Is Zamfara Nigeria’s ‘Mackenna’s Gold’?

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Introduction

The famous Hollywood Western, ‘Mackenna’s Gold’ (released in 1969) might seem a somewhat inappropriate metaphor for the controversy – if not furore – generated by the purported offer by the Zamfara State Government to sell gold, reportedly extracted by artisanal miners in the State, to the Central Bank of Nigeria (CBN) penultimate week. That would be a fair charge, but the comparisons are not altogether far-fetched, if only because of the healthy dose of incredulity common to both plots – one on legal and constitutional grounds, and the other, entirely factual (paradoxically, as fiction).

In addition, both have excellent entertainment value: the movie grossing US$40million in box-office takings (from a budget of US$7million, according to Wikipedia), and the other, from the sheer media frenzy which it has generated, both online and in conventional media. There, the comparison ends, however, as the not-so-golden scenario involving the Zamfara State Government, CBN and the Federal Government (represented by the Ministry of Solid Minerals) – unlike the movie – has serious implications for the legal and constitutional framework regulating ownership and control of “minerals, mineral oils and natural gas” – in the words of the Constitution. This naturally leads to a review of those provisions.

Legislative Overview

By virtue of Section 44(3) of the 1999 Constitution, “the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria, shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly”.

Section 1(1) of the Minerals Act, 2007 makes an identical provision. However, sub-section (2) of the provision adds that “all lands in which minerals have been found in commercial quantities shall, from the commencement of the Act, be acquired by the Government of the Federation in accordance with the provisions of the Land Use Act”; whilst sub-section (3) provides that: “the property in mineral resources shall pass from the Government to the person by whom the mineral resources are lawfully owned, upon their recovery in accordance with this Act”.

Section 2(1) of the Act provides, inter alia, that “no person shall search for or exploit mineral resources in Nigeria, except as provided in this Act”. In this regard, Section 5 of the Act establishes the Mining Cadastre Office, which is empowered to issue mineral titles and permits, which, may either be an exploratory licence pursuant to Section 59 of the Act, or a mining lease, pursuant to Section 65 of the Act.

It appears that none of the foregoing provisions of the Act were complied with, before the gold offered by the Governor of Zamfara State to the CBN was explored for, extracted/mined and refined. In other words, the entire process was tainted with illegality ab initio. This would be a very serious over-sight (if it can be described as that) which is made worse still by the involvement of the State’s Chief Executive, in purportedly offering the proceeds of such illegal mining to the nation’s banking czar, the CBN.

Reactions

It is hardly surprising that some have alleged that the situation is akin to seeking to conceal or disguise the origins of the proceeds of an unlawful activity under the Money Laundering Act, 2011, as amended.

Others – especially, the Rivers State Governor, Nyesom Wike – have taken it higher than that, arguing that if what is good for the goose is good for the gander, oil-producing States should also be given a free-hand to produce, refine and sell ‘their crude oil’ to (farcically), the CBN or the NNPC, the Nigerian National Petroleum Corporation. The first option is farcical because the CBN lacks the statutory authority to trade in oil, unlike gold, which it is expressly authorised to buy, vide Sections 28 and 29 of the CBN Act, 2007.

The second option fares even worse (in my view) because, as previously stated, by virtue of Section 44(3) of the 1999 Constitution, mineral oils and natural gas, are the exclusive property of the Government of the Federation. This provision is sweeping and all-encompassing, as it includes those minerals and mineral oils found “under any land and the territorial waters” of Nigeria. In other words, it includes raw or unrefined gold, crude oil and the like. Needless to say, if the title to, or ownership of the raw mineral is defective ab initio, it’s refinement or processing into “the finished product” by an illegal claimant (in this case Zamfara’s artisanal miners) cannot validate that defective title, as, ex nihilo nihil fit – out of nothing comes nothing.

The same, of course, applies to Governor Wike’s argument, in respect of Niger Delta oil. Applying this logic, the absurdity inherent in the two Governors’ positions (Matawalle and Wike) would appear in bold relief: quite simply, the Federal Government cannot sell to itself what it already owns (both CBN and NNPC are its agencies): Section 4 of the CBN Act & NNPC v TIJJANI (2007) All FWLR pt. 344, pg. 129).

Still others have argued that, by virtue of Section 80 of the 1999 Constitution, “all revenues or other money raised or received by the Federation … shall be paid into and form one Consolidated Revenue Fund of the Federation”. However, I don’t think this argument is tenable for the simple reason that, unless and until the gold, crude oil or other mineral is converted into money, it would not constitute “revenue or other money” which is obliged to be paid into the Consolidated Revenue Fund, by virtue of that constitutional provision.

Conclusion

Beyond the legal and even constitutional issues thrown up by the ‘Zamfara Gold’ controversy, all commentators agree that the real question is the even-handed or equitable application of the relevant legislative provisions, as outlined above. But, beyond even that, the debate has thrown up deeper questions about the propriety of the present constitutional arrangement, which vests ownership and control of the mineral resources of the country in the centre, leaving only the producing regions to scramble over a ‘meagre’ 13% of its value, based on derivation. This, however, is a policy debate which can only be resolved through a root-and-branch (holistic) review of the Constitution. Regrettably, this process has only moved in fits and starts, since the advent of the present democratic dispensation. Predicting quite how the process might evolve – and whether its outcome will change the ownership structure in relation to mineral resources – is anyone’s guess. For now, what is imperative is for the Ministry of Solid Minerals to step up to the plate in terms of its statutory functions vis-à-vis gold under the Minerals Act (Sections 4 & 9) – in much the same way as the Ministry of Petroleum Resources has been superintending the petroleum industry, vide the Petroleum Act, 1969.

The Emir of Zazzau Controversy

The appointment of HRH Alhaji Ahmed Bamalli, penultimate week, as the Emir of Zazzau (Zaria), Kaduna State, by Governor Nasir El-Rufai has proved controversial, as one of the Princes, who was reportedly considered (but ultimately over-looked by the Governor) has reportedly challenged the latter’s choice for the revered traditional institution, through a legal action at the State High Court. While the matter is accordingly sub-judice and only sparing comments (if at all) may be made thereon, it is, however, intriguing that the basis of the challenge is reportedly the non-inclusion of the new Emir’s name among those short-listed and submitted by the king-makers to the State Governor, pursuant to Section 4(1) of the State’s Chiefs (Appointment and Deposition) Law, Cap. 25, 1991.

However, equally pertinent, in my view, are the provisions of Section 4(2) of the law, which stipulate that:

“Upon the death, resignation or deposition of any Chief or Head-Chief of any kind described in sub-Section (1) above, the Governor may appoint any person selected in that behalf by those entitled to select in accordance with the provisions of any order made by the Governor, prescribing the method of appointment of such a Chief or Head-Chief”.

Obviously, by virtue of this provision, the question is whether any such order has been made by the Governor, and if so, what are its terms? Needless to say, if no such order was made, the question of compliance or non-compliance therewith does not arise. The implication of this, in my view, is that, the Governor possesses a near-absolute discretion to adopt or disregard any purported recommendation (or selection) of anyone as a Chief or Emir by the selectors. The validity or otherwise of this view is, however, up to the court to decide