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X-raying issues in contentious water resources bill

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Despite its earlier unfavourable transit-to-assent experience, the Water Resources Bill is currently before the National Assembly.  Since it was presented, the bill has elicited negative responses from Nigerians.

The drafting process of the bill began in 2004 and was completed in 2008, following a roadshow to get people’s input. The first bill was introduced at the National Assembly in 2016.

When it was presented, the bill was met with stiff opposition and a great deal of controversy and suspicion. As a result of the complaints, it was later withdrawn after the public hearing.

The major concerns raised were that it had the potential to undermine the power of state Houses of Assembly and deny original landowners right to their heritage. 

It was also argued that the bill was a grand ploy to favour a certain ethnic group, thereby, depriving original landowners. Many also said governance structure in Nigeria concentrated too much power at the top, leaving the states with minimal responsibilities.

Subsequently, some of these concerns were, according to the Minister of Water Resources, Suleiman Adamu, addressed in 2018 and the bill returned to the 9th Assembly in 2021. It was re-submitted to the House Committee on Water Resources in 2022.

This time, it was introduced with the title, “A Bill for an Act to Establish a Regulatory Framework For Trans-Boundary Water Resources in Nigeria, provided for the Equitable and Sustainable Development, use and Conservation of Nigeria’s inter-state surface Water and Groundwater Resources; and for Related Matters 2022.”

Still, the bill has not been well received by sub-national stakeholders. There are concerns and even suspicions that the repeated bill may go beyond national interest, especially given clashes over land and water resources between farmers and roaming herdsmen.

Benue State governor, Samuel Ortom described it as an “evil bill,” vowing to lead a protest against it. Speaking at the flag-off of the distribution of seedlings in Makurdi, the governor decried what he termed the agenda of the Federal Government to seize land from the 36 states of the federation. Governor Ortom categorically stated that Benue would not surrender its land in whatever guise to the Federal Government.

“Let me say emphatically that there will be no Water Resources Bill in Benue State; we will resist it, if other states encourage it, here in Benue we will not accept it.

“The other time they brought the water resources bill, we said no, now they are bringing the evil bill again, it is evil plan to take over waterways.

“The Land Use Act is clear about this that land belongs to people and it is entrusted to the state governor. I promise that no one will come to Benue to seize our land,” Ortom said.

Dr Oluabunmi Niyi-Gafar of the Department of Law, University of Ilorin, advised that more consideration and adoption of a human rights-based approach to the drafting of the Water Resources Bill should be considered. 

The senior lecturer advocated five principles for consideration: Participation, accountability, non-discrimination, empowerment and legal redress in the drafting of the Bill.

She explained that the controversial Water Resources Bill seems to have nullified the human rights principles of participation and legal redress. “The principle of participation argues that stakeholders should participate actively in issues that concern them,” he said, hailing the industry’s commitment to bring out the bill for improvement of the water sector. 

She said: “Perusal of the proposed bill shows that it seeks not to progressively ensure the realisation of access to water and also takes away the human rights principle of legal redress.

“For example, Sections 35 and 37 of the bill empower the Commission it creates to hear matters under the bill and make binding decisions, as if same were the judgment of the Federal High Court.

“Section 98 of the bill subjects the use of water to licensing provisions, which may be cancelled where it is perceived that the licensee does not make beneficial use of water as stated in Section 107.” 

Pointing out the provisions of Section 104 of the same bill, the lecturer said it empowers the government to reduce the amount of water for domestic use.

Her words: “This goes against the provisions of the International Convention on Economic Social and Cultural Rights, where Article 2 states that each state party to the Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to maximise its available resources, with a view to achieving progressively the full realisation of the rights recognised in the Covenant. A reduction in access to water in this nature becomes regressive in the realisation of those rights.”

Similarly, an Abuja-based lawyer, Jerry Aondo explained that section 1 of the 1999 Constitution stipulates the supremacy of the Constitution. According to him, subsection (3) of that section provides that any other law that is inconsistent with it shall be void to the extent of the inconsistency, while the Constitution prevails. 

Aondo stressed that section 20 of the Constitution charged states to protect and improve the environment and safeguard the water, air, land, forest and wildlife in consonance with the fundamental objectives and directive principles of state policy.

He stated that the Land Use Act vests all lands solely in the governor of the states (except lands in the Federal Capital Territory, FCT), who would hold such land in trust for the people and be responsible for allocation of land in all urban areas to individuals and to organisations for residential, agricultural, commercial and other purposes, while similar powers with respect to non-urban areas are conferred on local governments.

The Land use Act, he pointed out has been included and formed part the 1999 Constitution by virtue of Section 315 (5) and to that extent can be interpreted as a supreme law of the land (as expressed by Niki Tobi in his book Nigerian Land Law, Abu Press Ltd 1987 P. 2).

The lawyer submitted that going by the provisions of section 4 of the 1999 Constitution, the legislative competence of the National Assembly is with respect to surface and underground water and any watercourse that affects more than one state pursuant to the Exclusive legislative list. And this, he said, they have rightly done by the Federal Environmental Protection Act (FEPA).

“It is respectfully submitted that the proposed bill is over reaching in scope. Water resources are found on land and access to such resources would to a large extent and degree affect the rule governing the possession of land, which already has been taken care of by the Land Use Act. 

“Water resources being part and parcel of land which the Land Use Act has specifically vested in the governors, the bill, is therefore, contrary to the provision of the Land use Act and by implication Contrary to the provision of the Constitution and consequently must be voided,” he stated.

Consequent upon the criticisms, the Federal Ministry of Water Resources assembled an independent team of experts to provide an assessment of the bill’s provisions for better understanding and appreciation to allay the fears and address the main concerns of the various stakeholders.

With the collective efforts put together into making the revised copy of the 2022 bill, the ministry has insisted that those antagonising the bill may be doing so as a result of their ignorance of the revised copy.

In a special note titled, “Misconceptions About the Revised Water Bill,” the ministry stressed that those opposing the bill were relying on second hand information to draw their conclusions. Otherwise, it stated, the current letters of the bill would not attract the fear entertained by subnational stakeholders.

The ministry said: “It is a sad commentary that at a time when Nigerians are seeking for improved service delivery in the water sector, the very policies and reforms required to achieve progress are being undermined by some unpatriotic people because of cheap politics.”

 According to Adamu, the minister of water resources, rather than the other way round, the bill seeks to reinforce citizens’ right to water, promote citizens’ participation in water resources development, sustainable management, protection of the ecosystem, attract investment and establish a funding mechanism for water supply, sanitation and hygiene services to better the lot of Nigerians. 

Highlighting the need for stakeholders to read the updated text, he said: “The current bill has eliminated all ambiguities in connection with pertinent constitutional provisions and alleged overreach of State authority.”

Sponsored by the Chairman of the House Committee on Water Resources, Sada Soli (APC, Katsina), it is divided into 12 parts.

Experts note that the scope is clarified to ensure respect for delineated constitutional powers. Specifically, they pointed out that the power of states as stakeholders is clearly saved. There are checks and balances to restrict unfettered discretion, as well as safeguards put in place to avoid excessive political interference in the implementation of provisions of the bill. It has been aligned with the National Action Plan on Gender and Climate Change for Nigeria, and also created an opportunity to leverage traditional knowledge of indigenous and local communities relating to water resources and conservation.

Section 2(1) reads: “The right to the use, management and control of all surface water and groundwater affecting more than one State pursuant to item 64 of the Exclusive Legislative List in Part 1 of the Second Schedule to the constitution of the Federal Republic of Nigeria, 1999 as amended, and as set out in the First Schedule to this Bill is vested in the Government of the Federation to be exercised in accordance with the provisions of this bill.” 

Section (2):  “States may make provisions for the use, management and control of water resources occurring solely within the boundaries of the State in line with regulations and guidelines made pursuant to this Bill on policy and principles of Integrated Water Resources management.”

Section 3(1) provide that: “Subject to the provisions of S. 2 (1), a person may, without a licence: (a) take water from a water source to which the public has free access for the use of his household or for watering domestic livestock; (b) use water for the purposes of subsistence fishing or for navigation to the extent that such use is not inconsistent with this bill or any other existing law.”

Section 10(1) stated that: “It shall be the duty of the Minister to promote the protection, use, development, conservation, and management of inter-state water resources throughout Nigeria and to ensure the effective exercise of powers and performance of duties by institutions and persons identified under this Bill and in the constitution.”

Similarly subsection 2 and 3 of the bill also states: “The Minister shall have the power to make regulations, policies and strategies for the proper carrying out of the provisions of this bill and functioning of the Ministry in accordance with this bill as well as in accordance with other directives he may receive from the President and any guidance from the Council.

The bill specifically addresses some of the challenges of irrigation management and improvement of water supply delivery. It further makes provision for farmer participation in maintenance of irrigation infrastructure as well as a WASH Fund to support States of the Federation in meeting financial investment in Water, Sanitation and Hygiene projects.

According to analysts, the essence of the pending water resource bill before the National Assembly was to give proper direction to water resource management in the country. The bill, when passed, would also strengthen private sector partnership in the management of the water industry.

The National Water Resources Bill is relevant and appropriate for Nigeria given the fact that more than 80 per cent of the nations around the world have subscribed to the concept of Integrated Water Resources Management (IWRM), which seeks to promote citizens’ rights, eliminate hindrances to the management of water as an economic resource and help to empower the people.” The IWRM system is globally acceptable and can easily be researched to ascertain its merits in Water Resources development and management. 

A commission for management of water resources is already in place: Nigeria Integrated Water Resources Commission (NIWRC) established to regulate water resources. However, what is lacking in the bill is the legal tooth for operations due to non-passage of the bill. For now, due to non-passage of the bill, the commission functions with ministerial delegation of powers, and can only assume its responsibility with the passage of the bill.

NIWRC, according to industry watchers, is hampered by the non-passage of the bill. The commission by law is mandated to regulate water development, define water footprint standards and water resources planning and development, which are hanging in the balance. 

According to NIWRC Executive Director, Bashir Magashi, the water use license is to ensure the sustainability, efficient utilisation, equitable beneficial use of water and to check the indiscriminate drilling of boreholes which has become rampant across the country, with its attendant detrimental consequences such as environmental degradation, land subsidence, pollution of ground water sources and imminent impairment of the productive land capability.

The legal consultants admonished Nigerians to look at the bill from the perspective of what we tend to achieve as a nation. She argued that the bill provided an institutional framework for the effective governance of the Water Sector as obtainable in other climes.

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