diversification of the economy,
location of resources within marginal ethnic locales, joint venture agreements (e.g.,
arrangements between the Federal government and trans-national corporations) which can
be used to invoke the Act of State doctrine.

The ERC model is multi-faceted in its departure from traditional isolated frameworks that
have limited applications and results in conflict resolution. This tripartite balance of
interests, especially of entrenching basic human values and rights of indigenes with
governmental and corporate interests, is anticipated to fitly apply in most emerging
regional resource control conflicts in Africa. It is expected that it can practically resolve
outstanding Niger Delta resource control conflict in Nigeria with the self-sustaining kinetics
of a more limited alternative dispute resolution model.

Clement Ikpatt; L. Glenn Scott, Esquire. Copyright Ó 2001. All rights reserved