The return of the Petroleum Industry Governance Bill 2018, harmonized by the Senate and House of Representatives, by President Muhammadu Buhari to the National Assembly on Wednesday coincided with a session on extractive sector (mining, oil and gas) legal framework that we were taken through in Accra, Ghana on the same day. Organised by the Natural Resources Governance Institute, participants were put through the essence of a well-thought out legal framework as the foundation for a transparent and dispute-free participation in the sector. For any legal instrument to be introduced in the sector there should be debates, public consultations, terms and concepts should be clear, and adequate, and they should sufficiently address the interests of all parties. Also, the goals and assumptions should be clear and not subject to multiple interpretations.
Therefore, when Senator Ita Enang confirmed reports that Buhari returned the PIGB because his powers in the emerging oil and gas sector were curtailed, the session on legal framework emerged clearly on my mind. Apparently, the president may be saying the consultations before the National Assembly passed the Bill were insufficient. The PIGB is significant in the Nigeria’s oil and gas sector because it is supposed to be a giant step forward in modernizing the country’s petroleum law. Motivated by what I’ve learnt newly, I took cursory look at the PIGB. From the perspective of linguistic interpretation, there are words whose frequency may have scared off Buhari. The following are five of such:
(1) The ‘Minister’ is mentioned 99 times
A simple word-count has revealed that the ‘minister’ of petroleum is mentioned 99 times in the bill and the letter of the bill tends to give him overwhelming powers. Perhaps, it is an attempt to make the ministry independent and shielded from influences from the executive as a regulatory agency. But there is an overkill in the way the National Assembly took steps to achieve that objective. In the following initial lines, there was no reference to the president:
The Minister shall
(a) be responsible for the determination, formulation and monitoring of Government policy for the petroleum industry;
(b) exercise general supervision over the affairs and operations of the petroleum industry subject to the provisions of this Act;
(c) advise the Government on all matters pertaining to the petroleum industry;
(d) promote the development of local content in the Nigerian petroleum industry;
(e) represent Nigeria at international organisations that are primarily concerned with the petroleum industry;
(f) negotiate and execute international petroleum treaties and agreements with other countries, international organizations and other similar bodies on behalf of the Government;
(g) do all such other things as are incidental to and necessary for the performance of the functions of the Minister under this Act.
From the above, anyone who becomes the minister seems takes over the country because oil and gas are the live-wire of Nigeria. It would have been smarter to rephrase some of the clauses even if it were to say, “The President shall appoint a Minister of Petroleum….” at the beginning of the bill.
(2) But the President is mentioned only 22 times
Compared to the minister, the president is mentioned only 22 times, so, the ‘minister’ is mentioned five times before the president appears once. Also, the ‘president’ is not mentioned until Page 10 of the 43-page bill. That gives the impression that the bill gives the minister more powers than it gives the president. Why? Actually, the president is mentioned copiously in relation to the appointment of members of the board of the agencies under the Ministry of Petroleum. So the impression is that the president appoints and fires members of the board, but there is a much more powerful office called the ‘minister’ who dominates the atmosphere in the industry.
(3) The quantitative adjective ‘all’ appears 91 times
Legal language is expected to demonstrate caution, sophistication, be explicit and categorical. But the number of times the quantitative adjective ‘all’ appeared in the bill can be scary. It appeared 91 times, and they tend to refer to the absolute powers given to the minister to carry out “all” functions. So which one is left for the man voted to occupy the high table? For instance, Section 3 of the bill says, “In the event of a state of national emergency as specified in the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Minister shall have the right of pre-emption of ALL petroleum and petroleum products obtained, marketed or otherwise dealt with under any license or lease granted under this Act or any other enactment.” So, in the event of an emergency, the minister assumes absolute powers over the sector?
(4) The quantities of ‘shall’ as against ‘may’
The frequency of the auxiliary verb ‘shall’ can, as well, be scary. It appeared 434 times in the bill, as against the use of ‘may’ in 162 places. For those who are sensitive to the use of language, this could be a serious matter, because ‘shall’ has more force of action than ‘may’. In effect, the environment in which ‘shall’ appears matters. It gives enormous force to whatever main verb it is helping to deliver a given action. A random pick at the use of ‘may’ says, in Sub-section 6 (d) that “In exercising its functions in subsection (5)(a) of this section, the Commission MAY in conjunction with the Federal Ministry of Environment establish a joint committee to facilitate collaboration.” The commission reports to the minister on vital issues, but in the aspect of collaboration, it ‘may’ (tentatively work in) conjunction with the environment ministry. Incidentally, most of the forceful ‘shall’ we find in the law relate to what the minister is empowered to do.
(5) Lexemes of force on parade:
Apparently there is a lot of military force on display in this bill, such that the minister turns to a demigod. Read sub-section 3 which says, “Any person, who fails or neglects to comply with a requisition made by or on behalf of the Minister under paragraphs 1, 2 or 7 of the First Schedule to this Act, or fails to conform or to obey a direction issued by the Minister under paragraph 8 of the First Schedule to this Act, commits an offence and is liable on conviction to forfeiture of the petroleum product and facilities subject of the offence and to imprisonment for a period not exceeding ten years.” Here, in their attempt to be elaborate, they framers of the law tend to scare everyone in the country. Words like ‘fails,’ (used two times) ‘neglects,’ ‘conform,’ ‘obey,’ ‘conviction,’ ‘forfeiture,’ ‘offence,’ ‘imprisonment.’… This singular clause has several words that boosts the minister’s energy. It’s an overkill, even if it is meant to demonstrate the ‘minister’s’ powers.
This is not to say President Buhari is right to have rejected this bill, especially considering the fact that Nigerians have been expecting it in order to solve ‘all the petroleum problems of Nigeria.’ There could be other considerations that the lawyers in his office may have detected when they read the bill with their legal eye glasses. However, I think there is the need for the National Assembly to always critically examine pieces of legislation before they are passed into law.