Opposition thickens over Water Resources Bill

The Executive bill was first presented to the 8th National Assembly in 2017 but was later stepped down.

It seeks to establish a regulatory framework for the water resources sector in Nigeria, provide for equitable and sustainable development management, use and conserve Nigeria’s surface water, groundwater resources and related matters.

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According to its proponents, it also seeks to ensure that the nation’s water resources are properly protected, developed, conserved, managed and controlled, meet basic water needs of the present and future generations, enhance citizens’ right of access to clean water and sanitation, promote public-private partnerships in the development and management of water resources infrastructure, among other critical objectives.

It states that the right to use, manage and control all surface water and ground water affecting more than one state is vested in the federal government.

It, however, says that states may make provisions for the management, use and control of water sources occurring solely within their boundaries but shall be guided by the policy and principles of the federal government in relation to integrated water resources management.

In 2018, the senate threw out the bill because of the controversy associated with it.

Senators were also divided across regional lines during debate on it.

The bill has now been re-introduced at the 9th House of Representatives and has already passed the first and second readings.

Thereafter, it was referred to the relevant standing committee for further legislative action.

What the bill is all about 

Titled ‘A Bill for An Act to Establish a Regulatory Framework for the Water Resources Sector in Nigeria’ (among other thigs), if passed, it will concentrate the control of water resources around the Niger and Benue rivers as well as other waterways in the hands of the federal government .

The states to be so affected include Lagos, Kwara, Kogi, Ondo, Ogun, Edo, Delta, Benue, Anambra, Enugu, Akwa Ibom, Adamawa, Taraba, Nasarawa, Niger, Imo, Rivers, Plateau, Kebbi and Bayelsa.

But its resurrection has attracted reactions from legislators, politicians, opinion leaders and labour leaders.

Why the opposition

According to opponents of the bill, the controversial parts include vesting ownership of water bodies on the federal government and mandating citizens to get federal government’s permission to drill boreholes in their homes or businesses premises.

Because of this, the Nigeria Labour Congress has warned the National Assembly not to pass the bill because of the danger it portends to national unity.

In a statement dated August 28 signed by the NLC president, Ayuba Wabba, labour said; “Information in the public domain has it that the National Assembly leadership is working surreptitiously with vested interests outside the assembly anxious to pass the bill without due legislative process.

“We equally warn against legislative abuse or betrayal of Nigerians as this is what it will amount to if the bill is passed or caused to be passed without public engagement and scrutiny.

“Already, the sentiments expressed against this bill are too grave to be brushed off.”

Opposition lawmakers in both chambers of the National Assembly have also vowed to resist any plot to get the bill passed.

Though it is yet to resurface in the senate, senators said it would suffer the same fate as the previous one when sent to them.

“We have not seen it in the senate.

“When it comes we will reject as before,” Senate Minority Leader, Senator Enyinnaya Abaribe, said.

Senator Biodun Olujimi (Ekiti State) said the fragile peace being experienced in the country would not be allowed to be destroyed by any legislation.

She said lawmakers in the red chamber would speak up against the bill when it is introduced or sent for concurrence.

Governor Samuel Ortom of Benue State, a state which has suffered ethnic and farmer/herder conflicts, also urged members of the National Assembly to reject the bill in the interest of the country, describing it as another version of the rejected Ruga policy to grab lands for pastoralists.

The governor noted that the bill is anti-federalism and negates the right of Nigerians to their God-given resources.

The senator representing Benue North East in the National Assembly, Gabriel Suswam also spoke against the bill, saying: “Under our current circumstances where people no longer have confidence in policies and actions of government, it’s not a good time for such a bill.

“I am personally suspicious of the intentions of the sponsors, it smacks of a hidden agenda.

“I definitely not support it.”

Suswam described the  bill as unacceptable, saying it would not be allowed to scale through the assembly, as it has the tendency to create a big problem for the country.

Speaking in Katsina-Ala during the commissioning of a new primary school by the Benue State government in collaboration with the Universal Basic Education Commission (UBEC), the former Benue governor said the bill is highly unacceptable and would be vehemently rejected.

“Though the bill is yet to come before the red chamber of the National Assembly, it will die on arrival in whatever form it comes.

“It is anti people.

“For me I cannot sit down as representative of the people and allow the federal government takeover the waters of the people.

“The Land Use Act of 1978 clearly states that all lands in a state belong to the state governor and it would require a constitutional review for this to happen,” he said.

Nobel laureate, Wole Soyinka, also opposed the bill, warning against what he called an attempt by the executive and the legislature to ‘sneak’ the bill into law.

“Regional groups from the South and the Middle-Belt have also raised voices against the bill.

Aspects of the bill generating concern

Some sections of the bill perceived to be controversial include:

Entitlement to use of water

Section 61 of the bill states that the use of water shall be subject to licensing provisions

However, this does not include the right to use water for domestic or personal purposes.

Section 3 explains the purpose for which water may be used without a license

It states that a person may take water without license, from a water source to which the public has free access for household use, watering domestic livestock, subsistence fishing, and personal irrigation not for commercial purposes.

It gives access to water use where a statutory or customary right of occupancy to any land exists, take or use water without charge from the underground water source, or if abutting the bank of any watercourse, from that water course, for reasonable household use.

Section 62 further explains the “licensing provisions”

It states that a license shall be obtained before any person undertakes the following activities in relation to water sources: abstraction of surface water and groundwater; diversion, pumping, storage or use on a commercial scale of any water; the construction of boreholes for commercial purposes; construction and operation of hydraulic structures for rivers, dams and wells; public and private irrigation and drainage systems; diversion or impoundment of water for the purpose of mining and discharge of waste water from mining into any water course.

Others are: discharging industrial or agricultural waste or waste water into a water body through a pipe, canal or sewer, capital dredging, sand dredging,  rock blasting and rock removal in rivers, any work affecting the banks and beds of water courses; carrying out commercial fisheries, and using reservoirs for recreational purposes.

Any person who flouts the above risks a fine of not less than N1 million or imprisonment for a period of two years or both.

Section 70(9) says that a license may be cancelled if the licensee” contravenes any conditions of the license; or fails to make beneficial use of the water or any part thereof.”

On emergency powers in case of shortage of water, the bill in Section 67 empowers the commission to direct a person who has a supply of water in excess of his needs to reduce the amount he is permitted to abstract under the terms of any license or general authorization.

Getting permit to drill a borehole

Section 75 makes it compulsory for a borehole driller, whether corporate or individual, to obtain a license before commencing borehole drilling business in Nigeria.

Section 76 states that the owner of a borehole drilled for commercial purpose shall obtain a permit, which shall prescribe the terms and conditions to be observed by the owner.

The permit, it says, shall be renewable every five years or such other period as the commission may prescribe.

The drilling permit, according to Section 77, shall authorize the construction of one or multiple wells in specified locations in compliance with the conditions of approval specified for the purpose.

It prescribes a fine of N500,000 or imprisonment for a term of one year to any driller who fails to comply with the provisions of this part of this bill.

The bill made no mention of seeking permit to drill a borehole for domestic use.

Restriction on acquisition of land

Section 86 (1) prohibits the River Basin Development Authorities from acquiring or leasing land or taking over any existing project without the knowledge and consent of the state government in its area of operation in which such is located.

Subsection (2) says subject to the Land Use Act, the control of land development for irrigation by each authority shall be as provided under Sections 6 and 28 of the Land Use Act.

Powers of the minister

Section 12 empowers the minister to set up a committee to coordinate the implementation of international deals Nigeria has with foreign countries or international organizations in relation to the allocation, use and supply of water according to the principles of equitable and reasonable utilization and avoidance of significant trans-boundary harm.

Section 13 says the minister’s function shall be to formulate national policies and water resources management strategies to guide the integrated planning, management, development, use and conservation of the nation’s water resources and provide guidance for formulation of hydrological area resources strategies.

Other provisions of the bill generating outrage include: Section 148, which deals with non-compliance.

It says “no person shall use water otherwise than as permitted under this Act.”

It prevents anyone from using water if they fail to comply with any condition attached to a license issued or deemed issued under the Act or fail to procure a license or other approval required under the Act upon the expiration of an existing right to use water recognized upon the commencement of the Act.

Section 142 empowers an authorized person to, at any reasonable time and on production of their identity card or other instrument or certificate of designation if so required, enter a property with the necessary persons, vehicles, equipment and material in order to carry out routine inspections of the use of water or disposal of waste water under any authorization.

How the bill ‘died’ in 8th senate

Senator Godswill Akpabio, the then Senate Minority Leader and member of opposition PDP, raised a red flag about some clauses in the Water Resources Bill which led to its death in the 8th Senate.

On May 24, 2018 after the Senate Committee on Water Resources chaired by Muhammed Ubali Shitu (Jigawa State) presented its report on the executive bill, Akpabio expressed reservations about placing the management of the nation’s water resources under the federal government at a time there were discussions on power devolution.

Citing a section of the bill which states that there shall be no private ownership of water but the right to use water, he said there were a lot of communities that depended on small rivers to survive.

“If we have to rush and pass this kind of bill now, you are not only creating more problems but we are further reducing Nigeria to a Banana Republic at a time we should devolve powers to the states,” he said.

But the then Majority Leader and now Senate President, Ahmad Lawan, quickly responded to Akpabio, that the clause only affected rivers that pass through more than one state.

He said the federal government does not have control over those rivers within a state or locality.

Akpabio continued that there were some small rivers that traverse two states.

He described as “over legislating,” enacting an Act that puts small rivers under the management of the federal government.

“In fact, this is going to lead to more wars, more communal clashes in future because people are going to stand up and say ‘look, this your river here belongs to the federal government because it has passed my backyard which is in another state’,” he said.

He therefore asked for the list of rivers that would be under the control of the federal government, a submission some other senators agreed with.

Other senators, including those from the ruling APC, toed the path of Akpabio, warning against passing the bill without sorting out the grey areas.

Senators from Lagos also cited examples of legal battles between the state government and Nigerian Inland Waterways Authority over who should control its waterways.

“Those are creeks that should be left to the state government to control, but what you find is that NIWA has extended its federal might in controlling the navigation and all other things,” Olugbenga Ashafa (Lagos State) said.

In his ruling, the then Senate President, Bukola Saraki, set up a committee to look at all issues in the bill and report back in one week.

The panel, which comprised the chairman of water resources committee, his deputy, the chairman and vice chairman of the judiciary committee and the director legal, never reported back till the end of the 8th Senate.

That was the end the National Water Resources bill at that time.

Water use rights in other countries

The constitutional structure of a country determines which level of government and from whom the water allocation permits are obtained.

For example, in centralized countries like China, Chile, Peru, the Philippines and South Africa, a national water department or ministry operating centrally, or through a provincial or local branch, determines whether to grant a water allocation permit.

In more decentralized countries such as the United States, Canada and Australia, the power to allocate water has been devolved to the state or provincial government.

Countries with civil law background adopted an approach based on the old Roman principles, whereby people could only obtain use rights for running water not attached to land.

The legal frameworks of Chile and Peru reflect this approach in granting use rights: Chile has a private water rights system that grants fully transferrable water rights, whereas in Peru water rights are not tradable.

Apportioning use of water in the US

In the United States there are primarily two methods of apportioning the use of water by individuals or organizations: Riparian (land based) and Prior Appropriation (use base).

Most eastern states follow a land-based riparian approach for allocating water rights, while resource-rich states in the west of the country have adopted a use-based prior appropriation doctrine.

The Riparian doctrine links ownership of lands adjacent to a source of water (typically a river or stream) and the use of the water.

Only those landowners whose property form the banks of the water have a right to make reasonable use of the water as it flows through or over their property.

In the event the waters are not sufficient to satisfy the usage demands of all users, then the water is apportioned in proportion to the frontage that a landowner has along the water source.

This use-based prior appropriation approach dictates that the first person to use water, divert it for a beneficial use, or, more recently, apply for a license for a particular water allocation, has the perpetual right to use the water against all subsequent users as long as the appropriator puts the water to beneficial use (“first use in time, first in right”).

South Africa

The National Water Act (No. 36 of 1998) is the main regulating force of water use in South Africa.

The Act stipulates that a person or legal entity becomes a water user by registration.

The registered use entity receives an entitlement to use water from the Department of Water and Sanitation.

This entitlement is to use water on a specific property.

Water-use license is issued to an individual or entity after verification of entitlement.

The numbered certificate issued after registration gives information on the volume used, the source, the farm on which it is used, the registered user, what it is used for and the type of registration.

Why the FG reintroduced the bill

The federal government insists that the bill, if signed into law, would be beneficial to all Nigerians.

Speaking with Daily Trust on Sunday, the Minister of Water Resources, Engr. Suleiman Adamu, said the bill would regulate the water sector in the country.

Adamu said though water laws had been in existence since 2006, the current bill was drafted in 2008.

“I have made a statement on this bill to the media some time ago. Also, other stakeholders in the water sector have been commenting in the media, trying to explain what this bill is all about.

“It appears that many people have not even read about the bill, they don’t understand it before coming out to comment publicly about it. We have said that there is nothing new about it, as we have existing water laws, there are four existing laws that we have been consolidated into the new document,” he said.

The existing laws, according to him, are the Water Resources Act of 2014, the National Water Resources Institute Act, the River Basin Act and Nigeria Hydrological Services Act.

“We just introduced the concept of Nigeria Integrated Water Resources Management in line with the new water resources policy,” the minister said.

Experts speak on bill  

A water engineer, Adamu Nasiru, told Daily Trust on Sunday that the challenges in the country’s water sector require an effective management system.

Nasiru said Nigeria is rich in water resources, and in addition to the surface water found in nearly every part of the country, there is plenty stored in the ground.

He expressed regret that Nigerians didn’t have enough water to drink despite the country’s abundant water resources.

He noted that relevant statistics had shown that only 19% of Nigeria’s population has access to safe drinking water, and even as 67% of the people have basic water supply, access is uneven. He said such challenges were as a result of poor management of water resources.

According to Nasiru, lack of safe drinking water together with poor sanitation and hygiene is estimated to cost Nigeria a huge amount of money as well as premature deaths.

Toyin Ishola, an Ilorin based water expert, said after studying the bill, he discovered that if passed into law, it would address the haphazard manner the nation’s water resources is being managed.

Ishola said the present management system focused on engineering physical infrastructure and excluded other perspectives which according to him, means that authorities managing water don’t sufficiently engage with the people using it.

He said infrastructure in communities collapses when users are not involved in its planning and management.  He said there had also been little coordination between federal, state and local government agencies on water management, stressing that the new bill seeks to address this gap.

On the other hand, the National President, Association of Water Well Drilling Rig Owners Practitioners (AWDROP) who is also the founder and CEO of Global Initiative for Nigeria Development (GIND), Engr. Michael Ale, urged Nigerians to shun calls for the withdrawal of the bill.

Speaking with newsmen in Ado-Ekiti, he said Nigerians should not put politicize the bill.

“Each state can come up with its bill just like the recently launched Operation Amotekun in the South-west,” he said.

He noted: “Water law is important for protection of our water resources, just as we have laws governing the airspace and land activities in international best practices.”

He said the state and federal governments could come up with permits, licensing fees, water use charges and the rest, adding that there is no need for people to link the bill to Ruga, as Ruga is not coming back through the  back door as many Nigerians now believe.

According to him, the bill would ensure that  practitioners would be supported by financial institutions, and should not be an all comers affair, especially by foreigners who take no interest on what happens to the environment as their only interest is to make money and send it back to their countries.

“The merit is that businesses will grow, water quality will be protected and it will prevent earth tremors because activities will be controlled through obtaining licenses.

Other supporters of the bill say if passed could as act an enabler to the nation’s attainment/achievement of the orchestrated Sustainable Development Goals (SDG’s).

But others say in line with its content, the bill has the tendency of depriving Nigerians their ancestral water rights in favour of government.

Diffusing the fears 

Alhassan Ado Doguwa, the House of Representatives Leader, in an interview with Daily Trust, said the bill was intended to rejuvenate the water sector.

Doguwa said most of the amendments therein were to make the bill cope with global best practices.

“We want to globalize the sector.

“It is not that it has given the president unilateral powers or to have much control over the water sector.

“Being an essential thing, who do you think should provide water?

“It is not about control.

“Mostly, it is about the provision of water, for potable water to become more accessible down the ladder to the commonest of the common people on the streets.

“That is all about the interest of the law,” he said.

A top official of the water resources ministry urged Nigerians to study the draft bill carefully before forming an opinion.

He said the bill was actually seeking effective management of the water resources.

“No one, not even the state governments, is happy with the way our water resources are being managed now unless we are deceiving ourselves.

“Is it the shortage of potable water or the indiscriminate digging of boreholes or the incessant pollution to the water bodies?

“Something definite needs to be done,” he said.

Lawyers speak

Lawyers who spoke to Daily Trust on Sunday warned that the bill if passed into law, could undermine the country’s federal system.

Yusuf Ali (SAN), said the country already has the most powerful centre government among countries operating the federal system of government.

“Water ordinarily is supposed to be on the concurrent list like many other items. It has never happened before.

“It is not helpful to our federal setup and it is emasculating the states further,” he said.

Paul Ananaba (SAN) said the issue borders more on legislative than legal process while insisting that it was in the public interest for sufficient information to Nigerians to enable them highlight the obnoxious sections for the National Assembly to remove them.

Mohammed Yunusa Esq said if the bill succeeds, it could make water a commodity and it would cease to be a right.

He said international organisations like the United Nations and European Union now view access to water and sanitation as human rights.

“There is issue of making water a commodity if that bill is allowed to succeed, it will cease to be a right,” he said.

E.M.D. Umukoro Esq said while it is within the powers of the legislature to propose, debate and pass bills, the challenge is whether these bills have deep, well-thought out provisions.

“Whether proper research has been carried out to understand the different climatic conditions, the different soils, the topography of the entire country, the sources of water, how water is to be managed, the problem of electricity generation, etc before the National Assembly is putting together such a bill.

“The peculiarities of Nigeria cannot be overlooked. If all these are not done then it is a bill meant for the gallery,” he said.