ABSTRACT
Most countries have conferred the power/ownership of their resources on their
government, not allowing individuals to lay claim to them. This has been beneficial for
international business purposes, especially in the petroleum sector and has ensured stable
revenue which is then distributed amongst the individual states in the country; while
some countries like the USA recognize both state and individual ownership. Associated
with exploration and exploitation activities of most natural resources is environmental
degradation, which puts the environment in a non-usable position. There is therefore a
need to reduce the effect of these activities. With increasing Environmental damage from
the international oil companies, which has not been properly addressed by the
government in countries like Nigeria, individuals have began to opt for control of their
resources rather than leaving them in the control of the government. This paper aims at
analyzing the effect of resource ownership by the government of a state, using Nigeria as
a case study and whether the Shairah rules as established in the four juristic schools of
Islamic taught can avail Nigeria from the problem of resource control agitation by the
people.CHAPTER ONE
1.0.0. INTRODUCTION
Minerals are natural chemical substances, which makeup rocks of the earth’s crust. They
have certain physical and chemical properties that differentiate them from one another.
There are well over 200 known minerals scattered throughout the earth, together they
make up a very important branch of economic geography, the mining industry.1
Ownership of mineral resources is therefore classified into three regimes, the state
ownership, private ownership and communal ownership. The state ownership appears to
be dominant and universal phenomenon in mineral development with most countries
vesting minerals in the state. Under the state ownership regime, ownership and control
over use rest with the state and nothing can be done without the agreement of the state.
Ownership and control can be exercised either directly or through government agencies
established to carry out such purpose.2
The prevalence of private ownership is limited to few jurisdiction notable the united state
of America. While the community property regime is clouded with confusion and
1 Human geography pp268
2 Aminu Kabir: resource control and ownership under shariah chp 20
Contemporary issues in Islamic Jurisprudence, Rawel fortune resources
1st edition, April 2009
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misunderstanding and is virtually extinct, particularly in its applicability to the regime of
mineral ownership and development.3
Under Islamic law, minerals can be owned in three different ways. First, all minerals
belong to the state; secondly, the land owner or occupier of land owns the minerals found
on the land; and thirdly all minerals may be owned by one who finds them.
However, according to these notable Muslim jurists, though they differ on this
classification. In the view of the Hanafi School of law, minerals ownership follows land
ownership. The Shafii and Hambalis are of the view that subsoil and surface minerals are
not the subject of private ownership with some exceptions. In Maliki School they are of
the view that all kinds of mineral resources are owned by the state.4
1.1.0. BACKGROUND OF STUDY
Since the commencement of oil and gas operation in Nigeria, the issue of ownership and
control of the resources has been a sore point between the federal Government of Nigeria,
the oil producing state and the oil producing communities.
Different approaches have been adopted overtime to address the issue, but non appears to
have succeeded in solving the problem of agitation for resource control leading to sundry
3 Ibid
4 Ibid
17
deadlocks in erstwhile attempt to address the problem. Even though the law on
government ownership of mineral resources is not unique to Nigeria, the application of
this law in practice has been a source of controversy, this project tries to examine the
origins and content of this controversy, and by drawing on the Islamic law provision on
ownership of mineral resources with similar laws on ownership of resources in Nigeria,
although, Nigeria is a multi religious sovereign nation but the principal legal instrument
adopted for the stearing of affairs of the country recognizes the shariah justice
administration.4 this makes it imperative to research in this topic with a view to seeing
how the relevance of shariah provisions on ownership and control of mineral resources
applies and can be adopted towards solving this age-long crises. The outcome of this
research provides insight into how the issue has been dealt with, and whether the shariah
rule can be applies to the issue of resources control in Nigeria.
1.2.0. OBJECTIVE OF STUDY
This long essay is aimed at examining the origin, concept and scope of mineral resources
in Nigeria in trying to do this it aim to;
1. Identify the problem of agitation of resource control between the federal
government, the oil producing state and the oil producing community.
2. To see the applicability of the existing laws under the Nigeria statute on the issue.
3. To examine the Shariah provisions on the ownership and control of mineral
resources
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4. To compare the Shariah provisions and Nigeria statute in relation to the resource
control and ownership.
5. Suggestion and recommendation shall be made at the end of the work to better
the application of the existing laws relating to the control and ownership of
mineral resources in Nigeria.
1.3.0. FOCUS OF STUDY
The focus of this project is on resources control and mineral ownership rules under the
shariah and Nigeria statute. This work will therefore focus on the nature and scope of the
laws regulating the ownership and control of mineral resources under the shariah and
Nigerian statute making Comparative analysis of both laws and bringing out the
similarity and dissimilarities between them.
1.4.0. SCOPE OF STUDY
The title of this long essay covers a wide areas of study and as such it shall be limited to
the ownership of subsoil minerals. it shall concentrate on the history, nature and its
managements bringing out the significance and the applicability of both laws in Nigeria.
1.5.0. METHODOLOGY
Majorly, for the purpose of this long essay library materials will be widely consulted.,
both primary and secondary sources of information shall be used.
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The primary sources of information shall include the Quran and sunnah of the prophet,
the Nigerian constitution and other enacted laws relating to mineral resources in Nigeria
such as oil and gas Act.
The secondary sources shall include text books written by scholars on the fied, journals
and articles on both legal system, and also the views of various Islamic schools of
thought shall be considered. Case law will be consulted where necessary and materials
from the internet will be of great help to this work in order to make the research easy and
a successful one.
1.6.0. LITERATURE REVIEW
The concept of mineral resources in which the topic of this project has been selected from
is a wide area of law which although different scholars have written on the field. Scope of
which shall be reviewed. In the work of CLEMENT IKPAH and N.H IBANGA5 both
writers discuss extensively on the problem of resource control in Nigeria. The writers
identified five major issues as bottleneck of problem of resource control in Nigeria. One
of it is Notorious Derivation principles which is said to have become aberrations that
continue to generate perpetual conflict between federal government and states. The issue
of non – diversification of the economy is identified as the second bottleneck. This is
5 Nigeria mineral resources: a case for resource control
Available at http://ww.nigerdeltacongress.com accessed on 20 /10 /2010.
20
explain to have been the ban against every government since crude oil was first stuck at
Oloibiri, Rivers State. The third issue as identified by the writer as cause of agitation for
resource control is the retrogressive and repugnant laws that gives the federal government
absolute rights over land and mineral resources in Nigeria. This include the land use Act
of 1978, the petroleum Act of1969, and the National Waterways Decree of 1997. He
further identifies what he called an overbearing federal government. The issues of general
ignorance concerning what minerals abound and what economic potentials such as
minerals have. At the end of the paper, the writer gave a suggestion that states should
control local resources whereby every states should control wholly or partially over a set
period of time. At the end, the writer suggest that Nigeria does not need any derivation
principles what is needed is the evolution of powers in a diversified economy such that
state can for a start have partial ownership and control of the resources.
MADAKI O. AMEH6 in his articles trace the origin of resource control agitation in
Nigeria to the independence of Nigeria in 1960 where the constitution in 1960 and 1963
made provision for distribution of 50% of the revenue accruing from the resources of
each region of the federation to that region.
6 Ownership and control of mineral resources: can the Brazilian model be used to douse resource
control agitation in nigeria oil producing state? Available at http://www.dundee.ac.uk accessed on
12/12/2010.
21
He went further to state the provision of the constitution which provide for payment of
not less than 13% of the revenue from such resources to the state in which the minerals
are found. This provision takes no account of other interests in the mineral, such as the
local government where the actual operation takes place this has been said to have led to
increasing problems in the oil and gas industry in Nigeria.
The writer further identified the concern of oil producing community that their interest
and that of the occupiers of the land have been relegated to the background, as the
controversy has been between the federal and the state governments. He went further
more, to identify the government measures to address the agitation. He identifies it as
what he called a mixed ‘carrot and stick’ approach to address the problem of resources
control agitation in the Niger Delta area. He said during the military era the approach was
more dragoman, as the agitators of resources control were rounded up and prosecuted, an
example being the execution of MR KEN SARO WIWA, the ogoni rights activist in
November 1995.
The writer tries to see whether the Brazilians method of mineral resources control can be
used in Nigeria to solve problem, in advocating this approach he identifies a number of
bottlenecks and challenged in the terrain in Nigeria which need to be highlighted and
addressed.1st the provision of the land use Act which rests title to lands in a state in the
governor of that state and reduces individuals on the land to the status of occupiers.
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2nd, the complex land tenure law system in most of the Niger Delta area where land is
owned by individual, families, and communities.
Finally, there is an urgent need to diversify the revenue base of Nigeria from its current
mono cultural state, to ensure that undue attention is not paid to oil and gas revenue
which increase the argument around how the revenue is to be distributed.
DR. F. E. ONAH.7 Suggest another method of controlling the problem of resource
control; he suggested a concurrent list of both the central and government. He suggested
Nigeria should borrow from the experience of the united state of America after which our
political system has been modeled. Mineral resources found in central government lands
are the exclusive property of the federal government of the U.S. The U.S government
surrenders only a certain percentage of the proceed to minerals mined from its land to the
state within which such lands are located. Whatever mineral resources that are found in
land, outside the central government territories belong to the respective state. This
arrangement serves the interest of the central and state government and resource the
squabbles over resources ownership and control. He suggested that to give effect to dua
ownership of land, the federal government should carve out parcels of land in each state
for various purposes similar to those listed in respect of the United State. State ownership
7 Promotion of economic activities through the development of solid minerals potentials in
the state.
Available at http://www.cenbank.org/out/publication accessed on 17/09/2010.
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and control of mineral resources within their territories would encourage increased
exploitation of minerals.
ABDUL AZEEZ MARUF OLAYEMI8 – in his article said mineral resources are a
subject of Zakat. The zakat of that substance is said to be 20% of its produce or the
substance itself. This was the practice of the prophet S.A.W down to caliphate period.
The substance is no more a private property. It is now a public property and public
property is not a subject of Zakat in the opinion of the jurists. In his paper he suggested
that, although mineral resources may not remain as a subject of zakat, yet the ratio of its
zakat can be adopted has the quantum of fair compensation to the dwellers of the land of
mineral resources. the people are lawfully entitled to the zakat and they are not satisfied
with the method of compensation. The satisfaction is a cause of conflict across the world.
It is however believed that adoption of the principle of zakat of mineral resources as
quantum of compensation will constitute an equitable and judicious method of
compensation to the people. He further argues that the harmonization of the shariah
doctrine of zakat of mineral resources to the positive law, as the quantum of
compensation on mineral resources will resolve the disputes and the conflicts on the
matter.
8 “fair compensation” to the dwellers of mineral land : whether zakat al-ma’adin
can form the quantum? accessed on 12/12/2010.available at http://paper.ssrn.com
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IBRAHIM, RIDWAN OLAGUNJU9 takes another step in identifying the problem of
mineral resources and antidote he stated by tracing the origin resource control to the 18th
and early 19th centuries, was understood as a struggle by indigenous people of the Niger
Delta to participate in trade and in the politics of self government in the region. He
further identify the Niger Delta struggle and the hindrance. One of the hindrances as
Identified as the Nigerian federalism, the dynamics of our peculiar branch of federalism
Nigeria. The worry of the people of Niger Delta is caused majorly by departure of
successive Nigerian governments from keeping in tune with the dictates of federalism.
The contention is that the control government in Nigeria is so powerful while the
federating states have become relegated and subordinated, on like the soviet federalism of
old, “mere administrative units of the central government”.
The second hindrance as identified by the author is the constitutional hindrance . Nigeria
is a country where written constitution is in vogue. Provision of any reigning constitution
is Supreme and shall have binding force on all authorities and persons throughout the
federation. The major concern of the agitations in the Niger Delta is to own and control
the mineral resources, especially oil, found in their land. Whereas, a careful reading of
9 Niger delta problem and the shariah antidote http://www.unilorin.edu.ng/ejournals. accessed on
12/12/2010
25
the constitution reviews that exclusive ownership, management and control of these
mineral resources have been vested in the government of the federation.10
At the end the writer, in attempting to solve the Niger Delta problem through shariah,
examine the principles of Islamic law guiding the rules of ownership and control of
mineral resources as it exist in the four juristic schools and suggest the view of Maliki
juristic school which vest the ownership and control of mineral resources in the
government of the state who in turn held same in trust for the people. He said this
principle is in line with the present practice in Nigeria.
In all the works of this scholars none of them have try to make a comparative analysis of
the principle of shariah in relation to ownership and control of mineral resources and the
Nigerian statute regulating the resource control, this i intend to do in these research.
1.7.0. DEFINATION OF TERMS
OWNERSHIP: Right of possession, the legal right of possessing something.
CONTROL: Ability or authority to manage or direct something.
SHARIAH: It is the divine law which regulates the affairs of mankind.
MA’ADIN: It denotes what is granted inside the earth among the minerals by the will of
Allah without any act of mankind.
10 Constitution of the federal republic of Nigeria 1999 section44, paragraph 3.
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KANZ: (ore) a naturally occurring mineral which constituted especially metals can be
profitably extracted.
MILKIYYAH: It is a relationship between a person and property established by law in
which he exercise exclusive control of the property in default of shariah restraint.
1.8.0. CONCLUSION
In conclusion, the chapter has introduced the concept of mineral resources by giving the
various definition of the concept. It gave background knowledge to the problem of
resource control in Nigeria, then the objective of the project was spelt out. Further state
the methods used in carrying out the research work. And finally the work of scholars in
the field is reviewed.