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FRAMING PETROLEUM REVENUE MANAGEMENT LAW FOR ENERGY SECTOR REFORM IN NIGERIA

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Law Amadi* and Peter Chukwuma Obutte**

ABSTRACT

This article considers the introduction and conceptual frameworks for petroleum revenue management law with a view to applying it in Nigeria. It examines the sources of petroleum revenue to enhance assessment and collection. The article examines the structure of the legislation and institutions regulating the petroleum sector by categorizing and highlighting the subset of petroleum revenue management for efficient application. It further argues that prudent management of petroleum revenue is measured through the indicators of transparency and accountability, sustainable development, sovereign wealth fund, low corruption level, socio-economic well-being, good health and sustainable environment. This article is imperative in that it streamlines the legislation and institutions, block revenue leakages and guarantee sustainable development. It will further ensure that revenue generated from petroleum

* LL.B (RSU), BL (Lagos), LL.M, PhD (Ibadan), Centre for Petroleum, Energy Economics and Law (CPEEL), University of Ibadan, Nigeria. Corresponding author. Email address: amadidelaw@yahoo.com Telephone: +234(0)8038489275 ** LL.B (Ibadan), BL, LL.M (Ife), Cert. Antitrust (Fordham), Sp. LL.M, LL.D (Oslo). Acting Head, Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan, Ibadan, Nigeria. Deputy Director (Academics), Centre for Petroleum, Energy Economics and Law (CPEEL), University of Ibadan, Nigeria.

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A COMPARATIVE ANALYSIS OF THE USE OF UNSOLICITED PROPOSAL FOR THE DELIVERY OF PUBLIC-PRIVATE PARTNERSHIP PROJECTS IN AFRICA

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George Nwangwu*

ABSTRACT

As countries across Africa continue to look for ways to develop their infrastructure, the use of Unsolicited Proposals (USPs) in the procurement of Public-Private Partnership (PPP) projects have become very popular across the continent. This is despite the widely held view that this procurement model should be used with caution since it stifles competition, is susceptible to abuse and, therefore, likely to lead to the delivery of projects that do not deliver value for money. However, apart from a few studies and despite the very pervasive use of USPs across the continent, there has been very minimal academic inquiry on the use of this procurement approach in Africa. This article, therefore, contributes to this very important area by first distilling a best practice framework as a guide for countries to use in procuring USPs. Secondly, the paper evaluates the experiences of four different African countries in the use of USPs, using the framework as a guide. The lessons learnt are then used to make recommendations for improvement in the procurement of USPs across Africa.

Keywords: Public-Private Partnerships; Unsolicited Proposals; Procurement; Infrastructure; Project Financing; Sustainable Development.

DOI: https://dx.doi.org/10.4314/jsdlp.v10i2.4

* Dr George Nwangwu, Research Fellow, African Procurement Law Unit, Department of Mercantile Law, Stellenbosch University, South Africa. gnwangwu@gmail.com

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LARGE-SCALE LAND ACQUISITION AND HUMAN RIGHTS AT THE CROSSROADS: QUEST FOR A RIGHTS-BASED APPROACH TO LAND ADMINISTRATION IN ETHIOPIA

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Abiyot Mogos Dabala*

ABSTRACT

Large-scale land investment through a form of forceful acquisition, dubbed “land grabbing”, is a perennial concern for local community and indigenous peoples in Africa, particularly in Ethiopia. This article explores the human rights impacts of such large-scale land acquisition in Ethiopia and discusses ways of ameliorating its effects. It demonstrates how large- scale land acquisition in the country undermines substantive rights of the local and indigenous peoples, including land rights, right to food, development, culture, self-determination, labour rights, environmental rights, as well as their procedural right to public participation, prior informed consent, access to information and justice, all of which are recognized under international instruments, and the constitution of the Federal Democratic Republic of Ethiopia (FDRE). The article advocates for a human rights-based approach to large-scale land acquisition regime that respects and integrates the aforementioned substantive and procedural rights of local and indigenous peoples. This also involves government’s obligation to implement effective human right impact assessment, efficient monitoring, evaluation, dispute resolution mechanism, and empowering local community and other stakeholders to safeguard the rights of affected community. By so doing, the country

* LL.B, LL.M in International Economic and Business Law from Haramaya University, Ethiopia; Lecturer of Law at Mettu University, Ethiopia and can be reached at abiyot00@gmail.com

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CLIMATE CHANGE AND THE SUSTAINABLE DEVELOPMENT GOAL ON FOOD SECURITY: BARRIERS AND OPPORTUNITIES FOR PROGRESSIVE REALIZATION IN QATAR AND NIGERIA

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Idowu Ajibade*, Michael Egge**, and Arun Pallathadka***

ABSTRACT

The United Nations Sustainable Development Goal 2 (SDG 2) contains a global commitment to “end hunger, achieve food security, and promote sustainable agriculture” by 2030. The realization of this goal under the current global political economy, climate change trends, and national realities is a daunting challenge. In this article, we draw on political ecology theory to examine the complex ecological, economic, geopolitical, climatic, and socially-induced barriers that threaten the achievement of SDG 2 in two oil producing countries with a high dependency on food imports: Qatar and Nigeria. First, we provide an overview of barriers to global food security and sustainable agriculture by discussing how the unevenness of power and resource distribution, reduced genetic diversity, land grabs, restrictive property rights, and the control of stable food production by big agri-businesses, all served to undermine hunger reduction and food security in the last 20 years. Second, drawing on.

* Lead author: Assistant Professor, Department of Geography, Portland State University, United States of America. Email: jajibade@pdx.edu. ORCID: 0000- 0002-9767-0435

** DepartmentofGeography,PortlandStateUniversity,USA. *** Department of Geography, Portland State University, USA.

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REGIONAL GAS INTERCONNECTIVITY AND THE IMPLICATIONS OF TRADE IN LIQUIFIED NATURAL GAS FOR ENERGY SECURITY OF NON-EU WESTERN BALKAN STATES

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ALI OGUZ DIRIOZ* and ERAY ERBIL**

ABSTRACT

The article examines the state of energy security in the Balkans, the level of regional gas interconnectivity and the role of trade in liquefied natural gas (LNG) in enhancing energy security in the region. The study shows that infrastructure investments are required in the Balkans. However, the small size of the Balkan market lowers investment incentives. In this context, the policy entrepreneurship of the EU Commission can increase solidarity and investments in the Balkans. Moreover, planned and existing pipeline-LNG projects in the periphery of the Balkans can enhance the energy security of these countries.

Keywords: Liquefied Natural Gas; Energy Security; the Balkans; European Union.

DOI: https://dx.doi.org/10.4314/jsdlp.v10i2.1

* PhD Student, Department of International Relations. Middle East Technical University (METU), Universiteler Mahallesi, Dumlupinar Bulvari No: 1 Çankaya, Ankara, Turkey. Email: erayerbil@etu.edu.tr

** Researcher, Foundation for International Economic Research and Studies – Econfo, Dumlupýnar Bulvarý No: 266 C Blok Daire: 34 Tepe Prime ÝþveYaþamMerkezi, Ankara, Turkey. Email: eray_erbil@yahoo.com

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SEPARATING THE WHEAT FROM THE CHAFF: DELIMITING PUBLIC POLICY INFLUENCE ON THE ARBITRABILITY OF DISPUTES IN AFRICA

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Akinwumi Ogunranti*

ABSTRACT

This article focuses on the arbitrability of disputes. It examines the recent global trend of delimiting the role of public policy in determining matters that should be subject to arbitration. The evaluation shows that the application of doctrines of separability and kompetenz-kompentenz plays a vital role in the delimitation process. However, notwithstanding the global trend to restrict the role of public policy in determining arbitrability, some countries in Africa still widely interpret public policy to revoke arbitral clause, stay arbitral proceedings, or refuse enforcement of foreign arbitral awards. They justify this approach on the basis that public policy is a means to protect national economic interest against foreign manipulation or exploitation. Anchored on Morgan’s theoretical approach, this article criticizes the excessive role of public policy in determining the arbitrability of disputes in Africa. It calls for a change to reflect the global trend through judicial activism and legislative reform. Although protecting national economic interest is an important goal, restricting matters that are arbitrable will not promote foreign investment. Therefore, countries in Africa must fashion arbitration practices that reflect their socio-economic background as well as contemporary arbitral trends around the world.

Keywords: Arbitration; Africa; Party Autonomy; Public Policy

DOI: https://dx.doi.org/10.4314/jsdlp.v10i1.6

* Doctoral Student, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia, Canada. Email: ak950986@dal.ca.

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NATIONAL STRATEGIES TO PROMOTE RENEWABLE ENERGY DEVELOPMENT: WHITHER NIGERIA?

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Andrea A. Ajibade*

ABSTRACT

Renewable energy (RE) development enhances electrification, mitigates climate change and aids energy efficiency. Kenya, South Africa and Ghana, among other states within sub-Saharan Africa, have established legal regimes to integrate renewable energy into their energy mix. Through defined legal strategies for RE deployment, these states have committed to the promotion, development and utilization of RE. Despite the momentum towards renewable energy development across the region, Nigeria’s efforts fall short of establishing effective legal strategies. As Africa’s most populous nation it must do more to make RE part of its energy mix in order to impact electrification rates, mitigate climate change and aid socio-economic conditions. This article appraises the legal strategies for RE development in Kenya, South Africa and Ghana. Against this appraisal, it critically evaluates Nigeria’s legal strategies to promote and develop RE. It recommends legal reforms that are necessary to better integrate RE into Nigeria’s energy mix. The methodological approach of this article is doctrinal and library-based. It includes primary and secondary sources. Primary sources include laws, statutes, legal documents, conventions and statistics. Secondary sources include journal articles, internet sources and newspaper articles. All sources are subject to content analysis. It is expected that the article will be useful to policy and lawmakers across various tiers of government in Nigeria.

Keywords: Renewable Energy Development, Electrification, Energy Efficiency, National Strategies.

DOI: https://dx.doi.org/10.4314/jsdlp.v10i1.5

* Lecturer Department of Jurisprudence and International Law, University of Lagos. This article is the outcome of a research conducted as a Visiting Scholar at the University of Stellenbosch, South Africa. The author wishes to especially thank Professor Sope Williams-Elegbe and Professor Richard Stevens of

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LINKING THE SDGS WITH HUMAN RIGHTS: OPPORTUNITIES AND CHALLENGES OF PROMOTING GOAL 17

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Wekgari Dulume*

ABSTRACT

The 2030 Agenda for Sustainable Development is grounded in different international human rights instruments. Human rights (HR) principles and standards are strongly reflected in several of the Sustainable Development Goals (SDGs) and targets. Furthermore, SDG 17 emphasizes partnership as a key to achieving all of the SDGs. This article examines the SDGs-HR linkage in general, as well as specific HR principles that can be advanced by the achievement of SDG 17. Opportunities and challenges to promote Goal 17 of the SDGs that directly affect certain HRs are also examined. A review of relevant literature, 2030 summit documents, and outcomes of recent international conferences on the SDGs is undertaken in order to determine the progress made towards forging regional and global partnerships for the SDGs, as envisaged in Goal 17. This article finds that the absence of a political will and commitment, increased isolationist policy, narrow nationalism and poor rule linkage at national and international levels are some of the obstacles to the attainment of Goal 17. Yet, opportunities abound to promote the Goal. The article recommends a genuine commitment to implementing the SDGs by encouraging the South-South and North-South to prevent the SDGs from becoming a mere wishlist. Synergy between the government, individuals, civil society organizations (CSOs) and transnational corporations (TNCs) is equally very important.

Keywords: Human rights, sustainable development goals, partnership for the goals.

DOI: https://dx.doi.org/10.4314/jsdlp.v10i1.3

* LL.B, LL.M, Member of the Editorial Committee, Oromia Law Journal, Senior Legal Researcher at Oromia Justice Sector Professionals Training and Legal Research Institute, Ethiopia. Email: wekgaridulume@yahoo.com

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PETROLEUM REVENUE MANAGEMENT IN GHANA: THE EPOCH OF HIGH EXPECTATION IN PERSPECTIVE

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Kow Kwegya Amissah Abraham*

ABSTRACT

The avoidance of resource curse is, in part, dependent on the management and administration of realized revenue from the exploration of its natural resource. This article evaluates the existing fiscal regime and the regulatory frameworks that Ghana established to manage its petroleum revenue from 2010 to 2013. The restrictive period accounts for the era where Ghanaians showed high expectations of increased benefits from oil. In this vein, the article analyses the preparedness reflected in the policy framework to manage accrued revenue and, by extension, the expectation of citizens on improved living conditions. This article established that existing mechanisms, legislation, and checks and balance procedures to manage petroleum revenues are not the final steps at ensuring sustainable development. Two crucial factors play a decisive role in this regard. First is the extent to which accrued revenue is expended in critical areas of the economy for accelerated growth. Second is the commitment to, and establishment of, strong public institutions to enforce the relevant regulations.

Keywords: Fiscal Regime, Transparency, Tax, Petroleum Revenue.

DOI: https://dx.doi.org/10.4314/jsdlp.v10i1.2

* BA, MPhil (Ghana), MPP (Germany), Lecturer, University of Cape Coast, Cape Coast, Ghana, and Executive Director, Centre for Policy Research and Training. kow.abraham@ucc.edu.gh.

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DOING IT RIGHT: A RULE OF LAW CRITIQUE OF PRIVATIZATION METHODOLOGY IN NIGERIA

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Sam Amadi*

ABSTRACT

This article undertakes a rule of law critique of privatization as economic reform policy in Nigeria. The rule of law approach interrogates not just the policy rationales of the programme but also its methodology. The article distinguishes between a formal and substantive justice conception of rule of law and argues that the substantive justice conception of rule of law and its policy imperatives, sourced from the Fundamental Objectives and Directive Principles of State Policy in Chapter 2 of the 1999 Constitution, provides a veritable framework to realize the strategic goals of privatization in Nigeria.

Keywords: Privatization, rule of law, justice, efficiency, economic growth, equality, fundamental human rights, social justice.

DOI: https://dx.doi.org/10.4314/jsdlp.v10i1.4

* LLB (Calabar), BL, LLM, MPA, SJD (Harvard), Senior Lecturer, Faculty of Law, Baze University, Abuja. Email: samadi29@yahoo.com

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ENVIRONMENTAL RIGHTS IN ETHIOPIA: SHIFTING FROM THEORY TO PRACTICAL REALIZATION

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Desalegn Amsalu*

ABSTRACT

Influenced by developments in the international environmental rights law, most African countries now incorporate in their Constitutions or other major legal documents environmental rights for their citizens. The 1995 Federal Constitution of Ethiopia, its environmental policy, and all subsequent legislation also incorporate environmental rights that are in the major international environmental law conventions. These rights include the right to a clean and healthy environment, the right to access justice, as well as the right to information and public participation. However, the environmental rights that are included in the country’s Constitution, policies and laws are simply rhetorical. For example, in Addis Ababa, the country’s capital, residents suffer from such horrendous odour oozing out of the putrefaction of the environment. Consequently, children and even adults are affected by various diseases such as respiratory and skin infections. Some residents even abandon their homes, not being able to resist the pollution of their environment. The government’s lack of human resource capacity and appropriate technology to promote a healthy and safe environment; its preference of economic growth over environmental protection; environmental corruption; and poor responsiveness of the public, the policy makers, the executive, as well as the judicial organs such as the police and the court to environmental rights, are among the major causes of poor implementation. The article examines how environmental rights could be given due attention as an extension of basic human rights and as a tool for sustainable economic development.

Keywords: Environmental rights, theory, practice, factors for poor enforcement, Ethiopia.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.4

* Desalegn Amsalu LLB (Hons), MA, and PhD (Addis Ababa University), currently legal researcher at Addis Ababa University, Ethiopia. Email: desalegn.amsalu@aau.edu.et. This work is done based on funding from Addis Ababa University under a thematic research award from 2014-2016. Any opinion, finding and conclusion or recommendation expressed in this article is that of the author only

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SUSTAINABLE DEVELOPMENT LAWS IN ETHIOPIA: OPPORTUNITIES AND CHALLENGES OF THEIR IMPLEMENTATION

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Teferi Bekele Ayana* and Wekgari Dulume Sima**

ABSTRACT

Despite the recognition of sustainable development in different legal documents and laws in Ethiopia, implementation in its fullest sense remains a key challenge. This article examines the place of sustainable development under the Federal Democratic Republic of Ethiopia (FDRE) Constitution and other national environmental laws. It discusses the challenges of promoting sustainable development in Ethiopia by reviewing the existing and relevant literature and assessing legal documents and commitments made by the country. The article recommends the working together of government as well as environmental and investment institutions to make coordinated and coherent efforts to advancing effective implementation of sustainable development and the realization of SDGs in Ethiopia.

Keywords: Sustainable Development, Constitution, Environmental Laws, Challenges

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.3

* LL.B, LL.M, Editor-in-Chief of Oromia Law Journal, and Senior Legal Researcher at Oromia Justice Sector Professionals Training and Legal Research Institute. Email: bekele.teferi@yahoo.com

** LL.B, LL.M Candidate, Senior Legal Researcher at Oromia Justice Sector Professionals Training and Legal Research Institute. Email: wekgaridulume@yahoo.com.

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TURNING FISH SOUP BACK INTO FISH: THE WICKED PROBLEM OF AFRICAN COMMUNITY LAND RIGHTS

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Robert Home* and Faith Kabata**

ABSTRACT Africa’s postcolonial disputes over community land rights are a “wicked” problem, not evil, but resistant to resolution. This article investigates three such disputes in Kenya (Endorois, Ogiek and Nubian community) where the African Commission and Court of Human and Peoples’ Rights have determined in the communities’ favour but the implementation is not progressing, both because of opposition by the state and the complex and long-standing nature of the cases. The legal history of colonial trust lands and recent community land legislation is discussed, the three key cases are summarized, and issues of indigenous people’s status, admissibility and respondent government discussed in relation to the UN Declarations on Rights of Indigenous Peoples (1987), Right to Development (1986), and Land Issues (2009). Practical and political aspects of implementing the determinations are examined, and recommendations proposed.

Keywords: Indigenous people’s rights; Endorois; Ogiek; Nubian community; Kibera; land law reform; African Union enforcement.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.2

* MA PhD MRTPI Emeritus Professor in Land Management, Anglia Ruskin University (UK). Email Robert.home@anglia.ac.uk.

** LL.B, LL.M LL.D Law Lecturer, Kenyatta University School of Law (Kenya) Email: kabata.faith@ku.ac.ke

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MANAGING CONTINGENT LIABILITIES ARISING FROM PUBLIC PRIVATE PARTNERSHIP PROJECTS

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George Nwangwu*

ABSTRACT

All public infrastructure projects, irrespective of how they are procured, managed and financed, generate future liabilities. This becomes even more apparent under the Public Private Partnership arrangement. A number of these liabilities are subject to a high degree of uncertainty regarding when they will arise and the financial exposure involved when they do, and are therefore said to be contingent. Contingent liabilities have the potential to undermine national macroeconomic policy and cause significant economic harm when they crystalize. This article examines the legal and institutional mechanisms available in Nigeria to manage these liabilities and suggests ways for designing a PPP delivery process with inbuilt mechanisms for identifying, mitigating, tracking, and managing them.

Keywords: Public Private Partnerships, Contingent Liabilities, Risk Mitigation

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.5

* MBA (Oxford), PhD in Law (University of Hull), Former PPP Adviser, Federal Ministry of Finance, Government of Nigeria. Email: gnwangwu@gmail.com

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THE NIGERIAN OIL AND GAS LOCAL CONTENT REGIME AND ITS (NON-)COMPLIANCE WITH THE TRIMS AGREEMENT

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Uchenna Jerome Orji *

ABSTRACT

One major milestone for the Nigerian oil and gas industry was the enactment of the Nigerian Oil and Gas Industry Content Development Act in 2010. The Act establishes a comprehensive local content regime that enshrines legal measures which promote the patronage of Nigerian products and services by operators in the Nigerian oil and gas industry. This article examines the provisions of the Act and Nigeria’s obligations under the WTO’s Trade Related Investment Measures (TRIMS) Agreement with a view to determining whether the provisions of the Act are in violation of Nigeria’s obligations under the TRIMS Agreement. It also examines whether any exemptions can justify the derogation of Nigeria’s obligations under the TRIMS Agreement. The article finds that requirements under the Act constitute trade-related “investment measures” within the meaning of the TRIMS Agreement because such requirements are explicitly meant to apply to “all operations or transactions” connected with the oil and gas industry. This article also finds that some provisions of the Act are not in compliance with Nigeria’s obligations under the TRIMS Agreement. In particular, sections 10 (1), 11(1), and 12 of the Act which favour the use of local products and materials for projects in the oil and gas industry contravene Nigeria’s obligations under the TRIMS Agreement. The article further identifies exemptions which can justify Nigeria’s application of oil and gas industry local content measures that derogate obligations under the TRIMS Agreement. In this regard, the article suggests that the exemptions under Article 4 of the TRIMS Agreement, which permit a WTO member whose economy is in the early stages of development and can only support low standards of living to temporarily apply local content measures, can be applied by Nigeria to justify the oil and gas industry local content measures under the Act for the purpose of promoting economic development and improving living standards in the country.

* LL.B (Hons.), (University of Nigeria); LL.M (University of Ibadan); PhD (Nnamdi Azikiwe University Nigeria) Barrister and Solicitor of the Supreme Court of Nigeria.

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ADDRESSING THE ENERGY CONSUMPTION ECONOMIC GROWTH NEXUS: THE NIGERIAN CASE

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Omolola Olarinde* and Abraham Adeniran**

ABSTRACT

Energy is critical to the survival and expansion of any economy. In Nigeria, energy consumption has been skewed towards household use, and below thresholds for sector-driven growth. The article updates, in time and methodology, those studies highlighting the significance of energy use for economic growth, using the Bound test and the Auto Regression Distributed Lag (ARDL) to establish the long- and short-run relationships between disaggregated energy consumption and economic growth in Nigeria from 1990 to 2016. The variables considered are real GDP, energy consumption decomposed into electricity and petroleum consumption, labour and capital. The findings show that, in the short and long run, petroleum consumption and labour have a significant positive relationship with GDP. Furthermore, the causality results show that feedback causation between economic growth and energy consumption as well as labour exists, while one-way causation runs from labour to economic growth. The study recommends diversification of the power-generation portfolio in the country, as this will improve energy consumption. Also, full deregulating policies in the energy sector would encourage industrialization and move energy demand towards increasingly productive uses. Finally, a strong institutional framework is needed to ensure energy policies achieve their objectives and targets.

Keywords: Energy Consumption, Economic Growth, Industrialization, Error Correction.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.6

* Lecturer, Department of Economics, Elizade University, Ilara-Mokin, Ondo State & Research Fellow, Institute of Oil Gas, Energy, Environmental and Sustainable Development, Afe Babalola University. Email: omolola.olarinde@elizadeuniversity.edu.ng.

** Associate Research Fellow, Institute of Oil Gas, Energy, Environmental and Sustainable Development, Afe Babalola University

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ADVANCING ELECTRONIC VOTING SYSTEMS IN NIGERIA’S ELECTORAL PROCESS: LEGAL CHALLENGES AND FUTURE DIRECTIONS

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Obinne Obiefuna-Oguejiofor*

ABSTRACT

This article aims to examine the legal and policy challenges associated with adopting an electronic voting (e-voting) system in Nigeria’s electoral process. Nigeria, Africa’s largest democracy, has for many years been held down by issues of election fraud, thuggery, violence as seen in past manual elections in the country. The article argues that, if properly implemented and financed, e-election offers great promise and potential as the panacea for voter fraud in Nigeria’s electoral system. First, it examines the theoretical, legal and constitutional basis for e-voting. Second, drawing lessons from other jurisdictions, it analyses practical challenges for the implementation and adoption of an e-voting system in Nigeria. These challenges include the possible compromise of e-voting devices, by viruses or other malicious software; manipulation by people with privileged access to the system, either system developers, system administrators or malicious hackers; denial-of-service attacks (attacks that result in the e-voting facility being disabled or otherwise unavailable for voters to use); lack of adequate supervision mechanisms; and the difficulties of proving electronic attacks in courts of law among other things. Many of these problems are beyond the contemplation of and, therefore, are unaddressed by Nigeria’s Electoral Act, making the law currently incapable

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OIL PRODUCTION AND HOST COMMUNITY RELATIONS IN NIGERIA: THE LIMITS OF THE UTILITARIAN APPROACH

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Lola Ayotunde*

ABSTRACT

While resource extraction generates enormous revenue for resource-rich countries such as Nigeria, it could also engender human rights violations in host communities. This article explores the efficacy of the prevailing utilitarian approach to oil and gas management in Nigeria. The utilitarian calculus is applied to Nigeria’s oil and gas management to demonstrate how the utilitarian theory substantially influences the decisions of the Nigerian government. Although utilitarianism posits that the happiness of the majority is the primary objective of governance, this is arguably not a viable reason to violate the rights of the minority Niger Delta communities for the economic gains of the majority of Nigerians. As an alternative to the ineffective and unsustainable utilitarian resource management approach, this article discusses the importance of the human rights-based approach to resource management.

Keywords: Utilitarianism, Oil and Gas, Niger Delta, Human Rights, Corporate Social Responsibility.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.8

* PhD student at the College of Law, University of Saskatchewan, Canada. She holds a master’s (LL.M) degree in Sustainable Development Law from the same University and was called to the Nigerian Bar in 2012. The author is a member of the Law and Society Association and student member of the Saskatchewan Law Society

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THE TREASURY SINGLE ACCOUNT AND THE SEARCH FOR EFFECTIVE REVENUE MANAGEMENT IN NIGERIA’S OIL AND GAS SECTOR

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Law Amadi* and Peter Chukwuma Obutte**

ABSTRACT

The Treasury Single Account (TSA) policy was designed to block revenue loopholes, promote transparency and accountability, prevent mismanagement of government’s revenue, unify government bank accounts, improve the processing of payments and collections, and reduce borrowing costs. It aims to ensure complete, real-time information on cash resources and improves operational and appropriation’s control. Despite its clear conceptual aims, its practical implementation has been fraught with several legal challenges and questions. This article examines the concept and historical origin of TSA in Nigeria as well as its application in petroleum revenue management with a view of determining its legality and constitutionality. The article further considers whether the application of TSA had occasioned conflict or confusion between the Federation Account and the Consolidated Revenue Fund as provided under the 1999 Constitution of the Federal Republic of Nigeria, as amended in the aftermath of the reform. It argues that TSA is not an account, but a policy nomenclature directed towards the compliance with sections 80 (1) and 162 (1) of the 1999 Constitution as amended. Although it is currently not provided for in any law or the Constitution, the article insists that the constitutionally recognized accounts for the payment of revenue are the Federation Account and the Consolidated Revenue Fund. TSA is a good and effective policy for the management of petroleum revenue. The article recommends a robust legal and institutional reform to secure its legality, continuity and sustainability. It urges the legislature to review some of the laws and amend the Constitution to entrench TSA in the legal regime.

* LL.B (RSU), BL (Lagos), LL.M (Ibadan), Doctoral candidate, Center for Petroleum, Energy Economics and Law (CPEEL), University of Ibadan, Nigeria.

** LL.B (Ibadan), BL, LL.M (Ife), Cert. Antitrust (Fordham), Sp. LL.M, LL.D (Oslo). Ag Head, Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan

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STAY OF PROCEEDINGS PENDING ARBITRATION: PROTECTING THE INTERESTS OF THIRD-PARTIES TO ARBITRATION IN NIGERIA

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Taofeeq N. Alatise*

ABSTRACT

Courts have the power to stay proceedings pending arbitration. In Nigeria, the enabling statute regulating commercial arbitration is the Arbitration and Conciliation Act of 1988. Sections 4 and 5 of the Act contain two similar but conflicting provisions regulating the stay of proceedings. These sections of the law are a product of a common ground found in two different legislative texts. While section 4 leveraged on the provision of Uncitral Model Law on Arbitration, section 5 is influenced by Arbitration Act of 1914. This dichotomy between the histories of the two sections partly accounts for the controversies and difficulties in the interpretation and application by courts and scholars. This article examines the scope of sections 4 and 5 of the Act by identifying the real object of the law and the flaws in its current interpretation. The article considers the American experience, especially, the attitude of courts in granting a stay of proceedings and whether a stay can be granted in a suit against a non-party to the arbitration agreement. Unlike arbitration laws in the United States, one key gap in Nigerian arbitration law is its failure to contemplate stay of proceedings in a suit against a non-party to an arbitration agreement. In addition to identifying the need for urgent legal reforms that accommodate third-party stay pending arbitration, this article recommends that Nigerian courts, like their counterparts in developed jurisdictions, should adopt a more proactive approach by evolving innovative ways in deciding suits involving third parties to arbitration agreement and stay proceedings pending arbitration in appropriate cases to prevent parties from avoiding arbitration by suing a third-party, in line with the global best practices.

Keywords: Arbitration, Stay of Proceedings, Third Party.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.11

* LL.M (Ilorin) Legal Practitioner based in Ilorin, Kwara State, Nigeria. Email: alatise.taofeeq@yahoo.com