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University of Warwick institutional repository: http://go.warwick.ac.uk/wrap A Thesis Submitted for the Degree of PhD at the University of Warwick http://go.warwick.ac.uk/wrap/1992 This thesis is made available online and is protected by original copyright. Please scroll down to view the document itself. Please refer to the repository record for this item for information to help you to cite it. Our policy information is available from the repository home page. The Paradox of Underdevelopment amidst Oil in Nigeria: A Socio-Legal Explanation By Mamman Alhaji Lawan A Thesis Submitted in Partial Fulfilment of the Requirements for the Degree of Doctor of Philosophy (Ph.D.) in Law University of Warwick, School of Law December 2008 TABLE OF CONTENTS Acknowledgements v Declaration vii Abstract viii Table of Legislation ix Table of Cases xiii List of Tables and Figures xvi Introduction 1 Chapter 1: Development, Corruption and Rule of Law: Evolving A Conceptual Framework 7 1.1 Introduction 7 1.2 Development 7 i. Critique of Development 13 ii. A Paradigm Shift 18 1.3 Corruption 23 i. Conception of the Public 24 ii. Consequences of Corruption 27 iii. Causes of Corruption 30 iv. Where the Gap Lies 32 1.4 Rule of Law 36 i. Rule of Law as Means 37 ii. Max Weber and Liberal Legalism 43 iii. Departing from Liberal Legalism 48 1.5 Conclusion 51 Chapter 2: Underdevelopment Amidst Oil Wealth: Exploring the Paradox of Want in the Midst of Plenty 53 2.1 Introduction 53 2.2 Human Development Rank 53 2.3 Extent of Underdevelopment 54 i. Poverty Profile 54 ii. Education 57 ii iii. Health 60 2.4 Oil in Nigeria 64 i. Brief on the Oil Industry 65 ii. Crude Oil Production and Export 69 iii. The Gas Sub-Sector 71 iv. The Extent of Oil Wealth 72 v. Distribution of Oil Revenue 77 2.5 Conclusion 83 Chapter 3: Prioritising Development in State Policy 84 3.1 Introduction 84 3.2 Development as Human Right 85 3.3 Development in Development Policies 93 i. The Four National Development Plans 93 ii. Structural Adjustment Programme 106 iii. Vision 2010 108 iv. National Economic Empowerment and Development Strategy (NEEDS) 111 3.4 Law as an Aiding Instrument 115 3.5 Conclusion 124 Chapter 4: The Enemy Within: Corruption and its Impact on Development 126 4.1 Introduction 126 4.2 The Level of Corruption 126 4.3 Cases of Corruption 131 i. The Gowon Regime 132 ii. The Second Republic 136 iii. The Babangida Regime 142 iv. The Abacha Regime 146 v. Obasanjo Administration 149 vi. Yar’Adua Administration 155 4.4 Impact of Corruption on Development 157 4.5 Conclusion 164 iii Chapter 5: Rule of Law under the Nigerian Constitutions: An Analytical Overview 166 5.1 Introduction 166 5.2 An Overview of Nigerian Law 167 5.3 The Rule of Law Principles 172 i. Supremacy of the Law 172 ii. Equality before the Law 176 iii. Trusts over Public Funds 181 iv. Code of Conduct 185 v. Restraint on Executive Power 187 A. Legislative Check 188 i. Control of Funds 188 ii. Impeachment 192 B. Judicial Check 197 5.4 Conclusion 201 Chapter 6: Absence of Rule of Law in Practice 202 6.1 Introduction 202 6.2 Rule of Law under the Military 202 i. Subordinating the Constitution 203 ii. Suspending the Legislature 207 iii. Muzzling the Judiciary 209 iv. Effects on the Rule of Law 215 v. Specific Cases 219 6.3 Rule of Law under Civilian Rule 224 i. The Judiciary vis-à-vis the Executive 225 ii. The Legislature vis-à-vis the Executive 236 6.4 Conclusion 254 Conclusions 256 Bibliography 269 iv ACKNOWLEDGEMENTS All praises are due to Allah Ta’ala who made it possible for me to accomplish this task. This achievement is evidence of His infinite mercies to mankind. It is also testimony that He bestows gifts to whosoever He wishes. His bounties are so enormous that mankind cannot thank Him enough. Words can hardly describe the debt of gratitude I owe my supervisor, Prof. Shaheen Sardar Ali, for her kind support since my LLM days. It is to her credit that I am able to finish this work in good time. I am grateful to her not only for the excellent supervision but also for involving me in teaching at the Warwick Law School and in the UKCLE Islamic Law Curriculum Development Project. To my second supervisor, Dr Andrew Williams, I owe debt of gratitude. He was very helpful during my upgrade process; he gave useful comments on various parts of the work and on the first draft thesis; and together with Dr George Meszaros, they gave me a feel of the viva in a mock viva. I thank Professors Upendra Baxi, Victor Tadros and Abdul Paliwala all of the Warwick Law School and Prof. Peter Fitzpatrick of Birkbeck Law School, University of London for their helpful suggestions at various stages of the work. It is the Petroleum Technology Development Fund (PTDF) which sponsored this programme. I am thankful to the organisation for finding me worthy of its coveted scholarship. I appreciate the help of its former Executive Secretaries, Alhaji Yusuf Hamisu and Alhaji Kabir Abdulfatah; former AGM Training, Isa Babale; my friend, Tanimu Ahmed; and Manager Training, Galadima Aminu. It would have been difficult for me to get the PTDF scholarship without the help of Dr Nasirdeen Usman. He fought tooth and nail for it despite his tight schedules as Dean of Law. I am grateful to him for the commendable efforts. I am grateful to my employer, Bayero University Kano (B.U.K.), for its initial part funding from the MacArthur Grant. The government of my State (Yobe) in 2005, through the Speaker House of Assembly, Tijjani Zannah, also gave me some assistance. I thank both of them. My parents deserve a special mention for their unreserved love and support during this programme and always. My wife, Aisha, and our children, Ruqayya, Ali and little Maryam shared with me the ‘pains and gains’ of the PhD life in England. Their company has been invaluable. My brothers and sisters, my paternal grandmother and relatives have not relented in wishing me well. To all of you I humbly say ‘Miyetti, Jaumirawo barkidin’. This work marks the ‘end’ of a long academic journey I started at my village school, Central Primary School Yusufari, in 1975. I therefore thank all those who contributed in one way or another to making this journey a success. They are too numerous to mention. But I cannot skip my teachers at the various stages of the journey; and my cousins, Alhaji Bello Umar, Musa Umar, Garba Umar and Ilu Bello for the special roles they played. v I must also acknowledge the role of my friends at home, Nigeria. My childhood friends in Yusufari; and those I met in the various schools I attended and in the course of my private legal practice have all been a source of motivation to me. I am grateful to all of them for being there. I must add that Umar Tela, Ali Kolere and Musa Hamza have been very supportive. Colleagues and students at the Faculty of Law B.U.K. have been quite encouraging and I thank them all. I appreciate that Dr Aminu Kabir gave me initial nudges from Dundee; Dr Nasiru Ahmad handled virtually all my applications as my Head of Department; and Usman Shu’aib and Ahmed Rabi’u accommodated my local requests. The life in England has not been solitary. I thank the following gentlemen and their respective families for the good neighbourhood they provided us: Dr Abdullahi Shehu in Coventry; Idris Amin in London; Dr Abba Kolo in Dundee; and many B.U.K. colleagues across the United Kingdom. Finally, I have enjoyed the solidarity of my PhD colleagues here at the Warwick Law School. I value your comments on the various parts of this work which I presented in the seminars. I cherish the tips of Dr Ngeyi Kanyongolo during my first year falters; the encouragement of Dr Ayesha Shahid; the ‘mentorship’ of Anna Puthuran; the readings from Monica Kirya and Michanne Haynes; the ‘consultancy’ from Sharifa Sekalala; and the last minute suggestions from Musa Abubakar. It has been a rewarding experience being with you. Mamman Lawan (Yusufari) December 2008 vi DECLARATION I hereby declare that this thesis is my original work. I also confirm that it has not been submitted either in part or in full for any Degree or Diploma to this or any other university. Mamman Lawan December 2008 vii ABSTRACT The trend in development discourse is to explain underdevelopment in terms of bad governance which lack of rule of law brings about. Development in this sense is understood as economic growth while rule of law is limited to an institutional version which is market-oriented. In this thesis, development is examined from a people-centred perspective. Abject poverty, dysfunctional educational and health systems sitting side by side with reasonably sufficient oil wealth is the problematic premise which the thesis seeks to explain. While acknowledging that it could be explained from a range of disciplines and perspectives, this thesis offers a socio-legal explanation in terms of public corruption spurred by absence of rule of law in practice. Corruption is high in Nigeria though national law has criminalised it and the country has ratified international law frowning at it. Among its myriad upshots is depleting resources for development. It is a dependant variable; and this thesis links it to absence of rule of law in practice.