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Hope for fiscal federalism as Lagos takes over waterways

By Gbenga Salau    |   02 August 2017   |   4:30 am


• Boat operators, dredgers get ultimatum after court’s verdict
• Ruling a plus for restructuring of polity, say lawyers
• We’ll implement the law, state govt insists

The Lagos State Government yesterday gave a seven-day ultimatum to boat operators and dredgers to align their operations with the July 18 ruling of the Court of Appeal regarding control of inland waterways.

The Commissioner for Justice and Attorney General of Lagos, Mr. Adeniji Kazeem, spoke during a press briefing jointly addressed by officials of the Ministries of Waterfront Infrastructure Development and Justice.

Kazeem said that the Lagos State government was very pleased with the outcome of the suit that reaffirmed the constitutional right of a state government to control its inland waterways.

“There have been varied attempts by those who lost out in this judgment to whittle down the effect of the judgment but we are unperturbed and believe strongly that the judgment is very clear and the constitution is also very clear on this issue,” he declared.

He said that the state government was not out to antagonise anybody but we would be un-cowed and fiercely protective of its God-given resources and would never relent in championing the cause of true fiscal federalism in the country.“If it is the wish of NIWA to challenge the right of the Lagos State government to control its resources at the Supreme Court, we say we are ready. However, until this judgment is set aside it remains good law and will be fully enforced by the Lagos State government and my office and the relevant government agencies,” he said.

Similarly, the Commissioner for Waterfront Infrastructure Development, Adebowale Akinsanya, said a seven-day ultimatum had been issued to all dredging and related activities within and along Lagos Inland Waterways to regularise their operations with the agency of the state government.

Akinsanya said the order would be enforced aggressively until a proper inventory of environmental degradation suffered by the environment had been taken while a state policy would be made on it.Akinsanya urged all boat and dredging operators to fully comply accordingly as failure to heed this directive would attract appropriate stiff sanctions.

“All registration of boats, reclamation, dredging and others should be by the Lagos State government,” Akinsanya said.Lawyers who spoke to The Guardian said the Appeal Court’s ruling has renewed confidence in the ability of the judiciary to ensure justice as more and more Nigerians demand fiscal federalism.

The lawyers said the verdict delivered on July 18, 2017 affirmed the right of Lagos to control its resources as they relate to the inland waterways, describing the judgment as “a big win for federalism.”

Some organisations on the platform of the Incorporated Trustees of the Association of Tourist Boat Operators and the Incorporated Trustees Dredgers Association of Nigeria had taken the Lagos State Government and other parties to the Federal High Court in 2012 seeking a determination on whether it should pay fees to the Federal Government represented by the National Inland Waterways Agency (NIWA) or the Lagos State Government represented by the Lagos State Waterways Authority (LASWA).

Two years after, in 2014, Justice Sakiu Saidu had ruled that NIWA by virtue of its enabling act has a clear mandate to manage the nation’s vast inland waterways exclusively. The judge also said that LASWA was an illegal creation, as the laws of the country did not recognise it, because LASWA was a creation of the Lagos House of Assembly, which repealed the NIWA Act for it to be in existence.

But not satisfied with the ruling of the court, the Lagos State government decided to appeal the ruling of the High Court and the Appeal Court on July 18, 2017 said Lagos has powers over its inland waterways.

The court ruled: “No doubt, the common radical denominator is the scope of waterways cutting across international and state boundaries coupled with a declaration by the National Assembly that such waterways are international or interstate respectively. The more obvious areas of coverage under the exclusive list are the sea tidal waters and marine ports declared by the National Assembly to be federal ports. But one finds nothing on the exclusive list dealing with intra-state waterways either in Lagos or any other state in the federation.

“The burden is on the respondents to show that any of the lagoons, creeks or waterways used for intra-state navigation has run across the parameters of Lagos State into international or interstate boundaries and is so declared in a law promulgated by the National Assembly.

“Item 64 is couched in no narrower scope as it deals with water from such sources declared by the National Assembly to be sources affecting more than one state. The inland waterways within Lagos State are not and cannot by any stretch of interpretation be covered by any item on the exclusive legislative list under part one to the second schedule of the constitution.”

The earlier ruling by Justice Saidu that LASWA was an illegal body was also set aside and held that the Lagos State House of Assembly is competent to make laws in respect of the intra-inland waterways in the state except the inter-state waterways declared as international or interstate waterways under item five in the second schedule to the National Inland Waterways Act.

Lagos-based lawyer, Mr. Ebun-Olu Adegboruwa believed the judgment of the Court of Appeal had ratified positions on restructuring and true federalism. He said the ruling came “against the background and call for the decongestion of the exclusive legislative list in the second schedule of the constitution in order to devolve power and remove several items belonging to the federal might.”

He maintained that the judgment of the Court of Appeal could not have come at a better time, because what it had done was to remove inland waterways from the exclusive list and grant autonomy to the states, not just Lagos, to control their waterways, dredging, environmental issues surrounding waterways.

“By this judgment, the Court of Appeal has castrated NIWA of powers over inland waterways. And I am supporting the judgment because it tallies with my position on restructuring, even though I had taken Lagos State to the court in the past. I believe in the new move of the nation demanding lesser powers to the federal, the waterways should be one of the things taken away from the Federal Government,” he said.

Olu-Adegboruwa said: “It was through military fiat that all waterways were taken over by the Babaginda regime. In the spirit of true federalism, the state should be allowed to take control and if you ask me, it is another form of resource control. The Federal Government will not be collecting revenue on inland waterways.”

Also commenting, Bar Kayode Ajulu said it was a welcome development in the sense that the source of Nigerian laws, could be by the act of the National Assembly or by judicial pronouncement. “I have the belief that some of the things that the National Assembly will refuse to do, we can have them in the courts. That is why I am elated by that decision by the Court of Appeal. As it is now, the Court of Appeal has tried to give more powers to the states, if you give it wider interpretations.

“So, I am celebrating the judgment and I wish it would be well managed. The issue of restructuring has come to stay. It was on the basis of this that Buhari was voted into office. His presidency was rooted in that; that was why the majority voted for him,” he said.

Another lawyer, Tony Odiadi described it as a big win, because the logical progression of the decision was to cede such control to other states. “There is of course a serious constitutional issue, as to listings on the exclusive and concurrent list. Waterways have economic implications like land and it is in that sense a resource. This is at the heart of resource control demands.

“Is the Court of Appeal aware of the consequences of this decision as a major impetus to the clamour for a functional federalism? If this is the new judicial thinking, and the Supreme Court sustains the decision, then it has come to stay!” he said.

According to a public commentator, Charles Emetulu, any action or decision that reduces the humongous influence and powers of the Federal Government in the nation’s affairs would be a step in the right direction in correcting the ‘unitary’ system that the nation calls a federal system. “It holds much hope for the quest for true federalism and devolution of powers.  But giving the controversy surrounding the judgment, especially with the reaction of Nigeria Inland Waterways Authority (NIWA), the matter should be further tested in the Supreme Court. This will give a seal of finality to the issue.”




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