OrderPaperToday – It’s no longer news that the National Water Resources bill is back at the National Assembly, and like the last time it appeared at the parliament, a web of controversy has enveloped it.

Gaping lack of access…

Although much of the controversy around the bill is on constitutional implications, no one can deny the gap that exists in access to clean water for citizens. According to a report by Wateraid, a non-governmental organization that is focuses on water, sanitation and hygiene, over 157million Nigerians lack access to clean water. This makes it a tall task to achieve universal access to clean water by 2030 as set by the National Water Resources Policy and Water Resources Master Plan, approved by the Federal Executive Council on 23rd of July, 2014.

Challenges to availability…

State water corporations are responsible for distribution of portable water to customers, and like all state run utility companies in Nigeria, service delivery has been very poor. The Federal Capital Territory (FCT) water corporation, for instance, has not been able to expand water infrastructure to fast developing satellite towns. Several settlements such as Lugbe, Guzape, Lokogoma and others still rely on private boreholes and water vendors popularly known as mai ruwa for supply. Aside from this limitation, the federal government is still repaying back the $381.8million facility for the Greater Abuja water supply project to the Chinese Exim Bank, according to the Debt Management Office (DMO).

But there have been challenges on the part of the authorities too. For instance, the FCT Water Corporation has been struggling to effectively collect utility bills from customers. The corporation in 2018 on its official website announced a planned mass disconnection of customers due to non-payment of bills.

Speaking to a customer of the FCT water board in Gwagwalada, Tunde Yusuf, he blamed the corporation for the attitude of the consumers. He noted that the board is fond of compiling bills for up to three months instead of giving consumers monthly. “They are not bringing the bills monthly, like in the case of electricity distribution companies, sometimes, they will compile 3 months bills, and how am I supposed to pay that?”

The water bill…

Although one of the objectives of the controversial water bill is promotion of Public Private Partnership (PPP) in the development and management of water resources infrastructure, however, there are nagging constitutional obstacles that have been raised.

Those who support the bill claim it will provide the necessary environment for regulating the use of water and make access to water resources a right to everyone, while those on the opposite end argue that it is another attempt by the federal government to hijack more powers and deepen the already over-centralization of government. In 2017, former Chairman, House Committee on Water Resources, Ahmad Pategi, described the water resources bill as the “PIGB” of water resources that will provide the legal framework that will, in turn, provide the legal environment for investors to invest in the sector. This argument was persuasive enough for members of the 8th House to pass the bill perhaps. However, in the senate, the bill was engulfed in controversy and languished in the wilderness until that assembly adjourned sine die. A member of the 8th Senate, Senator Sam Anyanwu, summarised the fate of the bill as follows: “Nobody is talking of that bill again. We have moved on beyond that. It can never see the light of the day. It has died a natural death. In fact, it was dead on arrival.”

A chequered journey…

The water resources bill was introduced in the 8th Assembly as an executive bill. It was introduced to the Senate on the 3rd of November, 2017 and passed for second reading on the 22nd of November, 2017.

Similarly, the bill was introduced in the House on the 4th of May, 2017, and passed for second reading and third reading on the 6th of July and 19th of December respectively. Unlike in the Senate, the House actually passed the bill. The senate neither passed nor rejected the bill.

The same bill has now been reintroduced and allegedly passed by the 9th House. Sada Soli (APC, Katsina) reintroduced the bill on the 7th of July, 2020 and was passed in unclear and controversial circumstances on the 23rd of July, 2020. However, the twist and turns continued on Tuesday 29th of October, when the House ‘rescinded’ its decision on the bill following a motion on privilege raised by Ben Nzondo that the bill was passed on flawed procedure. The Speaker Femi Gbajabiamiala ruled that the bill should be re-gazetted in line with Order 12 rule 16 of the standing rules of the House.

Widespread opposition… 

A prominent figure that took a deadly aim at the bill is Nobel laurel, Prof Wole Soyinka, who berated the federal government for rushing through the bill and argued that the proposed law is an attempt by the government to consolidate more powers at the centre. “What next for the exclusive list? The rains? I declare myself in full agreement with virtually every pronouncement of alarm, outrage, opprobrium and repudiation that has been heaped upon this bill and its parentage, both at its first outing and since this recent re-emergence,” Soyinka stated in a statement.

Human right lawyer, Femi Falana, has also criticised both the intendment of the bill from the constitutional implication.

What is in the bill?

The bill has 139 clauses and is divided into 14 parts. It seeks to consolidate all the existing acts on water resources into one. These include: the Water Resources Act, the River Basin Development Authority Act, National Water Resources Institute Act, and the National Hydrological Services Act.

Clause two of the bill prohibits private use of water, stating that water resources belong to everyone and its use is subject to statutory control. Clause 2 (1) and (2) reads: “All surface water and underground water where it occurs is a resource common to all people, the use of such is subject to statutory control. There shall be no private ownership of water but the right to use water in accordance with the provision of this act.”

According to 2(3), the federal government is the custodian of all water resources affecting more than one state, which means water that crosses state and international boundaries belong to the federal government, including the bed and banks. It says: “The right to the use, management and control of all surface water and underground water affecting more than one state pursuant to item 64 on the exclusive legislative list in part 1 of the second schedule of the constitution of the federal republic of Nigeria, 1999 as amended, and as set out in the first schedule to this act, together with the bed and banks is vested in the government of the federation to be exercised in accordance with the provision of this act.” Item 64 on the exclusive legislative list states “water from such sources as may be declared by the National Assembly to be sources affecting more than one states.”

2(5) further stipulates that states can make provision for management of water within their boundaries: “State may make provisions for the management, use and control of sources occurring solely within the boundaries of the state, but shall be guided by the policies and principles of the federal government in relation to integrated water resources.”

Also the bill seeks to create the National Water Resources Regulatory Commission that will be in charge of regulating the sector, issuing licenses to developers and promoting development of the sector.

The bill does not affect private use of water resources. Section 3 of the bill makes it clear that citizens can get water for private use – household and subsistence farming. However, clause 121(3) provides that the commercial borehole owner must get a permit and it’s renewable every 5years. Private borehole owners do not need permits. Also, borehole drillers must get the water well driller’s licence before they can commence borehole drilling in Nigeria and failure to comply attracts N500, 000 fine or 1 year imprisonment. Human right activist and lawyer, Femi Falana, in an Op-ed criticised water well drillers licence requirement. He argued that the “the bill is illegal in so far as it seeks to take over water resources on landed properties without amending Section 315 of the constitution in accordance with Section 9 thereof. Contrary to the provisions of the proposed bill the federal government cannot authorise or licence persons who may want to sink boreholes outside the federal capital territory.”

Judicial intervention…

There is an existing legal pronouncement concerning dispute over water between the federal government and state governments. In the case of Lagos State Water Authority & Ors Vs The Incorporated Trustees of Association of Tourist Boat Operators & Water Transportation in Nigeria, the plaintiff had asked the court to determine whether the National Inland Waterways Authority (NIWA) or the Lagos waterways authority is the entity with the authority to license and regulate water transportation on Nigeria’s inland waterways.

The appeal court in its ruling on the 17th of July, 2017 relied on item 29, 36 and 64 of the exclusive legislative list in part one of the second schedule of the 1999 constitution and ruled that for waterway to be on the exclusive legislative list, it must “cut across international and state boundaries and be declared an international or interstate waterway by an act of the National Assembly.”

Endnote…

While the controversy and debate on the bill continues, the fact is that there are 157million Nigerians still without access to clean water. This should be more worrying.

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