Author: S. C. Peters Esq.
1.0 GENERAL INTRODUCTION
1.1 It was a rare privilege to have the opportunity of reading the article/paper of O.M. Atoyebi SAN on the subject he titled, “A BILL SEEKING TO ENACT THE NIGERIA LOCAL CONTENT DEVELOPMENT AND ENFORCEMENT COMMISSION: A MISCONSTRUED PERCEPTION OF THE EXECUTIVE ORDER 3”.
1.2 In the subject article, the author perceived the “Nigerian Local Content Development and Enforcement Commission Bill, 2020” which sought to repeal the Nigeria Oil and Gas Industry Content Act, 2010 as a product of shortsightedness and opined that;
This shortsighted initiative emerged out of the misconstrued perception of the true purpose behind the issuance of the Executive Order 03 signed by the President of the Federal Republic of Nigeria seemingly in support of Local Content, which mandates all Ministries, Departments and Agencies (MDAs) to grant preference to local manufacturers of goods and service providers in their procurement of goods and services.
1.3 The Author held tenaciously to his position that the subject Bill, Nigerian Local Content Development and Enforcement Commission Bill, 2020, has a misconstrued foundation. A fortiori, the author insisted that beside the misconception of the Presidential Executive Order 3 by the subject Bill, the authors of the Bill also misconstrued the provisions of the Presidential Executive Order 05. Speaking with a seeming air of finality, the Author, O.M. Atoyebi SAN declared thus;
Also, another misconception is the proclamation entitled “Presidential Executive Order for Planning and Execution of Projects, Promotion of Nigerian Content in Contracts and Science, Engineering and Technology,’’ by President Muhammadu Buhari, pursuant to the authority vested in him by the Constitution, which was signed on Friday, February 2, 2018, the Executive Order No. 5 (“EO5”) by which all Ministries, Departments and Agencies (“MDAs”) of Government were directed to engage indigenous professionals in the planning, design and execution of National Security projects and maximize in-country capacity in all contracts and transactions with science, engineering and technology components.
1.4 The author, O.M Atoyebi SAN proceeded to make a very interesting conclusion that legislation on local content is a preserve for exploration of natural resources especially in relation to the energy sector. Curiously, he also preferred the utilization of “guidelines or modalities” by MDAs to provide for local content requirements and enforcement in the other sectors of the Nigerian economy to enacting a legislation on the subject.
2.0 PURPOSE OF REJOINDER
2.1 The principal object of this rejoinder is to alert the public on some pieces of misinformation contained in the publication of O.M Atoyebi SAN. The rejoinder will also demonstrate that there was a violation of the right of the United Nations Conference on Trade and Development (UNCTAD) whose publication O.M Atoyebi SAN lifted materials without acknowledging the source, which is a practice that should be strenuously discouraged. Concisely put, I shall in this rejoinder show that O.M Atoyebi SAN totally failed in his paper to demonstrate even faintly, how there was any misconception of the Presidential Executive Orders 3 and 5 by the authors of the Nigerian Local Content Development and Enforcement Commission Bill, 2020.
3.0 A MISFIRE ON PRESIDENTIAL EXECUTIVE ORDERS 3 and 5
3.1 Before delving into some other passions of O.M Atoyebi SAN in his subject paper, it is very impelling to point out at once that on point of our common sense inherent in our interpretative jurisprudence, O.M Atoyebi SAN’s reference to the Presidential Orders 3 and 5 is neither here nor there. Our conclusion here is self –announcing because there was nowhere in the subject Bill, to wit, Nigerian Local Content Development and Enforcement Bill 2020 that any reference was made to the said Presidential Executive Orders 3 and 5.
3.2 It is now an elementary principle in law against which there had not been a departure that in interpreting any document, the interpreter shall be circumscribed within the words used by the author of the document. Such interpreter is not permitted to read into another man’s document any strange word under whatever guise. He is not expected to bring himself under an artificial pledge that he has a duty to arrive at a literally predetermined conclusion in contradiction to the natural conclusion deducible from the words used by the author. No one, including O.M Atoyebi SAN, is entitled to read into the provisions of the Nigerian Local Content Development and Enforcement Bill 2020 what is not mentioned therein for as Lord Mersey observed in Thompson v. Goold AND Co. (1910) AC 409 at 420
“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity, it is a wrong thing to do.”
3.3 Eyre C. B. in Gibson and Johnson v. Minet and Fector (1791) H. BI 569 at p.615 added judicial polish to the above immanent and lucid pronouncement and re-emphasized that:
“All latitude of construction must submit to this restriction; namely, that the words may bear the sense which, by construction is put upon them. If we step beyond this line, we no longer construe men’s deeds, but make deeds for them.”
3.4 Du Parcq L.J. in No-Nail Cases Propriety Ltd. v. No-Nail Boxes Ltd. (1944) 1 KB 629 at 637 pointed out the supreme authority which words in a statute command. His Lordship was of opinion that the Judicature is without powers to tinker the clear words used in the relevant provision sought to be interpreted notwithstanding that the Judicature is unhappy with the manner in which the legislators drafted the commands in the statute. According to his Lordship:
‘The courts have not and certainly do not claim the right to say to Parliament or its legal draftsman, ‘Observe the rules which we lay down, or, though your meaning may be perfectly clear, we will teach you a lesson by interpreting your language in a sense which you obviously did not intend’.
3.5 Our own Karibi-Whyte J.S.C (now of blessed memory) in the case of Ogbonna v. A.G. Imo State (1992) 2 SCNJ 26 at p. 61 made it plain that the indispensability of the words of an author of a document liable to construction by another is an immanent high policy of the law in Nigeria to the effect that, it is not the subjective thinking of the interpreter that governs a reachable conclusion in matters of documentary interpretation but the words used by the author. In his Lordship’s evergreen judicial words;
“Learned counsel has referred to the historical background to Exhibit A, namely communities of Amainyi-Ukwu and Amainyi-Nta into homogenous autonomous community with 27 wards. He submitted that there was no intention for each of the merging groups to lose its pristine identity. He contended that the arrangement was one of a union without unity, that may well be the intention of the parties. But in construing the provisions of a document, the meaning of the words used remain paramount. The object of interpretation is to discover the intention of the maker. This is deducible from the words used. See Ifezue v. Mbadugha (1984) 1 S.C.N.L.R., 427. The words used are the keys to unlock the intentions of the maker. It is not what the interpreter may guess to be the intention of the parties. The document should be construed in accordance with the words used without the addition of words not used by the parties – See Solicitor-General v. Adebonojo (1971) 1 All N.L.R. 178. This will undoubtedly express the intention.” (Underlining ours for emphasis)
3.6 Relating the above judicial guides to the approach of O.M Atoyebi SAN, one cannot be faulted to yield to an unavoidable conclusion that the learned Silk misfired and misrepresented the high policy of the law when he said the Nigerian Local Content Development and Enforcement Commission Bill 2020 is a misconstrued proceeding from Presidential Executive Orders 3 and 5 signed by President Muhammadu Buhari, pursuant to the authority vested in him by the Constitution. As was observed by Karibi – Whyte JSC in Ogbonna v. A.G. Imo State (1992) 2 SCNJ 26 at p. 61, that may well be the case but since the document, to wit, the Nigerian Local Content Development and Enforcement Commission 2020 did not make reference to any Executive Orders 3 and 5, it was wrong for M.O. Ayobi SAN to import those innocent and non-combative words for his combative attack on the Bill. If one may ask, in which part of the Bill is it stated that the Bill was solely or partially to fulfill these Presidential Orders? I have checked the provisions of the said Bill, length and breadth, page by page, word by word, and sentence by sentence and I found no paragraph, chapter or page that contained the words “Presidential Executive Order 3 or Presidential Executive Order 5”.
3.7 O.M.Atoyebi SAN misfired again when he failed to point out how the said Presidential Executive Order 3 or Presidential Executive Order 5 was misconstrued in the Bill he set out to attack for unconceivable reasons. The natural question is, how were these orders misconstrued? To put differently which provision of the Bill misconstrued the provision of, or intent of Presidential Executive Order 3 or Presidential Executive Order 5? With due respect to the learned Silk, it is sorely distasteful to make an unprovable allegation on a very sensitive matter as a Bill on local content. I have checked the words “misconstrued“ and “misconception” in various dictionaries and my finding is that the two words share a common denominator to the effect that they meant, “to misunderstand”. My natural worry is, where is the misunderstanding of the Bill in relation to the aforementioned Presidential executive Orders? O.M Atoyebi SAN did not provide any answer to this critical query. He appears to have adopted the approach of Humpty Dumpty who thought his personal words shall be conclusive of any character of a matter. As per Dauda, SAN in N.B.A v. Moses (2016) 10 NWLR (Pt. 1520) 366 at p. 392 paras. C-E;
“He ought to have appreciated that the privilege conferred on the lawyer is far apart from and very different from the absolute privilege which Lewis Canol’s Character, Humpty Dumpty, conferred upon himself in the book “Through the Looking Glass” when he said:
“When I see a word…it means just what I choose it to mean – neither more nor less.”
Unlike Humpty Dumpty who declared himself a master over the “word”, the lawyer is not a master of the law and must abide by the law and foster its effective administration.”
4.0 O. M. ATOYEBI SAN FAULTERED ON THE AUTHORITY OF THE PRESIDENT TO SIGN EXECUTIVE ORDERS IN NIGERIA
4.1 Another disturbing error found in the paper of the learned Silk is manifested in his postulation that President Muhammadu Buhari signed Presidential Executive Order 5 pursuant to the “authority vested in him by the Constitution”. I have looked at the provisions of the Constitution 1999 as amended over and over again but it is my misfortune that I did not see where the Constitution expressly or impliedly vested powers in the President to sign what is called “Presidential Executive Order on Local Content”. I do subscribe to the lucid words of Weintroub C.J., the then Chief Justice of New Jersey who observed that;
The Constitutional framework, as we all know, is a mere skeleton expression of governmental and individual rights. The actual contours of these powers and rights must be determined in the context of changing conditions, by a process which is more than a mere mechanical application of a constitutional phrase to a set of facts.
4.2 As forceful and informative as the above observation is, Nigeria operates a different constitution from the Americans. Thus the Supreme Court of Nigeria in the case of Ukuegbu v. Attorney General of Imo State (1983) 1 SCNLR 212, at 234, per Idigbe J.S.C., as he then was;
“In the words of Earl Loreburn L.C. in the Privy Council in Attorney-General for the Province of Ontario & others vs. Attorney-General for the Dominion of Canada (1912) A. C. 571 at 583 which I gratefully adopt:-
“In the interpretation of a completed self-governing Constitution founded upon a written organic instrument if the text is explicit the text is conclusive, alike in what it directs and what it forbids.” (italics by me)
4.3 Section 5 of the Constitution is the ‘cause celebra’ of the executive powers of the President. The said Section subjects its effectiveness to the provisions of the Constitution to the extent that the executive powers;
a. shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-president and Ministers of the Government of the Federation or officers in the public service of the Federation; and
b. shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
4.4 It makes matters easy and beyond controversy that it is not an activity relating to Rocket Science to access the provisions of the extant Constitution. I have taken that liberty and looked at the provisions of the Constitution with my glasses on and it is my regret to say that there is nowhere in our organic written constitution that the President of the Federal Republic of Nigeria was vested with general powers to make Presidential Executive Orders. I am not unaware of the decision of the Supreme Court in the case of A.G. Abia v. A.G, Federation (2004) 4 NWLR (Pt. 809) 124 at p. 177 where the Supreme Court held that the Revenue Allocation (Federal Account Etc.) (Modification) Order Statutory Instrument No. 9 of 2002 was validly issued by the President by virtue of Section 315 of the Constitution, which section had to do with the powers vested in the President to modify existing laws that were prior to the making of the Constitution in order to bring such laws within the tenor and spirit of the Constitution. Needful to state at once that the Presidential Executive Order 3 and Presidential Executive Order 5 do not originate from any exercise to modify the content of any existing law to bring them into conformity with the provisions of the new Constitution as contemplated by Section 315 of the Constitution.
4.5 Again in the case of Owoyemi v. Adekoya (2003) 18 NWLR (Pt. 852) 307, the Supreme Court followed the principle that an order made by an Executive Governor pursuant to a statutory provision vesting powers on the Governor to make the order is valid. There is indeed no one case where it was held that the Nigerian President could issue executive orders and instructions without the authority of a statutory instrument. Happily, the learned Senior Advocate of Nigeria cannot and could not have pointed to any case where it was held that the President has powers to sign Executive Orders under our Constitution. No. There is no such constitutional powers. Indeed, there is in our corpus juris, a want of inherent executive powers. Nigeria is not a Kingdom where the paramount Ruler has inherent powers to enforce orders he has made on the subjects because he is sui juris. Nigeria is not the historical Roman Empire with an Emperor who is sui juris, a law unto himself. This Country is a “Federal Republic” with written organic constitution that created legal institutions with specific delimited powers to govern the citizens and others within the geographical territory that constitute the Country. It bears a repetition that the powers of the executive cannot be founded outside the tenor and the spirit of the Constitution, which unfortunately in this case, did not vest powers on the President to issue out Executive Orders that has the force of law as if the President has another law making powers under the Constitution.
4.6 Let me go a bit further on this misconception of the learned Silk by stating that there is a noticeable opening phrase in Section 5 (1) of the Constitution, to wit, “ subject to the provisions of this Constitution….” Again, sub section (1) (a) of Section 5 of the Constitution also specifically subjected the executive powers of the President to the provisions of any law made by the National Assembly. The phrase, “subject to” in our legal lexicon has received judicial interpretation. In the case of TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) NWLR (Pt. 117)…… the Supreme Court explained the status of the phrase, “subject to” appearing in an enactment, beyond any peradventure of misunderstanding. Their Lordships explained the phrase in such simple language that those who desire to misunderstand their Lordships would have a second thought of such misadventure. In their Lordships’ words;
The jurisdiction conferred is made “subject to the provisions of this Constitution.” In other words, the jurisdiction conferred is controlled by other provisions of the Constitution. The phrase “subject to the provisions of the Constitution” can only mean “the provisions of the Constitution permitting it” See Omerod V. Domorden 8 Q.B.D., 664; Oke V. Oke (1974)1 All N.L.R. 443. In Oke V. Oke (supra) the Supreme Court was called on to interpret or construe the provisions of section 3(1) of the Wills Law of Western Nigeria, 1959, applicable to Midwestern State which opened with the words ‘~subject to any customary law relating thereto.” Elias, C.J.N., delivering the judgment of the court said at p.450:
The introductory phrase “subject to any customary law relating thereto” necessarily makes the power given to a testator under the sub-section dependent upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by will is limited by the extent to which, if any, its exercise is permissible under the relevant customary law. (underlining mine for emphasis)
4.7 I make bold to state here that head or tail, there is no general constitutional powers residing in the Nigerian President to sign executive orders and administer such orders as if they have the force of the law when there is no enabling statute empowering the President to make such orders. See again A.G. Abia v. A.G. Federation (2004) 4 NWLR (Pt. 809) 124. The powers to make laws in Nigeria is constitutionally residing in the National Assembly in respect of matters affecting the Federal Government. Section 4(1) and (2) of the Constitution provides;
4.(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.
4.8 The legal effect of the relevant provisions in Sections 4 and 5 of the Constitution cited above is that the provisions of the Presidential Executive Orders 3 and 5 cannot lawfully restrict the powers of the National Assembly to pass the Nigerian Local Content Development and Enforcement Commission Bill 2020. It is improbable that the legislative powers of the National Assembly could effectively be fettered or supplanted by anyone except as permitted by the Constitution itself. It is therefore a laughable and shallow conclusion when the learned Silk described albeit, without any justification, the Nigerian Local Content Development and Enforcement Commission Bill 2020 as a “shortsighted” endeavor.The learned silk got it all wrong. He employed the wrong word.
4.9 Another question, “shortsighted” in what form? There is no answer from the learned Senior Advocate as to how the sight of the subject Nigerian Local Content Development and Enforcement Commission Bill 2020 is short. It does appear that the learned Silk forgot the plentitude of the powers of the National Assembly. He appeared not to have averted his mind to the fact that just as it was said of the British Parliament, the Nigerian National Assembly is not constitutionally prohibited to make a law turning man to a woman in appropriate cases and subject to the doctrine reflective in the principle, “Lex Non Cogit ad impossibilia”. There are no constitutional fetters placed against the exercise of legislative powers by the National Assembly provided such law is not against any limit imposed on the exercise by the Constitution itself. The Great Philosopher Locke in his book “Two Treatises of Government”, edited by P.P. Laslett (Cambridge: University Press, 1970), para. 134 aptly captured this fearful power of the Legislature and said;
“The first and fundamental positive Law of all Common-wealth, is the establishing of the Legislative Power…This Legislative is not only the supreme power of the Common-wealth, but sacred and unalterable in the hands where the community have once placed it.”
5.0 ADMINISTRATIVE GUIDELINES AND MODALITIES ARE NOT PREFERABLE TO LEGISLATION IN MATTERS OF DEVELOPMENT AND ENFORCEMENT OF LOCAL CONTENT INVOLVING BOTH PUBLIC AND PRIVATE SECTORS
5.1 In his subject paper, the learned Senior Advocate amazingly but forcefully prescribed administrative directives that had failed in the oil and gas sector as would be proved anon to the other sectors and with due respect, as if he was mocking the other sectors as being inferior and unimportant, suggested that the enforcement of local content in the other sectors of the economy could be
….easily actualized through the simple release of Guidelines or modalities to that effect by the concerned MDA’s without the need to enact a new Local Content Law, let alone repeal the existing Act.”
5.2 With all humility, it is difficult to understand the substance of the argument of the learned Silk that tend to prefer bureaucratic guidelines to legislations in matters involving enforcement of local content requirements that are not only limited to governmental agencies but private companies.
5.3 It appears the learned Silk did not take into consideration the legal position that the enforcement of administrative instructions except such instructions are derived from legislations and therefore constitute subsidiary legislations, cannot be as effective as legislations. He failed as per the description which he tagged himself with, “one of the most notable professional Nigerian lawyer, who has distinguished himself in his professional sphere within the country and internationally”, to understand that there are a lot of Regulations and administrative directives on application of local content requirements in the Information and Communication technology, power, solid minerals, health, construction and manufacturing sectors in Nigeria and presently none of these instructions are as effective as local content development and enforcement in the oil and gas sector because there is a specific legislation on local content with an enforcement body in the oil and gas sector unlike the other sectors. The Guidelines for Nigerian Content Development in Information and Communication Technology (ICT) as amended in 2019 and the Regulations on National Content Development for the Power Sector 2014 are part of these instructions.
5.4 It appears the Learned Senior Advocate of Nigeria who was described as “one of the leading Senior Advocates of Nigeria in Local Content Law, where he has worked with various key industry stakeholders and successfully facilitated transactions in the Oil & Gas and Energy Sector”, did not also direct his attention to, or does not even know the history relating to the emergence of the present statutory structures on the enforcement of local content in the oil and gas sector in Nigeria which led to the enactment of the Nigerian Oil and Gas Industry Content Development Act 2010. Permit me to quote from the Nigerian Content Development and Monitoring Board’s publication on the “Overview on NCDMB” that he is passionately canvassing for its retention while other sectors, no matter how critical they are to the Nigerian economy, should be left to stumble, fumble and continue to failtill eternity. Giving a very brief history of, and reason for, a legislation on the enforcement of local content requirements in the oil and gas sector, the Nigerian Content Development Monitoring Board admitted that;
The foundation for NCDMB was laid in 2001 when former President Olusegun Obasanjo inaugurated the Presidential Committee on Local Content in the Oil and Gas Industry. He mandated the Nigerian National Petroleum Corporation (NNPC) to drive the policy and set certain targets. In its efforts to implement the policy, the national oil company set up the Nigerian Content Division within its system and issued some Nigerian Content directives to industry stakeholders. Since there was no force of law behind the Nigerian Content directives, operators of the industry found it convenient to comply on best endeavour basis.
This situation provided the impetus for the Ministry of Petroleum Resources, NNPC and other industry stakeholders to work closely with the National Assembly to develop the Nigerian Oil and Gas Industry Content Development (NOGICD) Bill. During the succeeding administration of late President Umaru Yar’Adua/Goodluck Jonathan, the National Assembly passed the NOGICD Bill. President Goodluck Jonathan assented the Bill into law on April 22 and this gave birth to the NCDMB. Dr. Ernest Nwapa, former staff of the Nigerian Content Division of NNPC served as the pioneer Executive Secretary from April 2010 to May l 2015. He was succeeded by Arc Denzel Kentebe. In September 2016, Engr. SimbiKesiyeWabote was appointed as the 3rd substantive Executive Secretary of the Board. (underlining ours to show that administrative instructions cannot be more effective than legislation)
5.5 If the enforcement of local content requirements in other sectors of the economy could be easily done by administrative instructions as O. M. Atoyebi SAN authoritatively suggested, why did the Federal Government of Nigeria abandon that procedure and enact the Nigerian Oil and Gas Industry Content Development Act 2010 and proceeded further to establish an agency for the enforcement of local content in the oil and gas sector?
5.6 The above question is self- answering but the insistence of the learned SAN preferring administrative instructions in lieu of legislation for enforcing local content requirements in an economy sounds so much like an idea where a medical doctor decided to prescribe ‘taking a very high quantity of alcoholic substance as a cure’ for high blood pressure. That appears to be a prescription designed from inception to stumble, fumble and eventually fail and fail. Nigeria cannot afford such a failed gamble at this critical time of her nationhood. Our understanding of legislative governanceought to have passed that stage.
5.7 A quick look at the legislative intent of the American Congress as reflected in the “Buy American Act 1933” reveals the fact that as far back as eighty seven (87) years ago, national governments have started realizing that for an effective enforcement of domestic content in all sectors of an economy, an Act of Parliament is needful. The “Buy American Act 1933” generally mandates the production of all goods in the United States and further commanded that materials to be used for such production must be sourced within the United States, except, where a waiver was granted. The emphasis here is, on all goods. There is also another legislation on local content in the United States called “Buy America Act, 1982” which concentrated on the improvement of the transport sector by Americans.
5.8 As recent as 2009, a timeline legislation was also passed by the American Congress embodying provisions on domestic content of the Americans. This piece of legislation was titled, “American Recovery and Reinvestment Act (ARRA). Section 1605 of the ARRA incorporated the legislative idea contained in the “Buy American Act 1933” and “Buy America Act, 1982”. Specifically, Section 1605 of the ARRA provided that projects on construction, alteration, maintenance or repair of public works, a hundred per cent of the iron, steel and manufactured goods used in the project must be produced in the United States. Let me say that I am not unaware of the Americans respect for the Canadian Agreement on accommodating the interest of Canada. I am also aware of the protection of NAFTA’s arrangement that subsequently followed the enactment of these Acts.
5.9 Now, in the United States, Presidential Executive Orders were made by the American Presidency to enforce the provisions of the substantive Act, to wit, Buy American Act 1933. Ordinarily, the Presidential Orders on Nigerian Content as contained in the Presidential Executive Orders 3 and 5 or any other Order ought to have followed a legislation on Nigerian Content. With due respect, the National Assembly waited for too long before presenting the Nigerian Local Content Development and Enforcement Commission Bill 2020. I do concede to the fact that in 2012, the present Speaker, Femi Gbajabiamilapresented a Bill on Local Content on Construction which passed the Second Reading and later expired with the 7th Assembly.
5.10 In 1954, President Eisenhower of the United States of America issued Executive Order 10582 which created a threshold of at least 50% for domestic content requirement under the Buy American Act 1933. Recently, President Trump issued Executive Order No. 13811, titled “ Maximizing Use of American Made Goods, Products, and Materials” to further promote made in America goods and sourcing of materials within the American territory. I am sure the learned Silk must be thinking that the Americans had been wrong and not as wise as himself who is “one of the leading Senior Advocates of Nigeria in Local Content Law, where he has worked with various key industry stakeholders and successfully facilitated transactions in the Oil & Gas and Energy Sector”, to enact the Buy American Act 1933.
5.11 I do not think it is going to serve any useful purpose to waste further time arguing vel non a legislation should be passed to prescribe and enforce local content requirements in the other sectors of Nigeria. However, for the purpose of completeness, it should be mentioned that the principle inherent in the doctrine of local content is of ancient antiquity deeply founded on, and rooted in, the notion that a man has a duty to manage his affairs in such a way that he survives without any external support. There is no wisdom using weak instruments to drive home local content.
5.12 The cannon and strength of local content is that it is a self – protectionist weapon. In that signification, a local content theory postulates that a Country desirous of sustainable development should look inwards and see how it develops it economy with its own resources whether such resources is natural, human, material or any other. Thus the formulation and application of local content will ultimately vary from one country to the other depending on the peculiar variables the Country is circumscribed with. There is therefore a need for a self- audit of what the Country has and what it does not have and how it could have what it does but is needful to its people.
5.13 The Local content principle is against the attitude of idly standing –by for foreigners to dictate the pace and tenor of the economic development of the Country. A fortiori, Parliament like the National Assembly in Nigeria can subject to its powers under the relevant governing Constitution make law on local content in respect of any sector of the country’s economy. See again, Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. One thing that should be recognized is interference of international politics especially by multinationals that can use their local compradors to suppress proper development of a local content law especially in a poverty-stricken country like Nigeria where deep-seated official corruption is seen as a norm and value rather than an aberration. Ours is a misfortune. I won’t be surprised if the Nigerian Local Content Development and Enforcement Bill 2020 is demonized by those who have not read it or are paid to work against the interest of their Country.
5.14 The United Nations agrees with our above position that local content could be applied to all sectors of the economy when at page 4 of “UNCTAD Publication” titled “Local Content Requirements and The Green Economy” with Publication No UNCTAD/DITC/TED/2013/7, which was the very paper that the learned Silk lifted materials from, it was stated that;
“Local content can take many different forms, affecting any number of sectors. Local content requirements can be fashioned for virtually any good or service that can be used as an input into most goods and services. This can include inter alia
- Minimum thresholds on the amount of locally sourced materials for the production of goods-usually expressed as a percentage of volume, tonnage, length (e.g for cables), or number –particularly for large/heavy industrial inputs;
- Minimum thresholds on the amount of locally sourced expenditure or man-hours for the use of services, ranging from engineering and transport to financial services and insurance;
- Explicit or implicit requirements that companies/entities take local content development into account in their projects and strategic planning, or when undertaking feasibility studies; and/or
- Requirements for companies, operators or investors to locally establish facilities, factories, production units or other operations for the purposes of carrying out any production, manufacturing or service provision currently being imported.
5.15 In another publication of the United Nations, titled “The Role of Local Content Policies in Manufacturing and Mining in Low and Middle Income Countries” published in 2016, at page 5 six these targets were identified as reasons for local content as follow:
- Local employment and domestic labour market development and transfer of skills/know: Employment creation (for example, green jobs, etc), training of national staff and transfer of skills and know-how (either, for example, by introducing minimum quantitative requirements for local hiring or local capacity building);
- Local Value creation or addition, increased local linkages and domestic industry development: The priority lies in stimulating the development of domestic industrial development, supply chains, local sourcing and increased participation of local and locally owned companies (for example, through preferential treatment during bidding processes, indigenization policies where the owners, managers and employees are nationals of the respective country), joint ventures between foreign investors and domestic entities as well as state equity participation to scale up local capital participation and foster domestic firms to become internationally competitive;
- Economic diversification
- Promotion of innovation, technology, research and development, enhancement of technology transfer and creation/increase of local technological capabilities: This can be achieved through requirements to spend a share of the foreign company’s expenditure to finance R & D projects or innovation centres, for example, or by governments providing financial incentives to local firms to encourage investment and development in cutting edge technology.
- Ensure local ownership of “important industries”: For instance, electric power and civil aviation.
- Revenue from minerals: Local content policies are also implemented with the objective of guaranteeing resource-rich countries a share of the benefits of its resources;
- Local community projects: Operating companies often work with local communities to compensate them for the problems caused by local industry (such as environmental harm, human rights abuses, among others) or to share a small proportion of benefits with them to prevent tensions with local civil society, vandalism, etc
5.16 It should be repeatedly said that the common idea that local content could be applied in any sector of the economy was also emphasized in an article titled The Economic Impact of Local Content Requirements: A case Study of Heavy Vehicles published in 2018 by Hanna Deringer Fredrik ErixonPlilippLamprechi van der Marel. In the words of the Authors of the said Publication at page 3 of thereof;
Local content requirements (LCRs) have a long history. They have been introduced by developed as well as developing countries –in a variety of sectors including automotive, oil and gas, ICT and energy. Especially after the 2008 financial crisis the world has experienced a rapid increase in the use of LCRs. Many countries have introduced discriminatory trade measures with the purpose of benefiting domestic firms at the expense of foreign competitors. Such measures have been a common feature of public procurement policies.
5.17 I think it will be essential to place an emphasis on the words, “including automotive, oil and gas, ICT and energy”. The context in which the word “including” is used is inclusive and not exclusive. Thus the list of sectors in which local content principles could be applied in an economy is in – exhaustive. I shall say more of that later in this discourse.
5.18 Let me retrace my steps back to the core issue again and say, it must be admitted that it is unthinkably strange for one to accept that there is any area of the economic life of this Country that the National Assembly is incapable of making laws on. No. The National Assembly by virtue of Section 9 of the Constitution can even amend the Constitution, the very grundnorm, the fons etorigo of all laws in Nigeria. Senior Counsel O.M. Atoyebi SAN was therefore palpably wrong to prescribe a tested but unworkable policy of issuing guidelines and modalities to drive local content in the other sectors of the Nigerian economy as what has been reserved for the other sectors. With due respect, that approach is now a ghost in Nigeria and should be allowed to have its deserved rest in its well fathomed grave. This nation is far more intelligent than such an old fashioned and unhelpful prescription.
6.0 WHETHER LOCAL CONTENT LEGISLATION IS PRESERVED ONLY FOR OIL AND GAS OR THE ENERGY SECTOR
6.1 It is a stranger still that O.M. Atoyebi SAN, built on the foundational error he made that administrative orders are what the enforcement of local content requirements need in the other sectors of the Nigerian economy and not a legislation that the Nigerian Local Content Development and Enforcement Commission Bill 2020 aimed to enact. He opined that local content law is an exclusive preserve of the oil and gas industry and not for the other sectors of the Nigerian economy. I think, I should be on the side of fairness to reproduce first his conclusion and then examine the premises upon which his conclusion is rested. His conclusion is as in his following words contained in his said article;
Therefore, the reason for having a Local Content Development Act specifically enacted for the Oil and Gas Industry was not just to create more jobs but primarily to ensure technology transfer of the grossly technical expertise applied in the Oil and Gas Industry among other industry-based objectives. Countries all over the world reserve Local Content laws for exploration of natural resources especially in relation to the energy sector and this is because they desire to build the necessary capacity to cater for that sector without high dependence on external bodies. (underlining ours for emphasis)
6.2 It is obligatory on any one who is familiar with the mutual struggle among countries on matters concerning local content in the global economy to react to the above conclusion of the learned Silk at once and describe the conclusion as a “ a dream theory”. That theory with due respect, may be in the next century but certainly not now. With due respect to O.M. AtoyebiSAN , his conclusion is without any foundation.
6.3 I have made a moderate effort to explain the scope of the Buy American Act 1933 which covers every good in the United States. Presently, there are serious efforts in so many countries especially in the middle east to ensure that legislations are enacted to back the regulation of local content practices in the various sectors of their economies. Example of this could be found in the Kingdom of Saudi Arabia where the Local Content and Governmental Procurement Authority had been established for purposes of promoting and regulating local content in all sectors of that Country’s economy. As recent as 3rd of June, 2020, the Authority issued the list of 29 medical products that must be supplied by domestic manufacturers in Saudi Arabia. Are medical products also part of the oil and or energy sector in our modern lexiconthat the learned Silk said local content laws are restricted to?With respect, there is no use misleading a whole nation.
6.4 In any event, I have taken adequate time to examine the umbilical basis for the learned Silk’s above re-produced conclusion that “Countries all over the world reserve Local Content laws for exploration of natural resources especially in relation to the energy sector and this is because they desire to build the necessary capacity to cater for that sector without high dependence on external bodies”. I must say, it was least expected butvery unfortunately, it is the undeniable truth that the basis upon which he reached that conclusion was as result of the materials, with due respect to his rank, he lifted from United Nations Conference on Trade and Development (UNCTAD) Work which was published in 2014 with Copyright reserved in favour of the United Nations.
6.5 Sadly, the learned Silk did not refer to some other parts of the same article that clearly alluded to the fact that local content requirements could be applied to any sector of the economy. Please see paragraphs 5.13 – 5.15 of this Rejoinder. The said publication which the learned Silk lifted materials from is titled, “Local Content Requirements and The Green Economy” with Publication No UNCTAD/DITC/TED/2013/7 which contained the warning and caution to the following effect;
“Materials in this publication may be freely quoted or reprinted, but acknowledgment is required, together with a reference to the document number. It would be appreciated if a copy of the publication containing the quotation or report were sent to the UNCTAD secretariat at the following address:
Chief, Trade, Environment, Climate Change and Sustainable Development Branch (TED),
Division on International Trade in Goods and Services, and Commodities (DITC),
UNCTAD, E Building, Palais des Nations, CH-1211 Geneve 10, Suisse” (underlining ours)
6.6 In freely reproducing the materials of the United Nations in his article, the learned Silk who was described in his subject article as “one of the leading Senior Advocates of Nigeria in Local Content Law, where he has worked with various key industry stakeholders and successfully facilitated transactions in the Oil & Gas and Energy Sector”, deprived the owners of the intellectual property, i.e. United Nations, the deserved benefit of even a mere acknowledgment. There was no indication from the learned Senior Advocate that these materials were not his. He gave the impression that he was writing from his originality and the statements made in his subject article were from his ‘intellectual bosom’. He was very careful in his reproduction of these materials from the subject United Nations publication. He neglected and failed to reproduce where it was stated that local content is used in diverse sectors. He hid that fact though such fact is of common knowledge. He was not too charitable to the United Nations and the laws made in protection of intellectual property in Nigeria. He did it in his own way but page 3 of the said “UNCTAD Publication” exposed the words he reproduced at page 2 of his article which he subtitled, “THE EXCLUSIVITY OF LOCAL CONTENT LAW TO THE OIL AND GAS SECTOR”. The said page 2 of his article which is the ipsissima verba of part of page 3 of the “UNCTAD Publication” reads thus;
Local content requirements are provisions (usually under a specific law or regulation) that commit Foreign Investors and companies to a minimum threshold of goods and services that must be purchased or procured locally. From a trade perspective, local content requirements essentially act as import quotas on specific goods and services, where Governments seek to create market demand via legislative action. It ensures that within strategic Sectors particularly those such as Oil and Gas with large economic rents, or vehicles where the industry structure involves numerous supplier’s domestic goods and services are drawn into the industry, providing an opportunity for Local Content to substitute domestic value-addition for imported inputs.
6.7 Page 2 of the learned Silk’s article further incorporated part of page 6 of the said “UNCTAD Publication”. The incorporated part reads;
The rationale for Local Content requirements is especially strong, particularly for the Energy Sector. Apart from the United Kingdom, very few new energy producers including Norway, long considered as the gold standard Local Content had, upon discovery of their Oil and Gas deposits, stated the requisite industrial capacity to serve as an internationally competitive platform for exploration, extraction, distribution and export. Given that the Nigerian Oil and Gas industry is nearly a century old, the dominance of established operators and the sophistication of energy technology particularly for offshore deposits implies that emerging energy producers will, at the outset, nearly always depend on foreign firms. While energy sector investments (if properly managed) can ensure a steady revenue stream and constant (and in the case of developing countries, rising) demand levels, its exploitation however, requires sophisticated and cutting-edge technology, a ready-made demand for a wide network of suppliers in virtually all areas of manufacturing and services, and ongoing employment for trained staff, both at home and in other energy-producing countries around the world. (underlining ours to show that the word, Nigeria in the article was used to substitute the word “Britain” in the United Nations’ Publication)
6.8 A community reading of the entire publication showed that the said “UNCTAD Publication” never supported or make even any conclusion in whatsoever guise that “Countries all over the world reserve Local Content laws for exploration of natural resources especially in relation to the energy sector and this is because they desire to build the necessary capacity to cater for that sector without high dependence on external bodies”. How can UNCTAD say so? Under what international or municipal law was that prescription adopted? With profound humility, there is no such conclusion reached anywhere in that article. As I previously stated, such idea is of the “Dream Land”.
6.9 What is even very worrisome is O.M. Atoyebi SAN’s reference to the definition of “Nigerian Content” in the Nigerian Oil and Gas Industry Content Development Act 2010 and “Local Content” in Regulation 49 of the Ghanaian Petroleum (Local Content and Local Participation) Regulations, 2013 L.I 2204 as conclusive proof of his novel theory. For ease of reference Section 106 of the NOGICD Act defines Nigerian Content as;
“The quantum of composite value added to or created in the Nigerian economy by a systematic development of capacity and capabilities through the deliberate utilization of Nigerian human, material resources and services in the Nigerian Oil and Gas industry” (Underlined is ours for emphasis).
6.10 Also Regulation 49 of the Ghanaian Petroleum (Local Content and Local Participation) Regulations, 2013 L.I 2204, defined Local Content thus:
“The quantum or percentage of locally produced materials, personnel, financing, good and services rendered in the petroleum industry value chain and which can be measured in monetary terms” (Underlined is ours for emphasis).
6.11 It is most disturbing that the above provisions containing definitions of local content in the specific oil and gas industry is what the learned Silk is relying on as authority that local content law is specifically reserved for the petroleum industry. This is a clear violation of the principle of sui generis. It is inherent in that principle that where a legislation is made for a specific purpose, its application and operation shall be limited to the subject on which the legislation is enacted. It is unheard of that because a local content legislation was made in respect of a particular industry and the definition of the word “local content” was defined and delimited to the sector, all other sectors become debarred from having any legislation on local content to regulate their activities. That would indeed be an American Wonder of unmeasurable dimension!
6.12 It will be useful at this stage to state that the definitions reproduced above was not defining local content as a policy or principle for all the sectors of an economy. The definitions are only limited to the petroleum sectors in Nigeria and Ghana. Local Content or Nigerian Content could also be defined differently to harmonize with another sector for which local content requirements are provided for. For example paragraph 3.0 ofthe Guidelines for Nigerian Content Development
in Information and Communication Technology (ICT) as amended in 2019 defined “Local Content” as follows:
“Local Content means the quantum of local value added to the development, design, fabrication and assembling of ICT products and services in Nigeria measured in monetary terms as a proportion of production cost or the proportion of indigenous manpower involved in the various stages
associated with the provision of an ICT service in Nigeria.
6.13 The above provision clearly limited the local content to ICT services in Nigeria and this is because the Guidelines is limited to the ICT sector. The same thing can be said of the Regulation on National Content Development for the Power Sector which defined Nigerian Content thus;
“Nigerian Content” refers to the quantum of composite value added to or created in the Nigerian economy by a systemic development of capacity and capabilities through the deliberate utilization of Nigerian human and material resources and services in the Nigerian Electricity Supply Industry.”
6.14 With due respect to the learned Silk, there is nowhere in the entire world that local content or legislation thereon is restricted to the petroleum sector or the energy sector only. However, what is even the brouhaha about no other country had extended its legislative actions on local content to other sectors apart from oil and gas? Lord Denning L.J. in Parker v. Parker (1954) AER 15 at p.22 answered the question that if others have not done it before, there is still nothing stopping us from doing it. If I may ask, what stops Nigeria from being the first in the entire world to kick start a positive development for others to copy. It does appear an average Nigerian does not believe in his own self. In the words of Lord Denning L.J. in Parker v. Parker (supra);
“What is the argument on the other side? Only that no case has been found in which it has not been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and this will be bad for both”
6.15 With this principle alone in mind, the Nigerian Local Content Development and Enforcement Commission Bill 2020 is a proper and fit instrument to achieve a veritable goal in driving the local content in Nigeria.
7.0 ON ALLEGATION THAT EXTENDING THE LOCAL CONTENT FRONTIERS TO OTHER SECTORS WOULD RESULT TO BUREAUCRATIC BOTTLENECK
7.1 O.M. Atoyebi SAN made another postulation in his article which is of considerable importance. He expressed his concern that expanding the frontiers of Nigerian Content to other sectors apart from oil and gas would escalate to unwarranted bureaucratic bottlenecks that will hamper the much desired rapid growth of the economy. According to him;
While this move introduced by the Bill could be considered as remotely development-driven on the surface, however, its bid to repeal the hitherto existing NOGICD Act, by establishing a Local Content Commission and expanding the scope of Local Content into all other Sectors of the economy, will only result in the furtherance of unwarranted bureaucratic bottlenecks, which will hamper the much desired rapid growth of the economy if assented to.
7.2 One is at a loss, and justifiably too, to understand the so called “furtherance of unwarranted bureaucratic bottlenecks”. Where are the supportive facts of this conclusion? Maybe, “snake swallowed these facts”. It is of common knowledge that the bureaucratic theory was formulated by Max Weber who regarded bureaucracy as the basis for the systematic formation of an organization. This concept is designed to ensure efficiency and economic effectiveness. Weber’s strong arguments in support of bureaucracy are that, bureaucracy imbibes division of labour and specialization, hierarchical authority and structures, observance of rules and regulations, technical competency guidelines, impersonality and personal indifferences among others. Now a bottleneck is a point of narrowness or congestion of productive activities especially in a workplace management which causes delay in achieving goals.
7.3 At the excruciating pains of self – repetition, it should be submitted that there is a paucity of materials to justify his conclusion that enactment of the Nigerian Local Content Development Commission Bill would directly or remotely cause any bureaucratic bottleneck of whatsoever description. Indulge me to still repeat it in a different way, the learned Silk offered no reason to support his lonely and isolated conclusion. In our jurisprudence, it is vain to reach a conclusion in vacuo and that is the prime position of ‘logic’ in judicial reasoning.A conclusion without agreeing premises is illogical.Ogundare J.S.C of blessed memory in the case of Menekaya v. Menkaya (2001) NWLR (Pt. 738) 203 at p. 253 paras. A – B with an air of finality made this point beyond controversy when his Lordship held;
“The parties here made moves to settle but could not agree on the terms of settlement. In a situation such as this, the Judge is enjoined to proceed to trial by calling on the parties to adduce evidence in support of their respective case. The trial Judge did not do that. He undertook to resolve the areas of disagreement between the parties without resort to any evidence. He claimed to be exercising his discretion-and the court below agreed with him. But a Court does not exercise its discretion in vacuo but on legal evidence or materials placed before it by the parties.”(underlining ours for emphasis)
7.4 In the earlier case of J.B. Soboyede&Ors v. Minister of Lands and Housing, Western Nigeria (1974) 1 All NLR (Pt. 1) 408 the Supreme Court maintained the same principle and held that a judgment not based on evidence was self – evidently perverse. In the exact judicial words of the Supreme Court;
“These parties gave no evidence concerning the issue on which the Judge pronounced judgment and we cannot imagine a clearer case of misdirection than that in which the judgment of the court had proceeded on an issue in respect of which evidence was singularly non-existent.”(underlining ours)
7.5 The wider legal implication is that there is manifestly no valid conclusion that the enactment of the Nigerian Local Content Development Commission Bill 2020 would directly or remotely cause any bureaucratic bottleneck of whatsoever description. That view and conclusion was unfounded and highly speculative, like, with due respect, an Alice in a Wanderlandfor as Ogunbiyi J.S.C. as he then was, in Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113 at pp. 156-157 at paras. D-B held;
The law is well settled that courts should not act on speculations and the same goes also to parties who are to state clearly the nature of their claims and positions. An ambiguous claim will only put the claimant at a disadvantage. The appellant is neither definitive nor clear cut on whether or not he participated in the primary election alleged. The appellant is the only person imbued with the knowledge of his case and cannot depend on any external intervener to come to his aid. The extent of the inconsistency contained in the appellant’s claims is an indicator that he is set out on a wild goose chase.”(Underlining ours for emphasis)
7.6 In summation therefore, the rather artificial and self – created fear that establishing a Commission to deal with all matters dealing with Nigerian Content matters will result to the unproven “unwarranted bureaucratic bottlenecks” cannot be true. Contrary to the haste allegation that the establishment of the Commission would foster unwarranted bureaucratic bottleneck, it is the establishment of the Commission that will promote ease of doing business in Nigeria and transparency. I will demonstrate in another article I will publish on why the NOGICD Act must be repealed for the present Nigerian Local Content Development Commission Bill to come.
8.0 DISADVANTAGE OF THE VOLUME OF THE BILL
8.1 As if it was a case of ‘give the bill no credit, destroy it all’ the learned Senior Advocate urged the rejection of the Nigerian Local Content Development and Enforcement Commission Bill 2020 because the bill was too voluminous; it would therefore be incapable of capturing all necessary developments in all sectors and it would increase expenses in the annual national budget. Speaking authoritative on this, the learned Silk wrote;
It is beyond debate that an Act to make provision for Local Content on all sectors of the economy would not only be too voluminous and incapable of capturing all necessary developments it ought to, but it will equally increase the amount of expenses accruing to the annual national budget in running the costs of the numerous Directorates and Departments the Bill seeks to establish and in setting up offices for more Directors. This is especially because the new Departments are more of a duplicate to the already existing Departments in the Ministries. Instead of creating new Directorates and Departments, it is advisable that the provisions in this Bill be used as an upgrade to the already existing Departments to properly discharge their administrative functions.
8.2 With due respect, the above argument of the learned Silk cannot be lawfully sustained in the truthful face of the benefits that the implementation of the provisions of this Bill will ultimately ensue to the Country as against the cost to implement the provisions of the Bill. It makes for a sound economic sense that where on a cost – benefit measurement, a business concern makes a profit, such transaction is a commendable one. I will mention a few of the benefits of this Bill if enacted into law in the course of this discourse in order to demonstrate that those who want to kill this Bill have not taken a holistic and unbiased examination of the provisions of this Bill and the NOGIC Act.
9.0 ALLEGATION THAT THE BILL LACKS A CLEAR-CUT APPLICATION AND DIRECTION
9.1 O.M. Atoyebi SAN showed his strong dislike for the Nigerian Local Content Development and Enforcement Commission Bill 2020 further by alleging that the bill lacked a clear –cut application and direction. He compared the bill to the NOGICD Act 2010 and stated that;
“Unlike the NOGICD Act which provides for a clearly-worded spectrum of its application as regulating activities in the Oil and Gas Sector, and thus makes for ease of its enforcement, the Bill in question seeking to repeal the Act has failed to delimit itself to any relevant Sector(s) of the economy or even spell out the nature of the exact activities it intends to regulate”.
9.2 The above allegation, with the greatest respect to O.M. Atoyebi SAN, exhibits the learned Silk’s lack of clear understanding of the provisions of the Nigerian Local Content Development and Enforcement Commission Bill 2020.Little wonder, he was citing objectives of the Bill as if they are the specific provisions dealing with specific matters in the bill against the principle of generalisspecialibus non derogant.
9.3 It will appear helpful to mention here that the subject bill has209 clauses apart from hundreds of sub clausesit has. The Bill provides a comprehensive and all inclusive provisions to address fundamental local content needs in some critical sectors of the Nigerian economy. The Bill makes for inter-sectorialsynergies among some key sectors of the economy and to maximize these all importantsynergies, a Commission is to be established to replace the Nigerian Content Monitoring Board established under Section 69 of the NOGDIC Act, 2010. The Board of the Commission sought to be created is to be headed by the Vice President of the Federal Republic of Nigeria who is the Chairman of the National Economic Council of Nigeria. Ministers of key sectors like petroleum, solid minerals, works, trade and investment, finance, communication technology, science & technology, Governor of the Central Bank, and key stakeholders in these sectors, among others, are to be members of this Board of the Commission to ensure that high level policy decisions are not only taken but capable of being implemented.
9.4 Strategic and deliberate measures are put in place in the Bill to createjuristic entities as Directorates for specific key sectors like petroleum, solid minerals, ICT, health, construction, power and manufacturing to specifically develop and enforce local content in these specific sectors of the Nigerian economy. See clauses 16 and 17 of the Bill. The Funds to be generated by each Directorate are not to be used by the Board of the Commission or any other Directorate, except the generating directorate. In fact, even judgments are not to be executed against any Directorate where the Directorate was not specifically mentioned as a party to the suit. Please see clauses 172 – 173 of the Bill.
9.5 The Bill avoided thevaguenessand cluelessness that the NOGDIC Act is presently suffering from. Consequently, the Bill imposed mandatory obligations that will achieve some mile stone targets in the development of the Nigerian economy by Nigerians. It is a Bill which positively challenges Nigerians to be alive to their responsibilities in developing their material and human resources. The Bill precisely captured its targeted goals to make Nigeria economicallygreat and the greatness of Nigeria should be achieved through the utilization of Nigerian human and material resources. Please permit us to very briefly highlight some of the critical provisions which the Bill contained that are lacking in the NOGIDIC Act 2010 below:
1. Each Directorate shall within its scope of responsibilities under this Bill ensure that projects funded through loans comply with the Nigerian Local Content obligations imposed on Nigerian Local Content entities under this Bill. But check the NOGDIC Act, this provision is completely absent;
2. Medical tourism which is now a pastime for Nigerians who spend scare resources in search for good health will be a thing of the past with the Directorate of Nigerian Local Content Development on Health under this Bill properly managed. See clauses 13 and 120 of the Bill;
3. Local Vendor Policy whereby 40% of annual renewal fees on software that have become a drainpipe in the Nigerian economy will be effectively implemented under this Bill, a provision which is lacking in the NOGIDIC Act 2010, but which NOTAP is vigorously pursuing but not without challenges from the compradors. This is exactly what the Nigerian Local Content Development Commission Bill 2020 is facing;
4. Local refining of crude oil and gas utilization including the formalization of artisanal petroleum refiners in Nigeria is also specifically designed to be achieve under this Bill. Thus community refining is for the first time in the legislative history of Nigeria finding its way into a Nigerian Legislative Agenda, an agenda which is obviously lacking in the NOGICD Act 2010and which the operators of the NOGICD is presently against. See specifically clauses 86 to 100 of the Bill on this;
5. Provisions for adequate provisions for the formalization of artisanal solid minerals miners in Nigeria. This is an exercise so many countries are seeking for ways to have in their corpus juris. The fine concept in the Presidential Artisanal Gold Mining Initiative (PAGMI) was adopted in this bill on artisanal miners yet those who do not want the growth of Nigerian Contentsaid, everything must die. Please see clauses 101 -108 of the Bill;
6. Provisions for addressing rejected Nigerian goods and services supplied by Nigerians.See clauses 84of the Bill and this provision is lacking in the NOGICD Act;
7. Ease of doing business by setting timelines for obtaining approvals for Nigerian Local Content Plans and othersand deeming as approved plans which ought to have been approved within specified statutory period.See clauses 21 and 25;
8. Liberalized loans for solid mineral development and purchase of vessels for transportation of oil and gas; See specifically clauses 122 – 124 of the Bill;
9. Special Credit Guarantee Scheme for the construction of modular refineries, acquisition of equipment to produce goods for import substitution and others in the Country. See clauses127 – 145 of the Bill;
10. Setting up of Nigerian Local Content Development and Monitoring units in the MDAs to monitor and ensure full compliance with the provisions of this Bill by each and every agency. See specifically clauses 177 to 183 of the Bill;
11. Incorporation of Nigerian professionals in the diaspora to bring in technical support for local content development in the Country; See specifically clauses 61 to 66 of the Bill;
12. Provision of measures to prevent abuse of the issuance of work permits and expatriate quotas in order to protect available local labour force.See specifically clauses 78 to 82 of the Bill;
13. Special Dispute Resolution mechanism to ensure quick and less expensive resolution of disputes arising from local content development and enforcement matters. The fear of a- forever- litigation in respect of commercial disputes arising from local content transactions is largely eliminated under this Bill. The key here is the easy procedure for conciliation and mediation in which the Vice President could be involved where necessary. This is also to guaranteed investors that no dispute would disrupt the progress of their investment in the development of local content programmes in Nigeria. See specifically clauses 175 to 177 of the Bill;
14. Establishment of National Supplier Database to ensure that every indigenous Nigerian company or Nigerian citizen with expertise in Science, Engineering, Technology and other fields of expertise are identified and captured in the database. See specifically clause 77 of the Bill;
15. Elimination of inadequate power supply in the Country through-
(a) the active encouragement of Nigerian businesses in the power sector to immediately identify, incubate and execute commercially viable off Grid and mini grid renewable energy projects in solar, wind, biomass, small hydropower etc., programmes in – Country; and
(b) the engagement of Nigerian professionals to undertake projects to enhance unabridged transmission and security of generated qualities and quantities of power from the point of generation to the point of distribution to final consumers. (Note that the major unresolved crisis bedeviling the Nigerian Power Sector are the technical and commercial losses, the technical loss due to un-complimentary electrical infrastructures while the commercial loss is due to stealing of power which could be resolved through a surveillance use of smart meters. See specifically clause 116 of the Bill;
16. Provision for the publication of Annual Nigerian Content Performance Report which will enable members of the public to verify facts, make suggestions or take any other necessary action; See specifically clauses 165 to 169 of the Bill; and
17. Provision of comprehensive penal sanctions to prevent among other anti-social behaviours, carrying out Shoddy work, involvement in illicit funds transfer, unlawful fronting practice, unlawful issuance of work permit or expatriate quota.
9.6 O.M. Atoyebi SAN appears not to have taken into considerations these very critical innovations in the present Bill which are lacking in the NOGDIC Act, 2010. He was only concerned on the unprovable theory of non – existent bureaucratic bottle neck that the eventual passage of the Bill and the assenting of same by the President may cause. The technology transfer provisions in the Bill which are specifically provided for in clauses 35 – 39 of the Bill are far more elaborate than those in the NOGDIC Act, 2010. Please see the scanty and vague provisions in Sections 43 – 47 of the NOGDIC Act, 2010 and compare them with those of the present Bill. I am very sure that O.M. Atoyebi SAN knows better than his present position.
10.0 UNDUE ADVERTISEMENT OF NOGDIC Act 2010
10.1 A careful examination of the entire article of O.M. Atoyebi SAN unequivocally gave the impression that the principal focus of the article is to advertise for the retention of the NOGDIC Act notwithstanding its self –evident imperfections and unworkability. The NOGDIC Act is one instrument that urgently requires a replacement if Nigeria is to make any reasonable progress in its drive for local content development and enforcement. The Nigerian Content Development and Monitoring Board(NCDMB) said to be administering the provisions of the NOGDIC Act 2010 is juristically speaking, non – existent. Our law has not changed that you cannot put something on nothing and expect it to stand No, it will fall. I hope I will find time to write on the non-existent status of what is called, Nigerian Content Development and Monitoring Board soon, at least to demonstrate that it is only the repealing of the NOGDIC Actthat will save the situation notwithstanding the campaign for its retention.
10.2 If I may ask, what amendment could cure the non – existent Nigerian Content Development and Monitoring Board (NCDMB) that O.M. Atoyebi SAN is seeking for its retention? Let me refresh my memory of the law with the aid of the legal maxim in Latin to wit, “Lex Non Cogit ad impossibilia”, yes, the law does not command a man to do what is impossible. On that footing, you cannot by amendment give a retroactive effect to the existence of a legal personality that was not existing at the time a legal personality had not been conferred on that object. I will say no more on this issue for now since I hope to write on why the NOGICD Act must be repealed if Nigeria is serious to develop her local content in the oil and gas and other sectors.
10.3 Again, it should be noted that the NOGICDAct is couched in a way that it is difficult to operate the Act without its violation. Stricto sensu, the statutory focus of that Act as could be gleaned from Section 70 of the Act is that the Nigerian Content Monitoring Board shall implement the provisions of the Act and supervise, coordinate, administer and manage the development of Nigerian content in the Nigerian oil and gas industry. But the question is, which statutory body is administering the said NOGICD Act? Another question, which statutory body is presently managing the Nigerian Content Development Fund as against the provision of section 104 (3) of the NOGICD Act? What legal magic is to be done to cure these illegalities without repealing the Act? I am compelled to repeat the evergreen and fixed policy of the law that you cannot put something on nothing and expect it to stand. The NOGICD Act is not only born crippled and epileptic but has no hope to substantially help this country to achieve a rapid development of local content even in the oil and gas sector of the economy notwithstanding the borrowed robes put on its achievements by those mid-wiving it. No matter however good the intention of the framers of that law may be, that law failed ab initio.
10.4 I am sorry to say, Nigeria as a Country needs to watch its back when persons previously exposed to the protection of multinationals’ interest seek and campaign for the retention of the NOGDIC Act that is irreconcilably self – contradictory, vague and gave wide and unfruitful discretionary powers to operators. The Bill seeking to amend the NOGDIC Act that is currently before the National Assembly makes matters even worst for the NOGICD Act if the said Bill for the amendment is passed and the President assents to it. I think the Nigerian Bar Association should raise a team of very independent-minded persons to examine the provisions of the NOGDIC Act and the Nigerian Local Content Development and EnforcementCommission Bill 2020 and advise the Nigerian nation what is best for the Country. There is no need for playing a Nero when Rome is burning.
11.1 I have tried to fairly x-ray the views of the so called misconstruction that O.M. Atoyebi SAN postulated in his subject article and found that the word, “shortsighted” he employed to described the Nigerian Local Content Development and Enforcement Commission Bill 2020 is not only inappropriate but without justificationin the surrounding circumstances. The proper word he ought to have used is insightful. Thus, I took it as an obligation to demonstrate how positively insightful the bill is. I have also prima facie showed that the NOGICD Act is an Act seeking for its own repeal despite the campaigns with artificial coloursmade around itto justify its retention. The NOGICD Actif left as it is will continue to deprive the Country of the maximum benefit of local content in the oil and gas sector of the Nigerian economy. The present fear of those enjoying the inadequacy of the NOGICD Act is that if the Local Content Law is made to work as it ought to, they will lose their grips as a higher authority like the Vice President with key ministers and other very top governmental officials will now collectively oversee how local content laws are being implemented in Nigeria. The fear of losing a “colony” is fundamentally the reason for the campaign for the retention of the Act. That is understandable butit should be stated that there should be no sector in the Nigerian economy that should operate like an “autonomous community”, “a Kingdom in a Kingdom”, an “ emirate in an emirate.” That is a sign of an unacceptable confusion and no Country should tolerate that.
11.2 There should be linkages or a symbiotic interactions or relationships among the critical sectors to impel Nigerians to make their economy productive and self –sustaining through their own active and progressive participation. The present move by some multinationals to destroy the Nigerian Local Content Development and Enforcement Commission 2020 Bill is one move that all patriotic Nigerians should come together to resist.
11.3 The Nigerian Local Content Development and Enforcement Commission 2020 Bill is designed to foster a symbiotic relationship among the critical sectors of the economy so as to have a holistic and positive drive for a sustainable local content development in the Nigerian economy and bring to bear the numerous benefits that proper local content development brings to a nation, not artificial achievements that make a very few smile to the Bank and turn them to be campaigners for the retention of a law that is largely ineffective.That is self -deceit and that could only take place in a Country where its patriotic citizens are not on alert. I think, we are on alert. Those who think petroleum shall continue to be the mainstay of the Nigerian economy and without petroleum, there shall be no Nigerianeed to have a second thought. Japan has no petroleum but that Country’s indigenous participation in the productive activities in the Country’s economy is a very proud and Resounding achievement.We need to learn from good experiences of others.