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Tag: Nigerian news

  • SA: looting a la carte

    In South Africa, it is looting a la carte; or vandals table d’hôte — a complete family gang comprising the father, the mother and the child(ren), all beatific in their plunder of foreign shops!

    Dramatic?  Yes, for no one could swear the looting kids were children of the nearest looting adults.

    But no: it isn’t to further tar the rampaging xenophobes of Oliver Thambo’s country — more of Afro-phobes, South Africa insists — busy claiming foreign scalps, though under searing international scorn.

    Still, the defining, if troubling pictures, from the plunder and arson, are exactly that: men, women and children in an orgy of looting, just to sate patriotic ire — and rumbling tummies — against “criminal” foreigners.

    Now, after the hurly burly is done, and the battle is lost and won, how do you convince that child, tender veteran of patriotic looting, that looting and arson are evil — long after the hated foreigners had fled, and the shops remaining are the natives’?

    Xeno (foreigner) and phobe (irrational hate or fear) are Greek words. Sparta was the classical xenophobic enclave — all antiquity rumbled with its aversion for non-Spartans, even among the Greeks.

    Yes, Sparta built a fierce military machine, that knocked its contemporaries cold.  Still, beyond military hegemony, Sparta never achieved the all-round greatness that made rival Athens tick, as the greatest of the Greek city states. That was because Greece opened its door to all — not unlike pre-Donald Trump’s United States.

    The simple moral?  A xenophobic country soon shrivels up.  Even if it thrives, it seldom achieves its full greatness, with no input from aliens.  The contemporary apogee of that is again the United States.  Still, no one is sure of the future, with the present Trumpian hurricane.

    Shrivelling and wilting, therefore, are what South Africa risks, should it continue on its present Afro-phobic ruin.

    Part of it is physical — with a suspect workforce across the board, and a populace bred on an entitlement syndrome (hardly a crime, given how apartheid had crushed the Black South African psyche for decades on end), South Africa faces a danger of implosion.

    Besides, if xenophobia succeeds in driving away most aliens, it could deny native South Africans the chance to compete against foreigners, re-discover themselves as no laggards, as the White minority elite had conditioned their minds; hone their skills and, on equal footing, fight for fairer re-distribution of South Africa’s wealth — the crux of the present distemper.

    But Afro-phobia could also lead to severe spiritual backlash.

    Zimbabwe were White minority rule co-victims.  Tanzania and Zambia (former Northern Rhodesia when Zimbabwe was southern Rhodesia) were key frontline states that helped to free Zimbabwe and South Africa from White minority rule and apartheid.  Far-away Nigeria was dubbed honorary frontline state, for its radical anti-apartheid activism.

    It is tragic, therefore, that those who stood by South Africa, in its greatest hour of need — Nigeria, Tanzania and Zambia (apart from Zimbabwe), have become the most bloodied from South Africans’ Afro-phobia!

    That is crass ingratitude — the hottest part of hell, in the African moral cosmos.

    What immediate irony!  Apartheid South Africa was a pariah for cruelty towards its Black folk.

    But independent South Africa, given the spate of sports boycotts (both Zambia and replacement, Madagascar, shunned the FIFA open window friendly with Bafana Bafana), coupled  with the present Nigerian growl and Rwandan frown, is on its way to becoming a new pariah — for xenophobic cruelty, against fellow African countries, that fought hardest for its liberation!

    Karma already setting in?  Not so fast!

    But the xenophobes of Mandela country had better watch it — xenophobes of Mandela country! Isn’t that a violent contradiction in terms, given the near-perfect universal icon the late Madiba was?

    Still, xenophilia (love for foreigners) is no excuse for natives to allow aliens turn their country into a hopeless drug cartel.  On this, some Nigerians in South Africa stand strongly charged — and condemned.

    Nevertheless, this South Africa-Nigeria debacle is home to yet more ironies.

    South African Catholic bishops, pouring ice-cold water on the government’s claim that the looting and arson were more of free-wheeling criminality than organized xenophobia, asked a rather pointed question: “If it was about drugs, why are South African drug dealers not being targeted as well?”

    Doesn’t that ring true of local developments in Nigeria here?

    Didn’t the media, at the height of the South West crisis of kidnapping and sundry criminality, rail and thunder at “Fulani herdsmen”, suggesting all Yoruba criminals had surrendered the crime franchise to the Fulani invaders?

    Didn’t the Fulani find themselves victims of that horrendous profiling, simply because of past insensitivity to local feeling, when power and spoils of power were at stake?

    And don’t some misguided Igbo continue to growl “Lagos is no man’s land”, the feeling of the Lagos natives be damned?

    What do you call all of these — internal xenophobia?

    If Nigerians could be this insensitive to themselves, can’t the same Nigerians, cocky, loud and proud, export that notoriety to their foreign hosts?

    If you add crime, committed with such chutzpah, aren’t their hosts likely to flip, as the South Africans have done?

    This is bitter home truth; but those with patriotic claptrap can exercise their right to carp!

    No doubt: criminal Nigerians in South Africa stand fairly accused, though past notoriety could have led to the locals tracing far more crimes to them than they could have committed.

    For instance, in a video that went viral on social media, two South Africans swore the killing of a local taxi driver, that fuelled this latest crisis, was by a Tanzanian drug baron, in an area in Pretoria, where Tanzanian crime reigned supreme.

    Still, whatever the guilt of these Nigerians and other foreign African nationals, mob rule is not the solution.  That is where the South African authorities have dismally failed.

    The Lagos reprisals have shown looting, under the pretext of holy anger, is no South African monopoly.  In reprisals, Nigerians too have attacked MTN shops and looted Shoprite malls.

    But the difference is the Nigerian authorities have not looked the other way, and have moved to secure these businesses, even if not a few feel they ought to have been more proactive.

    South Africa should have brought its foreign criminals to heel under its criminal-justice system, instead of seething with base rage (as Bongani Mkongi, South Africa’s deputy police minister, has betrayed), and given tacit support to their base elements to give their country a bad name, among the global community.

    So, beyond patriotic ire and nationalist thunder, Nigeria and South Africa must engage each other to address this common plague.  In a globalized world, no country can go it alone.

    In any case, Nigeria and South Africa are too vital for the African regional economy to drift apart because of some mutual dregs, which the law, and its strictures, can take out.

  • Significance of Seat or Place of Arbitration: P&ID Ltd v Nigeria

    Following the controversies that trailed the award of S9.billion against Nigeria by a British Court, London-based Nigerian lawyer and arbitrator Mr. Momoh Kadiri examines the  implications of arbitration in the matter and the consequences of the judgment on Nigeria.

    Introduction

    In Process & Industrial Developments Limited v Federal Republic of Nigeria [2019] EWHC 2241 (Comm), following a contested hearing on 14 June 2019, on 16 August 2019, Mr Justice Butcher, sitting in the High Court of Justice, Queen’s Bench Division, Commercial Court in London, gave judgment and granted the Claimant’s application pursuant to section 66 Arbitration Act 1996.

    The Claimant, Process & Industrial Development Limited (“P&ID”), had applied, inter alia, for an order enforcing a Final Arbitration Award dated 31 January 2017 in the same manner as a judgment of the English Court to the same effect.

    It is noted that about USD$ 9.6 billion is the amount now stated to be due as payable to the Claimant. The Defendant, the Federal Republic of Nigeria (“FRN”), unsuccessfully sought to resist P&ID’s application, contending that amongst other reasons, as Nigerian law was the governing law, the seat of arbitration was not England but Nigeria.

    The FRN sought to resist enforcement of the Final Award on widespread reasons but this article will focus on the most notable issue – what is the seat or place of the arbitration?

    The facts

    The Final Award that resulted in the judgment was made in arbitration proceedings relating to a dispute between P&ID and the FRN arising out of a Gas Supply and Processing Agreement (the “GSPA”).

    This agreement, dated January 11, 2010, was entered into between P&ID and the FRN, acting by its Ministry of Petroleum Resources (“the Ministry”).

    By an arbitral Final Award dated January 31, 2017, made by a tribunal consisting of Sir Anthony Evans, Chief Bayo Ojo SAN, and Lord Hoffmann (“the Tribunal”), P&ID was awarded US$6,597,000,000. The majority was comprised of Sir Anthony Evans and Lord Hoffmann, with Chief Bayo Ojo SAN dissenting.

    The dispute

     By 2012, a dispute had arisen in relation to the GSPA.

    P&ID contended that the FRN had failed to make available natural gas (“Wet Gas”) in accordance with the GSPA. On 22 August 2012, P&ID served its Notice of Arbitration.

    The arbitration commenced thereafter with the appointment of the arbitral Tribunal.

    Whereas the parties’ legal representatives expended some considerable time in correspondence, arguing over the seat of arbitration, it is however plain that the arbitral Tribunal had already on two separate occasions made unanimous Part Final Awards: on  July 3, 2014 – dealing with its own jurisdiction and some other procedural matters; and on  July 17, 2015 – dealing with liability (the Liability Award) wherein it was unequivocally and unanimously stated by the arbitral Tribunal that the seat of the arbitration was London. Both the Part Final Award as well as the Liability Award stated, at the end: “Place of arbitration: London, United Kingdom”.

    FRN’s application to Nigerian and English Courts

    On  February 24, 2016, the Ministry of Petroleum Resources of the FRN commenced proceedings in the Federal High Court (Lagos Division) in Nigeria, seeking the Court’s ‘supervisory jurisdiction’ in relation to the Liability Award, stating that the seat of the arbitration was Nigeria.

    It is noted this followed after the FRN had unsuccessfully applied to the Commercial Court in London for leave for extension of time and to appeal the Part Final Award under section 68 of the Arbitration Act 1996.

    The request for extension of time and permission to appeal was dismissed by the Court on February10, 2016, by Phillips J. on the basis that no justifiable reasons had been given to excuse the application being made out of time.

    Salient part of the GSPA

    Under the terms of the GSPA between the parties: (i)   The FRN was to supply Wet Gas at no cost to P&ID, via a government pipeline, to the site of P&ID’s production facility.

    P&ID was to construct and operate the facility necessary to process the Wet Gas by removing the natural gas liquids (“NGLs”) contained within it, and to return to the FRN lean gas suitable for use in power generation or other purposes, at no cost to the FRN.

    P&ID was to be entitled to the NGLs stripped from the Wet Gas.

    The GSPA was to run for 20 years from the date of first regular supply of Wet Gas by the FRN.

    The arbitration agreement

    Clause 20 of the GSPA provided, in part, as follows: “The Agreement shall be governed by, and construed in accordance with the laws of the Federal Republic of Nigeria. 

    The Parties agree that if any difference or dispute arises between them concerning the interpretation or performance of this Agreement and if they fail to settle such difference or dispute amicably, then a Party may serve on the other a notice of arbitration under the rules of the Nigerian Arbitration and Conciliation Act (Cap A18 LFN 2004) which, except as otherwise provided herein, shall apply to any dispute between such Parties under this Agreement. Within thirty (30) days of the notice of arbitration being issued by the initiating Party, the Parties shall each appoint an arbitrator and the arbitrators thus appointed by the Parties shall within fifteen (15) days from the date the last arbitrator was appointed, appoint a third arbitrator to complete the tribunal. …

    The arbitration award shall be final and binding upon the Parties. The award shall be delivered within two months after the appointment of the third arbitrator or within such extended period as may be agreed by the parties. The costs of the arbitration shall be borne equally by the Parties. Each Party shall, however, bear its own lawyers’ fees.

    The venue of the arbitration shall be London, England or otherwise as agreed by the parties. The arbitration proceedings and record shall be in the English language.

    The Parties shall agree to appropriate arbitration terms to exclusively resolve any disputes arising between them from this Agreement.”

    Arbitral Tribunal’s decision on seat of arbitration

    As the parties’ arguments persisted as to the seat of the arbitration after the Liability Award, upon P&ID’s invitation and request, the Tribunal determined that England was the seat of the arbitration and not Nigeria. Thus, on  April 26, 2016 the tribunal made “Procedural Order No. 12”. It stated at the end: “Place of arbitration: London”, and was “signed on behalf of the Tribunal” by Lord Hoffmann as “Presiding Arbitrator”. In reaching its decision the tribunal stated following five reasons:

    In light of the ministry’s commencement of proceedings in the Federal High Court in Lagos, it was apparent that there was a dispute between the parties as to whether the Nigerian courts were entitled to exercise supervisory or curial jurisdiction over the arbitration, and that this depended on whether Nigeria or England was the “seat” or “place” of the arbitration. It was stated that “This is an important question, not only for the purpose of determining the jurisdiction to supervise the proceedings and award, but also for the purpose of the enforceability of the award.

    That the issue of the seat of the arbitration had been first raised by the Ministry in its originating motion in the High Court of Lagos on February 24, 2016; that it had been contested by P&ID and that the parties had made submissions on it in letters or emails dated   March 8,11 and 13, 2016.

    That P&ID had requested a ruling on seat before the injunction granted by the Nigerian court – “The Tribunal considers that it must therefore consider the question of the seat of arbitration for the purpose of deciding the future conduct of the arbitration. The Tribunal has the power to determine its own jurisdiction (section 12 of the Nigerian Arbitration Act) and its opinion on the disputed question may also be of assistance to the Nigerian court.

    That, as to the law, the meaning of the words “the venue of the arbitration shall be London, England” in the GSPA were to be construed in accordance with Nigerian law, and reference was made to 16 of the ACA. The Tribunal concluded that the parties had agreed on the “place of the arbitral proceedings” within. 16(1) of the ACA and thus that the Tribunal’s power to       xsqsthat place was excluded. The question was as to what was the effect of the choice of London by the parties. Having referred to the fact that the ACA was based on the UNCITRAL Model Law, to textbook authority, and to the decision of the Supreme Court of Nigeria in Nigerian National Petroleum Corporation v Lutin Investments (2006) 2 NWLR (Pt 965) 506, the Tribunal said:

    “In the opinion of the Tribunal, the parties’ selection of London as ‘the venue of the arbitration’ rather than of any particular steps (such as hearings) in the arbitration indicates that London was selected under section 16(1) as the place of the arbitration in the juridicial sense, invoking the supervisory jurisdiction of the English court, rather than in relation to any particular events in the arbitration.”

    That in any event, by reason of matters in the course of the arbitration – set out in paragraphs 19-39 of Procedural Order No. 12 – “the parties and the Tribunal have consistently acted upon the assumption that London was the seat of the arbitration”, and that “the Tribunal considers that the Government must be taken to have consented to this being the correct construction of the GSPA.

    The importance of the concept of seat of arbitration and lex arbitri

    The strength of the seat theory is that it gives an established legal framework to an international arbitration, so that instead of ‘floating in the transnational firmament, unconnected with any municipal system of law’[2], the arbitration is firmly anchored in a given legal system. Just as the law of contracts helps to ensure that contracts are performed as they should be and not mere social engagements, so the lex arbitri helps to ensure that the arbitral process works as it should. The necessity for such support for (control of) the arbitral process is, of course, reflected in the Model Law, which allows for certain functions (such as the appointment of arbitrators where there is a vacancy) and for certain sanctions (such as the setting aside of an award) to be exercised by the courts of the place of arbitration.

    Similarly, a critical issue in any international arbitration is the location of the arbitral seat (or place of arbitration). Given that this article focuses on the concept of the arbitral seat in international commercial arbitration – the practical and legal issues arising in connection with the selection of the arbitral seat are important. The location of the legal seat can have profound legal and practical consequences and can materially alter the course of the dispute resolution[3]. In an English judicial decision of the Court of Appeal, it was said: “in international commercial arbitration the place or seat of arbitration is always of paramount importance”.

    Much more significant than convenience and cost is the effect of the law of the arbitral seat, and particularly the arbitration legislation of the arbitral seat, on the arbitration. In most legal systems, the arbitration legislation of a state is territorial in scope, regulating arbitrations that have their seat within the territory of the state and not other arbitrations. The arbitration legislation of the arbitral seat governs a number of “internal” and “external” matters relating to arbitral proceedings, etc. The external matters potentially governed by the law of the arbitral seat concern judicial supervision of the proceedings by the courts of the arbitral seat. Among other things, these include: (a) arbitrators’ competence-competence (also referred to as kompetenz-kompetenz) and the allocation of competence to consider and decide jurisdictional challenges between arbitral tribunals and national courts; (b) annulment of arbitral awards; (c) selection of arbitrators; (d) removal and replacement of arbitrators; (e) evidence-taking in aid of the arbitration; (f) provisional measures in support of the arbitration[5]. In most instances, “external” matters entail affirmative actions of the local courts of the arbitral seat, which consider and decide applications seeking judicial intervention in the arbitral process (e.g., annulling and award; selecting an arbitrator).

    Recourse to the Competent Courts

    What is a losing party to do if its grievance is not something that can be put right by correction or interpretation of the award and there is no provision for internal review of the award? There are grounds on which an arbitral award may be challenged before a national court at the place of arbitration (the seat of arbitration). The UNCITRAL Model Law, Article 6, provides for each state to designate the court, courts, or other authority competent to perform the functions laid down by the Model Law, which includes setting aside of awards under Article 34. Thus, the courts with supervisory or curial powers or authority are a function of the juridical seat or place of arbitration.

    The proper place of challenge

    Where then is the proper place of challenge of an arbitral award by a party that is aggrieved? Any challenge to the validity or effect of an award must be addressed to the designated competent court of the seat of the arbitration. If the arbitration had its seat in Switzerland, for example, the competent court is the Swiss Federal Tribunal (although the parties may agree to the court of the canton in which the arbitration took place). In France, it is the Paris Cour d’Appel. In England, it is the Commercial Court of the Queen’s Bench Division in the High Court of Justice. In the United States, it is the district court (the federal first-instance court) of the seat of the arbitration. There is one notable exception to this general rule, although it is probably more theoretical than real: the freedom of the parties to an international arbitration to decide. However, the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), acknowledges that recognition and enforcement of an award may be refused on the basis that the award has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. See New York Convention, Article V (1) (e). It is noted that that some Courts have read the reference to “the country under whose law the award was made” to set aside an award that was not made in their own county, but which was governed by the country’s substantive law. Thus, in two decisions dating back to the 1980s and 1990s, the Indian courts set aside awards rendered in other states on the basis that the substance of the disputes was governed by Indian law.[

    Analysis

    Clause 20 of the GSPA states: ‘The venue of the arbitration shall be London, England or otherwise as agreed by the Parties.” Better expression and provision should have been made to ensure that the juridical seat was also stated and included within clause 20. This is important because, “venue” is generally understood to refer to geographic or physical location where the arbitral hearing or proceedings may be held- this is not necessarily synonymous with the seat or place of arbitration. By way of analogy, the seat of the arbitration may be London but parties or the tribunal may decide to hold some or all of the hearings in Paris. In this sense, London remains the seat whilst Paris is the venue. Attention to detail requires that so called pathological arbitration clauses are avoided because in practical reality, parties are unlikely to agree much about anything once they are in dispute.

    With the above in mind as well as the facts of this case, it is clear that the arbitral Tribunal had decided the seat of the arbitration was London, England. A number of points are necessary.

    • To be continued next week

  • Destruction of telecoms facilities and national security

    The xenophobic attacks against Nigerians and other foreign nationals in South Africa sparked reprisal attack of infrastructure in some parts of the country. Destruction of telecoms infrastrcuture is an ill wind because it can compromise national security and service quality, writes LUCAS AJANAKU.

    Like a horror film, grim images of attacks on foreign nationals and burning down of their means of livelihoods emerged from South Africa last week.

    Again, it is another season of xenophobic attacks. It is not the first and this might not likely be the last if the root cause of the attacks are not addressed.

    There were, however, reprisal attacks in Nigeria whose citizens were worst hit by the unprovoked aggression.

    The Nigeria arm of Africa’s largest carrier, MTN Group, came under attacks.

    The telco confirmed that its facilities, customers and some of its stakeholders were subjects of attacks in retaliation for the ongoing xenophobia situation in South Africa. “We have confirmed reports of attacks in Lagos, Ibadan and Uyo,” MTN’s Company Secretary, Uto Ukpanah, said in a statement.

    The Association of Telecoms Companies of Nigeria (ATCON) has warned that further vandalism of telecoms infrastructure will spell doom for the industry.

    Its President, Olushola Teniola, in a note, said news and a reaction to what is happening in South Africa are disheartening. “We cannot have vandalism of telecom infrastructure as the answer to the unfortunate incidents happening in South Africa. Other African citizens have also faced similar fates and the best thing is for peaceful protests to happen to express displeasure,” Teniola said.

    According to him, facilities for now may not have not been vandalised but outlets maybe at risk.  “Should vandalism continue, then negative impacts will be felt in quality of service (QoS), level of Foreign Direct Investment (FDI) and create a level of uncertainty amongst the investment community, he said.

    Ukpanah said while MTN Nigeria remains committed to providing uninterrupted services, the safety and security of its customers, staff and partners is of utmost priority. “All MTN stores and service centres will, therefore, be closed as a precaution until further notice. MTN condemns any acts of violence, prejudice and xenophobia and remains absolutely committed to ensuring a peaceful harmonious and respectful relationship with all communities in Nigeria and across Africa.

    “We are engaging all relevant authorities in this regard and we urge them to act swiftly to reduce tensions both in South Africa and Nigeria. We will provide further updates as and when possible,” Ukpanah said.

    Teniola agreed no less with him. He said: “The shutdown of their outlets, hopefully, is a preventive one until the government of Nigeria and other African leaders can intervene to curtail it.

    “Continued diplomacy in reaching a permanent resolution to the root causes of the problem must bbe explored.”

    Chairman, MTN Nigeria, Ernest Ndukwe, has also rejected xenophibic attacks in South Africa and reprisals in Nigeria.

    In a statement, he condemned the attacks in unequivocal terms and commiserated with the victims of the unfortunate incident.

    Ndukwe, a former Executive Vice Chairman, Nigerian Communications Commission (NCC), said: “The board of MTN Nigeria wishes to add its unequivocal condemnation of the xenophobia and violence against Nigerians and other nationalities in South Africa over the recent days, as well as the violent response to it in Nigeria. Violence cannot and must never be acceptable and we must reject it in the strongest terms possible.

    “We offer our profound sympathies to all those affected and urge all stakeholders and communities in Nigeria, South Africa and other countries, to act with restraint, and to work collaboratively to address these issues.

    “Our future as a continent will be built on enhanced connections and greater integration economically, culturally and politically. It is in all of our interests to work together.”

  • South Africa’s tragedy

    Sir: For some of us, the South African xenophobia attack is a double and treacherous tragedy. Some us still carry the brunt of the deep commitment to the anti-apartheid struggle till date even in our psyche!

    For example, personally, arising from the anti-pass law protests in South Africa during the Apartheid regime, I still have a disdain for ID cards!

    Till date I have been unable to print personal call cards. Some printed for me in organizations or institutions that I have served were rarely used. On my flight from Jedda on Wednesday, I still have to write out my contact details on a paper to two officials. I held business meetings and I get call cards of various types and designs, I will only say “I will call you or send text message”.

    As the Chairman of the Consultative Advisory Committee (CAC) and SA to the immediate past Governor on Ijebu Easy Local Government,  I, along with 56 others colleagues, were asked to get our ID cards from the office of the Secretary to the State Government. I Did not even submit my passport pictures (two copies were required), let alone having an ID card issued. Such ID cards were so much cherished by other colleagues.

    Till date, on my Facebook Timeline, under self description, I wrote “Mr. Nobody”. Even in many financial transactions, I had to use my International passport. And in several local travels, I just show the picture of the data page of the international passport on my phone.

    I and other Comrades were regular visitors to the office of the African National Congress (ANC) then at Obalende. We helped to distribute books, journals, posters, pamphlets, leaflets, etc.,  in the propagation of the “war against apartheid.” We organized symposiums, protest and the likes. All involvements were at our own personal financial, physical and intellectual expenses.

    I think the Lagos Office then was headed by Comrade Victor Matlou, or so( can’t fully remember his names now), who later  became a Minister in the Nelson Mandela Administration.

    When Nelson Mandela visited Nigeria he was reportedly quoted as saying that when it was difficult for ANC to get $100 USD Nigeria donated $100,000!

    We were demonstrating and putting severe pressure on our government to confront the Apartheid Regime with stiffer sanctions.

    So, you can imagine the pains-in-the-marrows that some of us are going through on the present needless attacks on Nigerians in South Africa.

    • Tunde Oladunjoye,

    Oladunjoyelo@gmail.com

  • Is council autonomy feasible?

    The controversy over local government autonomy has been raging for some time. This is owing to the fact that the 1999 Constitution is not explicit about the place of local councils in the federation. During the military era, local governments were created arbitrarily and today, only 774 of them are recognised. Also, the position of the law on their autonomy is not clear. MUSA ODOSHIMOKHE examines the politics of council autonomy.

    Local government autonomy  has been on the front burner of national discourse for some time. Stakeholders have continued to express divergent views on the matter.  Since the return of civil rule in 1999, the country’s democracy has continued to be referred to as nascent. Observers say it will not grow, without autonomy at the grassroots level. In other words, autonomy at that level of government will impact on the state and the national level.

    Such observers base their arguments on the fact that, in a multi-party democracy, it would be unwholesome  to deny the councils, which have their own manifestoes, the opportunity to implement their programmes.

    They argue that it is left only for the state government to decide how to disburse funds allocated to councils from the Federation Account. In a situation where different political parties are in-charge at the council and the state levels, the development at the grassroots could be deliberately stalled, by starving them of funds or by compelling them to tow the ruling party’s programme.

    The argument is that the administrative machinery closer to the grassroots needs some freedom to decide how to manage its finances, because the inability to freely disburse funds is largely responsible for the low pace development in the councils.

    But, the controversy over local governments’ autonomy stems primary from the 1999 Constitution. This is owing to the fact that some sections of the document support their autonomy, while others  appear to back the notion that state governments have the power to decide on how to run their operations.

    Thus,  if the proposition for councils’ autonomy must sail through, the constitution must be amended. But, observers say the process of such constitutional amendment may spark legal disputation, because of the passion usually displayed by the proponents and the antagonists of autonomy.

    The constitution recognises the 774 local government areas (LGA) created by military fiat and they are the legally entitled to funds from the Federation Account. The process of constitutional amendment is cumbersome and not much has been achieved in that regard since the advent of the Fourth Republic in 1999.

    Lagos State pioneered the concept of Local Council Development Areas (LCDAs), when the Bola Tinubu administration created additional 37  LCDAs, to complement the 20 existing local councils. But, the development did not go down well with the federal authorities and monies that accrued to even the 20 constitutionally recognised councils were withheld and later released under the administration of the late Umaru Yar’Adua.

    Since then, in states where they exist,  LCDAs not benefit directly from the Federation Account.

    Southwest All Progressives Congress (APC) chieftain Ayo Afolabi said it was an aberration for the Federal Government to dabble into the local government administration. He said in a true federalism, states are the federating units and the government at the centre deals only with them.

    Afolabi said it was the prerogative of the state to determine the number of councils it wants, depending on its ability to generate resources to keep them afloat.

    Afolabi said: “As far as I am concerned, I don’t understand what they mean by local government autonomy. Whether they like it or not, local governments belong to states within its geographical sphere.

    “So, it is wrong to talk of local government autonomy in the sense in which Nigerians are talking about it. The proper way is for each state to determine how many local governments it wants to create and in what locations.

    “The state should be able to know the number of councils it wants to establish. This is purely a state affair; it is not a federal issue. It is an aberration by the Federal Government to start talking about local governments. Councils have no relationship with the central government. It is basically wrong for the Federal Government to look in this direction.”

    There is the argument that granting financial liberty to councils may encourage corruption. Those who hold the view say many councils have not given account of the finances at their disposal and that some councils are looking for bailout to clear the backlog of salaries.

    The enormity of councils’ financial recklessness is depicted in the huge abandoned projects. These projects do not have direct bearings with the immediate needs at the grassroots.

    The Association of Local Government of Nigeria (ALGON) has been in the forefront of the agitation for financial autonomy for councils. To ALGON, it is no longer practicable for councils and state government to operate joint accounts.

    The National Vice Chairman of ALGON, Muhammad Mahmud-Aliyu, said the move by the Federal Government to ensure councils’ autonomy is a welcome development. He said the National Assembly should urgently look into the matter, to free councils’ from what he described as financial slavery.

    He said the call for financial autonomy for councils has been on the front burner for a long time and that the issue had gone beyond debate.

    Aliyu said: “In Kaduna, State,  this is not a new thing. The state government recently gave its nod on councils’ autonomy. When the current executive was elected, a guideline different from what was practiced before was introduced by the government.

    “In the new system, our grant came to us directly and I believe every resident of Kaduna State is a living witness that there are tremendous positive changes across the state. I mean changes in the area of projects execution at the grassroots.”

    The ALGON leader said he personally awarded contract worth N1 billion, adding that it would not be possible to do this if the Kaduna State Government had tempered with grant meant for the councils.

    He added: “There is no need to debate whether councils autonomy will usher in the needed change. It is very natural that when councils access direct funds, they will do more for the grassroots than what is presently obtained.

    “When this happens, execution of projects across Nigeria will create job opportunities in the 774 councils.

    The National Chairman of United Progressives Party (UPP), Chief Chekwa Okorie, said local governments should enjoy basic privileges like state and federal levels.

    Okorie said those saying that councils would mismanage funds allocated to them should have a re-think. He said since council chairmen do not enjoy any immunity, they could be probed while in office.

    He said the Economic and Financial Crime Commission (EFCC) and other anti-graft agencies would always beam the searchlight on the councils’ accounts, if they suspected any foul play.

    He said a situation where an elected governor can sack council chairmen without allowing them to complete their tenure was doing a lot of evil to  local governments.

    He said: “At the end of the day, the sacked chairman will not be in a proper position to render account of stewardship. So, parts of the challenge are governors who use their positions to create bottlenecks for the councils.

    “This is where vibrant party legislative arm should come in. The judiciary should also do its job by ensuring that councils are protected from overzealous state executives that do not mind the consequence of sacking an entire councils for narrow interests. But, unfortunately, the judiciary has not lived up to expectations.”

  • South Africa and the burden of brotherhood

    Sir: The recent attacks on foreign nationals  of African descent in South Africa brought into very sharp relief  the country‘s difficult past even as each burst of flame and each blow tugged violently  at the unique and emotional bond South Africa  forged with some African countries during the brutal days of apartheid.

    It would forever be etched into the memory of South African diplomacy that in those days when the insatiably blood thirsty beast of apartheid prowled the ancient and proud plains of South Africa sucking the life out of indigenous South Africans   to the raucous cheers of white superiority and justification, some Africancountries did not stand by  wringing their hands but offered eternal words of rebuke. Some also wedded their unsparing   words to will through   many significant acts of solidarity with the beleaguered South Africans especially through overt and covert acts of support for the African National Congress , which was the vehicle of the anti-apartheid resistance.

    Thus, it was that when the incomparably ugly but towering edifice of apartheid crumbled to the ground, cheers rose from as far as Abuja and as near as Harare with its dust.

    However, over the years, the wounds of apartheid have proven themselves generational and intractable. For it seems  from the episodic attacks by South Africans on fellow Africans and their businesses that the  social consciousness of swathes of the South African people has been shaped by the specter of marginalization and deprivation which accompanied the historical injustices of apartheid.Thus from time to time, they bend their frustrations into bludgeons and beat to death other Africans and their businesses.

    The strong response to the savage   attacks  on their diaspora by countries such as Zimbabwe, Uganda  and especially Nigeria show that there is a simmering feeling that the collective South African memory is indulging the leech of ingratitude.How can they have forgotten so soon all we did for them? is the question tasking the brains of the countries whose citizens were attacked.

    Admittedly, it is a difficult question with an even more difficult answer. South African may have official gained independence in 1994 with the inimitable Nelson Mandela becoming its first president, but even then, the most perceptive of South Africans and their friends from other countries must have understood that the scars of apartheid would take generations to heal. If ever. So it is proving.

    The South African society sits on a keg of gunpowder. It is undeniably one of Africa‘s more prosperous countries and like a pot of honey which invariably attracts flies, it is a magnet for citizens of other countries seeking the proverbial greener pastures.

    However, once in South Africa, the yawning economic  gulf between the minority white  South Africans and the majority black South Africans proves true the sayingthat the grass is always greener on the other side. This staggering   economic inequality   is an eternal memorial to the imponderable  injustices of apartheid. It stands in mockery of the blood, bile and tears which shed by black South Africansduring the apartheid era.

    At the slightest opportunity, this bile from black South African boils over boiling  all  those within easy reach which would be fellow blacks from other countries. It is indeed a complex situation. The complexity of the situation is what must inform responsible responses from the South African government and also temper the reactions of the countries whose citizens have become easy targets for the recurrent attacks.

    The outrage from countries like Nigeria is entirely justified but at the same time,Nigerians within Nigeria and the citizens of similarly affected countries must resist the visceral urge to become like those whose actions have so repulsed them. Tricky situations such as these are better handled with the surgeon-like skills of diplomacy rather than kamikaze actions.

    But even as South Africa struggles mightily with the burden of a common African brotherhood, it must act quickly and decisively before those countries who   stood by it against the evils of apartheid shake their heads in regret of the historic positions they took and wish instead that they had spared their energies and resources. History would weep at such a somersault.

    • Kene Obiezu,

    Abuja.

  • Xenophobia and Africa’s entrepreneurial spirit

    I arrived South Africa on the 16th of July 2002; it was winter, the thick of it. I was brutally shocked by the intensity of the cold. But I came with a warm spirit. I was focused.

    My eye was on one thing alone. I wanted to be an entrepreneur; to add value to humanity, to create goods and services, to make a positive impact on the economic landscape of my host country and within Africa.

    The story of my sojourn to the rainbow nation reflects the story of migration of many of my compatriots and other Africans in South Africa.

    When I left Nigeria, I was only armed with basic high school education and skills acquired from my mentorship programme as a trader. For a Nigerian, that was more than enough “survival-tool-box”.

    It was up to me to add into the tool box; determination, resilience, creativity and emotional intelligence for me to navigate the reality of the South African socioeconomic terrain.

    As I soldiered on, I realised, like any other non-citizen that the political liberation of our host country was not automatic economic freedom.

    The onus was on me to confront an economic system stiffed in structured sectors and industries, white-controlled capital and infrastructures. I stumbled, fumbled, staggered and fell severally, yet, I refused to remain on the ground.

    Today, I have gained some financial stability. But it did not come to me because it was easy. I have three businesses and I have wonderful South Africans who work in those businesses, some have worked with me for as long as the businesses have started.

    Some of my shops are entirely in the hands of South Africans; my security outfit is managed by South Africans who decide what happen in the company’s operations. I am currently mentoring a young South African; using the same principle from my mentorship programme in Nigeria. I have spiced it with some degree of formality and, at 22 years of age, he runs his own IT firm from under my space.

    I tell my story to illustrate that the narratives which seek to vilify all foreigners ignore the fact that South Africa has the potential to be the melting pot for entrepreneurial creativity, ingenuity and collaboration by Africans.

    South Africa is multi-racial, hence, it is called the Rainbow Nation. It has the best of infrastructures on the continent and prides in a constitutional democracy, one of the best in the world.

    The epitaph, Rainbow Nation, denotes more than different pigmentation, it is supposed to be a reflection of diversity and ingenuity, therefore, the creativity from across the borders would add to the beauty and brightness of South Africa at the end of the day, if, the host country can tap into the positives brought by those from other countries.

    As a foreigner living in South Africa and a Nigerian in particular, I won’t keep quiet over this recent Afro-phobic attacks going on in parts of South Africa. I have the moral ground to speak because I have added value to South Africa: I boldly state that I have never indulged in any form of criminal activity to make money. Besides, I am married to a South African and her family has become mine.

    I am not the only foreigner or Nigerian with this kind of record. Crime is crime no matter who commits it. There is no crime that is only committed by only foreigners. Criminals are in every country and they should not be tagged exclusively as foreigners.

    When we call criminals foreigners we are saying that every foreigner is automatically criminal. Painting everyone with the same brush is dangerous and the ripple effect is what we are experiencing; where businesses of genuine entrepreneurs are destroyed because they are foreigners on account of wrong narrative which been allowed to gained currency, people who have something to offer will be forced to recline.

    It is true that there are foreigners whose activities are conducted in unpleasant and illegal ways. On the flip side, it is impossible for people from other nations to come to another nation to commit crime without aid from citizens.

    But intellectual laziness and populist stance have underscored the narrative which demonizes foreigners and, Nigerians in particular. Perhaps, we need to remember not to forget that Nigeria and South Africa account for almost one-third of the Africa’s Gross Domestic Product (GDP) and, if businesses developed by entrepreneurs like me, and against the background of the challenges to grow small businesses; it would directly compromise the targets of the current clamor for intra-African trade.

    Instead of hasty generalisation and blanket labeling of small business owners from other countries, South Africa should put in place more pragmatic methods to deal with criminality. South Africa is a great country with tremendous potentials for development but the youths need to be better capacitated; they should be made to explore entrepreneurship and boost the rate of employment in the country.

    South African citizens have better opportunity to compete with foreigners and to even overtake them. The younger people should be motivated to imbibe the passion and determination to start their own businesses. The presence of foreigners like me who came with almost nothing should be an inspiration to the citizens.

    Institutions of learning should consider tilting their approach from emphasizing soft skills but also to capacitate learners on job creation. This is key because what we have today is a situation where there are limited job opportunities and educational institutions continue to produce job seekers instead of job creators. This vicious circle will continue and its adverse effect will increase if we don’t take proactive and drastic measures in creating jobs.

    In addition, we also need to look at South African families and how the role the families play in the challenges facing the country. Looking back at the struggle and what black South Africans went through; most of the youths did not grow in households where their parents or older relatives were entrepreneurs.

    So the first level of socialisation already places them at a disadvantage where they are not exposed to the knowledge and the confidence that they can create their own businesses. So, the idea of creating their own businesses is strange to many of them even when funding and business support structures are provided.

    In conclusion, there is a proverb in Igbo language that says if a child fetches more fire wood than his mates his mates will accuse him of fetching his from the evil forest.

    • Echie is the Acting President of Nigerian Community Western Cape (NCWC).

     

  • Insecurity

    Insecurity

  • Africa in crisis

    The two leading African nations, and perhaps her hope for economic renaissance, Nigeria and South Africa, are in a fight to finish. Unless they come to their senses, their old colonial masters and other international hegemonic agencies may egg them on, knowing that a destabilized Africa would be more easily exploited. Whether we talk of hegemony from the East or West, disunity between the two leading nations of the continent would expose black Africa to greater danger.

    The African promoters of the new Continental Free Trade States, who just got Nigeria on board, after much exertions would be wandering whether their efforts would pay. Unless reason prevails, if Nigeria and South Africa goes into an overdrive in the ongoing tango, the relatively significant inter-African economic activities between the two nations may become extinct. While Nigerian should not condone the abuse of her citizens, the two countries must stop the tit-for-tat, in the interest of Africa.

    The government of Comrade Cyril Ramaphosa, must behave like a state authority, by calling on their law enforcement agencies to stop forthwith the xenophobic attack on Nigerians, and other Africans in their country, which triggered the crisis. They should learn few lessons from the West African experience. In the 1960s, Ghanaians chased Nigerians from their country, and in the 1980s, it was the turn of Nigeria to ask Ghanaians to go. Now Ghanaians are itching for a rematch, as Nigerians in that country are complaining of excruciating conditions handed to them by their hosts.

    In the West African debacle, the usual root cause of hate and xenophobic attacks is dwindling economic opportunities for the locals, after the initial boom that attracted large immigrants. So, while the people may be held responsible for the actual attacks, it is state officials who are responsible for the economic boom and bust, which cause the street wars. In South Africa, the natives have not gained the promised benefits of independence and they are visiting their frustrations on the immigrants.

    Clearly, the South Africa economy is contracting, and while foreigners may be the first line losers, unless there is a reversal, the entire country would eventually boil. The solution lies in increasing economic activities for the citizens and every legitimate resident. Instead of resorting to xenophobic attacks, which some misguided security personnel appear to be supporting, the country should tighten its immigration laws and general law enforcement.

    Agreed, some Nigerians have become nuisance in that country, such is not enough to tar every immigrant in the country. Instead of becoming international law breakers, threatening and maiming citizens of other countries living in their country, South African security agencies should deal with immigrants engaged in criminal activities. And as long as the law allow, deport such recalcitrant criminals to their home country.

    Clearly, the responsibility of ensuring that every person engaged in illegal activities face the law lies with the security agencies, not other law abiding immigrants. The world acclaimed oldest political party in Africa, the African National Congress (ANC) must realise that it is not living up to the high expectations of her citizens, especially the blacks who hoped for better life after the end of apartheid.

    Part of the challenge is corruption within the ranks of government officials. As Lew Kuan Yew, said in his book: From Third World to First: “It is easy to start off with high moral standards, strong conviction, and determination to beat down corruption. But it is difficult to live up to these good intentions unless the leaders are strong and determined enough to deal with transgressors, and without exceptions.”

    The Nigerian government has been more effective in controlling her enraged citizens. Interestingly, South Africa may be taking away from Nigeria, more than Nigeria is taking away from that country, because of South Africans’ high-end investments in Nigeria. But on the social level, South Africa has provided a haven for the teeming Nigerians looking for better economic opportunities. So, while the large corporations are making huge profits from Nigeria, selling to her about 200 million population, thousands of Nigeria migrate to South Africa daily to start small scale businesses.

    In a war without end, thousands of Nigerians, many of who have failed in their economic mission, and a large number of who engage in illegal businesses may be up for evacuation, to the embarrassment of Nigeria. On its part, South Africa would suffer huge financial losses, should Nigeria nationalize the huge corporations operating in her country. Again, because South African nationals are not in Nigeria in their numbers, the country can better manage the image-fallout of the ongoing crisis, unlike their compatriots.

    But regardless of who may have the upper hand eventually, it pays the two countries and the rest of Africa to quench the fire. In his book: Long Walk To Freedom, the immortal Nelson Mandela described an incident concerning the Soweto uprising while he was at the Robben Island prisons. The young men who took part in the uprising were jailed and some of them were brought to the prisons were Mandela was.

    According to the narrative, one Patrick ‘Terror’ Lekota, then a member of the South African Students’ Organization was attacked by his compatriots when he switched over to the African National Congress. A trial was set up in the prisons for his compatriots who attacked him, but the ANC encouraged him not to formally lunch a complaint or give evidence against them, because such will favour the apartheid regime, who wants division within the struggle.

    In the words of Mandela: “I wanted these young men to see that ANC was a great tent that could accommodate many different views and afflictions.” When South Africa needed the support of Nigeria and other southern African states, they got it. Indeed, Nigeria was reputed as a frontline state, and contributed immensely to the success of the struggle to free South Africa from the firm grip of the white supremacists, who entrenched the apartheid regime.

    It is most unfair not to remember the sacrifices made by Nigeria and other frontline states. Many top South African politicians studied in Nigeria under Nigerian government scholarship. Many others lived in Nigeria, and Nigeria expended so much and lost so much fighting to liberate the country from the shackles of apartheid. Nigeria went as far as nationalising the assets of Britain, her former colonial master to force the European power to renounce her support for the apartheid government.

    In the final analysis, while we must all condemn the xenophobic attacks, the permanent solution lies with making Nigeria and the other concerned states, viable economic entities, so that the citizens of those countries will stay in their country and earn descent living.

  • Wanted: National arbitration policy

    In this article, Dr. Oluwole Akinyeye advocates the need for proactiveness in developing a new national arbitration policy, which will have its roots in Nigeria’s commercial relationships and dealings with foreign entities.

    The recent enforcement order relating to the sum of $9,000,000,000 (nine billion Dollars) made against Nigeria by an English High Court, which was based upon an arbitration award secured by a company, Process and Industrial Developments Limited (P&ID), has generated a huge outcry.

    This development presents grave and far-reaching implications for Nigeria, as it means that the country’s assets could be attached in order to satisfy the award. The Nigerian government says that the P&ID’s oil and gas contract with Nigeria, which represented the genesis of the arbitration, was a scam perpetrated by the company.

    However, irrespective of whether or not the P&ID case was built on a scam, a crucial issue flowing from the case is that our present policy relating to the resolution of disputes arising from Nigeria’s Bilateral Investment Treaties (BITs) requires major review.

    Afterall, P&ID’s recourse to arbitration largely stemmed from its right as a foreign investor to resort to arbitration under Nigeria’s BIT.

    In fact, the current position is that all of Nigeria’s BITs provide that disputes between Nigeria and foreign investors will be resolved by recourse to arbitration to be conducted in international institutions of arbitration outside Nigeria.

    It is acknowledged that arbitration is a contemporary method of dispute resolution that has been embraced in commercial relationships all over the world and Nigeria’s BITs are not an exception, however, the contention is that the recourse to international institutions of arbitration in Nigeria’s BITs is totally unnecessary, considering that there are institutional arbitration mechanisms in Nigeria that are capable of undertaking the arbitration performed by their foreign counterparts.

    Suffice to say that Nigeria ought to be the seat of arbitration in respect of disputes arising from its BITs.

    Interestingly, the resort to foreign arbitration in Nigeria’s BITs is not peculiar and appears to reflect a continental trend.

    In this respect, the consideration of most African BITs will reveal provisions for dispute settlement by recourse to arbitration to be conducted by non-African institutions of arbitration such as the International Centre for the Settlement of Disputes (ICSID).

    This has meant that many arbitration cases involving Nigerian or African parties are settled outside Africa.

    The proponents of resorting to foreign arbitration in Nigeria’s BITs might argue that there are challenges confronting arbitration in Nigeria, which justifies the need to rely on foreign institutions of arbitration.

    In this regard, references might be made to issues such as the lack of belief in the neutrality of Nigerian arbitration institutions, negative perception of Nigeria as an arbitration destination and the foreign investor’s power to dictate the seat of arbitration.

    However, it is submitted that these purported challenges are old excuses that have since been overtaken by advancement in Nigeria’s arbitration development.

    This is because there has been a steady and appreciable growth in the legislative and institutional framework revolving around arbitration in Nigeria.

    With the P&ID case, it is crucial that we must become proactive in developing a new national arbitration policy,which will have its roots embedded in Nigeria’s commercial relationships and dealings with foreign entities.

    To give effect to the national arbitration policy, the Nigerian government will be expected to promote a policy that arbitration agreements in respect of all disputes arising from governmental contracts with foreign entities will have Nigeria as the seat of arbitration.

    This was the subject of a recent letter written by Dr. Olisa Agbakoba SAN to President Muhammadu Buhari, wherein he advocated that Nigeria should establish a national arbitration policy by the enactment of an Executive Order, which will commence the process and procedure of creating the policy.

    In this respect, the Executive Order may establish a National Task Force or Workgroup to develop the mechanics of the policy.

    It is important to stress that the proposed national arbitration policy should not just be directed to government contracts or dealings, but it should be extended to private commercial relationships.

    This is in light of the fact that Nigeria generates a significant volume of private commercial transactions.

    Unfortunately, a significant number of disputes arising from these transactions are ultimately arbitrated in foreign jurisdictions.

    Undoubtedly, the flight of domestic arbitration cases to arbitral venues outside Nigeria is unhelpful to our economic development as a country, and also to arbitration practitioners. This misnomer accounts for the loss of revenue on both levels and requires a national arbitration policy to reverse the trend.

    Importantly, Nigerian arbitration bodies should encourage and implement capacity building programmes that will assist with the development and advancement of the proposed national arbitration policy.

    This could be achieved by the provision of educational outreach, extensive training and programmes, conferences and workshops.

    With increased attention and improvement on the legal framework underpinning arbitration in Nigeria, as well as better resourcing and training, Nigeria can secure for itself, a place on the global arbitration sphere, through its national arbitration policy.

    In conclusion, the proposed national arbitration policy should be seen as presenting an opportunity for Nigeria to review the arbitration provisions in its BITs, which would position Nigeria as the seat of arbitration in respect of disputes emanating from Nigeria’s BITs and private commercial transactions. In this respect, the Federal Government must act with a sense of urgency to remedy the position whereby Nigeria is shortchanged under its BITs.

    • Dr. OluwoleAkinyeye Head – Maritime Unit Olisa Agbakoba Legal