Introduction: The link between life on earth and water is common ...

LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE PRESERVATION
AND PROTECTION OF WATER RESOURCES IN NIGERIA
BY
*DR. 1. I. GABRIEL AND BERN ANGWE
<strong>Introduction</strong>:
<strong>The</strong> <strong>link</strong> <strong>between</strong> <strong>life</strong> on earth and water is common knowledge. Water
covers approximately 71 per cent of the entire earth's surface. <strong>The</strong> oceans
alone contain about 300,000 million tons of heavy water and constitute
about 94 percent of the hydrosphere. <strong>The</strong> human body contains
approximately 80 per cent water. Through the photosyntheses process,
plants together with inorganic salt form protein and fats which actually
saturate the atmosphere with energy. <strong>The</strong> yearly release of this energy by
the marine plants constitute about 70 per cent of the oxygen in the
atmosphere. <strong>The</strong> residual impact is that organic substances of these
plants serve as natural kitchens for species living close to the water
surface. <strong>The</strong>se in their part, feed other species living under the water.
<strong>The</strong> moisture of the seas serve as regulatory mechanism of the climate
condition of our universe. <strong>The</strong> evaporation through the solar heat process,
serves as reservoir of fresh water in the atmosphere. This eventually fall
as rain. Out of about 447,900 cubic kilometres of water which evaporate
annually, 90 per cent return to the ocean as rain, while 10 per cent fallon
land.
To crown all we have been saying, our great country, Nigeria derived its
name from water - River Niger, one of the greatest rivers in Africa. In
addition, the <strong>life</strong>wire of Nigeria's prosperity is foisted to the throne of
water. This is why the devastating impact caused by the abuse of water in
the Delta Creek and pollution of water in the oil producing areas have
seriously depleted the sources of protein derived from water.
It is also on record that civilisations have risen and fallen around rivers.
Dr. Ibrahim Bashir underscored the validity of this statement when he
asserted that,
"... two of the first cradles of human civilisations (a developed
and viable socio- economic and political institution), were
situated in adequately water-fed lands (Egypt, located in the
delta of Nile nver and <strong>between</strong> rivers Euphrates and Tigris in
the present day lraq'').'
It is also important to note that,
II Water resources basically influence
settlements and the general activities of
human beings ..." 2
We agree with him. We want to add also that apart from influencing the
pattern of lives of human society, water policy and water diplomacy
occupy a significant position in infrastructural arena. It will not be an overstatement
to state that in many instances, the use of water resources play
pivotal role in the maintenance of international peace and understanding.
It is common knowledge that the conflict <strong>between</strong> Nigeria and Cameroon
rotates around exploitation of the wealth and water resources of Bakassi
Penninsula. States also enter into international treaties exclusively on the
peaceful use of water resources. <strong>The</strong> Chad Basin is a living example of

this. <strong>The</strong>se and other instances justify the need for the present article
from legal perspective. We also need to add that issues relating to use
and control of water resources are multi-dimensional. As a result, to have
a comprehensive understanding of this all-pervasive phenomenon, there
is the need for "all hands to be on deck". Since lawyers like other human
beings drink water, bath with water, eat food cooked with water and
consume animai proteins from water, it invariably means that they also
have to be involved in this challenging area of research. Besides, law as a
regulator of social conduct and relations, also regulates different aspects
of the use of water resources. <strong>The</strong> purpose in intervention by law is to
ensure rational use of water, prevent its pollution and protect the rights of
citizens from abuse by both the state, its agencies and other users.
It should be asserted that this article is not the final thesis on law and
water resources. <strong>The</strong>refore, we intend to focus our searchlight on the
following areas;
1. <strong>The</strong> utilitarian value of water resources,
2. <strong>The</strong> resources of water as object of legal regulatory mechanism,
3. Institutional Framework for the utilisation of Water Resources in
Nigeria,
4. Legal Regime for the utilisation of Water Resources in Nigeria,
5. Water Licensing System,
6. Assessment of the overall significance of the Decree,
7. An Agenda for Efficient Management and Utilisation of Water
Resources in Nigeria.
We intend to discuss dams, other water projects and international legal
aspects of management and utilisation of water resources in different
papers. It is being proposed to start with the first point.
<strong>The</strong> Resources of Water as Object of Legal Regulatory Mechanism:
To have an insight into the role law plays in the regulation of the
utilisation of water resources, it is important to understand the content,
nature and form of these resources. It should be asserted again that water
provides a vital part of the food we eat, energy we consume,
transportation and other similar facilities mankind use on daily basis. We
also mean to point out that nearly 180,000 species are in water, including
some 16,000 species of fish, plants, of which there are nearly 10,000
species are another important <strong>link</strong> in the chain of ocean <strong>life</strong>. <strong>The</strong> value of
fish and other species caught at sea lies as it is well-known primarily in
their high content of animal protein.
More than 26 per cent of the animal protein consumed by humans
originates from the ocean, which includes 16 per cent from direct use of
the object of fisheries and 10 per cent on the fish meal used in stock
raising and poultry farrninq." Altogether, the water areas from which fish
and other species are now caught represent 20 per cent of the surface of
the ocean."
This is not all, in protein derived from water, mankind also benefits from
the exploitation of seaweeds. It is important to note that there is massive
plantation beneath the sea. Bunich and Kharchev inform us that:

"<strong>The</strong>y contain nutrients, sometimes more,
valuable than wheat, meat and potatoes and
sometimes cheaper to produce"."
<strong>The</strong>y continued,
"A mass of 15 tons of sea weed can be taken
from one hectare of the sea bed, while only
four tons of grass can be harvested from the
same area of hay meadow."
<strong>The</strong>se appear incredible, but not all. <strong>The</strong> authors
continued, ...
... Around 70 species of edible seaweeds are
known, from which dozens of dishes can be
prepared. Seaweeds are traditional foods in
Chorea, China, the Philippines, Ireland and
Indonesia. <strong>The</strong>y are also a valuable fodder for
animals and poultry."
It is submitted that Nigeria could also join these countries in exploiting
and utilising seaweeds in order to enrich our impoverished meals, feed
our animals and reduce the cost of birds, eggs and cattle by using them
as concentrates for poultry and cattle. Apart from the nutrient values,
resources from water in this way would assist in settling the cattle Fulani
nomads by providing such feeds rather than the present practice where
they travel from place to place in search of grazing land for their animals.
We all know that this provokes endless conflicts with the host
communities. Water is indeed a free gift of nature in many respects. It
provides mankind with three types of minerals. <strong>The</strong>se include,
1. those living below the sea bed (oil, natural gas, coal, sulphur, ores);
2. those lying on the sea floor (placer, deposits of titanium minerals,
cassiterite, diamonds, ferro-manganese nodules, phosphorites,
nodules, glauconite, ore silts, etc.); and
3. the salts of nearly sixty elements (magnesium, browine, boron,
uranium, copper, etc) dissolved in sea water.
Of all these types of mineral oil and natural gas, lead from the economic
aspect, followed by scattered deposits of certain minerals (ilmenite, rutile,
monazite, cassiterite), diamonds, common salt, manganese and several
others."
It should also be noted that water is the most vital source of energy. Since
oil and gas replaced coal and wood as sources of energy in the middle of
the twentieth century, the importance of off-shore oil has increased.
Nigeria is one of the states that abundantly benefit from the rich oil
deposit in the basin of the continental shelf of the Gulf of Guinea. <strong>The</strong>
structure of the sedimentary series on the ocean floor also favours
Nigeria. This finds expression in the existence of belts of petro<strong>life</strong>rous
formation and accumulation in the country's waters which fall within the
Indo-Atlantic Belt. It should also be observed that water is a very crucial
medium of transportation.
Without transportation by sea, international trade <strong>between</strong> continents and
countries naturally separated by seas and oceans could have been very
minimal if not totally non-existent. Nigeria traditionally exports her goods

y sea through the Atlantic route. <strong>The</strong> average number of calls by ships at
Nigeria seaports now exceed 10,000 a year. At the same time, the annual
turnover of the ports has tremendously increased. All these require the
intervention of law.
From time immemorial, dams have played a fundamental role as
reservoirs for water supply and irrigation. Dams, channels, bore-holes and
wells have been known to different civilisations from China, India, Iran to
Egypt. <strong>The</strong>y perfected the art of excavating underground water tunnel and
gallery systems and also constructed darns." Nigeria has also built dams
to accelerate its economic development. Water is also a source for the
generation of energy. National Electric Power Authority (NEPA), for
example owns the dam on the River Niger in the vicinity of the village of
Kainji together with its ancillary works to enable it generate, transmit,
transform, distribute and sell electricity.'?
From what we have been saying, it is evidently clear that water resources
form a vital <strong>link</strong> <strong>between</strong> man and nature. No society therefore can
survive without water resources. In addition, man's activities on water
also affect the rights of other people. Also, mankind owes an obligation
not to abuse water resources through reckless use and pollution. All these
are fundamental issues, which require the intervention of law. It is now
being proposed to examine the institutions and specific laws relating to
regulation of water resources in Nigeria.
Institutional Framework for the Utilisation of Water Resources in
Nigeria:
<strong>The</strong> legal regulation of utilisation of water resources in Nigeria started
with the promulgation of the Niger Dam Act of 1962. <strong>The</strong> main purpose of
this law was to establish the institutional framework for harnessing the
water resources of River Niger for the provision of energy which was such
an essential pre-requisite for the development of the country.
<strong>The</strong>re was also the National Electric Power Authority Act No. 24 of 1972
which empowered NEPA to operate irrigation schemes and to provide
future works, with the approval of the Federal Executive Council, in
connection with the River Niger and its effluents all for the purpose of
developing and maintaining an efficient, co-coordinated and economical
electricity supply for all parts of the Federation.!' <strong>The</strong> law also empowered
the Authority to abstract water from any Lake, river, stream or other
natural sources and the doing of all such acts as may be necessary for the
purpose of utilising and returning the water so abstracted."
By the provision of this section of the law, it is abundantly clear that NEPA
is one of the agencies vested with power to utilise water resources. In
addition, one of the assets of NEPA is the dam on the River Niger in the
vicinity of the village of Kainji together with its ancillary Works.u This is an
integral part of the water resources of the country. This is not all. Possibly,
in an attempt to improve the machinery for efficient and effective
utilisation of water resources in the country,
the River Basins Development Authorities Act, No. 25 of 1976 was
enacted. By this Act, 10 River Basin Authorities were established." <strong>The</strong>
corporate bodies established include,
a. <strong>The</strong> Sokoto-Rima R;ver Basin Authority;

. <strong>The</strong> Hadeija-Jama'are River Basin Develooment Authority,
c. <strong>The</strong> Chad Basin Development Authority;
d. <strong>The</strong> Upper Benue River Basin Delopment Authority,
e. <strong>The</strong> Lower Benue River Basin Development Authority,
f. <strong>The</strong> Cross River Basin Development Authority,
g. <strong>The</strong> Anambra-Imo River Basin Development Authority
h. <strong>The</strong> Niger River Basin Development Authority,
i. <strong>The</strong> Ogun-Oshun River Basin Development Authority,
j. <strong>The</strong> Benin River Basin Development Authority.
<strong>The</strong>se River Basin Development Authorities were charged with the
responsibilities of undertaking comprehensive development of both
surface and underground water resources for multi-purpose use." In
addition, they were empowered to undertake schemes for the control of
floods and erosions and for water-shed manaqement." <strong>The</strong>y were also
supposed to construct and maintain dams, dykes, polders, wells, boreholes,
irrigation and drainage systems and other works necessary for the
achievement of the Authority's functions under this section." As earlier
observed, section 7 of the NEPA Act conferred almost identical powers on
the Authority, although it has to exercise its functions with the approval of
the Federal Executive Council." However, it should be noted that each of
the river basin authorities has jurisdictional and territorial limitation
because each of them is supposed to exercise its functions in its area and
have such powers as embodied in the Act in the same area." NEPA on the
other hand, could use, utilise the water from the dam on the River Niger in
the vicinity of the village of Kainji together with its ancillary works." Its
right from this point of view to utilise water resources from dams appears
limited. However, sub-section 2(b) of the same section expands the power
of NEPA to include the abstraction of water from any lake, river, stream or
other natural sources and the doing of all such acts as may be necessary
for the purpose of realising and returning the water so abstracted
provided that all water not consumed shall be returned in a condition not
less pure than which it was abstracted. Sub-section (e) of the same
section even empowers NEPA to make bye-laws for regulating navigation
in waters on or adjoining lands under the control of the Authority. Subsection
2(f) is even more elastic. It gives NEPA a blanket cheque "to do
anything" which in its opinion is calculated to facilitate the carrying on of
its duties under this Act. This provision empowers NEPA to construct
dams, waterways, irrigations and take other measures bordering on
interference with the natural course of water flow.
Membership of the Board of NEPA:
Schedule 1 of the Act clearly specifies the composition of the Authority. It
consists of the Director-General." Federal Ministry of Mines and Power as
the Chairman. Other members are the Directors-General, Federal Ministry
of Economic Development and Reconstruction, Federal Ministry of
Industries, Federal Ministry of Finance. <strong>The</strong>se officials could also be
represented by their deputies. Also, members are the Chief Inspecting
Engineer, Federal Ministry of Mines and Power. Tr 3 General Manager of
the Authority, and those persons who shall be appointed by the Minister

eing persons who in his opinion have by reason of any requisite ability,
experience and specialised knowledge, special skills that will be useful
and wiN enable them to make effective contributions to the work of the
Authority. This Board is responsible for the following:
(i) determination of the overall policy of the Authority,
(ii) formulation of its financial, economic and operational programmes,
and
(iii) ensuring the implementation of the policies and programmes of the
Authority.
In carrying out these functions, members of the Board are to be guided by
the Interpretation Act, 1964 22 which stipulates that decisions of a statutory
body should be taken by a majority of its members and for the chairman
to have a second or a casting vote. Although the Board would make
standing orders in issues relating to construction of irrigation, the written
consent of the commissioner" is required befor& fundamental decisions
affecting the Authority are taken. This, in effect, makes the Minister the
most powerful figure. It should be noted from what we have been saying,
that NEPA is a hybrid organism, indeed a state within a state. In the
process of supplying electric power in the country, NEPA is given a blank
cheque to tamper with Nigeria's water resources. However, it should be
noted that there is an in-built mechanism for compensation in case a
citizen suffers loss in the process of NEPA's exercise of its functions. <strong>The</strong>
River Basin Authorities, on their part consist of ten members made up of
five persons appointed by the Federal Government and five appointed by
the State Government. <strong>The</strong>se people appointed by the state governments
must come from the area where the River Basin concerned is situated."
<strong>The</strong> Federal nominated members to the Authority shall consist of two
persons possessing detailed knowledge of the area of the Authority
concerned coupled with wide experience in the administration of
development projects in the public or private sector. <strong>The</strong>se people are to
be nominated by the Federal Minister of Water Resources subject to.
confirmation by the Federal Executive Council. One of the [two nominees
is eventually appointed the Chairman. <strong>The</strong> Federal Ministries of Water
Resources, Agriculture and Rural Development and the Federal Ministry of
Economic Development are also to be represented by one person each.
<strong>The</strong> purpose of this is to avoid inter-ministerial conflicts and promote
harmonious strategy in the utilisation of water resources in the country.
<strong>The</strong> Act also meticulously commented on the administrative structure of
each and every River Basin. <strong>The</strong> purpose of this in our opinion is to diffuse
possible inter-state conflicts. Take for example, the Sokoto-Rima River
Basin Development. Its state members are supposed to be three persons
appointed by Sokoto State, and two persons appointed by the
Government of Kaduna State" In respect of Hadejia-Jama'aare River Basin
Development Authority, its Board is composed of the five representatives
of the Federal Government already mentioned, three representatives
appointed by Kano State Government, and one person appointed by the
government of Borne." <strong>The</strong> composition of other River

Basin Authorities also reflects joint venture approach in the management
<strong>between</strong> the Federal and two or more State Governments. It should,
however, be noted that before this Act came into force, separate laws
establishing different River Basin Authorities had been enacted. Act No. 32
of 1973 established the Chad Basin Development Authority. According to
the Act, the authority shall consist of 8 members." <strong>The</strong>se are two federal
nominees, who must possess the qualities enunciated in Section 2(a) of
the schedule, while the Federal Ministries of Water Resources, Agriculture
and Rural Development are supposed to be represented by one person
each under the 1976 Act. <strong>The</strong> 1973 Act included the Permanent Secretary
(now Director-General) of the Federal Ministry of Industries. Since the
Federal Ministry of Water Resources was created in 1975, it is natural that
it was missing on this list.
Generally, to coordinate the work of the River Basin and advice the
Minister on their functions, the Act provided for thfc establishment of a
National River" Basins Development Co-ordinating Committee made up of
a) the Director-General, formally Permanent Secretary, in the Federal
Ministry of Water Resources as the Chairman,
b) the General Manager of each of the Authorities established under
section 1 of this Decree,
c) the General Manager of the National Electric Power Authority;
d) the General Managers of the National Grains and Root Crops
Production
Companies,
e) the Director of the Federal Department of Agriculture,
f) the Director of Fisheries,
g) the Director of Inland Waterways,
h) the Secretary of the Agricultural Research Council of Nigeria,
i) a representative of Federal Ministry of Co-operatives and Supply;
j) a representative of the Federal Ministry of Economic Development,
k) a representative of the Federal Ministry of Housing, Urban
Development
and Environment, and
I) the Director of the Federal Department of Water Resources.
<strong>The</strong> Committee could also co-opt anybody who might be useful to their
work into the Committee. This Committee, therefore is superior to the
individual Authorities discussed earlier on.
As regards the individual Authorities, it should also be noted that there is
a marked difference <strong>between</strong> the functions stipulated in Act No. 32 of
1973 and Act No. 25 of 1976. Although both Acts" made provisions on
construction of dams, dykes, polders, wells, boreholes, development of
irrigation schemes for the production of crops and livestock, and
resettlement of persons affected by the works and schemes of the
Authorities, resettlement of persons has generated a lot of controversy.
Associate Professor Ibrahim Bashir informs us that, the dam resettlement
scheme has led to large-scale locational shifts. At the Tiga Dam site alone,

13,600 people were forcefully uprooted and resettled on barren land far"
from sources of drinking water."
This appears to be the general pattern. This is a clear example of
insincerity on the part of the government. It appears to conflict with the
provision of section 10(2) which stipulates that,
Any person who suffers loss by reason of the
provisions of subsection (1)31 above relating to mining
operations shall -
a) be paid an adequate compensation bythe authority in
respect of the loss,
b) be entitled to refer any question as to his interest in the
subject matter of the loss and as to the amount of any
compensation payable in pursuance of this subsection for
determination by the High Court having jurisdiction in the
area in which the subject matter is situated.
It should also be noted that section 5(3)(a) of the Chad Basin
Development Authority Act stipulates that any person who suffers loss as
a result of the mining operations of the Dam shall be paid adequate
compensation by the Authority in respect of the loss which (b) permits
such a person to seek legal redress in a High Court in case of dispute on
the subject-matter or amount of compensation payable. Associate
Professor Ibrahim Bashir berated the effectiveness of this. According to
him, there are also displaced farmers who have either been compensated
in kind with poor land on which agricultural activities would be
unprofitable to sustain the affected families, or have not at all been
compensated for their farmlands and or houses. This category of people
are today the most pathetic agrarian population in Northern Nigeria or in
Nigeria qenerally." It should be noted that section 6 of Act No. 25 which
established the River Basin Development Authorities ousted the
jurisdiction of the courts from hearing matters relating to violation of
human rights as a result of its activities. This is a step backward when
compared with the Chad Basin Development Authorities Act, 1973 and the
NEPA Act of 1972 which provided for compensation and access to court in
case of dispute. This in effect means that millions of poor Nigerians who
might be affected by the activities of the Authorities may loose their
property without challenging the validity of such laws.
In addition to the agencies we have discussed above, it should be noted
that there are other laws relating to utilisation of Nigeria's water
resources. <strong>The</strong>se include the Sea Fisheries Decree 1992 and the
Environmental Impact Assessment Decree 1992. <strong>The</strong>se will be discussed
in a future work.
Legal Regime for the Utilisation of Water Resources in Nigeria:
<strong>The</strong> hydra-headed law regulating the utilization of water resources was
promulgated by the Babangida administration four days before his exit.
<strong>The</strong> impact of this Decree 33 is still not known by majority of the people in
this country. <strong>The</strong> Decree is the first step, modestly speaking, towards
privatization and commercialisation of use of water resources in Nigeria.

Although ownership of land in Nigeria does not include water." which
means that water resources in the country are owned by the government,
this Decree which might be termed confiscation of water resources
Decree vests in the
Federal Government,
1 (i) <strong>The</strong> right to the use and control of all surface and groundwater
and of all water in any water course affecting more than one
state as described in Schedule to this Decree, together with
the bed and banks thereof, are by virtue of this Decree and
without further assurances vested in the Government of the
Federation." 35
<strong>The</strong> Decree identified seven main sources of water in Nigeria, their
tributaries, sedimentary areas and confluences as belonging to the
Federal Government. For the sake of clarity, these water sources are,
Source 1 - <strong>The</strong> River Niger from the border <strong>between</strong> the Federal Republic
of Nigeria and the Niger Republic to the outlet of the Kainji reservoir,
including,
(a) the Sokoto Rima River from the border with the Federal Republic of
Nigeria;
(b) all the tributaries of the River Niger crossing the border to the Benin
Republic; and
(c) the Sokoto sedimentary (Western) hydrogeological area.
Source 2 - <strong>The</strong> River Niger from the outlet of the Kainji reservoir to the
point of confluence of the River Niger and of the Benue River, including -
(a) the Kaduna River with the tributaries;
(b) the Gurara River;
(c) all the tributaries of the River Niger crossing the border to the Benin
Republic;
(d) the Upper Niger sedimentary (Niger) hydrogeological area;
Source 3 - <strong>The</strong> Benue River from the border <strong>between</strong> the Federal Republic
of Nigeria and the Republic of Cameroon to the point of confluence of the
Benue River and the River Niger, including -
(a) the Gongola River;
(b) the Pai-yul River;
(c) the Wase River;
(d) the Shemankar River;
(f) the Dep River;
(g) all the tributaries of the Benue River, crossing the border to the
Cameroons, and
(h) the River Niger from the confluence thereof and of the Benue
River, including the Delta of the River Niger, and of all water
tributaries or influent thereto or influent therefrom, including;
(a) the Anambra River;
(b) the Imo River;
(c) the Akwa Ibom River; and

(e) the Aboine River
Source 5 - All water courses directly or indirectly influent to the Lagoon
and other littoral lagoons and watercourse from the border with the
Republic of Benin to the mouth of the forcados River, including -
(a) the Oshun River;
(b) the Ogun River;
(c) the Shasha River;
(d) the Owena River; and
(e) the Oqun/Oshun sedimentary (South - Western) hydrogeological
area.
Source 6 - All water courses rising or situated in the Federal Republic of
Nigeria and the Republic of Cameroons and all water tributaries or
diffluent thereto or influent therefrom, including the Cross-River
Sedimentary (South - Eastern hydrogeological area).
It is submitted that these water resources cover virtually all parts of the
country. It should be noted that by virtue of this Decree, State,
Communities and Wards have ceased to own any water resources in the
country. Although section 2 of the Decree stages that;
"<strong>The</strong> provisions of sub-section 1 of section 2, shall not
be construed as infringing or constituting a
compulsory acquisition of any right over right, or
interest in property"."
It is our opinion that the powers conferred on the Minister" of Water
Resources, are very enormous .. Section 4(11 (a) confers on the Minister
the following sweeping powers,
(a) define the places from which or the manner in which and the time at
which such water may be taxen or used.
Taking into consideration, Nigeria's political history, this provision is like
giving a hangman the rope to hang indiscriminately. It should be noted
that the Minister of Water Resources is a political office holder. Our past
history shows that under political dispensation, the Minister can easily use
this power recklessly against political opponents. To give an individual
such a power in Nigeria is tantamount to giving power of <strong>life</strong> and death
over millions of people. This power could be easily employed to subvert
democratic process by converting the use of water as a political weapon
especially in the areas seriously affected by desertification drought and
soil erosion. <strong>The</strong> policy of vote for me, vote for water supply might be
introduced.
Also, subsection 1 (b) and (c) are not free from manipulation by
political office holders. <strong>The</strong>y provide thus
(b) Fix, in times of actual or anticipated shortage of water, the amount
which may be taken by any person for such purposes,
(c) Prohibit temporarily or permanently the taking of water any source
for such purposes, when in their opinion, the taking or use of such
water ...would be harzadous to health.

We submit that it is dictatorial to confer on an individual the right to
determine -the amount of water a fellow citizen should take from the
stream. For whatever reason, it is unjustifiable. Worse still, the power to
prohibit temporarily or permanently the taking or use of water for
whatever reason is not right either. <strong>The</strong> Decree could have clearly
stipulated under what conditions a Minister could interfere with the taking
or use of water. <strong>The</strong> impact of such limitation is that a) citizen could
take legal action if and when his human right to use water resources as a
free gift of Nature, is violated by the state. <strong>The</strong> right conferred on the
Minister by subsection (l)(d), to revoke a right to use or take water when
such a right is likely to override the public interest, is also likely to lead to
violation of the right to water. We cannot see the citizens folding their
hands when the Minister exercises such a right in relation to communal
water resources. This provision, obviously, is an agenda for social
disturbance. This is because what constitutes public interest in the
Nigerian context, like beauty depends on the eye of the beholder.
We also find it extremely difficult to understand the rationale behind the
provisions in (f) and (g) which stipulate thus
(f) regulate the place, depth, manner of construction or mode of
operation of any borehole or well; and
(g) define the times at which water may be taken from such borehole or
well.
We cannot see how the Federal Ministry of Water Resources can
monitor the digging of boreholes and wells to determine the place, depth,
manner of construction and mode of operation. This provision reduces the
Decree to a laughing-stock as even a child knows that it is an unattainable
objective since the Ministry neither has the machinery nor the human
resources to implement it. For the Government in Nigeria to give itself the
task of defining the time at which water may be taken from boreholes and
wells could be equated to giving itself the task of determining when a
husband and wife should go to bed. This obviously is an abuse of the rule
of law as a regulator of social norms. We want to say it without the least
fear of contradiction, that Nigerians will never obey such law.
<strong>The</strong> Licensing System:
Another feature of the law worth commenting on is the introduction of a
licensing system.
Section 9(1) and (2) states that,
(1) "As from the commencement of this Decree, the diversion,
storage, pumping or use on commercial scale of any water or
the construction, maintenance, operation, repair of any
borehole or any hydraulic works shall be carried out only in
accordance with a license issued pursuant to this Decree or
regulations made thereunder.
(2) A person in breach of the provisions of subsection (1) of this
section commits an offence under this Decree".
Section 18(1) clearly stipulates the punishment, such a person if
convicted shall be liable to fine not exceeding N2,OOO or to a term of

imprisonment not exceeding six months or to both. If it is a continuing
offence, the person will pay additional fine of N 100 maximum every day
or part of a day that the offence continues. If it is a body corporate, it is its
officials that will be penalised."
<strong>The</strong> imposition of this stiff punishment shows the seriousness with which
the government takes the licensing system. It should be noted that
approval by the Minister of Water Resources for such license is not
granted automatically. Such application shall contain or be accompanied
by such information and document as he may from time to time
prescribe." On the surface value, the gravity of this provision may not be
realised. We should point out, however, that in a country where majority
of its rural dwellers, who actually need boreholes and wells are illiterates,
and where the civil service is inefficient and corrupt, we make bold to
state that this single provision will frustrate water schemes in the country.
Also, before granting a license, section 11 states that the Minister shall
consider the allocation of usable water in the water course or groundwater
in the particular area, the anticipated shortage of water and may
(a) refuse to issue a license for carrying out of any activity on water
which in his opinion, is likely to interfere with the quantity or quality
of water in a water course or groundwater; or
(b) cancel or modify any license for the diversion and use of water for
the purpose of accommodating the needs of another user or water to
which that license relates; or
(c) modify, suspend or cancel any license granted under this Decree on
account of non-use of a license for such terms as he may determine.
<strong>The</strong> power conferred by the Decree (b) and (c» to cancel or modify
existing license is a dangerous precedent. This might affect small scale
and socio- economically disadvantaged in the country. Cancellation of
license on account of non-use without clearly stipulating what exactly
non-use entails and the period within which a license could be classified
to belong to the "non-use" category gives the Minister unregulated power
to violate the right to water which is an integral part of fundamental
human rights. Section 12 of the Decree is another unwarranted
interference with property rights in Nigeria. It states,
<strong>The</strong> secretary (now Minister) may require any person who has
a statutory or customary right of occupancy over any land
served by any hydraulic works which has been constructed,
maintained, operated, repaired or altered without or in breach
of the provision of any license either to receive such hydraulic
works or to modify its construction, operation or maintenance
within a specified time."
It should be noted that this section of the Decree constitutes a flagrant
violation of the citizens' right to freely enjoy their property. Although
interference with the use of property is not expressly stated as
constituting compulsory acquisition of property or derogation of the basic
constitutional right to own private property." we still affirm that citizens

could seek legal redress." <strong>The</strong> provrsions of Decree No. 1 of 1984 43 on
forfeiture of property acquired illegally cannot be applied either, since
many Nigerians acquire their properties honestly. From the point of view
of Law therefore, the Government has no basis to defend this provision.
On moral grounds also, the Government stands condemned in the eyes of
millions of Nigerians who have honestly worked hard to accumulate their
property.
We also wish to point out that the license to be issued by the Minister is
not free. Section f5 provides power tea on issue o( a license to;a)
divert, store, pump, use or impound new water far any purpose
referred to in section 2 44 of this Decree, or
b) any person or public authority seeking to construct, operate,
maintain, repair or alter any hydraulic works in or adjacent to any
water source.
In addition to licence fee, the Decree empowers the Minister to infuse
fees, rates and charges in connection with the provision of any service
prescribed pursuant to the Decree or regulations made thereunder
including any charge by way of contribution to the costs of any works
associated with the provision of such services paid for from public funds."
Section 15 also deals with the Minister's power to fix and levy rates in.
connection with abstraction and use of water. In particular, subsection 2
of the section introduces water abstraction rate.
Generally speaking, to use water, drink it and utilise it for other purposes
Nigerians have to pay. It might be argued that section 2 subsection 2(a)
states that any person
(i) may take water without charge for his domestic purpose
or for watering his livestock from any water course to which
the public has free access; or
(ii) may use water for the purpose of fishing or for
navigation to the extent that such use is not in-consistence
with any other law for the time being
(iii) who, has a statutory or customary right of occupancy to
any land, may take and use water from the underground
water source or if abutting on purposes, for watering livestock
and for personal irrigation schemes."
A critical evaluation of this section shows that inhabitants of Nigeria's
rural communities who live, farm, fish and generally derive their
livelihood from water have this natural right curtailed by legislation. <strong>The</strong>
law now allows them to utilize water resources for domestic purposes and
not for commercial purposes. It should be pointed out, however, that
riverine dwellers survive by selling products derived from water in
exchange for imported and manufactured commodities. In addition, the
income from commercial utilisation of water resources assist them in
paying school fees for their children. This Decree will have far-reaching
effects on such people. <strong>The</strong> Decree could have classified commercial
utilisation into categories; small-scale, medium-scale and large-scale. In

our view, commercial utilisation in the first two categories should not
attract any payment.
Finally, the acquisition of rights to use or take water" from water course
or any groundwater for any purpose puts paid to any speculation on the
unstated purposes of this Decree. Although the Government insists that
the main purposes of the Decree are
(a) promoting the optimum planning, development, and use of
Nigeria's water resources;
(b) ensuring the co-ordination of such activities, as are likely to
influence the quality distribution, use and management of
water;
(c) ensuring the application of appropriate standards and
techniques for the investigation, use, control, protection,
management and administration of water resources, and
(d) facilitating technical assistance and rehabilitation for water
supply".
In our candid opinion. Section 3 reveals the real objective of this Decree
and punctures the seemingly good intentions contained in the Decree. It
equally unveils and exposes the philosophical foundation of the Decree. It
is the water policy component part of the extreme laissez faire economic
philosophy which the last administration madly embarked upon in the
name of privatisation and commercialisation. Its aim was to dispossess
millions of Nigerians of their natural endowment and in the name of
"settlement" hand over the water resources of Nigeria to a handful of
absentee water resource owners, corrupt, inefficient and incompetent
cronies of the administration. We make bold to sayfhis because the
privatised enterprises have really not been proved to be better 'managed
after the change of ownership. <strong>The</strong> social consequences of the Decree
were not properly weighed. Nigeria will emerge a country of few Khulakas
and -Iatifundia-'with millions of waterless people roaming around with
cups in hand asking for drinking water at the fortified gates of the new
water resources barons.
Assessment of the Overall Significance of the Decree:
Our investigations revealed that those, in charge of management of
water resources have been clamouring for a lay(' on utilisation of water
resources for over 30 years. From their perspective/therefore, this Decree
is a significant progress on the part of the Government. We associate
ourselves with this. However, after a critical assessment of the Decree, we
are left with no alternatives than to make the following observations,
(i) that the vesting of the right to use and control all surface,
groundwater and water courses in a single authority in the country is
a step in the right direction. By this decree, the Federal Government
has exclusive jurisdiction to regulate the use and control of water
resources in Nigeria, to the exclusion of states and local
governments. If this decree is nationally operated, subject to the
amendments we will suggest below,

it will reduce conflict <strong>between</strong> states, communities and wards on the
utilisation of water resources; from section 2 of the Work, it is evidently
clear that Nature has bestowed on Man three main sources of wealth and
free sources of complementing his labour through water resources,
(a) natural resources including petroleum and gas products the main
source of Nigeria's economy,
(b) nature's own plantation and other sources of protein man derives
from water,
(c) nature's own kitchen which constitute the nutrients Nature uses in
feeding other living species in the water.
It is our submission that the reckless use of these resources is fast
depleting them. <strong>The</strong> lawmakers behaved as if the future generations are
not entitled to inherit in a richer form replenished resources from water
through establishment of national legal framework for their utilisation. <strong>The</strong>
reservoir of different types of fish and nutrients in Delta and Creek areas
have been recklessly utilised and abandoned with devastating impact on
the fish protein in the market. <strong>The</strong> Decree should have stipulated very stiff
penalty for use of dangerous chemicals for fishing, pollution of water by oil
companies and other forms of abuse.
iii) <strong>The</strong> decree should have had a separate section that deals with
dams. As it is now, the construction of dams, retaining of water in
reservoirs and opening up of reservoirs are not properly regulated.
This means in effect that a State in the Federation can hold the
entire country to ransom by greedily retaining more water than it
requires thereby causing drought and farming in some parts or use
dam and water reservoir as weapons of war and warfare by overflooding
the "enemy" State, thereby winning inter-ethnic or intercommunal
conflicts without firing a gun shot;
iv) the power concentrated on the Minister of Water Resources makes
him more powerful than the Head of State and the Commanders of
the Army, Navy and Airforce combined. Controlling virtually all
water resources in the country, the Minister has virtually become a
state within a State, indeed the uncommanded commander,
v) the privatisation of control and use of water resources is a product
of bad advice, bad policy and unabated greed. Water resources and
the constructions that originate from them are of very strategic
importance. Leaving them in private hands exposes national
security to ridicule and easy penetration,
vi) privatisation of water resources in Nigeria will lead to unfathomable
consequences. <strong>The</strong> rural population in the riverine areas will suffer
and this might lead to unanticipated social avalanche, social turmoil
and social conflict,

vii) the utilisation of water resources lead to violation of citizens' rightsas
we have already pointed out in this work. We are surprised that
the Decree did not make provisions for compensation of citizens in
case their rights are violated,
viii) as we have seen in the work already, there are other Ministries and
Agencies which different laws have vested with power to utilise
water resources with conflicting powers. This Decree is bound to
lead to conflict <strong>between</strong> them and the Ministry of Water Resources.
On the basis of these observations, the author is presenting this Agenda
for efficient, rational, humane and properly co-ordinated utilisation of
water-resources in Nigeria.
An Agenda for Efficient Management and Utilisation of Water hesources in
Nigeria:
(1) <strong>The</strong>re is the need for this Decree to undergo a very thorough
surgical operation leading to its fundamental reform, or better still
repeal it and invite leading experts on water resources and related
legal issues to draft proper law that will take all the points we have
raised into consideration.
(2) that since legislation is a living document, there is the need for it to
be properly drafted by experts to avoid ambiguity.
(3) that any other law conflicting with the provision of the Decree
should be amended. We say this because a new Decree does not on
its own automatically repeal an old one. This new approach will lead
to harmonisation, consolidation, systematisation. codification and
the development of corpus juris of water resources in Nigeria.
(4) that the Decree should incorporate a National Council on Water
Resources to be made up of experts from different fields to advice
the Minister on policy issues. This we believe will prevent the abuse
of power.
(5) that stiffer penalties should be introduced for misuse of dams and
reservoirs to prevent a situation whereby a single State could hold
the whole Nation to ransom.
(6) that a Charter of Citizens Rights and Obligations should be
incorporated into the Decree to make it easier to sue the Federal
Government for violation.
(7) that Code of Conduct for Engineers constructing dams should also
be introduced and a national standard and safety measures
incorporated.
(8) that the right to water resources in the country should be enshrined
in the constitution as a fundamental human right of citizens, which
must not be violated.
(9) that provision op adequate compensation to be paid in cash and
directly through Government treasury must be enshrined in the
Decree. This is to prevent a rip-off of the illiterate rural communities
by traditional and community leaders.

(10) that government must establish a decentralised mechanism for
rehabilitating depleting water resources while harnessing existing
ones to enrich the protein contents of food eaten by Nigerians.
(11) that local technology and know-how on construction of dams,
bridges, water ways, irrigation should b< introduced to reduce the
construction costs and mobilise local people to participate in such
projects.
(12) that intensified and co-ordinated effort should be made to establish
piggeries, fish-farms, animal husbandaries and vegetable gardens
utilising -Nigeria's water resources.
(13) Finally, any future law on water resources must not oust the
jurisdiction of Nigerian courts.
With this Agenda, MCS strongly believe that a new era of efficient and
elective utilisation of Nigeria's water resources will emerge.

REFERENCES
* Dr. 1. I. Gabriel and Bern Angwe
Faculty of Law, University of jos
jos, Nigeria.
1. I.L. Bashir, Water Resources Development and Changing Settlement
Patterns in Rural Northern Nigeria; A study in Rural-Rural Migration,
Development Studies Review, Vol. III, Nos. 1 & 2 june/Dec. 1989,
p.23
2. Ibid
3. P. G. Bunich, K.M. Kharchev, et al. Ocean and its Resources,
Progress Publishers, Moscow, 1977,p.24
4. Ibid, p. 24
5. Ibid, p.26
6 Ibid
7. Ibid, pp. 26-27
8. Ibid, p.30
9. See Robert B. jansen, Dams and Public Safety, U.S. Dept. of the
Interior, Bureau of Reclamation, Wash. 1983 p.1
10. See section 7, National Electric Power Authority Decree No. 24, 1972
11. See Section 1 and 7 of National Electric Power Authority Act No. 24,
1972
12. Section 7 (1) (b)
13. Section 5 (2) (a)
14. See Section 1(1) of the River Basin Development Authorities Act, No.
25, 1976
15. Section 2 (1) (a)
16. Section 2 (1) (b)
17. Section 2 (1) (c)
18. Section 7 (1) (e) NEPA Act
19. See Section (c) River Basin Development Authorities Act No. 25,
1976
20. Section 7 (1) (a) NEPA Act 1972
21. <strong>The</strong> Act referred to them as Permanent Secretaries which was the
terminology employed before the Civil Service Reforms
22. See section 26 of the Interpretation Act 1964
23. This means the Federal Minister of Mines and Power
24. See Schedule of the River Basin Development Authorities Act
25. Section 3 (a) of the Schedule
26. Section 3 (b)
27. See section 1(1) of Chad Basin Development Authority Act 1973
28. See section 2 of Decree 32 of 1973 and section 2 of Act No. 25 of
1976
29. See section 10 (1) of the River Basin Development Authorities Act I.
L. Bashir, op. cit. p.25
30. This sub-section relates to compulsory acquisition of land under the
31. enactment I.L. Bashir, op. cit. p.27
31. Water Resources Decree (Decree 101)1993 was signed into law by
General Ibrahim Babangida (rtd) on the 23rd of August, 1993

32. See Interpretation Act 1964
33. Section 1 (i) of the Decree
34. See Section 2
35. <strong>The</strong> Decree referred to him as Secretary. <strong>The</strong> Ministers were then
known as secretaries.
36. See section 18 (i)
39. See section 10
40. See section 12
41. See section 40 of the 1979 Constitution
42. (1975) J.A. Adewole and Others v. Lateef [akande as a Governor of
Lagos
State and Others, 2 S.c. 71 of 80 - 81
43. See Decree NO.1 of 1984. See also Chief Okupe v Federal Board of
Internal Revenue (1974) all N.LR. (Part 1) 314 at 330
44. This section regulates the right to take and use water
45. See section 14
46. See'section 2
47. See section 3
48. See section 1 (i).

the amount of suspended material);
iii. many of the ponds have a substantial amount of kaotinite in
suspension in the water column and iron in them; and
iv. there is a possibility of a rise in the nutrient status of the ponds
(eutrophication).
Comparatively, the los Plateau mine ponds pose less hazard to domestic
and industrial uses than most of the Nigerian rivers considered (Table 2).
On the whole, it is our contention and recommendation that none of these
surface water sources should be used for industrial purposes without one
form of purification/treatment or the other. In the proceeding section,
therefore, we shall discuss possible ways of improving the quantity and
quality of water for rural industrial development in Nigeria.